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QUESTION: H&S Code §1597.40(a) refers to “single-family residences” NOT Condominiums. I cannot imagine the legislature would allow a day care center in a condominium.

ANSWER: Legislative history shows that the statute was intended to apply to condominiums and apartments as well as single family homes.

Definition. The statute defines a family day care home as a “home that regularly provides care, protection, and supervision for 14 or fewer children, in the provider’s own home, for periods of less than 24 hours per day, while the parents or guardians are away, and is either a large family day care home or a small family day care home.” (H&S §1596.78). Home is not defined to specifically refer only to single family homes.

Dept. of Social Services. California’s Department of Social Services publishes a self-assessment guide for family child care homes on its websites, which states “Even though the Health & Safety Code refers to ‘single-family residences,’ the law has historically been interpreted to protect providers in multiple dwellings such as apartments, condominiums and other non-detached residences. This means that any legal residence can qualify to become a family child care home if it meets the licensing requirements.”

Case Law. A case that discusses the issue is Morrison v. Vineyard Creek (2011) 193 Cal.App.4th 1254. In this case, Ms. Morrison rented an apartment and then decided to run a day care business out of the apartment. She notified the landlord. The landlord’s attorney claimed H&S section 1597.40 applies only to single family homes. They denied her request and told her she would be in breach of her lease agreement. She sued the landlord.

After the lawsuit was filed the landlord obtained new counsel. The new counsel reviewed the legislative history of H&S §1597.40(a) and determined it did apply to apartments. The attorney called Ms. Morrison’s attorney and withdrew its opposition to her day care business and agreed to compensate her for damages. The parties eventually reached a settlement agreement in which the landlord recognized Ms. Morrison’s right to run a day care from the apartment.

The published appeal is regarding attorneys’ fees, so it doesn’t decide whether H&S §1597.40 applies to apartments or condominiums, but it provides the above discussion regarding it.

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