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- 2013 - February - 27th -

State loses another round on welfare drug tests

by Jim Saunders, The News Service of Florida

A federal appeals court Tuesday refused to lift an injunction against a 2011 Florida law that would require drug tests for people seeking public-assistance benefits, spurring Gov. Rick Scott to vow an appeal to the U.S. Supreme Court.

The 11th U.S. Circuit Court of Appeals in Atlanta said the state had not shown a "special need" for drug testing applicants for the program known as Temporary Assistance for Needy Families, referred to as TANF. It upheld a preliminary injunction issued in 2011 by U.S. District Judge Mary Scriven.

"As the district court found, the state failed to offer any factual support or to present any empirical evidence of a 'concrete danger' of illegal drug use within Florida's TANF population,'' the 38-page opinion said.

"The evidence in this record does not suggest that the population of TANF recipients engages in illegal drug use or that they misappropriate government funds for drugs at the expense of their own and their children's basic subsistence. The state has presented no evidence that simply because an applicant for TANF benefits is having financial problems, he is also drug addicted or prone to fraudulent and neglectful behavior," it said.

Scott quickly issued a statement calling the appeals-court ruling "disturbing" and said it would be appealed to the U.S. Supreme Court.

"Welfare is 100 percent about helping children,'' said Scott, who along with the Republican-controlled Legislature, approved the law.

"Welfare is taxpayer money to help people looking for jobs who have children. Drug use by anyone with children looking for a job is totally destructive. This is fundamentally about protecting the well-being of Florida families," he said."

While the appeal focused on the preliminary injunction, the three-judge panel Tuesday backed Scriven's view that opponents of the drug-testing ban were likely to prevail in the overall case. Opponents contended that the drug-testing requirement violated the U.S. Constitution's Fourth Amendment's ban on unreasonable searches.

The named plaintiff in the case, Navy veteran Luis Lebron, applied for benefits in 2011 as a college student and single father.

Lebron, an Orlando resident who has been represented by attorneys from the American Civil Liberties Union and the Florida Justice Institute, met the program's requirements but refused to comply with a drug test.

"The court's decision clearly states that the Fourth Amendment's protection against being subjected to these kinds of invasive searches protects us all, including those of us who are struggling to make ends meet in this tough economy,'' said Maria Kayanan, an ACLU of Florida attorney and lead counsel in the case.

"The state of Florida can't treat an entire segment of our community like suspected criminals simply because they are poor and are trying to get temporary assistance from the government to support their families," she said.

In a brief filed early last year, the Scott administration said the program is designed to improve family stability and help beneficiaries attain jobs.

"Drugs are antithetical to both goals, and thus drug testing furthers the program's purposes,'' the brief said. "TANF applicants, who must disclose a broad range of private information in order to participate in the program, have a substantially diminished expectation of privacy. Moreover, drug testing is commonly required in today's society — particularly in the very job market that TANF prepares participants to enter."

Also, while the law would require applicants to pass drug tests before they could receive benefits, the state contended that people who don't want to comply with the program's requirements are "free to walk away."

But Tuesday's appeals-court opinion, written by former Florida Supreme Court Justice Rosemary Barkett, said the state failed to show a "special need for its mandatory, suspicion-less drug testing of TANF applicants."

"The simple fact of seeking public assistance does not deprive a TANF applicant of the same constitutional protection from unreasonable searches that all other citizens enjoy,'' wrote Barkett, who was joined in the unanimous opinion by judges Adalberto Jordan and Randal Hall.

The ruling came less than a month before the appeals court is scheduled to hear arguments in a separate attempt by Scott to require drug testing of state employees. A district court also has ruled against Scott on that controversial plan, and the appeal will be heard March 22 in Miami.

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