[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.”


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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  • by right by law on Jul 12, 2011 at 06:56 AM
    Only in Florida can a mother get away with killing her baby, a husband can't take his brain-dead wife off life support, and a drug user can take 150000.00 from the state for refusing to take a drug test.
  • by right by law on Jun 29, 2011 at 06:56 AM
    "Upstanding" clearly has an overrated sense of self importance and is a real piece of work. Hey "upstanding" why don't you tell everyone who you REALLY are, your name will get mine.
  • by Upstanding on Jun 28, 2011 at 05:57 PM
    Once again, "(not) right by law" demonstrates his contradictory nature and his motivation to intrude upon the privacy of others. Only his disrespect for the personal privacy of others exceeds his ignorance of the U.S. Constitution and its guarantees.
  • by Public Employee 101 on Jun 28, 2011 at 10:06 AM
    Lawguy999 has it right. Rick Scott has backed off his drug testing plans. Great applause for the ACLU, Mr. Wenzel, and the public employees and their union who stood up most recently. We have too few defenders of liberty like them. America needs more citizens and organizations who want to ensure that our Constitutional rights are not slowly diminished. For shame that others do not understand what we give up in America if we do not stand against illegal searches, invasion of our privacy, and the right to be considered innocent. Ignorance extraordinaire belongs to those who do not understand why student athletes are drug tested to ensure against performance enhancing advantages or military personnel to ensure they are safe when carrying and using weaponry. Sour grapes to those who are intent on invading the privacy of others only because they overrate their self importance and have nothing better to do in their small, narrow lonely worlds.
  • by right by law on Jun 27, 2011 at 06:48 AM
    I have to laugh at the poster going by "Upstanding" who claims that I am "hiding" when in fact he is the same loony who has used at least 30 different screennames including "Pacesetter"
  • by Upstanding Location: Tallahassee on Jun 18, 2011 at 06:54 PM
    What a moronic and idiotic fruitcake gone sour "right by law" proves himself to be. How blatantly hypocritical of "right by law" to accuse Wenzel of hiding behind the Constitution when he cloaks himself in anonymity, apparently because he has something to hide himself. Wenzel took an oath with the state of Florida to uphold the United States Constitution, and he did just that. Many public employees in the state of Florida have appreciated the sacrifice he made. Those like "right by law" who point fingers are always the most egregious.
  • by right by law on Jun 10, 2011 at 05:24 AM
    After Wenzel hid behind the fourth amendment he admitted in a deposition that he had a history of illegal drug use. Wenzel used the Constitution and the ACLU to keep the truth of his ILLEGAL behavior from coming to light. The fact that if you have nothing to hide then you take a drug test...EVERY student athlete has to pee in a cup if they want to play a collegiate sport. Private companies too many to count, require you to take a drug test if you want a job there. The military requires you to take drug tests. Taxpayers are the employers of government workers, and we as taxpayers should have a drug-free work force.
  • by lawguy999 Location: Tallahassee FL on Jun 7, 2011 at 07:38 PM
    What it says about Wenzel is that he knows his rights under the Constitution and what is allowed by the Florida statutes. This is the United States, and in the United States, -no one- is required to prove their innocence. Random, or suspicion-less searches of any type are a direct affront to that principle. Furthermore, the government can't break its own laws, which is exactly what Rick Scott's executive order is attempting to do. I wouldn't participate in a random drug test any more that I would allow someone to check inside my gun locker or go through my bookshelf to see what I've been reading. If you've got reason to believe I'm doing something wrong, then get a warrant. Otherwise, I'm not giving up anything. If someone doesn't like that, too bad for them because I've got the Bill of Rights to back me up. BTW: My personal opinion is that only a criminal would plead the Fifth during testimony, but I'm intelligent enough put my personal feelings aside and accept the principle that no one should be forced to testify against themselves, regardless of what they've done. Of course, Rick Scott knows all about that Fifth Amendment stuff!
  • by right by law on Jun 7, 2011 at 03:22 PM
    Only a Drug user would refuse to take a drug test...Rod Wenzel refused to take a drug test...What does that say about Rod Wenzel?
  • by lawguy999 Location: Tallahassee FL on Jun 3, 2011 at 05:53 PM
    To repeat what Anon2 said: Everyone is missing the point. The ACLU says Rick Scott's drug testing order is unconstitutional, some people talk about the fact that private employers perform drug testing, and others like to remind us that the drugs are illegal. However, none of those arguments have any bearing on this issue. The bottom line is that the drug testing being proposed in Rick Scott's executive order is ILLEGAL under Florida law and a governor's order cannot override the law (in fact, the Florida Constitution specifically requires the governor to faithfully -follow- the law). If you don't like the law and want it to be changed, contact your local legislator and tell them. Until that happens, you're just gonna to have to live with it. BTW: Drug testing by private employers has limits, too. If you work for a private firm and are unhappy with their drug testing policy, you might want to talk to a qualified labor lawyer. You could have a case...
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