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Day Care Homes. 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. (Health & Safety Code § 1597.40(a).) To that end, the legislature declared that qualifying day care operations as "residential, single-family homes" (H&S Code § 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 Code § 1597.40(c).)  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 Code § 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).

 Effective January 1, 2020, associations cannot directly prohibit or indirectly limit day care homes. However, they may adopt reasonable regulations that include:

  1. 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 Code §§ 1597.44-46; § 1597.465.) )Associations can check 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. 
  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 Code § 1597.531.)
  4. 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.
  5. 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.

Condominiums Are Included. Even though H&S Code § 1597.40(a) refers to single-family residences, not condominiums. the legislative history shows that the statute was intended to apply to condominiums and apartments as well as single family homes. 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. 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.

Group Care Homes. As with day care homes for children, associations cannot prohibit residential care facilities which service six or fewer persons. (H&S Code § 1566.5.) A residential facility means any family home or group care facility providing 24-hour non-medical care to persons in need. (H&S Code § 1502(a)(1).) These facilities are specifically defined as residential use of property by a single family. (H&S § 1566.5.) This effectively goes around an association's private restrictions.

Sober Living Homes. Associations cannot prohibit owners or tenants from operating an alcoholism or drug abuse recovery or treatment facility which serves six or fewer persons. (H&S Code § 11834.23.) The same is true for licensed non-medical alcohol and drug treatment facilities--homes that provide one or more of the following services: detoxification; educational sessions; and recovery or treatment planning. A sober living facility can represent challenges involving the following:

  • rules violations
  • parking violations and guest parking problems
  • smoking in the common areas
  • excessive and unsupervised use of recreational facilities
  • requests for extra keys and vehicle stickers
  • harassment and intimidation of staff and residents
  • security problems and criminal activity
  • excessive noise
  • vandalism
  • litter

Recommendation: Because of the many protections afforded day care, group care, and sober living homes, boards should not tackle these issues without first consulting with legal counsel.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

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