Barlow v. Postb ( 2020 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
TAYLOR E. BARLOW, Plaintiff/Appellant,
v.
ARIZONA PEACE OFFICER STANDARDS AND TRAINING BOARD,
Defendant/Appellee.
No. 1 CA-CV 19-0378
FILED 3-17-2020
Appeal from the Superior Court in Maricopa County
No. LC2018-000318-001
The Honorable Patricia A. Starr, Judge
AFFIRMED
COUNSEL
The Barlow Law Firm LLC, Fredonia
By Matthew I. Barlow
Counsel for Plaintiff/Appellant
Arizona Attorney General’s Office, Phoenix
By Seth Hargraves, Michael Raine
Counsel for Defendant/Appellee
BARLOW v. POSTB
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Diane M. Johnsen1 joined.
H O W E, Judge:
¶1 Taylor E. Barlow challenges the superior court’s order
affirming the decision of the Arizona Peace Officer Standards and Training
Board (“POST”) denying him certification as a peace officer in Arizona.
Because he has shown no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In late 2016, while Barlow was an officer with the Colorado
City Marshal’s Office in Utah, he applied to POST for certification as a peace
officer in Arizona. He disclosed the following in his application:
• In 2008, he had purchased marijuana in Utah, transported it to
Arizona, and sold it;
• In 2007, he was present when friends took a water truck, followed
the water truck in another vehicle as the friends drove off with it,
and was cited for being a minor in possession and consumption of
alcohol; and
• He was involved in a burglary as a juvenile in 2004.
After reviewing the application, POST informed the Marshal’s Office he
did not meet the minimum qualifications for appointment under Arizona
law, citing these three incidents.
1 Judge Johnsen was a sitting member of this Court when the matter
was assigned to this panel of the Court. She retired effective February 28,
2020. In accordance with the authority granted by Article VI, Section 3, of
the Arizona Constitution and pursuant to A.R.S. § 12–145, Chief Justice of
the Arizona Supreme Court has designated Judge Johnsen as a judge pro
tempore in the Court of Appeals, Division One, for the purpose of
participating in the resolution of cases assigned to this panel during her
term in office.
2
BARLOW v. POSTB
Decision of the Court
¶3 The Marshal’s Office withdrew the application. At about the
same time, Barlow emailed POST with more information on the marijuana
sale:
When I was 18 my friend . . . and I were in Salt Lake City,
Utah. Neither of us had ever tried marijuana and we decided
to experiment with it . . . . We lived in Arizona so during the
drive home [we] discussed that maybe we shouldn’t try it
after all. Upon arriving at home we came to the conclusion to
not experiment . . . . We then discussed how to dispose of the
marijuana . . . . Our discussion was overheard by my
co-renter . . . . [He] told us that he wanted the marijuana and
. . . that we should sell it to him. We agreed to his offer, and
although I don’t remember receiving any money I was still
involved in the action.
¶4 In mid-2017, Barlow filed a second application and again
disclosed these three incidents. The Marshal’s Office also wrote on his
behalf to ask POST to excuse the three incidents under the “juvenile
indiscretion” exception of Arizona Administrative Code (“A.A.C.”)
R13–4–105(D). POST instead determined the three incidents disqualified
Barlow from serving as a peace officer in Arizona under A.A.C.
R13–4–109(A)(1), (5), (7), and (12).
¶5 Following an administrative hearing, the administrative law
judge (“ALJ”) determined (1) the burglary and criminal damage incidents
could be excused as “juvenile indiscretion” under A.A.C. R13–4–105(D), (2)
the marijuana possession could be excused as “experimental” under
R13–4–105(C), but (3) the sale of the same marijuana was a proper basis to
deny certification. On that basis, the ALJ concluded POST “may, but is not
required to, deny [Barlow’s] application for certification[.]”
¶6 POST adopted the ALJ’s findings of fact and conclusions of
law and denied Barlow’s second application. Barlow appealed that decision
to the superior court under A.R.S. § 12–904(A). The court affirmed, noting
that Barlow admitted “on several occasions” to selling the marijuana and
concluding the sale was “an automatic bar to certification.” Barlow timely
appealed.
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BARLOW v. POSTB
Decision of the Court
DISCUSSION
¶7 On appeal from a superior court’s review of an administrative
action, the question is whether substantial evidence supported the
administrative action and whether it was arbitrary, capricious, or an abuse
of discretion. Griffin Found. v. Ariz. State Ret. Sys., 244 Ariz. 508, 515 ¶ 17
(App. 2018). We do not independently weigh the evidence. Havasu Heights
Ranch and Dev. Corp. v. Desert Valley Wood Prods., Inc., 167 Ariz. 383, 387
(App. 1990). We review de novo questions of law, including questions of
statutory or regulatory interpretation. Carlson v. Ariz. State Pers. Bd., 214
Ariz. 426, 430 ¶ 13 (App. 2007).
1. POST Could Deny Certification Based on Barlow’s
Admitted Marijuana Sale.
¶8 POST may deny certification if an applicant does not “satisfy
a minimum qualification for appointment listed in R13–4–105[.]” A.A.C.
R13–4–109(A)(1). Those minimum qualifications include “[n]ot hav[ing]
illegally possessed, produced, cultivated, or transported marijuana for sale
or sold marijuana[.]” A.A.C. R13–4–105(A)(9).2
¶9 Barlow stated in his applications and at the administrative
hearing that the marijuana sale took place in 2008 when he was 18 years
old. He contends POST abused its discretion by not considering whether
the sale fit within the regulatory “experimentation” or “juvenile
indiscretion” exceptions. R13–4–105(C) allows an agency head who wishes
to appoint an individual whose illegal possession or use of marijuana or a
dangerous drug or narcotic is “presumed to be not for experimentation” to
petition POST for a determination that the use was for experimentation.
A.A.C. R13–4–105(C). And the “juvenile indiscretion” exception of
R13–4–105(D) allows agency heads to petition POST to excuse otherwise
disqualifying conduct if:
The conduct occurred when the individual was less than age
of 18;
2 At oral argument in this Court, Barlow contended that POST could
have waived any of the minimum qualifications of A.A.C. R13–4–105 under
A.A.C. R13–4–103(G). Because Barlow raises this argument for the first time
at oral argument on appeal, we cannot consider it. See Mitchell v. Gamble,
207 Ariz. 364, 369–70 ¶ 16 (App. 2004) (issues and arguments raised for the
first time at oral argument on appeal are untimely and deemed waived).
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BARLOW v. POSTB
Decision of the Court
The conduct occurred more than 10 years before application
for appointment;
The individual has consistently exhibited responsible,
law-abiding behavior between the time of the conduct and
application for appointment;
There is reason to believe that the individual’s immaturity at
the time of the conduct contributed substantially to the
conduct;
There is evidence that the individual’s maturity at the time of
application makes reoccurrence of the conduct unlikely; and
The conduct was not so egregious that public trust in the law
enforcement profession would be jeopardized if the
individual is certified.
A.A.C. R13–4–105(D)(2) (emphasis added). In interpreting regulations, we
look to their plain language as the most reliable indicator of meaning. Home
Depot USA, Inc. v. Ariz. Dept. of Revenue, 230 Ariz. 498, 501 ¶ 10 (App. 2012).
We give the words and phrases used their ordinary meanings unless the
context indicates otherwise. Samaritan Health Servs. v. Ariz. Health Care Cost
Containment Sys. Admin., 178 Ariz. 534, 537–38 (App. 1994).
¶10 Neither the “experimentation” nor the “juvenile indiscretion”
exception applies to the marijuana sale. The “experimentation” exception
reaches only instances of “possession or use” that are “presumed to be not
for experimentation.” A.A.C. R13–4–105(B), (C). At issue here is Barlow’s
admission that he sold marijuana, not that he simply possessed or used
marijuana. And the sale failed under at least two of the “juvenile
indiscretion” exception elements: (1) it took place less than ten years before
Barlow submitted his application and (2) it took place when he was 18 years
of age. A.A.C. R13–4–105(D)(2)(a), (b).
¶11 Barlow contends POST intentionally misled the Marshal’s
Office by telling it that “there are no provisions within the Arizona
Administrative Code” to address the three incidents “by petition or
qualifying the behaviors as ‘juvenile indiscretion,’” which he contends led
the Marshal’s Office to not file petitions under either R13–4–105(C) or (D).
As noted above, the Marshal’s Office asked POST to consider R13–4–105(D)
in connection with the second application. In any event, as we have held,
given Barlow’s admitted marijuana sale, neither R13–4–105(C) nor (D)
allowed POST to grant the certification.
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BARLOW v. POSTB
Decision of the Court
2. Substantial Evidence Supported POST’s Decision.
¶12 Barlow also contends that substantial evidence did not
support POST’s decision, citing the ALJ’s statement that “[i]f the Board
determines that Mr. Barlow did prove by a preponderance of the evidence
that he did not sell the marijuana, it would be reasonable to afford Colorado
City the opportunity to submit the required petition.” Substantial evidence
exists if the record supports the decision even if contrary evidence also
exists. Wassef v. Ariz. State Bd. of Dental Exam’rs through Hugunin, 242 Ariz.
90, 93 ¶ 11 (App. 2017). We will reverse only if the decision lacks any
supporting evidence or is directly contrary to uncontradicted evidence
upon which it purports to rest. Ariz. Dep’t. of Pub. Safety v. Dowd, 117 Ariz.
423, 426 (App. 1977).
¶13 Substantial evidence is present here because Barlow admitted
to the marijuana sale in both applications and at the administrative hearing.
While he also stated he did not recall receiving any money, the ALJ found
that statement not credible. We do not independently weigh conflicting
evidence on appeal from an administrative agency decision. See Richard E.
Lambert, Ltd. v. City of Tucson Dep’t. of Procurement, 223 Ariz. 184, 187 ¶ 10
(App. 2009).
¶14 Barlow also challenges POST’s decision to adopt the ALJ’s
fact findings without “conduct[ing] further investigation.” While POST is
not bound by the ALJ’s findings, it may accept them. Ritland v. Ariz. State
Bd. Of Med. Exam’rs, 213 Ariz. 187, 192 ¶ 18 (App. 2006). Barlow cites no
authority suggesting POST must conduct further investigation following an
administrative hearing even if the ALJ thinks it may be warranted.
CONCLUSION
¶15 For the foregoing reasons, we affirm. As the prevailing party,
POST may recover its taxable costs incurred on appeal upon compliance
with Arizona Rule of Civil Appellate Procedure 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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