Constitutional Law: Is the Expectation of Privacy Under the Florida Constitution Broader in Scope Than It Is Under the Federal Constitution?

• NCJ Number: 170190
• Journal: Florida Law Review Volume: 47 Issue: 2 Dated: (April 1995) Pages: 287-310
• Author(s): J Beatty
• Date Published: 1995
• Length: 24 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

After the decision in City of North Miami v. Kurtz (Florida, 1995), it is apparent that the State constitutional right of privacy in Florida extends protection no greater in scope than the minimum Federal guarantee.

Abstract

Before 1980, the privacy interests of Floridians were only protected by the right of privacy under the U.S. Constitution, which is the minimum guarantee of privacy in all States. In 1980 Florida expressly guaranteed its citizens a right of privacy when Article I, Section 23 was added to the Florida Constitution. In Winfield v. Division of Pari-Mutuel Wagering (Florida, 1985), the court announced that the explicit right of privacy in the Florida Constitution is broader than the correlative implied right in the Federal Constitution. Under the Florida Constitution, the "Winfield" court explained, the expectation of privacy analysis is subjective. This analysis depends on the expectation of the specific individual asserting the right and not the expectation of a reasonable person. In "Winfield," however, the court did not make clear in its analysis whether it actually applied a subjective standard. In "Kurtz" the Florida Third District Court of Appeal, in a reversal, concluded that any expectation of privacy as to the disclosure of whether the individual smokes is not reasonable. In a separate order the court certified to the Florida Supreme Court the question of whether the City had violated respondent's right of privacy under the Florida Constitution. The Florida Supreme Court held that requiring job applicants to abstain from using tobacco for 1 year as a prerequisite to government employment does not violate the applicants' right of privacy under the Florida Constitution. After "Kurtz," it is apparent that the State constitutional right of privacy in Florida extends protection no greater in scope than the minimum Federal guarantee. Even if the Florida Constitution had contained no express right of privacy, the Florida Supreme Court could not have narrowed any further the scope of the privacy protection extended to Floridians. 90 footnotes