STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENNIS R. GUDITH, )

)

Petitioner, )

)

vs. ) Case No. 97-4447

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in the above-styled case by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings, on January 14, 1998, St.

Augustine, St. Johns County, Florida.

APPEARANCES

For Petitioner: Dennis R. Gudith, pro se

4225 Rues Landing Road

St. Augustine, Florida 32092

For Respondent: Roger L. D. Williams, Esquire

Department of Children and Family Services

Post Office Box 2417 Jacksonville, Florida 32231-0083

STATEMENT OF THE ISSUE

Should an exemption be granted to the Petitioner who pled nolo contendere to a charge of child abuse?

PRELIMINARY STATEMENT

Wanda Gudith, the wife of the Dennis R. Gudith, operates a

child daycare facility in St. Augustine, Florida. Ms. Gudith revealed to the Department, which regulates such facilities, that her husband, Dennis R. Gudith, had pled nolo contendere to a charge of child abuse.

The Department advised Ms. Gudith that Dennis R. Gudith was disqualified as a "household member" in a "family daycare home," as defined by Section 402.302, Florida Statutes, because the Department determined that he failed to meet the minimum screening requirements for good moral character as provided in Section 435.04(2), Florida Statutes. The Department advised

Ms. Gudith that Dennis R. Gudith was forbidden from having contact with any of the children in the family daycare home, and that he was entitled to controvert the accuracy of the records reflecting his plea and was entitled to seek an exemption from disqualification.

The Gudiths applied for an exemption; and on July 9, 1997, the Department advised the Gudiths that their request for an exemption had been denied. The letter of denial advised the Gudiths of their right to appeal and the Gudiths appealed the Department's decision. The Department referred the matter to the Division of Administrative Hearings where the case was noticed for hearing on January 14, 1998, and heard as noticed.

At the conclusion of the hearing the parties were advised of their right to file post-hearing findings of fact. The Gudiths filed a letter outlining their proposed findings and argument;

however, the Department did not file proposed findings. On April 2, 1998, an Order To Show Cause was entered requiring the Department to file its proposed findings within 10 days or show cause why it should have additional time to file. Said order provided that the failure to file would result in the entry of a recommended order without benefit of the Department's input. As

of this date, the Department has not filed any proposed findings, and this order is entered without benefit of the Department's proposed findings of fact.

FINDINGS OF FACT

1. Wanda Gudith operates from her home a child daycare service. Wanda Gudith is married to Dennis R. Gudith, who lives in the family home.

2. On June 22, 1996, S.L.B. was seen by the emergency room at Flagler Hospital in St. Augustine, Florida. The records of that visit reveal that S.L.B. is a white male born on August 9, 1986. At the time he was seen, S.L.B. weighed 110 pounds.

   S.L.B. presenting complaint was a bruised and tender buttock.

   
   

3. The records of S.L.B.'s hospital examination reveal that his left buttock was bruised and tender. It was reported in the hospital case history that the injury was caused by having been struck the previous day by "the baby sitter." Examination of the injury revealed no broken skin and no drainage. The final diagnosis was that S.L.B. had a bruised buttock. The medical

   report also indicates that the sheriff's department was notified. See Respondent's Exhibit No. 8.

4. On July 19, 1996, a supplemental investigation was conducted by the St. Johns County Sheriff's Office. The victim, S.L.B., was interviewed and reported that he had thrown a toy car which nearly hit another child, where upon Wanda Gudith had sent him inside to be disciplined by her husband, Dennis Gudith. Dennis Gudith had him bend over and grab his ankles, and then struck him with a wooden cutting board. The victim reported that "it hurt badly." The victim also reported that later the same day Wanda Gudith spanked him on the same spot with a wooden spoon. The victim stated that Mr. Gudith had spanked him on previous occasions, but that it had not left any marks. The investigator's written report states that the photographs of the injury were reviewed, and a noticeable large bruise was observed on the left cheek of the victim's buttock. See Respondent's Exhibit No. 9.

5. On August 26, 1996, the investigator interviewed Wanda Gudith. Ms. Gudith reported that she had baby-sat for S.L.B. for approximately a year and that he had lived with them for a few weeks while his father was out of town. Gudith said that they had had behavior problems with the victim and that he sometimes acted out. On the day in question, Ms. Gudith reported that the victim had been told several times not to throw things around the other children. When S.L.B. threw items again, Ms. Gudith sent

   the victim into the house to be disciplined by her husband. See Respondent's Exhibit No. 9.

6. Mr. Gudith reported that the victim did as he had been told and that her husband spoke with him about not throwing things around the other children. Ms. Gudith stated that her husband then spanked the victim using as a paddle a wooden cutting board, which was turned over to the investigator as evidence. See Respondent's Exhibit No. 9.

7. On August 27, 1996, the investigating officer met with the father of the victim, who signed a complaint affidavit against Dennis Gudith for child abuse. See Respondent's Exhibit No. 9.

8. On September 9, 1996, the investigating officer forwarded the file to the state's attorneys' office for a decision on whether a case would be filed against Mr. Gudith. See Respondent's Exhibit No. 9.

9. Dennis Gudith testified at the hearing. Mr. Gudith entered a plea of nolo contendere to the charges filed against him for child abuse because he had struck the child and because it was cheaper than contesting the charges. The court withheld adjudication and placed Mr. Gudith on six-months supervised probation. Among the conditions established by the court was that Mr. Gudith attend anger control counseling with the Salvation Army. Mr. Gudith successfully completed all of the conditions of his probation and was released early from

   probation. See Petitioner's Exhibit No. 4 with attachments, and Petitioner's Exhibit No. 5 with attachments.

10. The attachment to Petitioner's Exhibit No. 6 reveal that both Mr. and Ms. Gudith have completed a 30-hour course of instruction on operating a home daycare facility.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. This order is entered pursuant to Section 120.57(1), Florida Statutes.

12. The record reveals that Wanda Gudith operates a family daycare center and that her husband is disqualified for failure to meet the minimum screening requirements specified in Section 435.04(2), Florida Statutes.

13. The Gudiths applied for an exemption and their request was denied by the Department. They timely requested a formal hearing on that denial and at hearing presented evidence in support of their request for exemption.

14. The Department set out the factors to be considered in granting an exemption as follows:

    1. The circumstances surrounding the incident;

       
       

    2. The time period elapsed since the incident;

    3. The nature of the harm to the victim;

       
       

    4. The applicant's history since the incident; and

       
       

    5. Other information indicating whether the applicant presents a danger to the safety or well-being of children.

       
       

15. Concerning the circumstances surrounding the incident, the facts reveal that the victim was engaged in dangerous conduct at the daycare center. The alleged victim in this case was nearly ten years-old and weighed 110 pounds. The victim, having failed to amend the dangerous behavior, was referred by

    Ms. Gudith to her husband for disciplinary action. The reports of that action uniformly indicate that Mr. Gudith swatted the child one time with an improvised paddle which was a wooden cutting board. The paddle was not introduced into evidence and no description thereof was provided. Ms. Gudith does not report that her husband was angry during the imposition of discipline, and Mr. Gudith did not report being angry with the victim at the time of imposing discipline.

16. The manner in which the discipline was imposed and the fact that only one swat of the paddle was used indicates that

    Mr. Gudith was not angry and anger was not a factor in this case.

    
    

17. The nature of the harm to the victim was bruising to the left buttock. No photographs of the injury were introduced. The only report of injury is that of the investigating officer who reviewed photographs taken by another deputy a month after

    the incident. The injury is described by the investigating officer as "a very noticeably large bruise on the left cheek of the victim's buttock." Such an injury is consistent with the victim being swatted with the cutting board paddle; however, the victim also reports subsequently being spanked with a wooden spoon by Ms. Gudith at the same point. Although there was bruising, there was no indication upon examination of any broken skin or drainage, and the manner of punishment was not reckless or negligent. The injury may have been caused by or aggravated by Ms. Gudith subsequently spanking the child with a spoon.

18. Mr. Gudith's plea was a plea of convenience.

    
    

19. This incident occurred in the late summer of 1996, nearly two years ago. Since the incident, Mr. Gudith has completed successfully the probation imposed by the court and has attended a course in anger control. He has had no other problems regarding abuse or anger.

20. Mr. Gudith testified that he would not discipline any child in his wife's care.

21. Mr. Gudith meets the Department's criteria for granting an exemption.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is,

RECOMMENDED:

That the Department grant Mr. Gudith's request for an

exemption.

DONE AND ENTERED this 15th day of May, 1998, in Tallahassee, Leon County, Florida.

_ STEPHEN F. DEAN

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

Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1998.

COPIES FURNISHED:

Dennis R. Gudith

4225 Rues Landing Road

St. Augustine, Florida 32092

Roger L. D. Williams, Esquire Department of Children

and Family Services Post Office Box 2417

Jacksonville, Florida 32231-0083

Gregory D. Venz, Agency Clerk Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran, General Counsel Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

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: 97-004447

Orders for Case No: 97-004447