TALLAHASSEE, Fla. — Despite disagreement over its legality, the Florida House on Friday passed a bill allowing all state agencies to randomly drug-test their employees.
The House bill (HB 1205) passed by a party-line vote of 79-37, with an identical version (SB 1359) cleared later that day by the Senate Budget Committee. Some Florida legal scholars already say the plan likely is unconstitutional.
Gov. Rick Scott said he supports the proposal. He tried to enforce random state employee drug testing through an executive order now being challenged in federal court.
State employees could be randomly tested every three months under the bills but the random sample can't be more than 10 percent of the agency's workforce. The measure also makes it easier to fire a worker after a first confirmed positive test. No extra money was budgeted for testing, however.
The state worker pool "should become the laboratory for the citizens of Florida," said bill sponsor Jimmie Smith, an Inverness Republican. "We can make a difference for the entire country. The word is on the street: Drugs are bad."
In debate, Democrats said testing without suspicion of a specific employee's drug use is unconstitutional as a wrongful "search" under the Fourth Amendment. Republicans countered that, at best, there have been "mixed results" in various courts.
For the plan to be constitutional, the state's interest in testing employees for drugs must outweigh the employees' right to privacy, said Joseph Little, a professor emeritus of constitutional law at the University of Florida's Levin College of Law.
"There has to be something special about the employment, though, like law enforcement officers or those with a security clearance," Little said. "But if there's no special need, you probably can't do it."
Rod Sullivan, a constitutional law professor at Florida Coastal School of Law in Jacksonville, agrees that the law is probably unconstitutional regarding random testing of employees who aren't in such "safety-sensitive" positions.
Sullivan also doesn't buy the idea of drug-testing "parity" with workers at private companies, as Rep. Fred Costello, an Ormond Beach Republican, had argued.
"Private sector employers have the right to require things of employees that the government cannot," Sullivan said.
The Constitution guarantees protection against government intrusion. In other words, "a private employer can make drug testing a job requirement; the state can't," Sullivan said.
But Costello said drug use is pervasive in society.
"We're protecting the taxpayers," he said. "I've heard words like 'forgiveness' and 'retribution.' Let's remember responsibility."
Rep. J.W. Grant, a Tampa Republican, argued that "consent is always a reason to uphold a search." It's not clear, however, whether employees would feel coerced to take drug tests, which courts usually find to invalidate searches.
"You pick on people you can bully around," Rep. Perry Thurston, a Democrat from Plantation, told Republicans who support the measure. "You're not brave (by) picking on welfare recipients and state workers." Smith last year sponsored a bill that mandated drug testing of welfare recipients.
Rep. Rich Glorioso, a Plant City Republican, countered: "You want to help a state worker? Make sure the guy working next to him is drug free."
The Senate Budget Committee voted 12-6 for its bill; it now goes to a floor vote. Republican Sen. Joe Negron of Stuart joined all Democrats on the committee in voting against the bill. All other Republicans voted for it.
Negron also offered an amendment that would have included legislators but withdrew it after being told existing law already allows the presiding officers of each chamber to set up a drug testing program by rule. Neither, though, has done so.
"We ought to be first in line," Negron said.