STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AARON FOREMAN, )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

Case No. 99-4397

)

RECOMMENDED ORDER

On January 10, 2001, a formal administrative hearing in this case was held in Tallahassee, Florida, before

William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Aaron Foreman, pro se

10500 West Fountain Avenue Apartment No. 411

Milwaukee, Wisconsin 53224

For Respondent: Lynne T. Winston, Esquire

Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

STATEMENT OF THE ISSUE

The issue in the case is whether the Petitioner’s request for exemption from employment disqualification should be approved.

PRELIMINARY STATEMENT

By letter dated August 5, 1999, the Department of Juvenile Justice notified Aaron Foreman that his request for exemption from employment disqualification was denied. Mr. Foreman filed a request for formal hearing. The request was forwarded to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

Upon the Petitioner's request, and without objection by the Respondent, the hearing was continued several times to permit Mr. Foreman, a graduate student at the University of Wisconsin, to complete his degree program. Mr. Foreman asserted that completion of the degree program was central to his rehabilitation and to his request for exemption from employment disqualification.

At the hearing, Mr. Foreman presented the testimony of one witness, testified on his own behalf, and had Exhibits Numbered 1-2 admitted into evidence. The Department presented the testimony of one witness and had Exhibits Numbered 1-7 admitted into evidence.

A Transcript of the hearing was filed on January 29, 2001.

The Respondent filed a Proposed Recommended Order. The Petitioner filed a written statement that has been treated as a Proposed Recommended Order.

Subsequent to the conclusion of the hearing and the close of the record, Mr. Foreman filed documents indicating that the Wisconsin Governor's pardon, referenced in the following Findings of Fact as pending at the time of the hearing, has been fully granted. The recommendation set forth herein is based on the evidence admitted at the hearing and without regard to the apparently granted pardon.

FINDINGS OF FACT

1. On June 21, 1991, Aaron Foreman (Petitioner) was convicted of one count of "possession of THC with intent to deliver" in the Circuit Court of Walworth County, State of Wisconsin, Case Number 90CR00080.

2. At the time of the arrest, the Petitioner was a student at the University of Wisconsin in Whitewater. He resided with several other students in the upstairs apartment portion of a residence.

3. On or about February 1, 1990, local Whitewater law enforcement officials, apparently investigating one of the roommates for burglary, executed a search warrant and entered into the apartment where the Petitioner was living.

4. During the search of the apartment, law enforcement officers discovered a quantity of marijuana in the apartment and bedrooms of the residents.

5. The Petitioner had a refrigerator in his bedroom, within which law enforcement officers discovered a large plastic bag containing 26 smaller plastic bags, each containing a quantity of marijuana. The total weight of the plastic bags of marijuana within the Petitioner's refrigerator was identified in the charging document as approximately 126 grams.

6. In Count One of the charge, the Petitioner and three other persons (apparently the roommates) were jointly charged with possession with intent to deliver more than 500 grams of THC, an element of marijuana.

7. In Count Four of the charge, the Petitioner was individually charged with possession with intent to deliver 91 grams of THC.

8. The record of the hearing does not establish the reason for the difference between the weight of the marijuana allegedly discovered and the THC quantities with which the defendants were charged.

9. According to the Petitioner's testimony at hearing, the Petitioner participated in marijuana use, and bought and sold marijuana within a "small circle of friends" and his roommates.

10. On June 21, 1991, the Petitioner entered a plea of "no contest" to Count Four as part of an agreement to resolve the drug possession charges, and as stated previously, was convicted of felony under Wisconsin law.

11. According to the Judgement of Conviction, Count One of the charge was dismissed.

12. As a result of the plea agreement, the Petitioner was sentenced to nine months in jail, two years of probation, and a fine of approximately $2,700.

13. The Petitioner served the jail sentence in a work release program, continued to attend college and obtained an undergraduate degree in sociology from the University of Wisconsin.

14. The Petitioner paid the fine imposed by the sentence and successfully completed the probationary period as of September 19, 1993.

15. Subsequent to completion of the sentence, the Petitioner became employed as a licensed social worker in Wisconsin. From 1993 to 1999, the Petitioner was employed by "Southeastern Youth and Family Services," as a social worker. The Petitioner's employment evaluations range from "very good" to "outstanding."

16. In July 1999, the Petitioner underwent a background screening prompted by his application for employment by Eckerd Youth Alternatives, Inc., a program that, in part, provides services to young persons involved in the juvenile justice system and funded through contract with the Florida Department of Juvenile Justice (Department).

17. Based on the conviction, the Department notified Eckerd Youth Alternatives, Inc., that the Petitioner was disqualified from employment.

18. The Petitioner requested that the Department review the disqualification. The Department responded by letter dated June 19, 1999, advising that the desk review would be granted and identifying the information that the Petitioner was required to submit to facilitate the review.

19. The Petitioner responded to the June 19 letter by supplying the requested information to the Department.

20. The matter was apparently reviewed by a

    
    

    "Priscilla A. Zachary, BSU Supervisor" for the Department, who forwarded the file along with a cover memo to Perry Turner, the Department's Inspector General.

21. As Inspector General, Mr. Turner is the person authorized by the Department to make decisions on disqualification exemption applications.

22. Ms. Zachary's cover memo incorrectly identifies the crime for which the Petitioner was convicted and states that the Petitioner's June 21, 1991, conviction was for "Possession with Intent to Deliver" more than 500 grams of THC.

23. According to the Judgement of Conviction, Count One of the charge, wherein the Petitioner and other persons were

    jointly charged with possession with intent to deliver more than

    
    

    500 grams of THC, was dismissed.

    
    

24. On August 5, 1999, Mr. Turner determined that the Petitioner's application for exemption should be denied.

25. Mr. Turner based his decision on his belief that the Petitioner's felony conviction was for an amount of marijuana beyond that which Mr. Turner believes could be reasonably identified as being for "personal use" and which was intended for distribution.

26. By letter dated August 5, 1999, the Petitioner was notified of the Department's decision by letter and advised of his right to challenge the denial in an administrative hearing.

27. During the hearing, the Petitioner testified as to the events leading to his conviction and identified his efforts at rehabilitation.

28. At the hearing, the Petitioner testified that his initial experience with marijuana occurred in approximately 1988, when he entered the University of Wisconsin at Whitewater. The Petitioner testified that at the time of the 1990 arrest, he was an "immature" college student who recreationally used marijuana within his circle of friends and with whom he sold or exchanged marijuana.

29. Other than the Petitioner's admission, there is no evidence that the Petitioner actually sold marijuana. There is

    no evidence that the Petitioner was arrested or charged with the sale of marijuana.

30. There is no evidence that the Petitioner was a part of any continuing marijuana distribution organization.

31. There is no evidence that, other than the arrest at issue in this proceeding, the Petitioner has ever been arrested for any other reason.

32. Review of the charging documents suggests that the charge of "intent to deliver" was based on the quantity of the marijuana found in the apartment and the apparent candor with which the residents dealt with the law enforcement officials who executed the search warrant and investigated the situation.

33. The Petitioner's arrest occurred approximately eleven years ago. The Petitioner's conviction was approximately ten years ago. The Petitioner completed the probationary portion of his sentence more than seven years ago.

34. There is no evidence that there was any physical injury or harm done to any individual as a result of the Petitioner's conviction.

35. There is no evidence that granting the Petitioner's request for exemption presents a danger to the Petitioner or to any other person.

36. The Petitioner has continued with his education and in December 2000 received his master's degree in Criminal Justice from the University of Wisconsin in Milwaukee.

37. The Petitioner has also sought to obtain a pardon from the Governor of Wisconsin. By letter dated August 28, 2000, the Governor's Pardon Advisory Board notified the Petitioner that it was recommending to the Governor that a pardon be granted.

38. Although the vote by the Board was not unanimous, the majority of the members believed that the pardon should be granted "based on positive adjustment, lack of subsequent criminal justice system contacts, non-violent nature of the crime, and valid job concerns."

39. As of the date of the hearing, the Governor of Wisconsin had not acted on the Board's recommendation to grant the Petitioner's pardon request.

    CONCLUSIONS OF LAW

    
    

40. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

41. The Department of Juvenile Justice is required to conduct a criminal records check of persons seeking employment in specified types of work. Section 435.04, Florida Statutes.

42. The Petitioner has the burden to establish by clear and convincing evidence that he should not be disqualified from

    employment. Subsection 435.07(3), Florida Statutes, sets forth the applicable considerations governing a request for an exemption from employment disqualification and provides that the Petitioner must establish

    [S]ufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed.

    
    

43. In this case, the Petitioner has met the burden. The evidence establishes that the Petitioner should not be disqualified from employment based on the 1991 conviction at issue in this case.

44. Other than the 1990 arrest, there is no evidence that the Petitioner has had other criminal justice system involvement. Although the incident for which the Petitioner was convicted is serious, there is no evidence that there was any direct harm to any person other than the Petitioner.

45. The Petitioner is clearly aware of the impact of his activity on his parents and acknowledges the effect inappropriate drug use has on the larger social order.

46. A sufficient amount of time has passed since the completion of his sentence to establish that any further drug-related criminal activity is highly unlikely.

47. There is no evidence that suggests the Petitioner poses any danger whatsoever to himself or to any other person.

48. The Department’s denial of the request for exemption is based primarily on the fact that the Petitioner's conviction included an element of "intent to deliver" the marijuana found in his possession at the time the unrelated search warrant was executed at the residence he shared with other students. The relevant statute does not indicate that the "intent to deliver" element of the Petitioner's offense should serve to forever bar him from receiving an exemption to the employment disqualification which automatically followed the conviction. The circumstance of the criminal event is but one of the criteria to be considered in determining whether an application for disqualification exemption should be granted.

49. In this case, the evidence establishes that the Petitioner meets the criteria for receiving an exemption from employment disqualification.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Juvenile Justice

grant the request of Aaron Foreman for exemption from employment disqualification.

DONE AND ENTERED this 26th day of February, 2001, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 2001.

COPIES FURNISHED:

Aaron Foreman

10500 West Fountain Avenue Apartment No. 411

Milwaukee, Wisconsin 53224

Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

William G. Bankhead, Secretary Department of Juvenile Justice Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Robert N. Sechen, General Counsel Department of Juvenile Justice

Knight Building, 2737 Centerview Drive Tallahassee, Florida 32399-3100

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: 99-004397

Orders for Case No: 99-004397