STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF LAW ENFORCEMENT, CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

vs.

Petitioner,

Case No. 18-5191PL

ERNIE BARCIA,

Respondent.

/

RECOMMENDED ORDER

Administrative Law Judge F. Scott Boyd of the Division of Administrative Hearings (DOAH) conducted the final hearing in this case on November 28, 2018, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Ray Anthony Shackelford, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Ernie Barcia, pro se

(Address of Record) STATEMENT OF THE ISSUES

The issues are whether Respondent failed to maintain good moral character in violation of sections 943.1395(7) and 943.13(7), Florida Statutes (2017),1/ and Florida Administrative

Code Rule 11B-27.0011(4)(d); and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

On June 8, 2018, the Criminal Justice Standards and Training Commission (Petitioner or Commission) served an Administrative Complaint against Officer Ernie Barcia (Respondent or Officer Barcia), alleging that Officer Barcia lacked good moral character in that he tested positive for anabolic steroids, controlled substances under chapter 893, Florida Statutes. Officer Barcia disputed the allegations in the Administrative Complaint and requested a hearing pursuant to section 120.57(1), Florida Statutes. On September 28, 2018, the matter was referred to DOAH for assignment of an administrative law judge.

The hearing was scheduled and held on November 28, 2018.

Petitioner offered Respondent's Responses to Petitioner's First Set of Requests for Admissions into evidence as Exhibit P-1, without objection, and presented the telephone testimony of

Dr. Donald Bucklin, a medical review officer (MRO) in Phoenix, Arizona. Respondent offered no exhibits and testified on his own behalf. Respondent attempted, but was unable, to make telephone contact with a representative of the Fraternal Order of Police who had assisted him during the Boca Raton Police

Services Department's (Department) investigation in order to offer his testimony.

The Transcript was filed with DOAH on December 12, 2018.

Both parties filed proposed recommended orders that were considered in preparing this Recommended Order.

FINDINGS OF FACT

1. The Commission is an agency of the State of Florida responsible for the certification, and the revocation of certification, of officers and instructors in the criminal justice disciplines.

2. Officer Barcia was certified as a law enforcement officer in the State of Florida by the Criminal Justice Standards and Training Commission on April 1, 2016, and issued Correction Certification No. 332010.

3. Officer Barcia was employed by the Department from June 19, 2017, to January 3, 2018. As part of his employment agreement with the Department, he agreed to submit to random drug testing.

4. On November 20, 2017, Officer Barcia was randomly selected by the Department to provide a drug test, signed a document indicating his agreement to take a drug test, and submitted a urine sample for drug testing.

5. Prior to the submission of his sample, Officer Barcia did not notify his employer of any reason his drug tests would

   
   

   come back positive or indicate any reason to distrust the drug test laboratory.

6. After submitting the sample, Officer Barcia signed a form, which stated "I certify that I provided my specimen to the collector; that I have not adulterated it in any manner; each specimen bottle used was sealed with a tamper-evident seal in my presence; and that the information and numbers provided on this form and on the label affixed to each specimen bottle is correct."

7. Section 112.0455, Florida Statutes, "the Drug-Free Workplace Act" (Act), establishes standards for workplace drug- testing programs. The Act authorizes random testing, establishes collection procedures to avoid sample contamination, requires accurate labeling, provides for chain of custody, and sets requirements for testing laboratories to conduct initial screening and confirmation testing.

8. Officer Barcia does not dispute the testing procedures or qualifications of the employees or testing procedures used by the laboratory that tested his urine sample, or the chain of custody of his sample.

9. Dr. Bucklin is a practicing physician and the national MRO for U.S. Healthworks and Centra. He has been certified for

   20 years and is on the faculty for the American Association of Medical Review Officers, an accrediting organization. He was

   
   

   licensed as a physician by the State of Florida at both the time the drug test was conducted and at the time of his testimony at hearing.

10. Dr. Bucklin's office reviewed the drug tests conducted on the urine sample of Officer Barcia that had been taken on November 20, 2017, and identified the presence of two anabolic steroids: drostanolone and trenbolone. Both the parent drugs and metabolites were identified by immunoassays, the screening test (very sensitive, but not specific), and by gas chromatography-mass spectometry, the confirmation test (highly specific, but not as sensitive).

11. Prior to submission of these test results to the Department, on December 8, 2017, Officer Barcia was contacted by Dr. Bucklin and notified that he tested positive for anabolic steroids. Officer Barcia was asked if he could give a reason his results were positive. Officer Barcia told Dr. Bucklin that he was on "estrogen blockers" and that he would send verification to Dr. Bucklin.

12. The drug tests in this case were conducted in accordance with section 112.0455 and were not contested by Officer Barcia.

13. At hearing, Officer Barcia testified that a doctor gave him a prescription for drostanolone sometime around September 2015 to treat a slight bump under his left nipple that

    
    

    had sensitivity and swelling. He was not prescribed a two-year dosage. He testified that he obtained the prescription from the WFN Clinic, which was later shut down in February 2017. He testified that he believed at the time that the clinic was legitimate and that he had no reason to believe the prescription was unlawful.

14. Officer Barcia stated that when he was originally given the prescription, he was instructed to "take as needed" and that he took it only for the prescribed purpose. He stated that in August 2017, he felt a bump that resembled the one he had when he was originally given the medication so he took it "as needed" and the bump vanished.

15. Dr. Bucklin credibly testified at hearing, and it is found, that neither drostanolone nor trenbolone may lawfully be prescribed to a patient in the United States. As Dr. Bucklin testified, even if drostanolone or trenbolone were illegally prescribed, those prescriptions could not be filled at a pharmacy.

16. Dr. Bucklin also credibly testified at hearing that no verification of a prescription was ever received from Officer Barcia, that a male would be prescribed estrogen blockers only under unusual circumstances, and that even if estrogen blockers were ingested, they would not have turned into drostanolone or trenbolone, as detected in the urine sample.

    
    

17. Officer Barcia's testimony that he thought he obtained a legitimate prescription from WFN Clinic was not credible. He failed to identify the doctor who prescribed the steroids. Even had his testimony about his medical condition been credible, it would not explain the drug test results. There is no reasonable explanation as to why a physician would secretly give an unlawful prescription for steroids (rather than a medicine that could be lawfully prescribed) to an unwitting patient in order to treat a medical condition, while misrepresenting to that patient that he was receiving estrogen blockers.

18. Officer Barcia failed to maintain good moral character in that he unlawfully injected, ingested, inhaled, or otherwise introduced anabolic steroids into his body, as evidenced by a drug test conducted in accordance with sections 112.0455.

19. No evidence of any prior disciplinary history was introduced for Officer Barcia.

    CONCLUSIONS OF LAW

    
    

20. DOAH has jurisdiction over the subject matter and the parties to this proceeding in accordance with sections 120.569 and 120.57(1), Florida Statutes (2018).

21. Petitioner is responsible for the certification and regulation of law enforcement officers and instructors pursuant to section 943.12, Florida Statutes (2018).

    
    

22. Petitioner seeks to take disciplinary action against Respondent's certification as a law enforcement officer. Disciplinary action constitutes a penal proceeding, and Petitioner bears the burden to prove the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

23. Clear and convincing evidence has been said to

    
    

    require:

    
    

    [T]hat the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    In re Henson, 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz

    
    

    v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

    
    

24. Section 943.13 establishes the minimum qualifications for certification of law enforcement officers by the State of Florida. Among those qualifications is the requirement that a law enforcement officer possess good moral character, as determined by a background investigation under procedures established by the Commission. § 943.13(7) Fla. Stat.

    
    

25. Section 943.1395(7) provides that the definition of good moral character shall be adopted by rule and be established as a statewide standard.

26. Rule 11B-27.0011 is entitled "Moral Character." The relevant portion of the rule reads:

    (4) For the purposes of the Criminal Justice Standards and Training Commission's implementation of any of the penalties specified in Section 943.1395(6) or (7), F.S., a certified officer's failure to maintain good moral character required by Section 943.13(7), F.S., is defined as:

    
    

    * * *

    
    

    (d) A certified officer's unlawful injection, ingestion, inhalation, or other introduction of any controlled substance, as defined in Section 893.03, F.S., into his or her body as evidenced by a drug test in accordance with Sections 112.0455, 440.102, or 944.474, F.S.

    
    

27. At the time of the alleged conduct, section 893.03, Florida Statutes, listed both drostanolone and trenbolone as controlled substances:

    893.03 Standards and schedules.—The substances enumerated in this section are controlled by this chapter. The controlled substances listed or to be listed in Schedules I, II, III, IV, and V are included by whatever official, common, usual, chemical, or trade name designated.

    
    

    * * *

    
    

    (3) SCHEDULE III.—A substance in Schedule III has a potential for abuse less than the substances contained in Schedules I and II

    
    

    and has a currently accepted medical use in treatment in the United States, and abuse of the substance may lead to moderate or low physical dependence or high psychological dependence or, in the case of anabolic steroids, may lead to physical damage. The following substances are controlled in Schedule III:

    
    

    * * *

    
    

    (d) Anabolic steroids.

    
    

    1. The term "anabolic steroid" means any drug or hormonal substance, chemically and pharmacologically related to testosterone, other than estrogens, progestins, and corticosteroids, that promotes muscle growth and includes:

    
    

    * * *

    
    

    j. Drostanolone.

    
    

    * * * pp. Trenbolone.

28. The drug tests in this case were conducted in accordance with section 112.0455. The tests revealed the presence of drostanolone and trenbolone, both anabolic steroids, and so clearly evidenced that a Schedule III controlled substance had been introduced into Respondent's body.

29. As part of his election of rights, Respondent initially challenged certain actions of the Boca Raton Police Department as violative of provisions of section 112.532, but there was no evidence that he requested a complaint review board. These claims were not directly relevant to this de novo

    
    

    disciplinary proceeding brought by Petitioner and based upon evidence presented here. Respondent did not challenge the constitutionality of his random drug testing,2/ the testing procedures used by the lab, the qualifications of the lab employees, or the chain of custody of his tested urine sample.

30. In addition to proving that Respondent introduced a controlled substance into his body, as evidenced by the section 112.0455 drug test, Petitioner must clearly show that

    the introduction of the steroids was unlawful.3/ In the absence of a direct admission or testimony, the unlawfulness of the introduction of the controlled substance must be proven by circumstantial evidence. Baugh v. State, 961 So. 2d 198, 203

    (Fla. 2007)(when witness testifies of his own knowledge as to the facts, that is direct evidence; circumstantial evidence is proof of facts and circumstances from which the trier-of-fact may infer that the ultimate facts in dispute existed or did not exist, citing Davis v. State, 90 So. 2d 629, 631 (Fla. 1956)).

31. When a criminal case is based wholly on circumstantial evidence, the evidence must be sufficient to establish each element of the offense and must exclude any reasonable hypothesis of innocence. Pagan v. State, 830 So. 2d 792, 803

    (Fla. 2002).

    
    

32. Respondent's testimony that he had been unknowingly prescribed the steroids was not credible and is rejected. He

    
    

    failed to provide any precise information, such as the identity of the doctor who prescribed the drugs. As Dr. Bucklin credibly testified at hearing, neither drostanolone nor trenbolone may lawfully be prescribed to a patient in the United States, and such a prescription could not be filled at a legitimate pharmacy. An estrogen blocker would not explain the presence of these drugs.

33. In the absence of any reasonable hypothesis of innocence explaining Respondent's admitted ingestion of drugs, the undisputed evidence that the two anabolic steroids were present is sufficient to conclude that Respondent unlawfully introduced them into his body. The evidence is sufficient to establish a firm conviction, without hesitancy, as to the truth of the allegation.

34. Petitioner established by clear and convincing evidence that Respondent failed to maintain good moral character in that he unlawfully introduced anabolic steroids into his body as evidenced by a drug test in accordance with section 112.045.

    Penalty

    
    

35. Subsection 943.1395(7) prescribed the penalties that may be imposed by Petitioner in a case of this nature:

    (7) Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which

    has been adopted by rule and is established as a statewide standard, as required by

    
    

    s. 943.13(7), the commission may enter an order imposing one or more of the following penalties:

    
    

    1. Revocation of certification.

       
       

    2. Suspension of certification for a period not to exceed 2 years.

       
       

    3. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.

       
       

    4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

       
       

    5. Issuance of a reprimand.

    
    

36. Section 943.1395(8) went on to provide that Petitioner shall set forth disciplinary guidelines, as well as aggravating and mitigating circumstances. It provided, in relevant part:

    (8)(a) The commission shall, by rule, adopt disciplinary guidelines and procedures to administer the penalties provided in subsections (6) and (7). The commission may, by rule, prescribe penalties for certain offenses. The commission shall, by rule, set forth aggravating and mitigating circumstances to be considered when imposing the penalties provided in subsection (7).

    
    

    (b)1. The disciplinary guidelines and prescribed penalties must be based upon the severity of specific offenses. The guidelines must provide reasonable and meaningful notice to officers and to the public of penalties that may be imposed for

    
    

    prohibited conduct. The penalties must be consistently applied by the commission.

37. Consistent with the statute, Petitioner has established disciplinary guidelines in rule 11B-27.005(5), which provides, in pertinent part:

    (5) When the Commission finds that a certified officer has committed an act that violates Section 943.13(7), F.S., the Commission shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines:

    
    

    * * *

    
    

    (d) Notwithstanding subsection (4) of this rule section, for the unlawful use by a certified officer of any controlled substances specified in Section 893.13, F.S., or Rule 11B-27.00225, F.A.C., pursuant to paragraph 11B-27.0011(4)(d), F.A.C., the action of the Commission, absent clear and convincing evidence of complete rehabilitation and substantial mitigating circumstances, shall be to impose a penalty ranging from prospective suspension to revocation.[4/]

    
    

38. Petitioner has established aggravating and mitigating circumstances in rule 11B-27.005(6):

    The Commission shall be entitled to deviate from the disciplinary guidelines in this rule section, upon a showing of aggravating or mitigating circumstances by evidence presented to the Commission, if pursuant to Section 120.57(2), F.S., or to an Administrative Law Judge, if pursuant to Section 120.57(1), F.S., prior to the imposition of a final penalty. The Commission shall base a deviation from the disciplinary guidelines upon a finding of one or more of the following:

    
    

    1. Aggravating circumstances:

       
       

       1. Whether the certified officer used official authority to facilitate the misconduct.

          
          

       2. Whether the misconduct was committed while the certified officer was performing other duties.

          
          

       3. The number of violations found by the Commission.

          
          

       4. The number and severity of prior disciplinary actions taken against the certified officer by the Commission, provided the officer was previously disciplined by the Commission within the preceding eight years or received a Letter of Guidance within the preceding five years.

          
          

       5. The severity of the misconduct.

          
          

       6. The danger to the public.

          
          

       7. The actual damage, physical or otherwise, caused by the misconduct.

          
          

       8. The lack of deterrent effect of the penalty imposed by the employing agency.

          
          

       9. The pecuniary benefit or self-gain to the officer realized by the misconduct.

          
          

       10. Whether the misconduct was motivated by unlawful discrimination.

           
           

       11. Any behavior constituting "domestic violence" defined by Section 741.28(2), F.S.

           
           

       12. Whether the certified officer has previously received a Letter of Acknowledgement within the preceding three years.

           
           

       13. The certified officer has not filed any answer to the Administrative Complaint or

       
       

       otherwise responded to the allegations of misconduct alleged by the Commission.

       
       

    2. Mitigating circumstances:

       
       

       1. The officer's employment status in a position requiring Commission certification at the time of the final hearing before the Commission.

          
          

       2. The recommendations of character or employment references.

          
          

       3. The lack of severity of the misconduct.

          
          

       4. The length of time the officer has been certified by the Commission.

          
          

       5. Any effort of rehabilitation by the certified officer.

          
          

       6. The effect of disciplinary or remedial action taken by the employing agency or recommendations of the employing agency administrator.

          
          

       7. The recommendation of a Probable Cause Panel to impose a penalty below the penalty guideline.

          
          

       8. Effort of the officer to retract a false statement prior to the close of the disciplinary or criminal investigation.

       
       

39. The public has a right to expect that those who enforce the laws will themselves obey it. Respondent's failure to maintain good moral character through use of steroids may have caused physical damage to himself, and there is no evidence of rehabilitation. On the other hand, there was no evidence of use of official authority to facilitate the misconduct, and no prior discipline has been imposed. The circumstances do not

warrant deviation from the wide discretion already vested in Petitioner within the penalty guidelines.

RECOMMENDATION

Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

The Florida Criminal Justice Standards and Training Commission enter a final order finding Ernie Barcia in violation of section 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b), and suspending his certification for a period of two years, followed by a two-year period of probation, subject to terms and conditions imposed by the Commission to facilitate his rehabilitation.

DONE AND ENTERED this 11th day of January, 2019, in Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 2019.

ENDNOTES

1/ References to statutes and rules are to versions in effect in November of 2017, the time of the alleged conduct, except as otherwise indicated.

2/ In a case involving an Executive Order issued by the Governor of Florida while an earlier version of the Drug-Free Workplace Act was in effect, the United States Court of Appeals for the Eleventh Circuit noted in AFSCME Council 79 v. Scott, 717 F.3d 851, 858 (11th Cir. 2013), that the United States Supreme Court has held, in a line of precedent beginning with Skinner v.

Railway Labor Executives' Association, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989), that certain safety-sensitive employees, including law enforcement personnel who carry firearms, may be randomly drug tested without individualized suspicion.

3/ The Commission has held that because an administrative agency is prohibited from creating an evidentiary presumption, and because any ambiguity in a rule must be resolved in favor of a respondent, a positive test under the rule is evidence of only the fact that a controlled subtance was introduced into the body, not whether that introduction was "unlawful." See the citations and detailed discussion of these points in Criminal Justice Standards and Training Commission v. Gerdon, Case

No. 12-3043PL (Fla. DOAH Dec. 28, 2012), rejected as to penalty, Case No. 32150 (Fla. CJSTC Feb. 26, 2013).

4/ Although the Commission amended rule 11B—27.005 on August 15, 2018, it did not change the reference to section 893.13, which actually creates offenses of possession with intent to sell, manufacture, or deliver a contolled substance. Section 893.13 does in turn reference section 893.03 to identify the controlled substances. This error in the rule does not prejudice respondents, because the drugs in question can ultimately be identified and because of the further reference in the rule to unlawful use, "pursuant to paragraph 11B-27.0011(4)(d)," but the rule should be amended for clarity.

COPIES FURNISHED:

Ray Anthony Shackelford, Esquire Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 (eServed)

Ernie Barcia

(Address of Record-eServed)

Dean Register, Program Director Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Jason Jones, General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 (eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 18-005191PL

Orders for Case No: 18-005191PL