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: Yes, it's true. 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 up to 14 children for periods of less than 24 hours per day. (H&S § 1596.78(a).) See subsection (d):
A small family daycare home or large family daycare home includes a detached single-family dwelling, a townhouse, a dwelling unit within a dwelling, or a dwelling unit within a covered multifamily dwelling in which the underlying zoning allows for residential uses. A small family daycare home or large family daycare home is where the daycare provider resides, and includes a dwelling or a dwelling unit that is rented, leased, or owned. (emphasis added).
Reasonable Regulations. Effective January 1, 2020, associations cannot directly prohibit or indirectly limit day care homes. However, they may adopt reasonable regulations that include:
- Licensing. The homeowner or tenant operator must obtain proper licensing, and any other licensing that may be required. Different conditions and requirements are imposed by California law for small family and large family day care homes regarding state and local licensing. H&S §§ 1597.44-46; 1597.465. Associations can check 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.
- 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
- Indemnification. An association may require day care operators to indemnify, defend, and hold the association harmless for any liability arising out of the operation of the day care facility.
- Supervise Children. An association may adopt reasonable rules regarding supervision of children in the common area that do not directly prohibit or indirectly limit the day care home.
Also see group care homes, sober living homes and age restricted communities.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.