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: She is correct. The California legislature wants family day care homes for children to 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).)
To that end, the legislature declared that qualifying day care operations as "residential, single-family homes" (H&S §1597.40(a)) and voided restrictions that directly or indirectly limit the acquisition, use, or occupancy of property for a family day care home for children. (H&S §1597.40(c).)
Defined. A "day care home" is defined as one 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).)
Tenant Operated. The day care operator can be a renter provided they notify the landlord and furnish the landlord with an increase security deposit. (H&S §1597.40(d).)
Reasonable Regulations. Although associations cannot prohibit day care centers, they may adopt reasonable regulations that include:
Also see group care homes, sober living homes and age restricted communities.
Licensing. 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.
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.
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 The association may also obtain insurance.
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.
Supervise Children. Day care operators must supervise children when they are on the premises, including their use of the association's recreational facilities.
: Associations needing legal assistance can contact us
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