Florida/Georgia Personal Injury & Workers Compensation

...Honorable Amy Totenberg, United States District Judge for the Northern District of Georgia, sitting by designation.  Case: 14-10322 Date Filed: 12/03/2014 Page: 2 of 54 seeking Temporary Assistance for Needy Families (“TANF”) benefits. See Fla. Stat. § 414.0652....

...te against Lebron, the State halted the drug-testing program. See Lebron v. Sec’y, Fla. Dep’t of Children & Families (Lebron I), 710 F.3d 1202 (11th Cir. 2013). Since then, the district court granted final summary judgment to Lebron, declared § 414.0652 unconstitutional, and permanently enjoined its enforcement. We affirm....

...m sanctioning welfare recipients who test positive for use of controlled substances.” 21 U.S.C. § 862b. In 2011, Florida enacted a statute requiring suspicionless drug screening for all TANF applicants as a condition of eligibility. Fla. Stat. § 414.0652....

...dvise the agent administering the test of any prescription or over-the-counter medication he or she is taking.” Id. 4  Case: 14-10322 Date Filed: 12/03/2014 Page: 5 of 54 § 414.0652(2)(d)....

...Applicants bear the cost of testing, which during the period of the statute’s implementation generally ranged between $24 and $45. However, if an applicant tests negative for controlled substances, the Department increases the amount of TANF benefit to compensate for the testing expense. Id. § 414.0652(2)(a)....

...may arrange the timing of filing an application; after the State determines that the applicant has satisfied all non-drug testing eligibility factors (e.g., income, assets, etc.), the applicant must pass a drug test within ten days. Under § 414.0652, an individual who tests positive for controlled substances is ineligible for TANF benefits for one year, though those who fail drug tests may reapply for benefits after six months if they can document successful completion of a substance abuse treatment program and pass another drug test....

...ted “under the direct observation of an observer of the same gender as the donor.” Id. r. 59A-24.005(3)(c)(13). 5  Case: 14-10322 Date Filed: 12/03/2014 Page: 6 of 54 §§ 414.0652(1)(b), (2)(j)....

...A parent cannot receive benefits without passing a drug test, but the parent’s failure of a test does not affect a child’s eligibility to receive TANF benefits; instead, a protective payee would be designated to receive benefits for the child. Id. § 414.0652(3). The § 414.0652 drug-testing requirement went into effect on July 1, 2011, and was enforced until the district court entered a preliminary injunction on October 24, 2011....

...commenced this lawsuit in the United States District Court for the Middle District of Florida on September 6, 2011, against the Secretary of DCF in his official capacity. Lebron sought a declaration that requiring suspicionless drug testing for TANF eligibility under § 414.0652 violated the Fourth Amendment right to be free from unreasonable searches. Lebron also asked for a permanent injunction barring the enforcement of § 414.0652. Lebron filed a motion for a preliminary injunction with his complaint. On October 24, 2011, the district court preliminarily enjoined the State from requiring that Lebron submit to a suspicionless drug test pursuant to § 414.0652 as a condition for receiving TANF benefits until the case was resolved....

...Shortly thereafter, though, out of concern that Lebron’s individual claim might become moot during the litigation, the district court certified a class of Florida TANF applicants.3 In response to the preliminary injunction, DCF suspended the § 414.0652 TANF drug-testing program statewide, approved all applications that had been pending based on drug testing, approved benefits for individuals who had tested positive, and reimbursed TANF applicants for drug tests to the extent they had not already received reimbursement....

...to distribute Temporary Assistance for Needy Families (“TANF”) benefits, and who would, absent [the preliminary injunction], be subject to Defendant’s mandatory suspicionless drug testing as a result of Fla. Stat. § 414.0652. 8  Case: 14-10322 Date Filed: 12/03/2014 Page: 9 of 54 explained that, to qualify as a constitutionally reasonable search, § 414.0652 drug testing either must be based on individualized suspicion of wrongdoing, or must involve certain limited and exceptional circumstances, when the government shows substantial “special needs.” Id....

...the goals of TANF are not jeopardized by drug use -- rested on a presumption of an unlawful drug-use problem among Florida TANF recipients that the State had failed to support with concrete facts. Id. at 1212-13. The Court also rejected the State’s alternative claim that § 414.0652 drug testing was constitutionally permissible because TANF applicants gave their consent, citing “the Supreme Court’s long-standing admonition that the government ‘may not deny a benefit to a person on a basis that infringes his constitutionally protected interests.’” Id....

...envisioned in the promulgation of this statute.” Id. at 1298. Finally, the court rejected the state’s consent argument, finding that consent under the statute was not voluntarily given. Id. Ultimately, because there was no set of circumstances under which § 414.0652 could be applied constitutionally, the court declared the statute facially unconstitutional and permanently enjoined the State from enforcing it....

...undeveloped record and asked only whether the district court had abused its discretion in determining that Lebron was likely to succeed on the merits of his claim. See 710 F.3d at 1206. The Court was not asked, and did not decide, the ultimate constitutionality of § 414.0652....

...effects, against unreasonable searches and seizures, shall not be violated . . . .” 13  Case: 14-10322 Date Filed: 12/03/2014 Page: 14 of 54 U.S. Const. amend. IV. The drug testing by urinalysis required under § 414.0652 is undisputedly a Fourth Amendment search....

...As we detail below, the evidence in the summary judgment record does not empirically demonstrate a TANF population drug-use problem. 1. 26  Case: 14-10322 Date Filed: 12/03/2014 Page: 27 of 54 Well before § 414.0652 was enacted, the State’s own DCF, at the direction of the Florida legislature, conducted a study -- dubbed the Demonstration Project -- to test empirically whether TANF applicants were likely to abuse illegal drugs and whether that abuse affected employment opportunities....

...of 6,462). Notably, the researchers also found no evidence that TANF recipients who tested positive for illicit substances were any less likely to find work than those who tested negative. Data collected during the brief implementation of § 414.0652 suspicionless drug testing was altogether consistent with the Demonstration Project results. Preliminary numbers showed that only 2.67% of the TANF applicants who submitted to urinalyses under § 414.0652 tested positive for controlled substances - - 108 out of 4,046....

...Mack claimed no prior experience with or knowledge of drug use among Florida’s TANF population. He stated that he had not examined Lebron or any member of the putative class -- all past, present, or future TANF applicants who could be subject to § 414.0652....

... Case: 14-10322 Date Filed: 12/03/2014 Page: 40 of 54 public assistance did not specify whether those who reported were TANF recipients or, indeed, whether they reported an alcohol problem, which would not affect an applicant’s TANF eligibility under § 414.0652, as opposed to a drug problem....

...elevates the state’s concern from a general to a special interest. Moreover, even if the State could have established that an unusual rate of drug use among TANF applicants gave rise to a special need -- and this record supports no such determination -- the § 414.0652 drug-testing program is not well designed to identify or deter applicants whose drug use will affect employability, endanger children, or drain public funds....

...protect families, and conserve resources. But, above all else, we must enforce the Constitution and the limits it places on government. If we are to give meaning to the Fourth Amendment’s prohibition on blanket government searches, we must -- and we do -- hold that § 414.0652 crosses the constitutional line. AFFIRMED. 54 

...f 38 The Secretary of the Florida Department of Children and Families (“State”) appeals from the district court’s order enjoining the State of Florida from requiring Luis W. Lebron to submit to a suspicionless drug test pursuant to Section 414.0652 of the Florida Statutes, as a condition for receipt of government-provided monetary assistance for which he was otherwise qualified. Lebron is an honorably discharged veteran of the United States Navy, college student, s...

...Page: 3 of 38 newly-enacted, mandatory drug testing, which is a final condition of eligibility for TANF benefits in Florida. Florida’s mandatory drug-testing requirement for all TANF applicants was enacted in May 2011. See Fla. Stat. § 414.0652 (2011). Under the statute, when an individual applies, he is notified that he will be required to submit to and pay for drug testing as a condition of receiving TANF benefits. Id. § 414.0652(2)(a)....

...If the applicant submits to the drug testing and tests negative, the cost of the test will be reimbursed to the applicant through a one-time increase in his TANF benefits. Id. If the applicant tests positive for controlled substances, he is ineligible to receive TANF benefits for one year, id. § 414.0652(1)(b), but can reapply in six months if he completes a substance abuse treatment program and passes another drug test, both at his own expense, id. § 414.0652(1)(j)....

...Although an adult applicant who fails the drug test is ineligible for TANF benefits, the applicant’s dependent child may still receive TANF benefits so long as the adult designates an appropriate protective payee to receive the child’s benefits. Id. § 414.0652(3). However, the individual who wishes to serve as the protective payee must also submit to and pass mandatory drug testing to receive benefits for the child, even though he is not requesting any TANF benefits for himself. Id. § 414.0652(3)(c). In addition to the mandatory drug test, applicants are required to sign a release acknowledging their consent to be tested. Id. § 414.0652(2)(e)....

...recipients, the district court did not abuse its discretion in granting the preliminary 30  Case: 11-15258 Date Filed: 02/26/2013 Page: 31 of 38 injunction enjoining the State from enforcing § 414.0652, Fla....

...JORDAN, Circuit Judge, concurring. I concur in Judge Barkett’s opinion for the court, and write to emphasize certain points about this case. 1. We are not making any definitive legal pronouncements about the ultimate constitutionality of Fla. Stat. § 414.0652....

...Jeffers, 342 U.S. 48, 51 (1951) (“the burden is on those seeking the exemption [to the warrant requirement] to show the need for it”). This means that the state, and not Mr. Lebron, had the burden below with respect to the constitutionality of § 414.0652, for “the burdens at the preliminary injunction stage track the burdens at trial.” Gonzalez v....

...2), Motion for Class Certification (Dkt. 16) and Reply to Defendant's opposition to preliminary injunctive relief (Dkt. 22), along with the State's responses (Dkt. 19; Dkt. 16) in opposition to Plaintiff's motions. I. INTRODUCTION The question presented is whether Section 414.0652, Florida Statutes, which requires all applicants for a class of federal welfare benefits to submit to suspicionless drug testing, is constitutional under the Fourth and Fourteenth Amendments. Based on the evidence submitted by the parties on their written submissions and at a hearing on Plaintiff's Motion for Preliminary Injunction, the Court GRANTS Plaintiff's Motion for Preliminary Injunction against the enforcement of Section 414.0652 against him until this matter is fully adjudicated by the Court....

...2-1 at 1, 2.) Plaintiff has sole custody of his four-year old son and is an undergraduate student at the University of Central Florida with prior military service. Lebron Aff. ¶ 5 (Dkt. 2-1 at 1.) Though Plaintiff attests that he has never used illegal drugs, Section 414.0652 requires him to submit to drug testing as a condition of eligibility for *1276 TANF benefits....

...2-1 at 3.) DCF has stipulated that, as of the date of the initiation of this action, Plaintiff is eligible for TANF benefits, aside from his failure to provide proof that he has tested negative for controlled substances. Berner Aff. ¶ 10 (Dkt. 19-1 at 5; Dkt. 19 at 5.) Plaintiff contends that Section 414.0652 violates his Fourth Amendment right to be free from unreasonable searches, and he seeks a preliminary injunction on behalf of himself and a class of persons similarly situated to enjoin the State from enforcing this statute as a condition for receipt of TANF benefits....

...capacity or independence from social assistance; despite the fact that the study revealed no financial efficacy; despite the legal ramifications; and, despite the express recommendation that the project not be continued or expanded, Florida enacted Section 414.0652 on May 31, 2011. Section 414.0652 requires each individual who applies for TANF funding to take a drug test. FLA. STAT. § 414.0652(1). The applicant must initially bear the expense of the drug testing, which costs between $24 and $45. FLA. STAT. § 414.0652(1); Duchene Aff....

...ust take place at an "approved laboratory" authorized by DCF to administer drug testing. Berner Aff. ¶ 6 (Dkt. 19-1 at 3.) If the applicant tests negative, TANF funds will be used to reimburse the applicant for the cost of the drug test. FLA. STAT. § 414.0652(2)(a)....

...g prescription or over-the-counter medications and must legitimize their use. Although this requirement is presented as optional, if the applicant does not so disclose, the applicant may be denied benefits due to a positive screening. See FLA. STAT. § 414.0652(2)(d)-(j)....

...¶ 6 (Dkt. 19-2 at 3.) Any applicants who test positive for controlled substances and have no medically approved excuse for the positive result are immediately sanctioned; they are rendered ineligible to receive TANF benefits for one year. FLA. STAT. § 414.0652(1)(b). However, an applicant may reapply after 6 months and may receive benefits if the individual successfully completes a substance abuse treatment program and passes a drug test, the costs of which are to be borne by the applicant. FLA. STAT. § 414.0652(2)(j). If an adult tests positive for illicit drug use, children in the family may still receive benefits if another approved adult, referred to as a "protective payee," provides a negative drug test for controlled substances. FLA. STAT. § 414.0652(3)(b)-(c)....

...Preliminary Injunction Hearing at 10:58 A.M. (Drew Parker, attorney for DCF); see also FLA. STAT. § 39.202(2)(b)-(c). However, the Parent Needs Assistance referral does not trigger formal reports of child abuse or neglect, which are governed under Chapter 39, Florida Statutes. Section 414.0652 became effective July 1, 2011, and drug testing began in earnest during the month of July....

...unreasonable searches and that preliminary injunctive relief is required to avoid the irreparable harm that will befall him and others similarly situated without the issuance of an injunction. (Dkt. 2 at 1.) The State offers four rejoinders: (1) the Section 414.0652 requirement for acquiescence to a drug test is not a search within the meaning of the Fourth Amendment; (2) Section 414.0652 is justified by the "special needs" of the State to conduct drug testing within the ambit of its administration of TANF funds; (3) Plaintiff will suffer no irreparable harm in the absence of an injunction because he is free to refuse...

...The Court will address each of these considerations in turn. a. Likelihood of Success on the Merits The Court finds that Plaintiff has demonstrated that, on the current record, there is a substantial likelihood that his challenge to the constitutionality of Section 414.0652 under the Fourth Amendment will succeed....

...The aid then never begins or merely ceases, as the case may be. There is no entry of the home and there is no search." Wyman, 400 U.S. at 317-18, 91 S.Ct. 381. Defendant contends that the principles announced in Wyman control the outcome of this case and compel the conclusion that Section 414.0652 does not implicate a search....

...an in ordinary civil drug testing cases. See Ferguson, 532 U.S. at 78, 121 S.Ct. 1281. In light of the inherently investigative character of the drug test and binding legal authority, the Court rejects the argument that a drug test taken pursuant to Section 414.0652 is not a search within the meaning of the Fourth Amendment....

...t and by filing this action. Lebron Aff. ¶ 21 (Dkt. 2-1 at 3.) Under these facts, the Court finds that Plaintiff's initial consent does not bar the invocation of his rights under the Fourth Amendment to be free from suspicionless drug testing under Section 414.0652....

...The researchers also found no evidence that TANF recipients who screened and tested positive for the use of illicit substances were any less likely to find work than those who screened and tested negative. The Florida Legislature, in fact, enacted the Section 414.0652 over the express recommendation of its own researchers not to expand the Demonstration Project statewide because it was not shown to meet these goals....

...by the Florida Legislature to study the scope of the perceived problem of drug abuse among Florida's TANF applicants and the concomitant benefits of drug testing; and, (2) the preliminary results from the drug testing conducted thus far pursuant to Section 414.0652....

...19 at 21.) Rather, the evidence suggests that those risks are less prevalent among TANF applicants. The Court, therefore, rejects the suggestion that the inchoate public health or crime risks assertions incanted by the State justify the Fourth Amendment intrusions mandated by Section 414.0652....

...e manner as the school board in Earls. (Dkt. 19 at 20.) This contention is without merit. At the point at which the drug test is demanded, the State has not made a TANF contribution for the benefit of the children. Moreover, the children affected by Section 414.0652 remain in the custody of their caretakers, not the State, regardless of whether the caretaker tests positive for drugs and regardless of whether Florida withholds TANF benefits as a consequence....

...rights of the parents. Marchwinski v. Howard, 113 F.Supp.2d 1134, 1142 (E.D.Mich.2000) aff'd, 60 Fed. Appx. 601 (6th Cir.2003) (affirmed on rehearing by evenly divided en banc panel). [7] In light of this concern and in the absence of a showing that Section 414.0652 was promulgated in response to any concrete danger to the children of Florida's TANF recipients, the Court declines to extend the special need for drug testing public school students to the facts of this case....

...The State has not shown by competent evidence that any TANF funds would be saved by instituting a drug testing program. The State, of course, concedes the substantial cost of administering the program: everyone who tests negative must be reimbursed for the cost of the drug test. FLA. STAT. § 414.0652(2)(a)....

...Even as to those 2 percent of applicants who are known drug users, "annualized savings" calculations inflate the claimed savings because those applicants do not have to forego an entire year of TANF assistance but may reapply after 6 months. FLA. STAT. § 414.0652(2)(j)....

...lt family member who provides a negative drug test to receive the same funds that are purported to be saved. See PROFESSIONAL STAFF OF THE BUDGET COMMITTEE, FLA. S.B. ANALYSIS AND FISCAL IMPACT STATEMENT, S.B. 556 (2011) (Dkt. 22-5 at 6); FLA. STAT. § 414.0652(3)(b). Therefore, on this record, the State has not demonstrated any financial benefit or net savings will accrue as a result of the passage of Section 414.0652....

...Through this effort, Florida gathered evidence on the scope of this *1292 problem and the efficacy of the proposed solution. The results debunked the assumptions of the State, and likely many laypersons, regarding TANF applicants and drug use. The State nevertheless enacted Section 414.0652, without any concrete evidence of a special need to do so— at least not that has been proffered on this record....

...it upon the State. IV. CONCLUSION Based on the foregoing, Plaintiff's Motion for Preliminary Injunction is GRANTED. It is therefore ORDERED that the State is hereby ENJOINED from requiring Plaintiff to submit to a suspicionless drug test pursuant to Section 414.0652, Florida Statutes, as a condition for receipt of TANF benefits until this case is finally resolved on the merits....

...Upon consideration, Plaintiffs Renewed Motion for Class Certification is GRANTED. I. BACKGROUND Plaintiffs initial request for class certification was denied without prejudice as unnecessary based upon the State’s stipulation that it would not seek to enforce Section 414.0652, Florida Statutes, against others similarly situated to Plaintiff until the resolution of this action....

...rida’s program to distribute Temporary Assistance for Needy Families (“TANF”) benefits, and who would, absent this Court’s Order of October 24, 2011, be subject to Defendant’s mandatory suspi-cionless drug testing as a result of Fla. Stat. § 414.0652 ....

...(Dkt. 16 at 7-8.) Furthermore, by the State’s own admission, in “any one month in Florida, approximately 3,500 people first receive TANF cash benefits.” (Dkt. 19-1 at 2.) But for the entry of a preliminary injunction enjoining enforcement of Section 414.0652, every new applicant for TANF benefits would be subjected to a drug test as a prerequisite to the receipt of benefits....

...Nor does the inclusion of TANF applicants for whom the State claims it might have reasonable suspicion of drug use defeat certification. In the absence of injunctive relief, those applicants, like all other putative class members, would, nonetheless, be required to submit to suspicionless drug testing under Section 414.0652....

...Rule 23(a)(2) “demands only that there be ‘questions of law or fact common to the class.’” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1268 (11th Cir.2009) (quoting Fed.R.Civ.P. 23(a)(2)). All plaintiffs in the proposed class raise the same legal question: *668 whether Section 414.0652 is facially constitutional under the Fourth and Fourteenth Amendments....

...42 at 9.) To the contrary, those individuals would not be part of the proposed class because they would not, in the absence of this Court’s Order of October 24, 2011, “be subject to Defendant’s mandatory suspicion-less drug testing as a result of Fla. Stat. § 414.0652 .” (Dkt....

...38 at 6.) Additionally, the Court rejects the contention that inclusion of individuals who have consented or would consent to a drug test or for whom the State otherwise has reasonable suspicion of drug use defeats commonality. The class members are all subject to the allegedly unconstitutional condition imposed by Section 414.0652, regardless of the consent required by the TANF application and regardless of the purported existence of reasonable suspicion....

...s acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R.Civ.P. 23(b)(2). The State has attempted to enforce Section 414.0652, a statute that is generally applicable to all members of the class, as defined, such that the relief sought is appropriate to all members of the class....

...described herein. I. BACKGROUND 1. Procedural History On September 6, 2011, Plaintiff, on behalf of himself and a class of persons similarly situated, filed this action against Defendant. (Dkt. 1) In his complaint, Plaintiff seeks a declaration that Section 414.0652, Florida Statutes, which requires all applicants for Temporary Assistance to Needy Families (“TANF”) to submit to suspicionless drug testing, violates the Fourth Amendment’s right to be free from unreasonable searches....

...77 at 28) In July 2011, Plaintiff applied to the Florida Department of Children and Families (“DCF”) for benefits under the federal TANF program to support himself and his minor child. (Id. at 32) Though Plaintiff claims he has never used illegal drugs, and no evidence was offered to the contrary, Section 414.0652 required him to submit to drug testing as a condition of eligibility for TANF benefits....

...ugs. DCF determined that but for his failure to provide proof that he has tested negative for controlled substances, Plaintiff was eligible for TANF benefits. (Id. at 33) Plaintiff initially executed a form consenting to the drug testing required by Section 414.0652, but he later revoked that consent....

...§ 414.095 . For a family of two (a single parent with a minor child, like the Plaintiff and his son in this case), the maximum TANF cash benefit (known as Temporary Cash Assistance, or “TCA”) is currently $241.00 per month. (Dkt. 77 at 11). 4. Section 414.0652 The statute at issue in this case was enacted in May 2011. See Fla. Stat. § 414.0652 (2011). Pursuant to Section 414.0652, all applicants who are otherwise qualified for Temporary Cash Assistance under TANF are required to provide, to a DCF-approved laboratory, a sample of their urine to be tested for the following substances: Amphetamines, Methamphetam...

...Pursuant to the statute, DCF is required to “[ajdvise each individual to be tested, before the test is conducted, that he or she may, but is not required to, advise the agent administering the test of any prescription or over-the-counter medication he or she is taking.” Fla. Stat. § 414.0652 (2)(d). The statute makes the cost of the drug test the responsibility of the individual being tested, who is reimbursed only if that individual tests negative for controlled substances. Fla. Stat. §§ 414.0652 (1), (2)(a). The law does not apply to individuals not seeking TANF benefits but participating in the Supplemental Nutrition Assistance Program (“SNAP” or food stamps), Medicaid, or the Refugee Assistance Program. (Dkt. 77 at 14). Under Section 414.0652, DCF is required to “[pjrovide notice of drug testing to each individual at the time of application,” to “advise the individual that drug testing will be conducted as a condition for receiving TANF benefits,” and to “advise that the required drug testing may be avoided if the individual does not apply for TANF benefits.” Fla. Stat. § 414.0652 (2)(a)....

...However, *1286 in March of 2012, following this Court’s preliminary injunction, DCF implemented Fla. Admin. Code 65A-4.221, reversing the Hotline referral policy. (Dkt. 77 at 17) The administrative rule provides, in pertinent part, that “positive drug test results obtained by the Department pursuant to Section 414.0652, F.S., will not be reported to the Florida Abuse Hotline or to law enforcement entities or officers.” See Fla....

...If an individual tests positive, he or she is ineligible to receive TANF benefits for one year after the date of the positive test, except that the individual may reapply for those benefits after six months if the individual can document the successful completion of an approved substance abuse treatment program. Fla. Stat. §§ 414.0652 (l)(b), (2)(j)....

...ceive benefits on behalf of the child. Id. at (3)(a)-(b). That designated individual must also undergo drug testing before being approved to receive benefits on behalf of the child. Id. at (3)(c). 5. The Drug-Testing Program’s Brief Implementation Section 414.0652 was implemented from July 1, 2011, until October 24, 2011, when this Court entered the preliminary injunction....

...ion and proceed to trial. Herzog v. Castle Rock Entm’t, 193 F.3d 1241 , 1246 (11th Cir.1999) (quoting Clemons v. Dougherty County, Ga., 684 F.2d 1365, 1369 (11th Cir.1982)). III. DISCUSSION The legal question presented before this Court is whether Section 414.0652, Florida Statutes, which requires all applicants for TANF benefits to submit to suspicionless drug testing, is constitutional under the Fourth and Fourteenth Amendments....

...In the complaint, Plaintiff argues that “the law is facially unconstitutional,” and he seeks a declaration to that effect. (Dkt. 1 at 38) Likewise, in both Plaintiffs and the State’s motions for summary judgment, the Parties assert that the issue before the Court is the facial validity of Section 414.0652....

...e definitions for “substance abuse” and “substance misuse” as used by the offices preparing the charts include, for both terms, the use of alcohol. (Dkt. 80-8 at 37-38; Dkt. 80-10, pp. 51-52) As stated, the drug testing conducted pursuant to Section 414.0652 does not test for alcohol use....

...ny such group of TANF recipients who could potentially fall within any closely guarded category of individuals who may constitutionally be subjected to suspicionless searches. IV. Conclusion Accordingly, based on the foregoing, the Coux’t declares Section 414.0652, Florida Statutes, unconstitutional and permanently enjoins enforcement of the law....

...Honorable Amy Totenberg, United States District Judge for the Northern District of Georgia, sitting by designation.  Case: 14-10322 Date Filed: 12/03/2014 Page: 2 of 54 seeking Temporary Assistance for Needy Families (“TANF”) benefits. See Fla. Stat. § 414.0652....

...te against Lebron, the State halted the drug-testing program. See Lebron v. Sec’y, Fla. Dep’t of Children & Families (Lebron I), 710 F.3d 1202 (11th Cir. 2013). Since then, the district court granted final summary judgment to Lebron, declared § 414.0652 unconstitutional, and permanently enjoined its enforcement. We affirm....

...m sanctioning welfare recipients who test positive for use of controlled substances.” 21 U.S.C. § 862b. In 2011, Florida enacted a statute requiring suspicionless drug screening for all TANF applicants as a condition of eligibility. Fla. Stat. § 414.0652....

...dvise the agent administering the test of any prescription or over-the-counter medication he or she is taking.” Id. 4  Case: 14-10322 Date Filed: 12/03/2014 Page: 5 of 54 § 414.0652(2)(d)....

...Applicants bear the cost of testing, which during the period of the statute’s implementation generally ranged between $24 and $45. However, if an applicant tests negative for controlled substances, the Department increases the amount of TANF benefit to compensate for the testing expense. Id. § 414.0652(2)(a)....

...may arrange the timing of filing an application; after the State determines that the applicant has satisfied all non-drug testing eligibility factors (e.g., income, assets, etc.), the applicant must pass a drug test within ten days. Under § 414.0652, an individual who tests positive for controlled substances is ineligible for TANF benefits for one year, though those who fail drug tests may reapply for benefits after six months if they can document successful completion of a substance abuse treatment program and pass another drug test....

...ted “under the direct observation of an observer of the same gender as the donor.” Id. r. 59A-24.005(3)(c)(13). 5  Case: 14-10322 Date Filed: 12/03/2014 Page: 6 of 54 §§ 414.0652(1)(b), (2)(j)....

...A parent cannot receive benefits without passing a drug test, but the parent’s failure of a test does not affect a child’s eligibility to receive TANF benefits; instead, a protective payee would be designated to receive benefits for the child. Id. § 414.0652(3). The § 414.0652 drug-testing requirement went into effect on July 1, 2011, and was enforced until the district court entered a preliminary injunction on October 24, 2011....

...commenced this lawsuit in the United States District Court for the Middle District of Florida on September 6, 2011, against the Secretary of DCF in his official capacity. Lebron sought a declaration that requiring suspicionless drug testing for TANF eligibility under § 414.0652 violated the Fourth Amendment right to be free from unreasonable searches. Lebron also asked for a permanent injunction barring the enforcement of § 414.0652. Lebron filed a motion for a preliminary injunction with his complaint. On October 24, 2011, the district court preliminarily enjoined the State from requiring that Lebron submit to a suspicionless drug test pursuant to § 414.0652 as a condition for receiving TANF benefits until the case was resolved....

...Shortly thereafter, though, out of concern that Lebron’s individual claim might become moot during the litigation, the district court certified a class of Florida TANF applicants.3 In response to the preliminary injunction, DCF suspended the § 414.0652 TANF drug-testing program statewide, approved all applications that had been pending based on drug testing, approved benefits for individuals who had tested positive, and reimbursed TANF applicants for drug tests to the extent they had not already received reimbursement....

...to distribute Temporary Assistance for Needy Families (“TANF”) benefits, and who would, absent [the preliminary injunction], be subject to Defendant’s mandatory suspicionless drug testing as a result of Fla. Stat. § 414.0652. 8  Case: 14-10322 Date Filed: 12/03/2014 Page: 9 of 54 explained that, to qualify as a constitutionally reasonable search, § 414.0652 drug testing either must be based on individualized suspicion of wrongdoing, or must involve certain limited and exceptional circumstances, when the government shows substantial “special needs.” Id....

...the goals of TANF are not jeopardized by drug use -- rested on a presumption of an unlawful drug-use problem among Florida TANF recipients that the State had failed to support with concrete facts. Id. at 1212-13. The Court also rejected the State’s alternative claim that § 414.0652 drug testing was constitutionally permissible because TANF applicants gave their consent, citing “the Supreme Court’s long-standing admonition that the government ‘may not deny a benefit to a person on a basis that infringes his constitutionally protected interests.’” Id....

...envisioned in the promulgation of this statute.” Id. at 1298. Finally, the court rejected the state’s consent argument, finding that consent under the statute was not voluntarily given. Id. Ultimately, because there was no set of circumstances under which § 414.0652 could be applied constitutionally, the court declared the statute facially unconstitutional and permanently enjoined the State from enforcing it....

...undeveloped record and asked only whether the district court had abused its discretion in determining that Lebron was likely to succeed on the merits of his claim. See 710 F.3d at 1206. The Court was not asked, and did not decide, the ultimate constitutionality of § 414.0652....

...13  Case: 14-10322 Date Filed: 12/03/2014 Page: 14 of 54 effects, against unreasonable searches and seizures, shall not be violated . . . .” U.S. Const. amend. IV. The drug testing by urinalysis required under § 414.0652 is undisputedly a Fourth Amendment search....

...record does not empirically demonstrate a TANF population drug-use problem. 26  Case: 14-10322 Date Filed: 12/03/2014 Page: 27 of 54 1. Well before § 414.0652 was enacted, the State’s own DCF, at the direction of the Florida legislature, conducted a study -- dubbed the Demonstration Project -- to test empirically whether TANF applicants were likely to abuse illegal drugs and whether that abuse affected employment opportunities....

...of 6,462). Notably, the researchers also found no evidence that TANF recipients who tested positive for illicit substances were any less likely to find work than those who tested negative. Data collected during the brief implementation of § 414.0652 suspicionless drug testing was altogether consistent with the Demonstration Project results. Preliminary numbers showed that only 2.67% of the TANF applicants who submitted to urinalyses under § 414.0652 tested positive for controlled substances - - 108 out of 4,046....

...Mack claimed no prior experience with or knowledge of drug use among Florida’s TANF population. He stated that he had not examined Lebron or any member of the putative class -- all past, present, or future TANF applicants who could be subject to § 414.0652....

...testimony about self-reports of drug and alcohol abuse from individuals receiving public assistance did not specify whether those who reported were TANF recipients or, indeed, whether they reported an alcohol problem, which would not affect an applicant’s TANF eligibility under § 414.0652, as opposed to a drug problem....

...elevates the state’s concern from a general to a special interest. Moreover, even if the State could have established that an unusual rate of drug use among TANF applicants gave rise to a special need -- and this record supports no such determination -- the § 414.0652 drug-testing program is not well designed to identify or deter applicants whose drug use will affect employability, endanger children, or drain public funds....

...protect families, and conserve resources. But, above all else, we must enforce the Constitution and the limits it places on government. If we are to give meaning to the Fourth Amendment’s prohibition on blanket government searches, we must -- and we do -- hold that § 414.0652 crosses the constitutional line. AFFIRMED. 54