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[UPDATE] Florida Drug Testing Challenged By ACLU

By: Whitney Ray; Michael Peltier, The News Service of Florida Email
By: Whitney Ray; Michael Peltier, The News Service of Florida Email

[UPDATE] 6-2

Requiring job applicants to “pee in a cup” to test for drugs and randomly selecting current public employees to do the same is unconstitutional, attorneys for the American Civil Liberties Union said Wednesday after filing a federal lawsuit to stop the practice ordered by Gov. Rick Scott.

In what is expected to be a series of lawsuits on recently passed legislation and gubernatorial edicts, the ACLU called on a federal judge in Miami to immediately suspend an executive order signed by Scott in March that requires all agencies to set up random drug testing protocols for existing workers and require new hires to submit to drug tests as a condition of their employment.

In doing so, Scott has not only pushed the envelope over who can be tested, but has acted counter to multiple court rulings that require some probable cause or special circumstance before drug tests can be administered, Peter Walsh, an attorney representing the ACLU, told reporters Wednesday.

“This is a case in which the office of the governor has ripped the envelope apart,” said Walsh.

A spokeswoman for Gov. Rick Scott responded that Floridians overwhelmingly support drug testing for state workers. She said the governor, who has required testing for new hires since he took office, is confident the executive order will withstand court scrutiny.

“There’s an odd hypocrisy here,” said spokeswoman Amy Graham. “The ACLU supports all kinds of mandatory disclosures by public employees, but not the most important disclosure - whether or not they’re fit to be in the workforce.”

Scott signed the executive order March 22, giving agencies 60 days to begin testing new hires, an increasingly common practice in the private sector. Agencies must give existing employees another 60 days notice before beginning random tests.

“The taxpayers of Florida are entitled to expect that Florida’s public-sector employers be provided the same tools that are now available to private-sector employers to ensure their workforce is drug free,” the executive order reads.

The ACLU filed the case on behalf of the American Federation of State, County and Municipal Employees Council 79 which represents 50,000 public workers who are now subject to the new drug-testing regime and Richard Flamm, a 17-year state employee and Research Scientist with the Florida Fish and Wildlife Conservation Commission.

“It is an unnecessary and costly invasion of the basic privacy and dignity of all state workers to force us to submit to tests of our bodily fluids with absolutely no just cause,” Flamm said.
The suit contends previous federal court decisions have clearly ruled that that some type of suspicion or a genuine public need must the proven before drug tests can be required without cause.

“The Supreme Court of the United States has held that suspicion-less drug-testing by the government is an unreasonable search (in violation) of the Fourth Amendment, except under certain special circumstances, such as those involving employees in safety-sensitive positions where there is a concrete danger of real harm,” the lawsuit reads.

The complaint is expected to be followed in the weeks ahead by other lawsuits in an attempt to overturn “a tsunami of anti-civil liberties legislation” passed by lawmakers during Scott’s first few months in office dealing with abortion, elections, and free speech issues, said Howard Simon, executive director of the Florida ACLU.

Scott on Tuesday signed another drug testing measure into law. It requires applicants to pass drug tests before they collect temporary cash assistance. In addition, the Republican-led Legislature passed a handful of controversial measures dealing with elections, doctor-patient conversations and abortion, all of which may be targeted for legal challenges.

“This has to be stopped here,” Simon told reporters Wednesday. “There is a concerted attack on the personal freedoms of all Floridians.”

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Tallahassee, FL --

Rod Wenzel spent 17 years writing public policy and developing cost saving measures for the state.

He worked for two governors and won awards.

Then in June of 2003, while developing cost savings strategies for the Department of Juvenile Justice, Rod's number was called.

He was selected for a random drug test. He refused.

Rob Wenzel says, "We have the constitution of the United States to protect and I was protecting against an illegal search of my body and I was protecting against my privacy."

Rod refused two more times before he was fired. He sued and won.

Since Rod worked in the office and didn't deal with offenders or carry a gun he posed no real harm to the public. But Governor Rick Scott is ignoring the 2004 ruling.

He's ordered random tests for all state workers.

"It's good for the taxpayers of the state."

The ACLU is suing to block the tests. They say Scott's policy violates the 4th amendment. Rod says it's a waste of time and money to implement a policy already thrown out by the courts.

"He is doing a disservice to every citizen in this state and every citizen in America and that is sad."

It's up to a federal judge to decide if the random tests are constitutional.


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