City of Palm Coast: If you’re fat you could be fired!
Remember when Dr. Phil came out with his weight loss program? Something about a fat man telling your to lose weight seems a tad insincere.
Government employees in Flagler County and Palm Coast have grown fat along with the boat of government. More simply, they live high on the hog. Unlike the rest of the private sector, government employees have enjoyed a particularly wonderful financial crisis. They have gotten raises each and every year and bonuses while the county and Palm Coast suffered record foreclosures and bankruptcies.
What do government employees get bonuses for? For being more competitive or saving taxpayers more money? Who are they competing with, taxpayers? They have no competitors; they are a monopoly. They never save money. All they know is spend and bloat.
In fact the Palm Coast Government bloat, the massive landscaping overhead just grows along with the bond issues to fund this bankrupt future Detroit. But the Government employees with their lavish perks and guaranteed tax supported pensions have enjoyed the last five years and prospered to the point of giddy laughter. The private sector hardship has meant nothing to them but opportunity to take advantage.
You would be shocked at how many government employees now have oceanfront and waterfront properties. In some cases you see rows of Flagler Police cars, apparently personal vehicles, parked day and night at the oceanfront estates.
Government employees are a royal lot, bleeding the taxpayers with no end in site. Look at your Palm Coast Utilities bill, the most expensive water in Florida and going higher up 25% this year alone. The Council never met a rate increase that it didn’t pass or a salary increase for themselves that didn’t slither through in the dark of night. At the helm of this socialist nightmare is a large man, Mayor Netts.
This high living has caught up to Palm Coast and Flagler County. Government bloat has spread fast to the waistline of the the high living government employees. Palm Coast and Flagler County employees are some of the fattest Government workers in America. Mayor Netts sets the tone and that “tone” is that he wants to rid Palm Coast Government of unhealthy employees. His discussions to date involve prohibiting employees from smoking even at home.
Smoking as we all know is not a healthy habit though it is perfectly legal but Mayor Netts is concerned with the impact smokers have on Palm Coast’s health insurance costs. Now that’s a first! Free spending fat man Mayor Netts never mentioned that fat people add even more costs to health insurance than smoking but that’s apples to elephants. In the world of control, you go for the low hanging fruit and tobacco is it. Mayor Bloomberg went for 16 ounce cola drinks as his low hanging fruit but a Judge struck it down calling it “arbitrary and capricious” and in violation of personal liberties.
“Fat Laws” of course will not apply to Mayor Nets because he is morbidly obese. Morbid Obesity is regarded as a disability under the American’s for Disability Act so Netts needs to be “accommodated.” He needs bigger chairs; perhaps a fork lift to carry his lunch platter but his employee status is not in jeopardy because he tips the scales into the region of “Too big to fire.” But if you are just somewhat fat then watch out, Netts could be handing chunky Palm Coast employees their walking papers.
How fat is TOO FAT TO BE FIRED? In the EEOC v. Watkins Motor Lines, it was concluded that Morbid Obesity was a physiological condition and therefore covered by the ADA. Alas, Mayor Netts is too fat to fire. But should he lose weight and become just fat, his own employment rules will not apply to him because he is elected and employment rules don’t apply to fat politicians. Bottom line he isn’t going anywhere so he can give a hardy super-sized laugh all the way to the bank to cash his super-sized paycheck.
The most recent fascination by Flagler County [Herein after Flogler County] and the Palm Coast Nazi Nanny inner circle is to ban government employees’ smoking not only in the workplace but at home. Personal liberty means nothing to the Nanny state. Nanny Netts knows best.
But but but … we have privacy at home you say. Wrong. The Florida Supreme Court Kurtz v. City of North Miami, 625 So.2d 899 (Fla. 3d DCA 1993) ruled that seeking employment with a government entity offered no privacy protection under Florida law and therefore asking questions about smoking habits by any employer was legitimate fare.
Arlene Kurtz was a smoker. She applied for a job with the City of North Miami. North Miami had a policy to not hire persons who had smoked one year prior to employment. This included off work hours smoking. The rational basis for this is that smoking would cost the City more in health insurance claims. Kurtz plead that this was a violation of her right to privacy under Florida Law and the US Constitution. More simply she claimed the right to smoke privately.
The privacy provisions in the US Constitution are enumerated which is a fancy way of saying limited to just a few subjects attached only to fundamental rights: Contraception, abortion, marriage, medical treatment refusal, procreation, porn, education, related persons living together.
YES PORN IS A FUNDAMENTAL RIGHT but smoking isn’t.
The trouble with the Arlene Kurtz case is that it was a silly case that relied only on the claim that Smoking in private was a protected right. This makes no sense for the simple reason that a smoker that finishes a cigarette still smells like smoke and that smoke smell reaches the air around them. All that means is that tobacco smell can’t be private because it is free to waft in the air. This is the same reasoning that allows drug sniffing dogs to sniff closed suitcases in an airport.
“Never forget that everything Hitler did in Germany was legal.”
Martin Luther King
The case that is yet to be brought is the case of discrimination. Can a government employer discriminate against smokers? The simple answer is that Floggler County and Palm Coast think they can. The problem here is that smoking is legal, so is drinking alcohol, 14 ounce sugar drinks [Recently prohibited in New York City before being declared unconstitutional]. The claims by Government are always the same, some speculative lip service about health risks. So what’s next on the hit list: cola, cheesecake, eggs, bacon, caffeine, beer, wine, skydiving, flying, surfing? None of these behaviors is against the law or intrinsically unhealthy.
In fact in a recent medical study heavy drinkers outlived non-drinkers. Even this wouldn’t matter because legislators can be total morons and engage in fantasy rational basis without any underlying supporting evidence. So they could ban drinking saying its bad for one’s health.
So long as they do not burden fundamental rights or single out suspect classifications, lawmakers are free to engage in “rational speculation unsupported by evidence.” Beach Communications, 508 U.S. at 315, 113 S.Ct. at 2102. [BEATIE v. CITY OF NEW YORK]
So exactly how dangerous is second hand smoke inside a building: A person who spends an hour in a smoke filled room gets the equivalent smoke of 0.004 cigarettes. Thus that same person would have to spend 4000 hours in that room to get the same effect as having smoked one cigarette. So if you worked in an office building where everyone but you smoked, your annual intake of smoke would be equal to smoking 2.4 cigarettes a year. This risk is nil. And as far as the scientific studies go, the risk of second hand smoke outdoors, simply doesn’t exist. But who ever said that Flogler County was interested in scientific data or Netts for that matter. They can write and pass ordinances with no evidence whatsoever. Politicians as Ayn Rand said are the intellectual bottom rung. Flogler Country and Palm Coast are proof positive Rand was right.
A private employer may discriminate against most any behavior it wants since the Constitutional laws do not apply to private enterprise except in limited cases of racial discrimination and where the business has significant business with the State. The exceptions are narrow. Government employers especially Flogler County and Palm Coast, awash with federal funds, must abide the US Constitution where in it relates to due process.
A Government employer apparently can discriminate against anything that is not a fundamental right. There are of course exceptions written into the law such as the Federal and State laws governing Disabilities. So for example a government employer could not discriminate against a person who had lung cancer from smoking as long as they met the present non-smoking hiring requirements.
To get a law or ordinance declared unconstitutional one must prove that they have suffered one of the following legal deprivations”
1) Substantive Due Process under the 14th Amendment
2) Procedural due process
3) ex post facto
4) commer clause
5) Supremacy Clause
6) Priviliges and Immunites clause
7) Equal Protection violation
8) Contract clause
10) Bill of Attainder
I suspect the employment smoking prohibition is vague. Does smoking involve just cigarettes or does it involve cigarette products such as snuff and chewing tobacco? Does it involve smokeless electronic cigarettes or the mere act of putting an unlit cigar or cigarette in your mouth? How about nicotine gum? How about smoking marijuana with a doctor’s prescription?
What if an individual had Native American Indian heritage where smoking was related to tribal rituals as part and parcel of their religious practices or ceremonies. It seems to me that the Native American is an “at risk” suspect class minority and would have a very good case against Flogler County and Nanny Netts. The nutty rational basis would not apply and the state would lose. So if you are a Seminole Indian that smokes a peace pipe once in a while, gather up your legal team teach them some hard love.
The question isn’t whether Flogler or Nanny can foist oppression on the fertilizer knows at the citizen. Sure, they do it all the time. They both ride the irksome pathway into the lives of citizens under the insane banner of social control. So it is not a matter if they can cause this kind of disgruntlement but whether they should.
The answer to that question is the slippery slope argument. Where does this Government peeping stop? Well, in theory it doesn’t unless citizens toss out the bums. The right to vote is sadly wasted in Palm Coast but it is a powerful tool. The press too is a tool but the local Daytona Beach Journal and the local media support the Nanny Agenda of Flagler and Palm Coast. As a result the County and City is a wasteland. The chief employers in this desert are the County Government. The private sector doesn’t exist. It is nothing but a tax and feed Government system, a tax and feed Netts.
The only bright spot is that the Palm Cost Utility is so out of control that taxpayers may finally be ready to chop up Nett’s and Flagler County’s politicians into fish bait and start over. Unfortunately, they haven’t had much in the way of political choices. Any fiscally responsible party can’t get elected because the County employees always vote for the irresponsible candidate that promises more handouts and perks at the tax payers expense. County employees vote their own interests over the tax payers.
I don’t think you will see Mayor Netts who is sooooo very concerned with the lung health of Palm Coast employees to step up on a reinforced soapbox and declare that Palm Coast or Flogler County should fire fat employees under the Lard Ass Act. It could be based on body mass index. For it can be shown statistically that overweight persons are much more prone to cancer, heart disease, diabetes, and chronic illness than lean persons. So Mayor Netts could use his same arguments that he is espousing over smoking.
But in the world of “Too Big To Fail”, Mayor Netts tips the scale to the category of Morbid Obesity so he is protected under the Americans for Disability Act.
And where does this hunt for Nettsi perfection end? Should light skinned persons more prone to skin cancer be fired? Should meat eaters be fired, after all vegetarians live a few months longer than meat eaters statistically. That’s the slippery slope where one by one Nanny Netts rids the City of bad habits but of course none of it will apply to him or the esteemed body of clown suits that sit on the City Counsel, they are elected… not employees in the same sense.
Sooner or later you voters will learn that the rules of Government only apply to the citizen fertilizer not the Royal Socialist Apparatchiks politician parasites you SERVE!
So strap on the feed bag Mayor, that way the voters can’t see you laughing at them.
Finally, lets talk about the real world and not the Nanny Netts world or Flogler County.
A number of states and District of Columbia, have adopted “smoking’ rights” laws. These laws prohibit employers from discriminating against off-duty smokers with respect to hiring, discharge, compensation, benefits, and other terms and conditions of employment. South Carolina prohibits mandatory nicotine testing.
In the moronic Flogler scheme and the one talked about by Netts, Flogler has singled out nicotine testing as the means for big brother to keep tabs on smoking. But herein we have a problem. Nicotine gum is not a cigarette and is not smoking, yet it could produce blood levels of nicotine, a perfectly legal substance.
The new smokeless electronic “cigarettes” are not “smoking” in any health related way in that they do not impair the lungs or give off second hand smoke, and are not currently controlled by any federal or state laws. They deliver nicotine to the user but not the carcinogenic smoke. So Flogler and Netts are out to lunch… in more ways than one. There is no rational basis to the Flogler rules because they are vague and over reaching and the nicotine testing is the demonizing of a perfectly legal substance and perfectly legal activity.
I have not yet read the Flogler Code but it is always amusing. Palm Coast is even worse with its copy and paste Code. This story will be followed and weaknesses in the Code will be exploited. While drug testing may be legitimate fare for an employer, nicotine is not a drug and is not regulated by the FDA. So they are drawing your blood or urine and looking for legal substances; way to go Flogler County, have you lost your mind?
Drug testing for nicotine fails equal protection. It entraps many who may not smoke tobacco. It traps people who use nicotine gum, who use snuff, and who might use smokeless electronic cigarettes, none of which is prohibited behavior by the employer. Without actually catching somebody smoking at home with proper due process safeguards, this would fail procedural due process.