Frederick Thorworth v. New Jersey Department of Education, Office of Student Protection, 5/23/2024, (#204-24)

204-24
New Jersey Commissioner of Education
Final Decision
Frederick Thorworth
Petitioner,
v.
New Jersey Department of Education,
Office of Student Protection,
Respondent.
Synopsis
Petitioner challenged the determination of the New Jersey Department of Education, Office of Student
Protection (Department), to permanently disqualify him from employment in a public school pursuant to
N.J.S.A. 18A:6-7.1 after a criminal history background check revealed three convictions for possession of
small amounts of marijuana between 1971 and 1973, one in the State of Ohio and two in New York
State. The Department filed a motion to dismiss petitioner’s appeal.
The ALJ found, inter alia, that: N.J.S.A. 18A:6-7.1 requires disqualification for a conviction in another
state when it is for a crime or offense “substantially equivalent” to a disqualifying crime or offense
under New Jersey law; and N.J.S.A. 18A:6-7.1 requires disqualification for offenses involving the
possession of controlled dangerous substances, including marijuana. Accordingly, the ALJ granted the
OSP’s motion and dismissed the petition.
Upon review, the Commissioner rejected the Initial Decision of the Office of Administrative Law and
vacated the decision of the OSP disqualifying the petitioner from employment in schools under the
supervision of the NJDOE. In so doing, the Commissioner found that there is currently no New Jersey
crime or offense substantially equivalent to the Ohio and New York offenses of which petitioner was
convicted. 	Following the enactment of L. 2021, c. 19 in 2021, individuals in possession of minimal
amounts of marijuana, such as those at issue in petitioner’s convictions, are no longer charged with
crimes in New Jersey. Accordingly, the petition was granted.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader.
It has been neither reviewed nor approved by the Commissioner.

204-24
OAL Dkt. No. 03535-24
Agency Dkt. No. 20-1/24
New Jersey Commissioner of Education
Final Decision
Frederick Thorworth,
Petitioner,
v.
New Jersey Department of Education,
Office of Student Protection,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law
(OAL) have been reviewed and considered.
Petitioner appeals the January 4, 2024 decision of the New Jersey Department of
Education’s (NJDOE) Office of Student Protection (OSP), disqualifying him from employment in
schools under the supervision of the NJDOE. Petitioner’s criminal history records showed three
convictions: 1) possession of marijuana in Ohio in 1971;1 2) sixth-degree possession of a
dangerous drug in New York in 1972;2 and 3) seventh-degree possession of a controlled
substance in New York in 1973.3
1 The criminal history search results do not list a specific Ohio statute for this offense. The information provided by
petitioner demonstrates that this offense involved a nominal amount of marijuana.
2 The criminal history search results list the offense under New York Penal Law §220.05. New York no longer has a
sixth-degree possession offense. Pursuant to New York Penal Law §220.06, fifth-degree possession is based on

2
Following the OSP’s motion to dismiss, the Administrative Law Judge (ALJ) concluded
that N.J.S.A. 18A:6-7.1 requires disqualification for offenses involving the possession of
controlled dangerous substances, which includes marijuana. Accordingly, the ALJ granted the
OSP’s motion to dismiss.
Upon review, the Commissioner rejects the Initial Decision. N.J.S.A. 18A:6-7.1 requires a
disqualification for a conviction in another state when it is for a crime or offense “substantially
equivalent” to a disqualifying crime or offense under New Jersey law. The Commissioner has
previously concluded that criminal history background checks “must be reviewed and
effectuated based on the standards of the law then in effect.” Joseph V. Cidoni v. Bd. of Educ.
of the City of Camden, Camden Co., and N.J. Dep’t of Educ., Commissioner Decision No. 82-06
(Feb. 27, 2006); see also Eduardo Nunez v. N.J. Dep’t of Educ., Commissioner Decision No. 192-
05 (May 26, 2005). Therefore, the Commissioner must determine whether there is currently a
New Jersey crime or offense substantially equivalent to the Ohio and New York offenses of
which petitioner was convicted. The Commissioner concludes that there is not. Following the
enactment of L. 2021, c. 19 in 2021, individuals in possession of small amounts of marijuana,
such as those at issue in petitioner’s convictions, are no longer charged with crimes in
New Jersey.
possession of one-half ounce or more. Accordingly, the Commissioner concludes that the amount of marijuana
involved in petitioner’s 1972 conviction was less than one-half ounce.
3 The criminal history search results list the offense under New York Penal Law §220.03. This provision lists no
weight requirement; however, as it is a lesser offense than fifth-degree possession of one-half ounce or more, the
Commissioner concludes that the amount of marijuana involved in petitioner’s 1973 conviction was less than one-
half ounce.

3
Accordingly, the relief requested in the petition of appeal is granted. The decision of the
OSP disqualifying the petitioner from employment in schools under the supervision of the
NJDOE is hereby vacated.
IT IS SO ORDERED.4
ACTING COMMISSIONER OF EDUCATION
Date of Decision: May 23, 2024
Date of Mailing: May 28, 2024
4 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-9.1.
Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days from the date
of mailing of this decision.

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
DISMISSAL
OAL DKT. NO. EDU 03535-24
AGENCY DKT.NO. 20-1/24
FREDERICK THROWORTH,
Petitioner,
v.
NEW JERSEY DEPARTMENT OF EDUCATION,
OFFICE OF STUDENT PROTECTION,
Respondent.
_________________________________________
F.T., petitioner, pro se
David Kalisky, Esq. for respondent (Matthew J. Platkin, Attorney General,
attorneys)
Record Closed: April 10, 2024 	Decided: April 17, 2024
BEFORE KIMBERLY A. MOSS, ALJ:
This motion to dismiss in lieu of answer was brought by New Jersey Department
of Education, Office of Student Protection (NJDOE) in the above-mentioned matter on

OAL DKT. NO. EDU 03535-24
2
or about March 8, 2024. 	Petitioner, Frederick Throworth (Throworth) filed a reply on
March 28, 2024. NJDOE supplemented its motion on April 10, 2024
FACTUAL DISCUSSION
Throworth applied for the position of teacher’s aide in the Sussex-Wantage
Regional School District. On or about January 24, 2024, NJDOE notified Throworth that
based 	on 	his 	background 	check 	showing 	three 	convictions 	for 	marijuana 	related
offenses in 1971, 1972 and 1973, he was permanently disqualified from serving in any
position, paid or unpaid with any education institution under the supervision of the
Department 	of 	Education. 	On 	September 	9, 	1971, 	Throworth 	was 	convicted 	in
Columbus, Ohio of possession of marijuana. He received a thirty-day suspended
sentence. 	On December 11, 1972, Throworth was convicted of criminal possession of
controlled substances seventh degree, marijuana, in Fallsburg, New York. 	He received
a conditional discharge. Throworth was convicted of criminal possession of a controlled
dangerous 	substance, 	marijuana, 	seventh 	degree 	in 	Southampton, 	New 	York 	on
December 11, 1973. He was sentenced to ninety days incarceration.
Throworth does not deny that he was convicted of these offenses. However, as
to the Columbus Ohio 1971 conviction, he stated that he pled guilty due to his attorneys
advise. Regarding the 1972 Fallsburg conviction Throworth states that he was in jail for
six days and evidently pled guilty. As to the South Hampton Conviction Throworth states
that marijuana was found near him after he was at a party and the police arrived.
All of these convictions are from fifty years ago. 	Since that time Throworth has
not been arrested, he has been married for forty-eight years and has two adult
daughters. 	He worked as an optician for thirty years. 	The Christine Leaders Institute
granted Thorworth the title of officiant ordination for ministry issued on March 16, 2017.
He has a Certificate of Authority from the State of New Jersey for the Guitar Shop,
which was issued on June 8, 1999.

OAL DKT. NO. EDU 03535-24
3
LEGAL ANALYSIS AND CONCLUSION
N.J.A.C. 6A:3-1.5(g) provides:
Nothing in this section precludes the filing of a motion to dismiss in lieu of
an answer to a petition, provided that such motion is filed within the time
allotted for the filing of an answer. Briefing on such motions shall be in the
manner and within the time fixed by the Commissioner, or by the ALJ if the
motion is to be briefed following transmittal to the OAL.
N.J.A.C. 6a:3-1.10 provides:
At any time prior to transmittal of the pleadings to the OAL, in the
Commissioner's discretion or upon motion to dismiss filed in 	lieu 	of
answer, the Commissioner may dismiss the petition on the grounds that
the petitioner has advanced no cause of action even if the petitioner's
factual allegations are accepted as true or for lack of jurisdiction, failure to
prosecute or other good reason.
On a motion made pursuant to R. 4:6-2(e) "the inquiry is confined to a
consideration of the legal sufficiency of the alleged facts apparent on the
face of the challenged claim." P. & J. Auto Body v. Miller, 72 N.J. Super.
207, 211 (App.Div.1962). The court may not consider anything other than
whether the complaint states a cognizable cause of action. Ibid. For this
purpose, "all facts alleged in the complaint and legitimate inferences
drawn therefrom are deemed admitted." Smith v. City of Newark, 136 N.J.
Super. 107, 112 (App.Div.1975). See also Heavner v. Uniroyal, Inc., 63
N.J. 	130, 	133 	(1973); 	Polk 	v. 	Schwartz, 	166 	N.J. 	Super. 	292, 	299
(App.Div.1979). A complaint should not be dismissed under this rule
where a cause of action is suggested by the facts and a theory of
actionability may be articulated by way of amendment. Muniz v. United
Hsps. Med. Ctr. Pres. Hsp., 153 N.J. Super. 79, 82-83 (App.Div.1977).
However, a dismissal is mandated where the factual allegations are
palpably insufficient to support a claim upon which relief can be granted.
Reider v. State Department of Transportation 221 N.J. Super. 547,522
(App.Div. 1987)
A party must have standing to have the “ability or entitlement to maintain an
action before the court.” In re Baby T., 160 N.J. 332, 340 (N.J.,1999). Standing is "a
threshold 	justiciability 	determination 	whether 	the 	litigant 	is 	entitled 	to 	initiate 	and
maintain an action before a court or other tribunal." In re Six Month Extension of
N.J.A.C. 5:91-1 et seq., 372 N.J. Super 61, 85 (App. Div. 2004).

OAL DKT. NO. EDU 03535-24
4
N.J.S.A. 18A:6-7.1 (b) provides:
A facility, center, school, or school system under the supervision of the
Department of Education and board of education which cares for, or is
involved in the education of children under the age of 18 shall not employ
for pay or contract for the paid services of any teaching staff member or
substitute 	teacher, 	teacher 	aide, 	child 	study 	team 	member, 	school
physician, school nurse, custodian, school maintenance worker, cafeteria
worker, school law enforcement officer, school secretary or clerical worker
or any other person serving in a position which involves regular contact
with pupils unless the employer has first determined consistent with the
requirements and standards of this act, that no criminal history record
information 	exists 	on 	file 	in 	the 	Federal 	Bureau 	of 	Investigation,
Identification Division, or the State Bureau of Identification which would
disqualify that individual from being employed or utilized in such capacity
or position. An individual employed by a board of education or a school
bus contractor holding a contract with a board of education, in the capacity
of a school bus driver, shall be required to meet the criminal history record
requirements pursuant to section 6 of P.L.1989, c.104 (C.18A:39-19.1). A
facility, center, school, or school system under the supervision of the
Department of Education and board of education which cares for or is
involved in the education of children under the age of 18 may require
criminal history record checks for individuals who, on an unpaid voluntary
basis, provide services that involve regular contact with pupils. In the case
of school districts involved in a sending-receiving relationship, the decision
to require criminal history record checks for volunteers shall be made
jointly by the boards of education of the sending and receiving districts.
An individual, except as provided in subsection g. of this section, shall be
permanently disqualified from employment or service under this act if the
individual’s criminal history record check reveals a record of conviction for
any crime of the first or second degree; or
b. An offense involving the manufacture, transportation, sale, possession,
distribution or habitual use of a “controlled dangerous substance” as
defined in the “Comprehensive Drug Reform Act of 1987,” N.J.S.2C:35-1
et al. or “drug paraphernalia” as defined pursuant to N.J.S.2C:36-1 et seq.;
or
N.J.S.A. 2C: 35-2 defines controlled dangerous substance as:
“Controlled dangerous substance” means a drug, substance, or immediate
precursor in Schedules I through V, marijuana and hashish as defined in
this 	section, 	any 	substance 	the 	distribution 	of 	which 	is 	specifically
prohibited in N.J.S.2C:35-3, in section 3 of P.L.1997, c.194 (C.2C:35-5.2),
in section 5 of P.L.1997, c.194 (C.2C:35-5.3), in section 2 of P.L.2011,
c.120 (C.2C:35-5.3a), or in section 2 of P.L.2013, c.35 (C.2C:35-5.3b),

OAL DKT. NO. EDU 03535-24
5
and any drug or substance which, when ingested, is metabolized or
otherwise becomes a controlled dangerous substance in the human body.
When any statute refers to controlled dangerous substances, or to a
specific controlled dangerous substance, it shall also be deemed to refer
to 	any 	drug 	or 	substance 	which, 	when 	ingested, 	is 	metabolized 	or
otherwise becomes a controlled dangerous substance or the specific
controlled 	dangerous 	substance, 	and 	to 	any 	substance 	that 	is 	an
immediate precursor of a controlled dangerous substance or the specific
controlled dangerous substance. The term shall not include distilled spirits,
wine, malt beverages, as those terms are defined or used in R.S.33:1-1 et
seq., tobacco and tobacco products, or cannabis and cannabis as defined
in section 3 of P.L.2021, c.16 (C.24:6I-33). The term, wherever it appears
in any law or administrative regulation of this State, shall include controlled
substance analogs.
Marijuana is defined as:
Marijuana” means all parts of the plant Cannabis sativa L., whether
growing or not; the seeds thereof, and every compound, manufacture,
salt, derivative, mixture, or preparation of the plant or its seeds, except
those containing resin extracted from the plant. “Marijuana” shall not
mean: 	hemp 	and 	hemp 	products 	cultivated, 	handled, 	processed,
transported, or sold pursuant to the “New Jersey Hemp Farming Act,”
P.L.2019, c.238 (C.4:28-6 et al.); or cannabis as defined in section 3 of
P.L.2021, c.16 (C.24:6I-33) which is cultivated and produced for use in a
cannabis item, as defined in that section, in accordance with the “New
Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace
Modernization Act,” P.L.2021, c.16 (C.24:6I-31 et al.).
Prior to the 1998 amendment to N.J.S.A. 18A:6-7.1 	there was a provision had a
provision stating that:
Notwithstanding the provisions of this section, an individual shall not be
disqualified from employment or service under this act on the basis of any
conviction disclosed by a criminal record check performed pursuant to this
act if the individual has affirmatively demonstrated to the Commissioner of
Education clear and convincing evidence of his or her rehabilitation. In
determining 	whether 	an 	individual 	has 	affirmatively 	demonstrated
rehabilitation, the following factors shall be considered:
(1) The nature and responsibility of the position which the convicted individual
would hold;
(2) The nature and seriousness of the offense;
(3) The circumstances under which the offense occurred;

OAL DKT. NO. EDU 03535-24
6
(4) The date of the offense;
(5) The age of the individual when the offense was committed;
(6) Whether the offense was an isolated or repeated incident;
(7) Any social conditions which may have contributed to the offense;
(8) Any evidence of rehabilitation, including good conduct in prison or in
the community, counseling or psychiatric treatment received, acquisition of
additional academic or vocational schooling, successful participation in
correctional work-release programs, or the recommendation of persons
who 	have 	had 	the 	individual 	under 	their 	supervision 	WITHOUT 	AN
OPPORTUNITY TO appeal CHALLENGE THE ACCURACY OF THE
DISQUALIFYING CRIMINAL HISTORY RECORD
The 1998 amendment deleted this portion of the statute. 	The statute does not
have a rehabilitation component. In the Matter of Otto Krupp Teaching Certificates EDU
5196-03 Final Decision. 	Although Throworth’ s last conviction was in 1973, all of his
convictions were for possession of marijuana. N.J.S.A. 2C: 35-2 includes marijuana as
a controlled dangerous substance., even though marijuana has been de criminalized.
N.J.S.A. 18A:6-7.1(d) provides:
For the purposes of this section, a conviction exists if the individual has at
any time been convicted under the laws of this State or under any similar
statutes 	of 	the 	United 	States 	or 	any 	other 	state 	for 	a 	substantially
equivalent crime or other offense.
Throworth’s convictions were in Ohio and New York for possession of marijuana.
I CONCLUDE N.J.S.A. 18A:6-7.1 (b) applies in this matter because Throworth was
convicted of possession of marijuana offenses in 1971, 1972 and 1973.
ORDER
Based on the foregoing, it is hereby ORDERED that respondent’s request for the
petition to be dismissed is GRANTED.

OAL DKT. NO. EDU 03535-24
7
I 	hereby 	FILE 	this 	initial 	decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.
This recommended decision may be adopted, modified, or rejected by the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. 	If the Commissioner of the Department of
Education does not adopt, modify, or reject this decision within forty-five days and
unless such time limit is otherwise extended, this recommended decision shall become
a final decision in accordance with N.J.S.A. 52:14B-10.
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER
OF THE DEPARTMENT OF EDUCATION, ATTN: 	BUREAU OF CONTROVERSIES
AND DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey
08625-0500, marked “Attention: Exceptions.” A copy of any exceptions must be sent to
the judge and to the other parties.
April 17, 2024
DATE 	KIMBERLY A. MOSS, ALJ
Date Received at Agency: 	April 17, 2024
Date Mailed to Parties: 	April 17, 2024
ljb