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 DAY CARE CENTERS
QUESTION: Our CC&Rs ban any commercial
use of property but one of our residents is running a day care business out of
her condominium. We sent her a letter demanding she cease and she responded that under California law we cannot stop her
from running this business. Is this true?
ANSWER:
Under California law, associations cannot prohibit or restrict homeowners (or
tenants) from operating a “family day care home for children.” Health & Safety
Code 1597.40(c). A family day care home means a home that regularly provides
care, protection, and supervision for 14 or fewer children for periods of less
than 24 hours per day.” H&S 1596.78(a)
In enacting the above law, it was the intent of
the Legislature that family day care homes for children be situated in normal
residential surroundings so as to give children the same
home environment as provided in a traditional home setting. H&S 1597.40(a)
Reasonable Regulations for Day Care Centers.
Although associations cannot prohibit day care centers, they may adopt reasonable
regulations that address the following issues:
1. License. The homeowner or
tenant operator must obtain proper
licensing. Different conditions and
requirements are imposed by California law for small family and
large family day care homes. H&S 1597.44-46; 1597.465. Associations should
check both the validity and type of license with the local
Community Care Licensing Division Child Care Office.
2. Local & State Laws.
Day care operators must comply with all local and state laws regulating the licensing and operations of
a day care center. The “Manual of Policies and Procedures” sets forth the
regulations and operating procedures of a licensed family day care home.
3. Insurance or Affidavits.
Operators must maintain (1) liability insurance in the amount of at least
$100,000 per occurrence and $300,000 aggregate, or a bond in the aggregate
amount of $300,000; or (2) affidavits signed by each parent with a
child enrolled in the center that states that the parent knows that the day care
center does not carry insurance or a bond. If there is insurance or a bond, the
association may require that it be named as an additional
insured, provided that the association pays any additional premium assessed for
this coverage. H&S 1597.531
4. Indemnification. Day care
operators must indemnify, defend, and hold the association harmless for any
liability arising out of the operation of the day care facility.
5. Supervise
Children. Day care operators must supervise children when they
are on the premises.
RECOMMENDATION:
The association’s best option is for the day care facility to purchase liability
insurance and to name the association as an additional insured (see #3 above).
However, the facility is not legally required to purchase insurance if it
maintains a file of signed affidavits.
Sincerely
yours,
Tina Wang, Esq.
Adams Kessler PLC
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