FL county???s anti-nicotine hiring policy may be unconstitutional

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TALLAHASSEE ??? When Flagler County???s Board of Commissioners voted unanimously last month to ban job seekers who use tobacco ??? even outside of work ??? they may have bitten off more than they care to chew.

American Civil Liberties Union of Florida says Flagler County???s tobacco ban likely is unconstitutional.

???There???s certainly Fourth Amendment privacy problems with this policy,??? Baylor Johnson, the ACLU of Florida???s media relations manager, toldFlorida Watchdog in a phone interview.

The civil liberties organization successfully challenged an overly broad drug testing policy inDefuniak Springs earlier this year.

But testing for nicotine as a pre-condition of government employment could present an even clearer constitutional violation.

As Florida Watchdog reported last week, Flagler County???s zero-tolerance tobacco ban is much more than a smoke-free workplace policy.

As opposed to targeting smoking while on the job, beginning Oct. 1, would-be workers and new hires will face a much broader restriction that applies outside of work and even into one???s past.

New hires must sign an affidavit stating they have not used tobacco for at least a year prior to their employment date. And for the purposes of securing a job, ???tobacco??? means anything that would produce nicotine.

Refusal to take a nicotine test will have the same result as a failed test ??? no job.

A failed test will bar an applicant from being considered for a job with the county for one year. Testing positive for nicotine after employment could lead to immediate dismissal.

But the testing, the key piece of Flagler???s new policy, could constitute an illegal search.

???When you???ve got a situation like this where you are subjecting all of these people to searches based on no suspicion, it???s very troubling,??? Johnson said.

Not to mention, nicotine is legal.

???Most of the time when this is talked about it means that the government cannot search you without suspicion of a crime. But in this case, it???s about searching without even the suspicion that you might be engaging in illegal activity,??? Johnson said.

Joseph Mayer, Flagler County???s community services director, said the ???tobacco free workforce??? policy is aimed at reducing health care costs.

Other local governments such as the cities of Delray Beach, Atlantic Beach and Hollywood have similar bans.

But according to WFSU, the city of Hallandale Beach hasn???t realized any savings since enacting its tobacco ban in 1995.

The City of North Miami also had a similar anti-tobacco hiring policy but overturned it in 2003 because it led to a reduction in qualified applicants.

Florida Watchdog contacted the Florida Association of Counties to inquire whether other counties are considering similar policies, but was told the organization does not track that information.

Short of a local government rescinding its own tobacco-free workforce measure, such hiring bans can only be challenged by those who have been subjected to them.

???If there is someone in Flagler County who doesn???t feel they should have to submit their bodily fluids for approval by the Board of County Commissioners before they can begin employment there then they should contact us,??? said Johnson.

Mayer told Florida Watchdog that he was not aware of any legal challenges at this time.

Contact William Patrick at