A smoker submitted an employment application for a clerk-typist position with the city, which had a policy requiring that applicants have not smoked off the job for at least one year. Kurtz filed a complaint seeking to enjoin enforcement of the regulation and asking for a declaratory judgment finding the regulation unconstitutional. The district court found that the regulation did not violate any provision of either the Florida or U.S. Constitutions. The Florida Court of Appeal, Third District, reversed, ruling that Kurtz’ privacy interest, as guaranteed by the Florida Constitution, was not outweighed by the interests of the city in adopting the policy. See “Smokers Have Privacy Rights,” St. Petersburg Times, October 19, 1993, 8A; and Kilpatrick, J., “The Right to Smoke — In Privacy of Home,” The Record (Bergen County, NJ), March 17, 1994, C11.
On April 20, 1995, by a vote of 5 to 2, the Florida Supreme Court, at 653 So.2d 1025, 10 IER Cases 865, 10.3 TPLR 2.73 (1995), reversed the Court of Appeal’s decision and dismissed Kurtz’ suit. The Florida Supreme Court ruled that government employers can refuse to hire smokers and that smokers have “no legitimate expectation of privacy” regarding their smoking. The court further ruled that there “is no state or federal constitutional ‘right to smoke.'” See Morgan, L., “Govt. Can Deny Smokers Jobs,” St. Petersburg Times, April 21, 1995, 1B; Cauvin, H., “State Supreme Court: City Can Refuse to Hire Smokers,” Miami Herald, April 21, 1995, 1B; Gibson, L., “Fla. High Court OKs Smoke Ban,” National Law Journal, May 8, 1995, A6; Kilpatrick, J., “Privacy In Florida: Up in Smoke?” Miami Herald, June 1, 1995, 15A; and Dyckman, M., “Smolder About Ruling,” St. Petersburg Times, June 8, 1995, 17A. On July 5, 1995, the Florida Supreme Court declined without comment to rehear its ruling.
Kurtz appealed to the U.S. Supreme Court. On January 8, 1996, the U.S. Supreme Court declined to hear Kurtz’ appeal. See Greenhouse, L., “Justices Allow Limits on Indecent Radio and TV,” New York Times, January 9, 1996, 25; “Smokers’ Rights Claim vs. N. Miami Shunned,” Miami Herald, January 9, 1996, 7A; “Smoker Job Ban Upheld,” Financial Times, January 9, 1996, 5; Yanez, L., and Bell, M., “A Smoker? Don’t Seek City, County or State Job,” Sun-Sentinel (Fort Lauderdale, FL) January 9, 1996, 3A; “Employers Right to Forbid Smoking,” Sun-Sentinel (Fort Lauderdale, FL), January 10, 1996, 22A; Szobonya, R., “City of North Miami v. Kurtz: Is Sacrificing Employee Rights the Cost of Health Care Reform?” 27 Univ. of Toledo Law Rev. 545-573, Winter 1996; and Stewart, D., “City of North Miami v. Kurtz: Is It Curtains for Privacy in Florida?” 20 Nova Law Rev. 1393. Spring 1996.
625 So.2d 899, 8.4 TPLR 2.357, 1993 Fla. App. LEXIS 10307, 18 Fla. Law W.D. 2210, No. 92-2038 (Fla.App.3 Dist. 1993).
