06-000150PL Department Of Business And Professional Regulation, Division Of Real Estate vs. William Henry Thomas Status: Closed Recommended Order on Friday, March 21, 2008.

Summary: Petitioner demonstrated that Respondent pled nolo contendere to a charge of possession of child pornography. Mitigating circumstances lead to a recommendation of five years` probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 06-0150PL

)

WILLIAM HENRY THOMAS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

before Lawrence P. Stevenson, Administrative Law Judge of the

Division of Administrative Hearings, on October 18, 2007, in

Port Charlotte, Florida.

APPEARANCES

For Petitioner: Patrick J. Cunningham, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street

Hurston Building-North Tower, Suite N801

Orlando, Florida 32801

For Respondent: Nevin A. Weiner, Esquire

Nevin A. Weiner, P.A.

100 Wallace Avenue, Suite 100

Sarasota, Florida 34237

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent, William

Henry Thomas, committed the violations alleged in a two-count

Administrative Complaint issued by the Petitioner, Department of

Business and Professional Regulation, Division of Real Estate,

on July 26, 2005, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner issued a two-count Administrative Complaint on

July 26, 2005, against Respondent, alleging in Count I that

Respondent "is guilty of having been convicted or found guilty

of, or entered a plea of nolo contendere to, regardless of

adjudication, a crime which involves moral turpitude or

fraudulent or dishonest dealing in violation of Subsection

475.25(1)(f), Florida Statutes." Petitioner alleged, in part,

the following factual basis for the charge:

On or about December 20, 2002, Respondent

pled nolo contender [sic] to the charge of

possession of child pornography, a third

degree felony in the state of Florida . . .

On or about December 20, 2002, Respondent

was adjudicated guilty of the charge of

possession of child pornography, a third

degree felony in the state of Florida and

sentenced to five (5) years sex offender

probation . . . [1]

Count II of the Administrative Complaint alleged that

Respondent "is guilty of not having informed the Florida Real

Estate Commission in writing within 30 days of having pled

guilty or having been convicted of a felony and, therefore, is

in violation of Subsection 475.25(1)(p), Florida Statutes." As

a factual basis for this charge, Petitioner attached a letter to

the Administrative Complaint addressed to Petitioner from

Respondent, dated March 14, 2003, and received by Petitioner on

March 21, 2003, informing Petitioner of Respondent's plea of

nolo contendere to a third degree felony.

Respondent timely filed an election of rights requesting a

formal hearing to contest the factual allegations of the

Administrative Complaint. On January 12, 2006, the case was

referred to the Division of Administrative Hearings (DOAH) for

assignment of an administrative law judge to conduct a formal

administrative hearing. The case was originally set for hearing

on March 30 and 31, 2006.

On March 14, 2006, Petitioner filed a Motion for Summary

Final Order, which was denied after a telephonic hearing on

March 27, 2006. On March 30, 2006, Respondent filed an

uncontested motion to abate the proceedings pending the outcome

of Respondent's motions and appeals pending in the Florida

criminal courts. By Order dated March 30, 2006, the pending

hearing was continued and the case placed in abeyance. The

parties were required to file periodic status reports during the

abeyance period, which was extended four times while

Respondent's criminal appeals were pending. The hearing was

ultimately scheduled for October 17 and 18, 2007, and was held

on October 18, 2007.

At the final hearing, Petitioner presented the testimony of

David Guerdan, an investigation supervisor for Petitioner, and

of Douglas Skelly, a probation officer for the Department of

Corrections. Petitioner's Exhibits 1 through 4 were admitted

into evidence. Respondent testified in his own behalf and

presented the testimony of his wife, Margaret Thomas; Frank

Vargo, pastor of Freedom Bible Church in Port Charlotte; Scott

Brenner, a real estate broker and Respondent's employer; Susan

Pintz, a sales associate and Respondent's co-worker; and Robert

Hackett, a real estate agent and friend of Respondent.

Respondent's Exhibits 1 through 18 were admitted into evidence.

A Transcript of the hearing was filed with the Division of

Administrative Hearings on January 3, 2008. At the hearing, the

parties agreed that their proposed recommended orders would be

filed within 30 days after the filing of the transcript. Both

parties timely filed their Proposed Recommended Orders, which

have been fully considered in entering this Recommended Order.

All references to Florida Statutes and the Florida

Administrative Code in this Recommended Order are to the

versions applicable at the time of the Administrative Complaint,

unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner, the Department of Business and Professional

Regulation, Division of Real Estate (hereinafter referred to as

the "Department"), is the state agency charged with the duty to

prosecute administrative complaints pursuant to Section 20.125,

and Chapters 120, 455, and 475, Florida Statutes.

2. Respondent William Henry Thomas is a licensed Florida

real estate agent. Mr. Thomas's license number is 590454.

3. At the time of the hearing, Mr. Thomas was listed as a

sales associate affiliated with Brenner Realty, Inc. ("Brenner

Realty"), license number CQ 1014108, a brokerage corporation

located at 9400 Gladiolus Drive, Suite 290, Fort Myers, Florida

33908.

4. Mr. Thomas has been actively licensed in Florida since

August 17, 1992. No prior disciplinary action has been brought

against Mr. Thomas.

5. On December 20, 2002, Mr. Thomas entered a plea of nolo

contendere to two counts of possession of child pornography

pursuant to Subsection 827.071(5), Florida Statutes. Mr. Thomas

was adjudicated guilty and sentenced to five years of sex

offender probation for each count, the sentences to run

consecutively. Mr. Thomas was also ordered to attend sex

offender treatment and counseling, and not to attend "any nudist

colonies" during the period of his probation. 2

6. The official transcript of Mr. Thomas' plea proceeding

was entered into the record of this case. During that

proceeding, assistant state attorney John L. Burns described the

facts that the state would have shown at trial as follows:

Judge, what we show is that through the

testimony of various agents from the Federal

Bureau of Investigation . . . that [an]

Internet computer investigation began

nationwide that eventually through their

investigation turned up several people, some

in Texas, across the country, but eventually

a portion of the investigation was linked to

this defendant. [3]

And that we would show on several occasions

Mr. Thomas had in his possession—— what he

would do is, he would take from news groups

depictions that would be deemed child

pornography, and while he would not download

them to his computer, he would save the

pictures on what's called [an] ISP server,

such as Yahoo, or Hotmail, which would allow

him to access those pictures via his

computer at any time. He was able to

receive, send, or distribute those

photographs through the Internet by posting

those photographs from one news group to

another news group.

7. At the court's behest, Mr. Burns made the standard plea

inquiries of Mr. Thomas, who answered that he could read, write

and understand the English language; that he was not currently

under the influence of any drugs, alcohol or intoxicants; that

he was not suffering from mental illness; that he had no

physical disabilities that would prevent him from understanding

his plea; that he in fact heard and understood the terms of his

plea; that he desired to enter the plea; that he had the

opportunity to ask his attorney questions about the plea; that

his attorney satisfactorily answered those questions; that he

was giving up the right to a jury trial and to appeal his

adjudication; that he had not been threatened or coerced in any

manner to enter the plea; that he had been given no promises in

exchange for his plea, aside from the agreement stated in open

court; and that he was fully satisfied with the services of his

attorney.

8. Despite his statements in open court, Mr. Thomas

testified in the instant proceeding that his plea was in essence

coerced by his then-attorney. Mr. Thomas testified that FBI

agents arrived at his front door on February 26, 2002. They had

no warrant and asked to come inside and talk. Mr. Thomas let

them in and talked with them for an hour about message boards.

The agents asked whether Mr. Thomas was familiar with the

"Candyman" internet site. Mr. Thomas admitted using message

boards, but told the agents he had never heard of the "Candyman"

site. The agents asked if they could examine Mr. Thomas'

computer. Believing he had no choice, Mr. Thomas allowed the

agents to search his computer. His computer was never seized by

law enforcement authorities, and no search warrant was ever

issued against Mr. Thomas.

9. Mr. Thomas testified that he was never a member of the

Candyman group and never knowingly received images from its

members. He stated that the Yahoo e-mail address and internet

service provider ("ISP") that the FBI attributed to him were

incorrect, and that his own Yahoo account was set up to

automatically block e-mail and spam. Mr. Thomas testified that

his lawyer never obtained adequate discovery from the FBI and

that he was never allowed to see the two photographs that he was

alleged to have had in his possession. 4

10. Mr. Thomas testified that his lawyer convinced him

that pleading to the charges in state court and accepting

probation was the only way to avoid federal prosecution and a

possible prison sentence. Mr. Thomas was convinced that the FBI

would not hesitate to provide false testimony in order to obtain

his conviction in a federal trial. Further, during the time the

prosecution was pending, Mr. Thomas' wife was diagnosed with

diabetes and hospitalized. She suffered pronounced weight loss

and was emotionally distraught at the thought of Mr. Thomas

going to prison. In light of all these circumstances,

Mr. Thomas decided to accept the plea offer.

11. Mr. Thomas testified that, while it seemed expedient

at the time, accepting the plea offer only caused him more

distress. He had a long talk with his wife, during which he

told her he could not live with the fact that he had admitted

guilt to a crime he did not commit. In January 2003, Mr. Thomas

retained his current counsel and set about attempting to set the

plea aside and vacate his conviction, via various motions filed

during January and February 2003. The motions were ultimately

denied by court order dated February 21, 2003. Mr. Thomas

received a final order of probation on March 10, 2003.

12. In a letter dated March 14, 2003, Mr. Thomas informed

the Florida Real Estate Commission of his nolo contendere plea

to the charge of possession of child pornography, a third degree

felony. The letter was received by the Department on March 21,

2003. Mr. Thomas conceded that the letter was sent more than 30

days after he entered his plea. Mr. Thomas testified that for a

time after he entered his plea, he was unaware of the 30-day

reporting requirement. After he learned about the requirement,

he still hesitated because he believed that his plea was not

final while his motions to set the plea aside and vacate his

conviction were pending before the court. Mr. Thomas did notify

the Florida Real Estate Commission within 30 days of the court

order denying his motions.

13. The evidence indicates that Mr. Thomas did not attempt

to conceal his conviction from the local real estate community

in Port Charlotte. He immediately informed his broker at

Century 21 of his conviction. Mr. Thomas left Century 21 in

March 2003 after it became uncomfortable to work there, due to

his employer's misguided concern that Century 21 would be listed

on Mr. Thomas' entry on the Florida Department of Law

Enforcement's sex offender web page. Mr. Thomas began

interviewing with other brokerages, and informed them of his

conviction. These facts lend added credibility to Mr. Thomas'

contention that he would have reported his conviction to the

Florida Real Estate Commission within 30 days had he been fully

cognizant of the requirement to do so.

14. Under the terms of his probation, Mr. Thomas had to

allow his probation officer to conduct periodic "walk-throughs"

of his home and to perform annually a complete search of the

home. During the annual search performed on April 27, 2004, the

probation officer found a box containing more than 200

"naturist" publications that included photographs of adults and

children in the nude. The box was stored in a closet, out of

plain sight. The probation officer, Douglas Skelly, testified

that it was obvious the box had not been recently looked

through. Though the photographs did not depict sexual activity,

Mr. Skelly stated that the materials constituted a violation of

Mr. Thomas' sex offender probation and reported the alleged

violation to the court.

15. Mr. Thomas testified that the box of naturist

publications had been stored in the closet since before his

arrest and that he had simply forgotten they were there. On

September 23, 2004, the court accepted Mr. Thomas' plea of

guilty to two counts of probation violation. However, rather

than revoking or extending Mr. Thomas' probation, the court

actually reduced it from ten to seven years.

16. Mr. Skelly verified that, aside from the incident with

the naturist publications, Mr. Thomas has complied with every

requirement of his sex offender probation.

17. Frank Vargo is the pastor of Freedom Bible Church, a

300 member church that Mr. Thomas has attended for six years.

Pastor Vargo testified that Mr. Thomas told him about his

history, and that Pastor Vargo kept an eye on Mr. Thomas while

getting to know him. Pastor Vargo is convinced that Mr. Thomas

is a good person and noted that Mr. Thomas "faithfully" attends

church and is a frequent volunteer. Pastor Vargo has heard

nothing negative about Mr. Thomas. He has recommended

Mr. Thomas to persons needing a real estate agent, and would not

hesitate to do so in the future.

18. Scott Brenner is a Florida licensed real estate broker

and the owner of Brenner Realty, with which Mr. Thomas has been

licensed for about three and one-half years. Mr. Brenner has

been aware of Mr. Thomas' legal situation since hiring him. He

described Mr. Thomas as possessing a high degree of

professionalism, integrity, and an earnest desire to represent

his clients. Mr. Brenner has no qualms about Mr. Thomas' having

access to the lockbox that allows a real estate agent to enter a

house for sale. He has received no complaints about Mr. Thomas.

19. Fellow realtors Susan Pintz and Robert Hackett

testified on behalf of Mr. Thomas. They both spoke highly of

his professional capabilities and personal qualities. Ms. Pintz

stated that Mr. Thomas has always acted with honesty and

integrity. Mr. Hackett, who has known Mr. Thomas and his family

for 15 years, was grateful to Mr. Thomas for helping him pass

the real estate licensing exam and became good friends with him.

Mr. Hackett testified that he has never seen Mr. Thomas do

anything dishonest, unethical, or inappropriate in his business

or personal dealings.

20. Margaret Thomas has been married to Mr. Thomas for 30

years. They have a 26-year-old son. She described Mr. Thomas

as a good husband and father, and a fine person who is always

the first to help others in times of distress. Ms. Thomas is

the general manager of a hearing aid service, and testified that

the family income would be cut by half if Mr. Thomas lost his

real estate license. She has diabetes for which she takes

insulin, and she takes other medications for a mini-stroke she

has suffered. Mr. Thomas has recently had several surgeries for

diverticulosis and a ruptured bowel. Ms. Thomas testified that

her husband's income is critical to meeting the family's medical

and other expenses.

21. The Department offered no actual evidence to establish

that Mr. Thomas presents a risk to persons dealing with him in a

professional capacity. The hypothetical situation of

Mr. Thomas' using his lockbox privileges to enter a house in

which only children were present was mooted at the hearing.

Mr. Thomas persuasively testified that such an incident has

never occurred in his experience. His clientele in Port

Charlotte consists mainly of retirees; he has not had a client

with children in five or six years. In any event, Mr. Thomas

has practiced pursuant to his license almost continuously since

1992 without incident or complaint.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto, pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes (2007).

23. In the Administrative Complaint, the Department seeks

to impose penalties against Mr. Thomas, including suspension or

revocation of his license and/or the imposition of an

administrative fine. The Department, therefore, has the burden

of proving the allegations of the Administrative Complaint by

clear and convincing evidence. Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987); and Nair v. Department

of Business & Professional Regulation , 654 So. 2d 205, 207 (Fla.

1st DCA 1995). Clear and convincing evidence is the proper

standard in license revocation proceedings, because they are

penal in nature and implicate significant property rights. See

Osbourne Stern , 670 So. 2d at 935.

24. In Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA

1989), the Court defined clear and convincing evidence as

follows:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

evidence 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 the firm belief of

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker , 429 So.

2d 797, 800 (Fla. 4th DCA 1983).

25. Judge Sharp, in her dissenting opinion in Walker v.

Florida Department of Business and Professional Regulation , 705

So. 2d 652, 655 (Fla. 5th DCA 1998)(Sharp, J., dissenting),

reviewed recent pronouncements on clear and convincing evidence:

Clear and convincing evidence requires more

proof than preponderance of evidence, but

less than beyond a reasonable doubt. In re

Inquiry Concerning a Judge re Graziano , 696

So. 2d 744 (Fla. 1997). It is an

intermediate level of proof that entails

both qualitative and quantative [sic]

elements. In re Adoption of Baby E.A.W. ,

658 So. 2d 961, 967 (Fla. 1995), cert.

denied , 516 U.S. 1051, 116 S. Ct. 719, 133

L.Ed.2d 672 (1996). The sum total of

evidence must be sufficient to convince the

trier of fact without any hesitancy. Id.

It must produce in the mind of the fact

finder a firm belief or conviction as to the

truth of the allegations sought to be

established. Inquiry Concerning Davey , 645

So. 2d 398, 404 (Fla. 1994).

26. Section 475.25, Florida Statutes, provides that

disciplinary action may be taken against the license of a real

estate sales associate if it is found that the associate has

committed certain enumerated offenses. In this matter, it has

been alleged that Mr. Thomas committed the offense described in

Subsection 475.25(1)(f), Florida Statutes, which provides, in

pertinent part:

Has been convicted or found guilty of, or

entered a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which directly relates to the

activities of a licensed broker or sales

person, or involves moral turpitude or

fraudulent or dishonest dealing. The record

of a conviction certified or authenticated

in such form as to be admissible in evidence

under the laws of the state shall be

admissible as prima facie evidence of such

guilt. (Emphasis added).

27. In support of the alleged statutory violation, the

Department has alleged that Mr. Thomas' nolo contendere plea to

possession of child pornography pursuant to Subsection

827.071(5), which the Department proved clearly and

convincingly, constitutes a plea to a crime which "involves

moral turpitude."

28. Being penal in nature, Section 475.25, Florida

Statutes, "must be construed strictly, in favor of the one

against whom the penalty would be imposed." Munch v. Department

of Professional Regulation, Div. of Real Estate , 592 So. 2d

1136, 1143 (Fla. 1st DCA 1992).

29. Mr. Thomas argues that a no contest plea does not

constitute an admission of guilt, is not direct evidence of his

guilt, and that his conviction is not conclusive proof that the

alleged incident actually occurred. Kelly v. Department of

Health and Rehabilitative Services , 610 So. 2d 1375, 1377 (Fla.

2d DCA 1992)("A no contest plea . . . represents only an

accused's unwillingness to contest charges against him, and does

not constitute an admission of guilt and may not be used as

direct evidence of guilt in a civil suit or in an administrative

proceeding.").

30. Mr. Thomas' reliance on Kelly is unavailing because of

the different statutes applicable in that case and this. In

Kelly , the appellant had pled no contest to a charge of child

abuse, and sought to have his name expunged from the Child Abuse

Registry as a confirmed perpetrator. The court noted that the

expunction statute, then in force, 5 placed the burden on the

Department of Health and Rehabilitative Services to "prove by a

preponderance of the evidence that the alleged perpetrator

committed the abuse." The court further noted that the statute

"does not provide that a conviction of child abuse will be

deemed conclusive proof that such abuse actually took place.

Nor is it provided anywhere in Chapter 415 that an alleged

perpetrator's name will be entered into the abuse registry

simply upon a conviction of child abuse." Kelly , 610 So. 2d at

1377-78. In light of the statutory requirements that the actual

abuse be proven and that conviction did not constitute such

proof, the court held that appellant's no contest plea and

conviction were insufficient to support his placement on the

abuse registry. Id. at 1378.

31. In contrast, Subsection 475.25(1)(f), Florida

Statutes, does not require the Department to prove that

Mr. Thomas actually possessed child pornography. Subsection

475.25(1)(f), Florida Statutes, defines the plea itself as the

offense for which disciplinary action may be taken against the

license, without regard to the underlying crime.

32. Mr. Thomas pled nolo contendere to and was adjudicated

guilty of violating Subsection 827.071(5), Florida Statutes. At

the time of Mr. Thomas' adjudication, Subsection 827.071(5)

provided:

It is unlawful for any person to knowingly

possess a photograph, motion picture,

exhibition, show, representation, or other

presentation which, in whole or in part, he

or she knows to include any sexual conduct

by a child. The possession of each such

photograph, motion picture, exhibition,

show, representation, or presentation is a

separate offense. Whoever violates this

subsection is guilty of a felony of the

third degree, punishable as provided in

s. 775.082, s. 775.083, or s. 775.084.

33. Mr. Thomas argues that the offense in question does

not necessarily involve moral turpitude. Department of

Professional Regulation, Division of Real Estate v. Rosenberg ,

Case No. 89-5858 (DOAH May 7, 1990), involved disciplinary

proceedings against a real estate broker who had pled guilty to

several offenses involving the possession and distribution of

child pornography. Though Rosenberg is factually

distinguishable from the instant case, its conclusions regarding

Subsection 827.071(5), Florida Statutes, 6 and moral turpitude are

persuasive and adopted as the rule of this case:

13. The case of State ex rel. Tullidge v.

Hollingsworth , 146 So. 666 (Fla. 1933),

defines "moral turpitude" as follows:

Moral turpitude involves the idea of

inherent baseness or depravity in the

private social relations or duties owed by

man to man or man to society.

* * *

It has also been defined as anything done

contrary to justice, honesty, principle or

good morals . . .

14. As stated previously, Counts I through

IV of the Information charged the Respondent

with unlawful and knowing possession of four

motion pictures containing sexual conduct by

children. Although there are no Florida

cases which describe the possession of such

materials as "moral turpitude," Section

827.071(5), Florida Statutes, makes it clear

that knowing possession of such materials is

a crime . If individuals do not attempt to

procure such materials, it is reasonable to

conclude that fewer children will be

subjected to such exploitation and

mistreatment. Adults owe a duty to children

not to debauch them by placing them in

pornographic films. The support of the

child pornography market is morally

despicable or abhorrent, and meets Florida's

definition of "moral turpitude." (Emphasis

added).

34. The Department has proved clearly and convincingly

that Mr. Thomas violated Subsection 475.25(1)(f), Florida

Statutes, as alleged in the Administrative Complaint.

35. The second count of the Administrative Complaint

alleged that Mr. Thomas committed the offense described in

Subsection 475.25(1)(p), Florida Statutes, which provides, in

pertinent part:

Has failed to inform the commission in

writing within 30 days after pleading guilty

or nolo contendere to, or being convicted or

found guilty of, any felony.

36. Mr. Thomas entered his plea on December 20, 2002. He

wrote a letter to inform the Florida Real Estate Commission of

his plea on March 14, 2003. The Department received the letter

on March 21, 2003. Mr. Thomas contended that his failure to

report was unintentional, based on his lack of actual knowledge

of Subsection 475.25(1)(p), Florida Statutes. Alternately,

Mr. Thomas contended that there was no requirement to inform the

commission while his motions to set aside the plea and void his

conviction were pending. Neither contention is supportable

under the plain language of the statute. Thus, the Department

has proved clearly and convincingly that Mr. Thomas violated

Subsection 475.25(1)(p), Florida Statutes.

37. A range of disciplinary guidelines for violations of

Chapter 475, Florida Statutes, has been adopted in Florida

Administrative Code Rule 61J2-24.001.

38. For a violation of Subsection 475.25(1)(f), Florida

Statutes, the suggested penalty range is a seven-year suspension

to revocation and an administrative fine of $1,000. Fla. Admin.

Code R. 61J2-24.001(3)(g).

39. For a violation of Subsection 475.25(1)(p), Florida

Statutes, the suggested penalty range is a five-year suspension

to revocation. Fla. Admin. Code R. 61J2-24.001(3)(q).

40. The Department in its Proposed Recommended Order has

suggested revocation of Mr. Thomas's license. This

recommendation is based upon the Department's contentions that

no mitigating circumstances have been proved, that he has not

demonstrated rehabilitation, and that the nature of the crime of

which Mr. Thomas was convicted is such that he cannot hold the

public trust.

41. Florida Administrative Code Rule 61J2-24.001(4)

provides for a consideration of aggravating or mitigating

circumstances demonstrated by clear and convincing evidence by

the petitioner or respondent in a proceeding before the Division

of Administrative Hearings. If demonstrated, the disciplinary

rule may deviate from the guidelines.

42. The aggravating or mitigating circumstances that may

be considered include, but are not limited to, the following:

1. The degree of harm to the consumer or

public.

2. The number of counts in the

Administrative Complaint.

3. The disciplinary history of the

licensee.

4. The status of the licensee at the time

the offense was committed.

5. The degree of financial hardship

incurred by a licensee as a result of the

imposition of a fine or suspension of the

license.

43. Despite the Department's contentions, the evidence

established several mitigating circumstances that should be

considered in this case:

a. There has been no harm to the consumer or the public as

a result of Mr. Thomas' offenses. Mr. Thomas' offenses had no

connection with the real estate profession;

b. Mr. Thomas has no prior discipline as a real estate

associate in Florida;

c. Mr. Thomas' status at the time of the offense was that

of an active Florida associate in good standing; and

d. Mr. Thomas and his wife, both of whom suffer serious

medical problems, would incur great financial harm if his

license were revoked.

44. Even assuming that Mr. Thomas actually performed the

acts of which he was accused, his conduct was entirely unrelated

to his real estate practice. Despite his regret at entering a

plea and his continued efforts at exoneration, Mr. Thomas has

complied with the terms of his probation. The Department failed

to show, except by way of a strained and unsupported

hypothetical, that Mr. Thomas' continued practice of the real

estate profession constitutes any sort of threat to the public.

Mr. Thomas has practiced his profession in the same geographic

area of Florida since 1992 without so much as a complaint

against him. While proving that Mr. Thomas committed the

violations alleged in the Administrative Complaint, the

Department has failed to justify its recommendation of license

revocation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that

A final order be entered finding that William Henry Thomas

violated Subsections 475.25(1)(f) and (p), Florida Statutes, and

placing his license on probation for a period of five years.

DONE AND ENTERED this 21st day of March, 2008, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of March, 2008.

ENDNOTES

1/ Respondent in fact pled guilty to two counts of possession of

child pornography and was sentenced to five years of probation

on each count, to run consecutively.

2/ Mr. Thomas testified that he and his wife are "naturists,"

i.e. , persons who enjoy recreation activities in the nude, but

who do not embrace the full-time lifestyle of "nudists."

3/ This nationwide investigation was called "Operation

Candyman," named after the "Candyman" e-group. This Yahoo

e-group allowed collectors and distributors of child pornography

to use online resources to retrieve and distribute child

pornography. See Federal Bureau of Investigation press release,

"Operation Candyman," dated March 18, 2002.

http://www.fbi.gov/pressrel/pressrel02/cm031802.htm

4/ Mr. Thomas' current counsel made much of the fact that the

images were never physically downloaded to Mr. Thomas' computer.

However, as Mr. Burns noted in his statement of proof to the

court, an ISP such as Yahoo provides remote storage service to

its users, allowing them to access and distribute materials

without downloading them to a local hard drive.

5/ Subsection 415.504(4)(d)3., Florida Statutes (1992).

6/ At the time of Rosenberg , Subsection 827.071(5) provided:

It is unlawful for any person to knowingly

possess any photograph, motion picture,

exhibition show, representation, or other

presentation which, in whole or in part, he

knows to include any sexual conduct by a

child. Whoever violates this subsection is

guilty of a felony of the third degree,

punishable as provided in s. 775.082,

s. 775.083, or s. 775.084.

COPIES FURNISHED :

Nevin A. Weiner, Esquire

Nevin A. Weiner, P.A.

100 Wallace Avenue, Suite 100

Sarasota, Florida 34237

Patrick J. Cunningham, Esquire

Department of Business and Professional

Regulation

400 West Robinson Street

Hurston Building-North Tower, Suite N801

Orlando, Florida 32801

Zed Lucynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Thomas W. O'Bryant, Jr., Director

Division of Real Estate

400 West Robinson Street

Suite 802 North

Orlando, Florida 32301

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.