Under existing law, the California Child Day Care Facilities Act, the State Department of Social Services licenses and regulates family daycare homes. Under existing law, a small family daycare home, which may provide care for up to 8 children, is considered a residential use of property for purposes of all local ordinances. Existing law authorizes a city, county, or city and county to either classify a large family daycare home, which may provide care for up to 14 children, as residential use of the property or to provide a process for applying for a permit to use the property as a large family daycare home.

This bill would instead require a large family daycare home to be treated as a residential use of property for purposes of all local ordinances.

Existing law makes void every provision in a written instrument entered into relating to real property that purports to forbid or restrict the conveyance, encumbrance, leasing, or mortgaging of the real property for use or occupancy as a family daycare home for children and every restriction or prohibition in a written instrument as to the use or occupancy of the property as a family daycare home.

This bill would also make void an attempt to deny, restrict, or encumber the conveyance, leasing, or mortgaging of real property for use or occupancy as a family daycare home and a restriction related to the use or occupancy of the property as a family daycare home. The bill would prohibit a property owner or manager from refusing to sell or rent, or refusing to negotiate for the sale or rental of, or otherwise making unavailable or denying, 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 use to a person because that person is a family daycare provider. The bill would require the department to notify applicants for family daycare home licenses that specified housing discrimination remedies are available to a family daycare home provider, family daycare home provider applicant, or person who is claiming that any of these protections have been denied.

Existing law prohibits a local jurisdiction from imposing a business license, fee, or tax for the privilege of operating a small family daycare home.

This bill would extend that prohibition to large family daycare homes.

Existing law requires the State Fire Marshal to adopt building standards and regulations relating to the fire and life safety systems in family daycare provider homes.

This bill would require the State Fire Marshal to update those regulations in the next regulation adoption cycle, and every 3 years thereafter to conform to changes in these provisions. The bill would also require the State Fire Marshal to issue guidance on implementing the provisions prior to the publication of regulations, but not later than January 1, 2021, and would authorize guidance to be issued annually thereafter in years when the specified regulations are not updated.

The bill would also make technical and conforming changes.

 UNFINISHED BUSINESS  

Bill No: SB 234

Author: Skinner (D)

Amended: 8/12/19

Vote: 21

SENATE HUMAN SERVICES COMMITTEE: 6-0, 3/11/19

AYES: Hurtado, Stone, Beall, Jackson, Pan, Wiener

SENATE JUDICIARY COMMITTEE: 8-0, 4/2/19

AYES: Jackson, Borgeas, Allen, Caballero, Monning, Stern, Umberg, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SENATE FLOOR: 38-0, 5/6/19

AYES: Allen, Archuleta, Atkins, Bates, Beall, Borgeas, Bradford, Caballero, Chang, Dodd, Durazo, Galgiani, Glazer, Grove, Hertzberg, Hill, Hueso, Hurtado, Jackson, Jones, Leyva, McGuire, Mitchell, Monning, Moorlach, Morrell, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Stone, Umberg, Wieckowski, Wiener, Wilk

ASSEMBLY FLOOR: 77-0, 8/19/19 - See last page for vote

SUBJECT: Family daycare homes

SOURCE: California Child Care Resource and Referral Network

Child Care Law Center

United Domestic Workers of America-AFSCME Local 3930/AFL-CIO

DIGEST: This bill revises and recasts statutes regarding licensed family daycare homes pertaining to local zoning laws and housing protections.

Assembly Amendments change the due date for the State Fire Marshal to update building and fire standards and guidance necessary to implement the bill. The amendments also permit, rather than require, the State Fire Marshal to issue guidance in years when the regulations are not updated, as specified.

ANALYSIS:

Existing law:

1. Makes a series of legislative findings regarding child day care facilities’ contribution to a child’s emotional, cognitive and educational development; the intent of this state to provide a comprehensive, quality system for licensing child day care facilities to ensure a quality day care environment; and that the system of licensure requires a special understanding of the unique characteristics and needs of the children served by child day care facilities. (HSC 1596.72 (a-c)
2. States legislative intent to establish within the California Department of Social Services (CDSS) an organizational structure to separate licensing of child day care facilities from other types of licensed facilities and that good quality child day care services are an essential service for working parents. (WIC 1596.72 d and e)
3. Provides the purposes of the California Child Day Care Facilities Act (CDCFA), which include streamlining the administration of child care licensing and thereby increase the efficiency and effectiveness of this system; and encouraging the development of licensing staff with knowledge and understanding of children and child care needs. (HSC 1596.73)
4. Defines a “family day care home” to be 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. (HSC 1596.78 (a))
5. Defines a “large family day care home” to be a home that provides family day care for seven to 14 children, inclusive, including children under the age of 10 years who reside at the home, as specified. (HSC 1596.78 (b))
6. Defines a “small family day care home” to be a home that provides family day care for eight or fewer children, including children under the age of 10 years who reside at the home, as specified. (HSC 1596.78 (c))
7. Sets forth legislative finding and declarations regarding growing need for and regulation of family day care homes. (HSC 1597.30)
8. States legislative intent that family day care homes for children should be situated in normal residential surroundings and to prohibit any restrictions relating to the use of single-family residences for family day care homes for children except as provided. (HSC 15697.40 (a))
9. Declares void every provision in a written instrument entered into relating to real property which purports to forbid or restrict the conveyance, encumbrance, leasing, or mortgaging of the real property for use or occupancy as a family day care home for children. Further voids every restriction or prohibition in any such written instrument as to the use or occupancy of the property as a family day care home for children. (HSC 15697.40 (b))
10. Declares void, except as specified, every restriction or prohibition entered into, whether by way of covenant, condition upon use or occupancy, or upon transfer of title to real property, which restricts or prohibits directly, or indirectly limits, the acquisition, use, or occupancy of such property for a family day care home for children. (HSC 15697.40 (c))
11. Requires a prospective family day care home provider, who resides in a rental property, to provide 30 days’ written notice to the landlord or owner of the rental property prior to the commencement of operation of the family day care home, as specified. (HSC 15697.40 (d))
12. Authorizes a landlord to charge a greater security deposit to a family day care home provider than that charged to other tenants so long as the total amount charged does not exceed the maximum permitted by law. (HSC 1597.40(d)(4))
13. Applies specified restrictions on local ordinances and building codes pertaining to small family day care homes. (HSC 1597.45)
14. Prohibits a city, county, or city and county from prohibiting large family day care homes on lots zoned for single-family dwellings, requires them to either classify these homes as a permitted use of residential property for zoning purposes or establish a process for applying for a permit to use the property as a large family day care home, as specified. (HSC 1597.46 (a and b))
15. Excludes a large family day care home from being subject to the specified environmental quality laws. (HSC 1597.46 (c))
16. Prohibits use of a single-family dwelling for the purposes of a large family day care home from constituting a change of occupancy for purposes of state law regarding residential occupancies and or purposes of local building and fire codes. (HSC 1597.46 (d))
17. Requires a large family day care home to have one or more functioning carbon monoxide detectors that meet State Fire Marshal requirements. CDSS shall account for the presence of the carbon monoxide detectors during inspections. (HSC 1597.46 (e))
18. Requires large family day care homes to be considered as single-family residences for the purposes of the State Uniform Building Standards Code and local building and fire codes, except with respect to any additional standards specifically designed to promote the fire and life safety of the children in these homes adopted by the State Fire Marshal pursuant to this subdivision, as specified. (HSC 1597.46 (f))
19. Declares the protections for family day care homes shall not be construed to prohibit or preclude local entities from establishing certain restrictions or requirements on family day care homes. (HSC 1597.47)
20. Requires all family day care homes for children to apply for a license, as specified. (WIC 1597.54)
21. Requires every family day care home for children to have one or more carbon monoxide detectors in the facility that meet the specified standards and requires CDSS to account for the presence of these detectors during inspections. (HSC 1597.543)

This bill:

1. Revises and recasts legislative findings and declarations regarding the shortage of regulated childcare, the importance of regulated childcare, and the need to promote the development and expansion of regulated childcare.
2. Expends the purpose of the CDCFA to include promoting the development and expansion of regulated childcare.
3. Modifies the definitions of a “large family daycare home” and “small family daycare home” to include that the care, protection and supervision of children takes place in a facility, as specified.
4. Provides that 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. Further provides that a small 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.
5. Revises and recasts provisions of law regarding licensed large and small family daycare homes in order to:
   1. Require local governments to treat licensed large family daycare homes as a residential use of property for the purposes of all local ordinances, giving large family daycare homes the same status as small family daycare homes with regard to local ordinances.
   2. Update housing protections for licensed family daycare providers to ensure they will not be prohibited from living in a home solely based on the fact that they are operating a family daycare home.
   3. Clarify that licensed family daycare homes are permitted to operate in apartments and other types of multifamily units.
   4. Clarify that family daycare providers may be subject to remedies and procedures available to them under the Fair Employment and Housing Act (FEHA) based on potential violation of the CDCFA.
   5. Require State Fire Marshal to update the building and fire standards relating to life and fire safety for large and small family daycare homes, as provided.
   6. Provide that the use of a home as a small or large family daycare home shall be considered a residential use of property and a use by right for the purposes of all local ordinances, including, but not limited to, zoning ordinances.
6. Requires CDSS to, during the license application process for a small or large family daycare home, notify the applicant that defined remedies and procedures relating to fair housing are available to family daycare home providers, family daycare home provider applicants, and individuals who claim that any specified protections have been denied.
7. Provides that this bill does not alter the existing rights of landlords and tenants with respect to addressing and resolving issues related to noise, lease violations, nuisances, or conflicts between landlords and tenants.
8. Makes technical and conforming changes.

Comments

According to the author, childcare provided in licensed family daycare homes is “vitally important for families and our communities, but childcare has increasingly become too expensive and difficult for parents to find.” The author further states that cities and counties have “put up too many barriers” that impeded the creation and expansion of family daycare homes. Additionally, according to the author, many family daycare providers have been “forced to shut down due to property owners unlawfully prohibiting family childcare.”

“This legislation helps struggling families who are too often asked to sacrifice their child’s well-being and get the childcare they need to support their families. This legislation will especially help women, including family childcare providers and many of whom are women of color,” per the author.

Family Daycare Homes

Family daycare homes provide a more affordable close to home option for parents seeking childcare. Family daycare homes are licensed in two categories: large family daycare homes, which may care for up to 14 children and small family daycare homes, which may care for up to eight children. There are other differences between the two license categories such as staff-to-child ratio, staff training requirements, and conditions on the physical environment of the home.

Licensed family daycare homes play an important role in the childcare market. Family daycare providers offer flexible hours for parents who have non-traditional work schedules in home environments that are frequently close to where families live. Compared to child care centers, family daycare homes are more likely to care for infants, are more affordable for families, and meet families’ linguistic and cultural needs.

This bill proposes to make it easier for childcare providers to operate licensed large family daycare homes by shoring up housing protections and removing barriers that might keep existing small family daycare providers from expanding into a large provider or the opening of new large family daycare homes.

Local Zoning Laws

This bill requires local governments to treat licensed large family daycare homes as a residential use of property for the purposes of all local ordinances. This gives large family daycare homes the same status as small family daycare homes with regard to local ordinances. Many cities and counties have imposed zoning requirements for large family daycare homes. According to the sponsors, the cost of obtaining zoning permits in some cities and counties can range between $3,000 and $10,000, which can be cost prohibitive for a family childcare providers.

To address this problem, this bill requires local governments to treat large family-based childcare operations just as they do small ones. Thus, all family-based childcare operations would be considered residential use, could not be considered a change of use for building or fire code purposes, and could not be made subject to a business license, tax, or fee.

Housing Protections

This bill updates housing protections for licensed family daycare providers which is intended to ensure such providers will not be prohibited from living in a home solely based on the fact that they are providing childcare. According to the sponsors, existing law gives some property owners the impression that, absent a written agreement with a licensed childcare provider, they can refuse to rent or sell a home to childcare providers. Per the sponsors, family daycare providers are routinely turned down from living in or purchasing all types of homes because they intend to provide home based childcare.

This bill clarifies that childcare providers can have remedies and procedures available to them under the FEHA if their protections are violated under the CDCFA. The CDCFA, which includes all the land-use and housing protections specifically for family daycare homes, lacks language telling providers they can hold local governments and others accountable for violating the law. Consequently, many family daycare providers have nowhere to turn if their protections are violated, per the sponsors. To address this limited awareness, this bill requires CDSS to notify all family day care home license applicants of the remedies and procedures available to them under FEHA.

This bill also clarifies that licensed family daycare homes are allowed to operate in apartments and other types of multifamily units. According to the sponsors, reference to the terms “single-family dwelling” and “single-family residence” in existing laws have caused some local governments and land owners to prohibit family daycare providers from operating in apartments and other types of residential multi-family dwellings. This is despite guidance from CDSS and the State Fire Marshal indicating that such prohibition is not allowed.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Assembly Appropriations Committee:

1. CDSS indicates any costs will be minor and absorbable.
2. The State Fire Marshal anticipates negligible costs.

SUPPORT: (Verified 8/20/19)

California Child Care Resource and Referral Network (co-source)

Child Care Law Center (co-source)

United Domestic Workers of America-AFSCME Local 3930/AFL-CIO (co-source)

Alexander Child Care and Preschool

Bananas, Inc.

California Association for the Education of Young Children

California Women’s Law Center

Cocokids

Community Action Partnership of San Luis Obispo County, Inc.

Community Child Care Council of Sonoma County

Equal Rights Advocates

Family Child Care Association of San Francisco

First 5 Sonoma County

GRACE

Morning Song School

National Council of Jewish Women California

Parent Voices California

Positive Discipline Community Resources

Public Counsel

San Diego County Family Child Care Association

The Future Supporting Family Child Care

Western Center on Law & Poverty, Inc.

Wonderschool

Three Individuals

OPPOSITION: (Verified 8/20/19)

None received

ASSEMBLY FLOOR: 77-0, 8/19/19

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Mathis, Mayes, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Maienschein, McCarty

Prepared by: Taryn Smith / HUMAN S. /

8/21/19 10:02:39

**** END ****

SENATE THIRD READING

STR Bill Id:SB 234

Author:(Skinner)

As Amended Ver:April 12, 2019

Majority vote

SUMMARY:

Adopts changes intended to facilitate an increase in the supply of licensed family child care homes in the state by treating small and large family child care homes more uniformly in statute governing the regulation of such homes by local ordinances and the State Fire Marshal.

Major Provisions

1. Clarifies that a small or large family day care home is where the day care provider resides and includes a dwelling that is rented, leased, or owned, and that such home can include a detached single-family dwelling, a townhouse, or a dwelling unit within a dwelling or within a covered multifamily dwelling in which the underlying zoning allows for residential uses.
2. Defines "restriction," for purposes of provisions of this bill and current law related to use or occupancy of a property, to mean a restriction imposed orally, in writing, or by conduct and that includes prohibition.
3. States that an attempt to deny, restrict, or encumber the conveyance, leasing, or mortgaging of real property for use or occupancy, and that a restriction related to the use or occupancy of the property, as a family day care home is void. Prohibits a property owner or manager from refusing to sell or rent, or to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling or dwelling unit, as specified, to a person because that person is a family day care provider.
4. Requires the California Department of Social Services (CDSS) to, during the license application process for a small or large family day care home, notify the applicant that remedies and procedures relating to fair housing are available to family day care home providers and provider applicants and individuals who claim that certain protections contained in provisions of this bill and current law have been denied, as specified.
5. Stipulates that provisions of this bill and current law related to use and occupancy of a property do not alter the existing rights of landlords and tenants with respect to addressing and resolving issues related to noise, lease violations, nuisances, or conflicts between landlords and tenants.
6. Requires the use of a home as a family day care home in a residentially zoned area to be considered a residential use of property for the purposes of all local ordinances, regulations, and rules, and prohibits such use from fundamentally altering the nature of the underlying residential use.
7. Expands the requirement in current law that the State Fire Marshal adopt separate building standards, to be published in Title 24 of the California Code of Regulations, specifically relating to the subject of fire and life safety in large family day care homes to also include small family day care homes and, further, stipulates that the building standards that the State Fire Marshal is required by current law to adopt for family day care homes, as specified, shall include the number of required exits on each floor of a facility.

COMMENTS:

The importance of home-based care: Forty percent of people classified as "working poor," or individuals spending at least 27 weeks in the labor force yet still earning incomes below the federal poverty level, worked in service occupations which often involve nontraditional and less predictable work schedules. Family child care homes are more likely to serve the needs of families with parents that work nontraditional hours. Forty-one percent of licensed family child care homes in California offer evening and weekend care, while only three percent of child care centers do the same.

According to the Author:

"(C)hild care has increasingly become too expensive and difficult for parents to find. Finding quality, affordable child care close to home shouldn't have to feel like winning the lottery, but for too many parents, it does. Licensed child care is available for only 23% of children with working parents, and the numbers keep getting worse. This legislation helps struggling families who are too often asked to sacrifice their child's well-being and get the child care they need to support their families. This legislation will especially help women, including family child care providers and many of whom are women of color."

Arguments in Support:

The California Child Care Resource & Referral Network writes that "Families are facing a desperate shortage when looking for child care, especially for their babies and toddlers. Licensed child care is available for only 23% of children with working parents. While families scramble to find good child care, 1/3 of our child care providers have been forced to close their doors since 2006. Family child care is a community asset, the primary source of affordable care for infants and toddlers, offering a warm, home environment with flexible hours, close to home."

Arguments in Opposition:

None on file

FISCAL COMMENTS:

According to the Assembly Appropriations Committee

1. The Department of Social Services indicates any costs will be minor and absorbable.
2. The State Fire Marshall anticipates negligible costs.

VOTES:

SENATE FLOOR: 38-0-0

YES: Allen, Archuleta, Atkins, Bates, Beall, Borgeas, Bradford, Caballero, Chang, Dodd, Durazo, Galgiani, Glazer, Grove, Hertzberg, Hill, Hueso, Hurtado, Jackson, Jones, Leyva, McGuire, Mitchell, Monning, Moorlach, Morrell, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Stone, Umberg, Wieckowski, Wiener, Wilk

ASM HUMAN SERVICES: 8-0-0

YES: Reyes, Mathis, Arambula, Choi, Friedman, Gipson, Maienschein, Mark Stone

ASM JUDICIARY: 12-0-0

YES: Mark Stone, Gallagher, Chau, Chiu, Gonzalez, Holden, Kalra, Kiley, Maienschein, Obernolte, Petrie-Norris, Reyes

ASM APPROPRIATIONS: 18-0-0

YES: Gonzalez, Bigelow, Bloom, Bonta, Brough, Calderon, Carrillo, Chau, Diep, Eggman, Fong, Gabriel, Eduardo Garcia, Maienschein, Obernolte, Petrie-Norris, Quirk, Robert Rivas

UPDATED:

VERSION: April 12, 2019

CONSULTANT: Daphne Hunt / HUM. S. / (916) 319-2089 FN: 0001360

Date of Hearing: August 14, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

SBPCA Bill Id:SB 234

Author:(Skinner) – As Amended Ver:August 12, 2019

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill recasts and revises existing law regarding licensed family day care homes for purposes of uniform regulation by local ordinances and the State Fire Marshal. Specifically, this bill:

1. Requires a local entity to treat a “large family day care home,” as a residential use of property for purposes of all local ordinances, thereby giving large family day care homes the same status as small family day care homes with respect to local ordinances.
2. Prohibits a property owner or manager from refusing to sell or rent, or refusing to negotiate or otherwise make unavailable or deny, a dwelling or dwelling unit to a person because the person is a family day care provider.
3. Clarifies that licensed family home day care homes, whether they operate small or large family day care homes, are permitted to operate in apartments and other multifamily units.
4. Requires the California Department of Social Services (DSS), during the license application process, to notify applicants for a small or large family day care home of their rights under the housing provisions of the Fair Employment and Housing Act.
5. Requires the State Fire Marshal, in the next code adoption cycle, to update building and fire standards to apply fire and safety regulations to both large and small family day care homes.

FISCAL EFFECT:

1. DSS indicates any costs will be minor and absorbable.
2. The State Fire Marshall anticipates negligible costs.

COMMENTS:

1. Purpose. This bill seeks to expand the supply of family day care homes by treating large and small family homes the same for purposes of local ordinances and regulations by the State Fire Marshal. According to the author:

Family child care is vitally important for families and our communities, but child care has increasingly become too expensive and difficult for parents to find. Cities and counties have put up too many barriers the creation and expansion of family day care homes. Many family child care providers have also been forced to shut down due to property owners unlawfully prohibiting family child care. This legislation helps struggling families who are too often asked to sacrifice their child’s well-being and get the child care they need to support their families.

1. Licensing. The Community Care Licensing Division (CCLD) within DSS is charged with licensing and regulating a variety of community care facilities. Pursuant to the California Child Day Care Act (Act) CCLD also licenses and regulates child care centers and family child care homes, the latter of which provide service in a provider’s home. All child care programs must meet licensing requirements established in Title 22 of the California Code of Regulations. The Act defines a “family day care home” to mean a home that regularly provides care, protection and supervision for up to 14 children in the provider’s own home for periods of less than 24 hours per day.

The Act further divides family child care homes into small and large family child care homes. Small family child care homes may provide care for up to eight children, and large family child care homes may provide care for between seven and 14 children. When evaluating a license application, DSS’s licensing requirements distinguish between large and small home applicants and the corresponding needs of the home.

As of June 10, 2019, in California, there were 16,111 licensed small family child care homes with a total capacity to serve 128,103 children, and 12,071 licensed large family child care homes with a capacity of to serve 167,680 children.

1. Local Ordinances. Under existing law, small family day care homes are “residential” property for purposes of local zoning and other ordinances, meaning that small family day care homes are not subject to local business licensing, taxation or zoning regulations for the privilege of operating a small family day care home. However, many cities and counties have imposed zoning requirements for large family daycare homes. The cost of obtaining zoning permits in some cities and counties can range between $3,000 and $10,000. This bill eliminates the distinction between large and small homes, requiring local agencies to treat large homes the same as small homes for this purpose.
2. State Fire Marshal. Existing law requires the State Fire Marshal to establish certain fire and safety regulations for large family day care homes. Small family day care homes are generally outside of the State Fire Marshal’s jurisdiction except they must contain a fire extinguisher, smoke detector and one or more carbon monoxide detectors. Because this bill treats large and small family day care homes the same, it expands the regulations of the State Fire Marshal to include small family day care homes and requires the State Fire Marshal to update its regulations accordingly.
3. Access to Child Care. Access to quality day care is essential to working families, especially those with nontraditional work schedules who need day care providers that offer flexible schedules on nights and weekends. Family day care homes provide this flexibility, while larger “day care centers” generally do not. A 2017 report by the California Child Care Resource and Referral Network found that 41% of licensed family day care homes in California offered nighttime and weekend care, while 3% of child day care centers did so.

Analysis Prepared by: Jennifer Swenson / APPR. / (916) 319-2081

Date of Hearing: June 25, 2019

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

SBPCA Bill Id:SB 234

Author:(Skinner) – As Amended Ver:April 9, 2019

PROPOSED CONSENT

SENATE VOTE: 38-0

SUBJECT: Family day care homes

KEY ISSUE: should the state seek to expand the supply of family day care homes by treating large and small family homes the same for purposes of local ordinances and regulations by the state fire marshal?

SYNOPSIS

The California Child Day Care Act (CCDCA) provides for the licensing of both “day care centers” and “family day care homes,” the latter of which are distinguished by the fact that service is provided in the provider’s home. Existing law further distinguishes between “large family day care homes” (which provide in-home care for up to 14 children) and “small family day care homes” (which provide in-home care for up to eight children.) It is not entirely clear from the legislative history why this distinction between “large” and “small” homes came about, much less how the numbers of children that defined each came about.

Nevertheless, CCDCA makes two important legal distinctions between large and small homes. First, CCDCA makes small family day care homes “residential” property for purposes of local zoning and other ordinances, meaning that small family day care homes are not subject to local business licensing, taxation, or zoning regulations for the privilege of operating a small family day care home. However, local governments can (and apparently do) impose such restrictions on large family day care homes. This bill would eliminate the distinction between large and small family day care homes for these purposes, so that both large and small homes would be a “residential use” for purposes of local ordinances. Second, CCDCA requires the State Fire Marshal to establish certain fire and safety regulations for large family day care homes, but small family day care homes are generally outside of the State Fire Marshal’s jurisdiction with a few exceptions. This bill would require the State Fire Marshall to adopt and update rules for both large and small homes. In addition, the bill clarifies and reaffirms existing limits on the ability of private property owners to refuse to sell or rent property to a person because the person intends to use the property as a family day care home, large or small.

The author believes that removing regulatory and private restraints on large family day care homes, and treating them the same as small family day care homes, will increase the supply of this important source of day care services for working families. The bill has the support of a broad coalition of groups representing women, children, organized labor, and local governments, among others. This non-controversial and sensible measure has no opposition and has received no negative votes.

SUMMARY: Recasts and revises existing law to treat both small and large family day care homes uniformly for purposes of regulation of such homes by local ordinances and the State Fire Marshal, and makes other conforming changes. Specifically, this bill:

1. Requires a local entity to treat a “large family day care home,” as defined, as a residential use of property for purposes of all local ordinances, thereby giving large family day care homes the same status that existing law grants to small family day care homes with respect to local ordinances.
2. Prohibits a property owner or manager from refusing to sell or rent, or refusing to negotiate a sale or lease of, a detached single-family dwelling, a townhouse, a dwelling unit within a dwelling, or a dwelling unit. Voids any attempt to deny, restrict, or encumber the conveyance, leasing, or mortgaging of real property for use or occupancy of the property as a family day care home. Specifies, however, that, as to leasing, this bill does not alter the existing rights of parties with respect to issues relating to noise, lease violations, nuisances, or other landlord-tenant conflicts.
3. Permits, consistent with existing law and practice, family home day care providers, whether they operate small or large family day care homes, to operate in apartments and other multi-family units.
4. Requires the California Department of Social Services (CDSS), during the license application process, to notify applicants for a small or large family day care home of their rights under the housing provisions of the Fair Employment and Housing Act, as specified.
5. Requires the State Fire Marshal, on or before August 1, 2022, to update building and fire standards, as specified, in order to apply to appropriate fire and safety regulations for both large and small family day care homes.
6. Expands upon the findings and declarations in existing law relating to the importance of providing access to quality family day care homes to California’s working families.

EXISTING LAW:

1. Provides, under the California Child Day Care Facilities Act, a comprehensive system for licensing child day care facilities. Specifies the intent of the Legislature to create a separate licensing category for child day care centers, on the one hand, and family day care homes, on the other. (Health & Safety Code Section 1596.72 et seq. Subsequent sections refer to the Health & Safety Code unless otherwise noted.)
2. Defines “family day care home” to mean a home that regularly provides care, protection, and supervision for up to 14 children in the provider’s personal residence for periods of less than 24 hours per day, as specified. Defines a “small family day care home” to mean a family day care home that provides care for up to eight children, as specified. Defines a “large family day care home” to mean a family day care home that provides care for 7 to 14 children, as specified. (Section 1596.78 (a)-(c).)
3. Sets forth requirements and prohibitions related to the regulation of “small family day care homes,” including the following:
   1. Makes a property used as a small family day care home a “residential use” of property for the purposes of all local ordinances and prohibits a local jurisdiction from imposing a business license, fee, or tax for the privilege of operating a small family day care home.
   2. Prohibits a small family day care home from being subject to certain oversight and regulations of the State Fire Marshal, except that it shall contain a fire extinguisher, smoke detector, and one or more functioning carbon monoxide detectors, as specified. (Section 1597.45.)
4. Sets forth requirements and prohibitions related to the regulation of large family day care homes, including the following:
5. A city, county, or city and county may not prohibit large family day care homes on lots zoned for single-family dwellings, but requires such a jurisdiction to do one of the following:
   • 1. Classify these homes as a permitted use of residential property for zoning purposes;
     2. Grant a nondiscretionary permit to use a lot zoned for a single-family dwelling to a large family day care home that complies with local ordinances, as specified; or,
     3. Require a large family day care home to apply for a permit to use a lot zoned for single-family dwellings, as specified.
   1. Exempts large family day care homes from the requirements of the California Environmental Quality Act (CEQA).
   2. Prohibits use of a single-family dwelling for purposes of a large family day care home from constituting a change of occupancy, as specified.
   3. Requires a large family day care home to have one or more functioning carbon monoxide detectors, as specified.
   4. Requires the State Fire Marshal to adopt and publish building and safety standards for large family day care homes and makes large family day care homes single-family residences for purposes of the State Uniform Building Standards Code and local building and fire codes, subject to certain exceptions. (Section 1597.46.)
6. Specifies that state laws relating to family day care homes do not preclude a city, county, or other local public entity from imposing restrictions relating to building standards, nuisance abatement, or any other matter within the jurisdiction of a local entity, provided such restrictions and requirements do not distinguish family day care facilities from other single-family residences, as specified. (Section 1597.47.)
7. Declares void every provision in a written instrument entered into relating to real property which purports to forbid or restrict the conveyance, encumbrance, leasing, or mortgaging of the real property for use or occupancy as a family day care home for children. Further voids every restriction or prohibition in any such written instrument as to the use or occupancy of the property as a family day care home for children. (Section 1597.40 (b).)
8. Declares void, except as specified, every restriction or prohibition entered into, whether by way of covenant, condition upon use or occupancy, or upon transfer of title to real property, which restricts or prohibits directly, or indirectly limits, the acquisition, use, or occupancy of such property for a family day care home for children. (Section 1597.40 (c).)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: The California Child Day Care Act (CCDCA) provides for the licensing of both “day care centers” as well as “family day care homes,” the latter of which are distinguished by the fact that service is provided in the provider’s home. Existing law further distinguishes between “large family day care homes” (which provide in-home care for up to 14 children) and “small family day care homes” (which provide in-home care for up to eight children). It is not entirely clear from the legislative history why this distinction between “large” and “small” homes came about, much less how the numbers of children that defined each came about. Nevertheless, the CCDCA makes two important legal distinctions between large and small homes. First, CCDCA makes small family day care homes “residential” property for purposes of local zoning and other ordinances, meaning that small family day care homes are not subject to local business licensing, taxation, or zoning regulations for the privilege of operating a small family day care home. However, a local government can (and apparently do) impose such restrictions on large family day care homes. Second, existing law requires the State Fire Marshal to establish certain fire and safety regulations for large family day care homes, but small family day care homes are generally outside of the State Fire Marshal’s jurisdiction except to the extent that they must contain a fire extinguisher, smoke detector, and one or more carbon monoxide detectors. This bill would eliminate the distinction between large and small family day care homes for these purposes, so that both large and small homes would be a “residential use” for purposes of local ordinances. This bill would also require the State Fire Marshall to adopt and update rules for both large and small homes. In addition, the bill also clarifies and reaffirms existing limits on the ability of private property owners to refuse to sell or rent property to a person because the person intends to use the property as a family day care home, large or small.

The Value of, and Need for, Home-Based Day Care: As detailed in the prior committee analyses, access to quality day care is essential to working families, especially those with lower incomes. Persons with lower incomes, especially those in service occupations, often have nontraditional work schedules and need day care providers that offer flexible schedules on nights and weekends. Family day care homes provide this flexibility, while larger “day care centers” generally do not. For example, a 2017 report by the California Child Care Resource and Referral Network (a co-sponsor of this bill) found that 41% of licensed family day care homes in California offered nighttime and weekend care, while only 3% of child day care centers did so. (See Analysis of SB 234, Assembly Committee on Human Services, June 18, 2019.) Family day care homes, no less than day care centers, must be licensed and meet quality of care standards. Without access to quality, affordable day care, many working families must choose between work and children. A robust supply of family day care homes, as opposed to a more limited number of day care centers, provides working families with multiple options that are both affordable and nearby. Indeed, many parents prefer the day care provided in an often more nurturing and intimate setting of a home.

At a time when the need to day care in California is great, the author and sponsors believe that local ordinances and private restrictions on the sale and lease of properties as family day care homes, is unnecessarily restricting the supply. The author believes that the sensible changes made by this bill – which generally eliminate a rather arbitrary distinction between large and small in-home day care settings – will remove local and contractual barriers to expanding the supply of affordable and quality family day care homes.

SB 234 Builds Sensibly on Existing Law and Legislative Intent: Existing law already recognizes that abundant, flexible, affordable, and quality day care is “critical to the well-being of parents and children in the state.” (Health & Safety Code, Section 1596.53.) In order to further this critical need in a streamlined and comprehensive manner, the Legislature enacted the California Child Day Care Facilities Act. SB 234 is consistent with the purpose and intent of existing law. For example, existing law already recognizes that local regulations and private contractual restrictions can limit the supply of day care in a home setting. This is why existing law already makes “small family day care homes” a residential use for purposes of local ordinances. This bill, for the same purposes, extends this sensible requirement to “large family day care homes.” To the extent that a home with fourteen children poses different needs than a home with eight children, the CDSS already considers those when granting licenses. Once CDSS has granted those licenses, there is no logical reason for not treating a home serving 14 children as “residential” for purposes of local ordinances, just as the home serving eight children would be treated. Similarly, existing law already recognizes that refusing to sell or lease property simply because the property buyer or renter intends to operate family day care home runs contrary to state policy, which seeks to encourage the supply of such homes. This bill merely clarifies existing law on this point. Finally, because the bill will treat large and small family day care homes the same, it will expand the regulations of the State Fire Marshal to include small family day care homes, whereas existing law only applies State Fire Marshall regulations (with some exceptions) to large family day care homes. The absence of any opposition to this bill no doubt reflects its eminent good sense.

Arguments in Support: According to California Family Child Care Network, one of the co-sponsors of this measure, SB 234 will “protect children's access to the benefits of care in a nurturing home. Sadly, many of us have been listening, for years, to terrible stories about how people are badly treated when they try to open their hearts and homes to children. There have been extremely high fees, impossible requirements, and insurmountable barriers. We believe that this bill would update our state laws so that they would better support working parents and the children that would thrive in a loving family child care home.”

According to United Domestic Workers/AFSCME Local (UDW), SB 234 will “provide quality and safe child care close to home to meet the needs of today’s families. This bill would equalize and update state law to encourage and support family child care so parents can work and children can thrive.” UDW contends that families today “are facing a desperate shortage when looking for child care, especially for their babies and toddlers.” UDW notes that licensed childcare “is available for only 23% of children with working parents and while families scramble to find good child care, one third of our child care providers have been forced to close their doors since 2006. Family child care is a proven community asset and the primary source of affordable care for infants and toddlers, offering a warm, home environment with flexible hours, close to home.”

REGISTERED SUPPORT / OPPOSITION:

Support

California Family Child Care Network (co-sponsor)

Child Care Law Center (co-sponsor)

Services Employees International Union California (co-sponsor)

UDW/AFSCME Local 3930 (co-sponsor)

AFSCME

Alexander Child Care and Preschool

American Planning Association, California Chapter

Bananas

California Alternative Payment Program Association

California Child Care Coordinators Association

California Family Child Network

California Hawaii State Conference of the NAACP

California Labor Federation

California Rural Legal Assistance Foundation

California State Council of Service Employees

California Women’s Law Center

Center for Law and Social Policy

Children Now

City of San Jose

Community Action Partnership of San Luis Obispo County, Inc.

County of Alameda

Equal Rights Advocates

EveryChild California

Family Child Care Association of San Francisco

First 5 California

First 5 Los Angeles

First 5 Santa Clara County

Grace Institute - End Child Poverty in California

Growthspurts Child Development Facility

Jedicare

Kidango

Legal Aid at Work

Marin County Child Care Commission

Marin Family Child Care Association

Modern Education Family Childcare

Momsrising

National Council of Jewish Women, California

Parent Voices California

Public Counsel

San Francisco Child Care Planning and Advisory Council

Solano Family & Children's Services

Solutions Provider Network, County of Sacramento

The Future Supporting Family Child Care

Western Center on Law and Poverty

Wonderschool

Several individuals

Opposition

None on file

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334

Date of Hearing: June 18, 2019

ASSEMBLY COMMITTEE ON HUMAN SERVICES

Eloise Gómez Reyes, Chair

SBPCA Bill Id:SB 234

Author:(Skinner) – As Amended Ver:April 9, 2019

SENATE VOTE: 38-0

SUBJECT: Family daycare homes

SUMMARY: Adopts changes intended to facilitate an increase in the supply of licensed family child care homes in the state by treating small and large family child care homes more uniformly in statute governing the regulation of such homes by local ordinances and the State Fire Marshal.

Specifically, this bill:

1. Makes Legislative findings related to the importance of child care to children and families and the state’s shortage of regulated child care, as specified.
2. Establishes the promotion of the development and expansion of regulated child care as the purpose of the California Child Day Care Facilities Act (Act), and states Legislative findings and declarations that the state has a responsibility to carry out such promotion, as specified.
3. Clarifies the definitions of “family day care home,” “small family day care home,” and “large family day care home” by defining them each to mean a facility, versus a home as in current law, and by clarifying that the responsibilities of small and large family day care homes include the protection and supervision of children.
4. Clarifies that a small or large family day care home is where the day care provider resides and includes a dwelling that is rented, leased, or owned, and that such home can include a detached single-family dwelling, a townhouse, or a dwelling unit within a dwelling or within a covered multifamily dwelling in which the underlying zoning allows for residential uses.
5. Defines “restriction,” for purposes of provisions of this bill and current law related to use or occupancy of a property, to mean a restriction imposed orally, in writing, or by conduct and that includes prohibition.
6. States that an attempt to deny, restrict, or encumber the conveyance, leasing, or mortgaging of real property for use or occupancy, and that a restriction related to the use or occupancy of the property, as a family day care home is void.
7. Prohibits a property owner or manager from refusing to sell or rent, or to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling or dwelling unit, as specified, to a person because that person is a family day care provider.
8. Requires the California Department of Social Services (CDSS) to, during the license application process for a small or large family day care home, notify the applicant that remedies and procedures relating to fair housing are available to family day care home providers and provider applicants and individuals who claim that certain protections contained in provisions of this bill and current law have been denied, as specified.
9. Stipulates that provisions of this bill and current law related to use and occupancy of a property do not alter the existing rights of landlords and tenants with respect to addressing and resolving issues related to noise, lease violations, nuisances, or conflicts between landlords and tenants.
10. Requires the use of a home as a family day care home in a residentially zoned area to be considered a residential use of property for the purposes of all local ordinances, regulations, and rules, and prohibits such use from fundamentally altering the nature of the underlying residential use.
11. Revises and recasts current law related to the use of, and requirements related to, small and large family day care homes by adopting the following changes to treat the two types of facilities more similarly, as specified:
    1. Requires the use of a large family day care home to be considered a residential use of property for purposes of all local ordinances;
    2. Prohibits a local jurisdiction from imposing a business license, fee, or tax for the privilege of operating a large family day care home; and,
    3. Deletes provisions of current law establishing additional requirements for large family day care homes related to, among other things, permitting and fees.
12. Expands the requirement in current law that the State Fire Marshal adopt separate building standards, to be published in Title 24 of the California Code of Regulations, specifically relating to the subject of fire and life safety in large family day care homes to also include small family day care homes and, further, stipulates that the building standards that the State Fire Marshal is required by current law to adopt for family day care homes, as specified, shall include the number of required exits on each floor of a facility.
13. Requires the State Fire Marshal to:
    1. By August 1, 2022, update the building and fire standards necessary to implement provisions of this bill and current law related to life and fire safety, as specified;
    2. Prior to the publication of the updates required by this bill, but no later than July 1, 2020, issue guidance related to life and fire safety, as specified; and,
    3. Update the regulations at least every three years and issue guidance on implementation in the years in which the regulations are not updated, as specified.
14. Makes technical changes.

EXISTING LAW:

1. Establishes the “Community Care Licensing Division” (CCLD) within CDSS and requires CDSS to license group care facilities, private foster family agencies, and foster family homes in order to place children who are in the child welfare system. Further requires, prior to licensure, a foster home provider to undergo a criminal background check, as specified. (HSC 1502 and 1522)
2. Defines a “community care facility” as any facility, place, or building that is maintained and operated to provide nonmedical residential care, day treatment, adult day care, or foster family agency services for children, adults, or children and adults, including, but not limited to, the physically handicapped, mentally impaired, incompetent persons, and abused or neglected children, and includes: residential facilities, adult day programs, foster family agencies, group homes, and children’s crisis residential programs, among others. (HSC 1502 et seq.)
3. Establishes the “California Child Day Care Facilities Act”, creating a separate licensing category for child day care centers and family day care homes within CDSS’s existing licensing structure. (Health and Safety Code [HSC] 1596.70 et seq.)
4. Defines “family day care home” to mean a home that regularly provides care, protection, and supervision for up to 14 children in the provider’s own home for periods of less than 24 hours per day, as specified. (HSC 1596.78 (a))
5. Defines a “small family day care home” to mean a home that provides family day care for up to 8 children, as specified. (HSC 1596.78 (c))
6. Defines a “large family day care home” to mean a home that provides family day care for 7 to 14 children, as specified. (HSC 1596.78 (b))
7. States Legislative intent that family day care homes be situated in normal residential settings and establishes limitations on the prohibition or restriction of use of single-family residences for family day care homes, as specified. (HSC 1597.40)
8. Establishes processes and requirements related to the licensure of family day care homes, as specified. (HSC 1597.54)
9. Sets forth requirements and prohibitions related to the regulation of small family day care homes, including the following:
   1. Requires the use of a single family residence as a small family day care home to be considered a residential use of property for the purposes of all local ordinances;
   2. Prohibits a local jurisdiction from imposing a business license, fee, or tax for the privilege of operating a small family day care home;
   3. Prohibits use of a single family dwelling for purposes of a small family day care home from constituting a change of occupancy, as specified; and,
   4. Prohibits a small family day care home from being subject to certain oversight and regulation related to the State Fire Marshal, except that it shall contain a fire extinguisher, smoke detector, and one or more functioning carbon monoxide detectors, as specified. (HSC 1597.45)
10. Sets forth requirements and prohibitions related to the regulation of large family day care homes, including the following:
11. Disallows a city, county, or city and county from prohibiting large family day care homes on lots zoned for single-family dwellings, but requires such a jurisdiction to do one of the following:
    • 1. Classify these homes as a permitted use of residential property for zoning purposes;
      2. Grant a nondiscretionary permit to use a lot zoned for a single-family dwelling to a large family day care home that complies with local ordinances, as specified; or,
      3. Require a large family day care home to apply for a permit to use a lot zoned for single-family dwellings, as specified;
    1. Exempts large family day care homes from the requirements of the California Environmental Quality Act (CEQA);
    2. Prohibits use of a single family dwelling for purposes of a large family day care home from constituting a change of occupancy, as specified;
    3. Requires a large family day care home to have one or more functioning carbon monoxide detectors, as specified;
    4. Requires the State Fire Marshal to adopt separate building standards specifically relating to the fire and life safety in large family day care homes, to be published in Title 24 of the California Code of Regulations, and requires large family day care homes to be considered as single-family residences for purposes of the State Uniform Building Standards Code and local building and fire codes, with the exception of these additional building standards adopted by the State Fire Marshal, as specified. (HSC 1597.46)
12. Prohibits provisions of law establishing requirements and prohibitions related to the regulation of family day care homes from being construed as precluding any city, county, or other local public entity from placing certain restrictions and requirements related to property, standards, and nuisance abatement on family day care facilities, provided such restrictions and requirements do not distinguish family day care facilities from other single-family residences, as specified. (HSC 1597.47)

FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, this bill will result in negligible state costs.

COMMENTS:

Community care licensing and child care facilities: The CCLD within CDSS is charged with licensing and regulating a variety of community care facilities, defined in the California Health and Safety Code as “any facility, place, or building that is maintained and operated to provide nonmedical residential care, day treatment, adult day care, or foster family agency services for children, adults, or children and adults, including, but not limited to, the physically handicapped, mentally impaired, incompetent persons, and abused or neglected children” (HSC 1502). Community care facilities include an array of programs and settings, such as foster family agencies, foster family homes, adult day programs, social rehabilitation facilities, transitional shelters, group homes, runaway and homeless youth shelters, residential care facilities for the elderly, and others.

Pursuant to the Act, which creates a separate licensing category for child day care centers and family child care homes within CDSS’s existing licensing structure, CCLD also licenses and regulates child care centers and family child care homes, and all child care programs must meet licensing requirements established in Title 22 of the California Code of Regulations. The Act defines a “family day care home” to mean a home that regularly provides care, protection, and supervision for up to 14 children in the provider’s own home for periods of less than 24 hours per day. Family child care homes are broken out in this Act into small and large family child care homes, with small family child care homes providing care for up to eight children, and large family child care homes providing care for between seven and 14 children.

The Act sets forth a number of separate requirements and prohibitions for small family child care homes and large family child care homes. Generally, small family child care homes operated in single family residences are required to be considered a residential use of property for the purposes of all local ordinances, and local jurisdictions may not impose business license requirements, fees, or taxes on them. Additionally, small family child care homes are exempt from being subject to certain oversight and regulation by the State Fire Marshal – however, they must contain a fire extinguisher, smoke detector, and one or more functioning carbon monoxide detectors.

Large family child care homes, however, are subject to different requirements and prohibitions. While local jurisdictions may not prohibit large family child care homes on lots zoned for single-family dwellings, jurisdictions are required to either: classify these homes as a permitted use of residential property for zoning purposes; grant a nondiscretionary permit to use a lot zoned for a single-family dwelling to a large family child care home that complies with local ordinances, as specified; or, require a large family child care home to apply for a permit to use a lot zoned for single-family dwellings, as specified. Additionally, the State Fire Marshal is required to adopt separate building standards specifically relating to the fire and life safety in large family child care homes. Large family child care homes are to be considered as single-family residences for purposes of the State Uniform Building Standards Code and local building and fire codes, with the exception of the additional building standards adopted by the State Fire Marshal.

As of June 10, 2019, in California, there are 16,111 licensed small family child care homes with a total capacity to serve 128,103 children, and 12,071 licensed large family child care homes with a capacity of to serve 167,680 children. 

The importance of home-based care: Access to home-based child care can be especially important for families with lower incomes, who are more likely to work nontraditional work hours and have a need for care providers offering flexible schedules on nights and weekends. United States Department of Labor data from 2013, for example, indicated that 40% of people classified as “working poor” – i.e., individuals spending at least 27 weeks in the labor force yet still earning incomes below the federal poverty level – worked in service occupations. Service sector jobs can often involve nontraditional and less predictable work schedules. Correspondingly, family child care homes are more likely to serve the needs of families with parents that work nontraditional hours. A 2017 California Child Care Resource and Referral Network report found that 41% of licensed family child care homes in California offered evening, overnight, and/or weekend care, while only 3% of child care centers did the same.

Need for this bill: Families benefit in at least two fundamental ways from access to child care: it can both provide children with early learning and development experiences in safe, nurturing environments, and it can also enable parents to engage in employment and education as they work to support their families. Lack of accessible child care can often leave families with difficult choices that can impede parents’ education, training, and employment, and ultimately hinder income growth. When a parent is faced with the decision of whether or not to quit a job and stay home to provide care for their child or children, it is often not just a matter of which will be more affordable – foregone wages or the cost of child care – because opportunity costs and longer-term impacts are also often involved. In a June 21, 2016, article examining the costs of interrupting a career to provide child care, authors writing for the Center for American Progress comment, “When parents leave the workforce, the long-term financial penalty can exceed annual child care payments, even with today’s high cost of child care. For some families, a full-time, at-home caregiver is an optimal and financially viable choice. But increasingly, single parents are the sole breadwinners and two-parent families need both incomes to make ends meet.  In addition to lost wages, parents who interrupt their career earn less when they return to the workforce and those effects also reduce their retirement savings and social security benefits.” While the provisions of this bill do not affect only subsidized child care or child care for families with lower incomes, it is likely that lower income working families – families who frequently work nontraditional hours – could benefit greatly from the improved access to child care resulting from this bill’s goal of increasing the supply local family child care homes.

According to the author, “Family child care is vitally important for families and our communities, but child care has increasingly become too expensive and difficult for parents to find. Finding quality, affordable child care close to home shouldn’t have to feel like winning the lottery, but for too many parents, it does. Licensed child care is available for only 23% of children with working parents, and the numbers keep getting worse. Cities and counties have put up too many barriers the creation and expansion of family day care homes. Many family child care providers have also been forced to shut down due to property owners unlawfully prohibiting family child care. This legislation helps struggling families who are too often asked to sacrifice their child’s well-being and get the child care they need to support their families. This legislation will especially help women, including family child care providers and many of whom are women of color.”

Double referral: This bill will be referred to the Assembly Judiciary Committee should it pass out of this committee.

RELATED AND PRIOR LEGISLATION:

AB 452 (Mullin and McCarty) of 2019 establishes, upon appropriation by the Legislature, the “California Childcare Facilities Grant Fund” to replace the Child Care Facilities Revolving Fund and to supply grants to providers of publicly-funded child care for the improvement or construction of facilities to house programs for infants and toddlers. AB 452 is currently awaiting hearing in the Senate Education Committee.

AB 2386 (Mullin), Chapter 503, Statutes of 2014, required all community care facilities, including child care and adult care facilities and residential care facilities for the elderly to have one or more carbon monoxide detectors installed in the facility.

REGISTERED SUPPORT / OPPOSITION:

Support

California Child Care Resource and Referral Network (Sponsor)
Child Care Law Center (Sponsor)
Service Employees International Union California (Sponsor)
UDW/AFSCME Local 3930 (Sponsor)
Alexander Child Care and Preschool
American Federation of State, County and Municipal Employees, AFL-CIO
BANANAS
California Alternative Payment Program Association
California Child Care Coordinators Association
California Family Child Care Network
California Hawaii State Conference of The NAACP
California Labor Federation, AFL-CIO 
California Rural Legal Assistance Foundation
California Women's Law Center
Center for Law and Social Policy
Children Now
City of San Jose
Community Action Partnership of San Luis Obispo County, Inc.
County of Alameda
Equal Rights Advocates
EveryChild California
Family Child Care Association of San Francisco
First 5 California
First 5 Santa Clara County
Fun and Learning Childcare
GRACE Institute - End Child Poverty In Ca
Growthspurts Child Development Facility
Honorable Eric Guerra, Councilmember, City Of Sacramento
Jericare
Kidango
Legal Aid at Work
Marin County Child Care Commission
Marin Family Child Care Association
Modern Education Family Childcare
MomsRising
National Council of Jewish Women
National Women's Law Center
Parent Voices California
Public Counsel
San Francisco Child Care Planning and Advisory Council
Solano Family & Children's Services
Solutions Provider Network, County of Sacramento
Stronger California Advocates Network
The Future Supporting Family Child Care
Western Center on Law & Poverty, Inc.
Wonderschool

7 Private Citizens

Opposition

None on file

Analysis Prepared by: Daphne Hunt / HUM. S. / (916) 319-2089

 THIRD READING  

Bill No: SB 234

Author: Skinner (D)

Amended: 4/9/19

Vote: 21

SENATE HUMAN SERVICES COMMITTEE: 6-0, 3/11/19

AYES: Hurtado, Stone, Beall, Jackson, Pan, Wiener

SENATE JUDICIARY COMMITTEE: 8-0, 4/2/19

AYES: Jackson, Borgeas, Allen, Caballero, Monning, Stern, Umberg, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SUBJECT: Family daycare homes

SOURCE: California Child Care Resource and Referral Network

Child Care Law Center

United Domestic Workers of America-AFSCME Local 3930/AFL-CIO

DIGEST: This bill revises and recasts statutes regarding licensed family daycare homes pertaining to local zoning laws and housing protections.

ANALYSIS:

Existing law:

1. Makes a series of legislative findings regarding child day care facilities’ contribution to a child’s emotional, cognitive and educational development; the intent of this state to provide a comprehensive, quality system for licensing child day care facilities to ensure a quality day care environment; and that the system of licensure requires a special understanding of the unique characteristics and needs of the children served by child day care facilities. (HSC 1596.72 (a-c)
2. States legislative intent to establish within the California Department of Social Services (CDSS) an organizational structure to separate licensing of child day care facilities from other types of licensed facilities and that good quality child day care services are an essential service for working parents. (WIC 1596.72 d and e)
3. Provides the purposes of the California Child Day Care Facilities Act (CDCFA), which include streamlining the administration of child care licensing and thereby increase the efficiency and effectiveness of this system; and encouraging the development of licensing staff with knowledge and understanding of children and child care needs. (HSC 1596.73)
4. Defines a “family day care home” to be 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. (HSC 1596.78 (a))
5. Defines a “large family day care home” to be a home that provides family day care for seven to 14 children, inclusive, including children under the age of 10 years who reside at the home, as specified. (HSC 1596.78 (b))
6. Defines a “small family day care home” to be a home that provides family day care for eight or fewer children, including children under the age of 10 years who reside at the home, as specified. (HSC 1596.78 (c))
7. Sets forth legislative finding and declarations regarding growing need for and regulation of family day care homes. (HSC 1597.30)
8. States legislative intent that family day care homes for children should be situated in normal residential surroundings and to prohibit any restrictions relating to the use of single-family residences for family day care homes for children except as provided. (HSC 15697.40 (a))
9. Declares void every provision in a written instrument entered into relating to real property which purports to forbid or restrict the conveyance, encumbrance, leasing, or mortgaging of the real property for use or occupancy as a family day care home for children. Further voids every restriction or prohibition in any such written instrument as to the use or occupancy of the property as a family day care home for children. (HSC 15697.40 (b))
10. Declares void, except as specified, every restriction or prohibition entered into, whether by way of covenant, condition upon use or occupancy, or upon transfer of title to real property, which restricts or prohibits directly, or indirectly limits, the acquisition, use, or occupancy of such property for a family day care home for children. (HSC 15697.40 (c))
11. Requires a prospective family day care home provider, who resides in a rental property, to provide 30 days’ written notice to the landlord or owner of the rental property prior to the commencement of operation of the family day care home, as specified. (HSC 15697.40 (d))
12. Authorizes a landlord to charge a greater security deposit to a family day care home provider than that charged to other tenants so long as the total amount charged does not exceed the maximum permitted by law. (HSC 1597.40(d)(4))
13. Applies specified restrictions on local ordinances and building codes pertaining to small family day care homes. (HSC 1597.45)
14. Prohibits a city, county, or city and county from prohibiting large family day care homes on lots zoned for single-family dwellings, requires them to either classify these homes as a permitted use of residential property for zoning purposes or establish a process for applying for a permit to use the property as a large family day care home, as specified. (HSC 1597.46 (a and b))
15. Excludes a large family day care home from being subject to the specified environmental quality laws. (HSC 1597.46 (c))
16. Prohibits use of a single-family dwelling for the purposes of a large family day care home from constituting a change of occupancy for purposes of state law regarding residential occupancies and or purposes of local building and fire codes. (HSC 1597.46 (d))
17. Requires a large family day care home to have one or more functioning carbon monoxide detectors that meet State Fire Marshal requirements. CDSS shall account for the presence of the carbon monoxide detectors during inspections. (HSC 1597.46 (e))
18. Requires large family day care homes to be considered as single-family residences for the purposes of the State Uniform Building Standards Code and local building and fire codes, except with respect to any additional standards specifically designed to promote the fire and life safety of the children in these homes adopted by the State Fire Marshal pursuant to this subdivision, as specified. (HSC 1597.46 (f))
19. Declares the protections for family day care homes shall not be construed to prohibit or preclude local entities from establishing certain restrictions or requirements on family day care homes. (HSC 1597.47)
20. Requires all family day care homes for children to apply for a license, as specified. (WIC 1597.54)
21. Requires every family day care home for children to have one or more carbon monoxide detectors in the facility that meet the specified standards and requires CDSS to account for the presence of these detectors during inspections. (HSC 1597.543)

This bill:

1. Revises and recasts legislative findings and declarations regarding the shortage of regulated childcare, the importance of regulated childcare, and the need to promote the development and expansion of regulated childcare.
2. Expends the purpose of the CDCFA to include promoting the development and expansion of regulated childcare.
3. Modifies the definitions of a “large family daycare home” and “small family daycare home” to include that the care, protection and supervision of children takes place in a facility, as specified.
4. Provides that 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. Further provides that a small 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.
5. Revises and recasts provisions of law regarding licensed large and small family daycare homes in order to:
   1. Require local governments to treat licensed large family daycare homes as a residential use of property for the purposes of all local ordinances, giving large family daycare homes the same status as small family daycare homes with regard to local ordinances.
   2. Update housing protections for licensed family daycare providers to ensure they will not be prohibited from living in a home solely based on the fact that they are operating a family daycare home.
   3. Clarify that licensed family daycare homes are permitted to operate in apartments and other types of multifamily units.
   4. Clarify that family daycare providers may be subject to remedies and procedures available to them under the Fair Employment and Housing Act (FEHA) based on potential violation of the CDCFA.
   5. Require State Fire Marshall to update the building and fire standards relating to life and fire safety for large and small family daycare homes, as provided.
   6. Provide that the use of a home as a small or large family daycare home shall be considered a residential use of property and a use by right for the purposes of all local ordinances, including, but not limited to, zoning ordinances.
6. Requires CDSS to, during the license application process for a small or large family daycare home, notify the applicant that defined remedies and procedures relating to fair housing are available to family daycare home providers, family daycare home provider applicants, and individuals who claim that any specified protections have been denied.
7. Provides that the bill does not alter the existing rights of landlords and tenants with respect to addressing and resolving issues related to noise, lease violations, nuisances, or conflicts between landlords and tenants.
8. Makes technical and conforming changes.

Comments

According to the author, childcare provided in licensed family daycare homes is “vitally important for families and our communities, but childcare has increasingly become too expensive and difficult for parents to find.” The author further states that cities and counties have “put up too many barriers” that impeded the creation and expansion of family daycare homes. Additionally, according to the author, many family daycare providers have been “forced to shut down due to property owners unlawfully prohibiting family childcare.”

“This legislation helps struggling families who are too often asked to sacrifice their child’s well-being and get the childcare they need to support their families. This legislation will especially help women, including family childcare providers and many of whom are women of color,” per the author.

Family Daycare Homes

Family daycare homes provide a more affordable close to home option for parents seeking childcare. Family daycare homes are licensed in two categories: large family daycare homes, which may care for up to 14 children and small family daycare homes, which may care for up to eight children. There are other differences between the two license categories such as staff-to-child ratio, staff training requirements, and conditions on the physical environment of the home.

Licensed family daycare homes play an important role in the childcare market. Family daycare providers offer flexible hours for parents who have non-traditional work schedules in home environments that are frequently close to where families live. Compared to child care centers, family daycare homes are more likely to care for infants, are more affordable for families, and meet families’ linguistic and cultural needs.

This bill proposes to make it easier for childcare providers to operate licensed large family daycare homes by shoring up housing protections and removing barriers that might keep existing small family daycare providers from expanding into a large provider or the opening of new large family daycare homes.

Local Zoning Laws

This bill requires local governments to treat licensed large family daycare homes as a residential use of property for the purposes of all local ordinances. This gives large family daycare homes the same status as small family daycare homes with regard to local ordinances. Many cities and counties have imposed zoning requirements for large family daycare homes. According to the sponsors, the cost of obtaining zoning permits in some cities and counties can range between $3,000 and $10,000, which can be cost prohibitive for a family childcare providers.

To address this problem, this bill requires local governments to treat large family-based childcare operations just as they do small ones. Thus, all family-based childcare operations would be considered residential use, could not be considered a change of use for building or fire code purposes, and could not be made subject to a business license, tax, or fee.

Housing Protections

This bill updates housing protections for licensed family daycare providers which is intended to ensure such providers will not be prohibited from living in a home solely based on the fact that they are providing childcare. According to the sponsors, existing law gives some property owners the impression that, absent a written agreement with a licensed childcare provider, they can refuse to rent or sell a home to childcare providers. Per the sponsors, family daycare providers are routinely turned down from living in or purchasing all types of homes because they intend to provide home based childcare.

This bill clarifies that childcare providers can have remedies and procedures available to them under the FEHA if their protections are violated under the CDCFA. The CDCFA, which includes all the land-use and housing protections specifically for family daycare homes, lacks language telling providers they can hold local governments and others accountable for violating the law. Consequently, many family daycare providers have nowhere to turn if their protections are violated, per the sponsors. To address this limited awareness, this bill requires CDSS to notify all family day care home license applicants of the remedies and procedures available to them under FEHA.

This bill also clarifies that licensed family daycare homes are allowed to operate in apartments and other types of multifamily units. According to the sponsors, reference to the terms “single-family dwelling” and “single-family residence” in existing laws have caused some local governments and land owners to prohibit family daycare providers from operating in apartments and other types of residential multi-family dwellings. This is despite guidance from CDSS and the State Fire Marshal indicating that such prohibition is not allowed.

Related/Prior Legislation

SB 174 (Leyva, 2019) modifies the state’s system and rates for reimbursing subsidized child care and development programs by creating a more uniform reimbursement system reflecting regional costs of care, and establishes the “Quality Counts California Pilot Reimbursement Program” as a pilot program to provide higher reimbursement rates to alternative payment program providers for meeting certain quality standards. The bill is waiting to be heard by the Senate Appropriations Committee.

AB 125 (McCarty, 2019) revises the state’s system and rates for reimbursing subsidized child care and development programs to create a more uniform reimbursement system reflecting regional costs of care, and establishes the “Quality Counts California Pilot Reimbursement Program” as a pilot program to provide higher reimbursement rates to alternative payment program providers for meeting certain quality standards. The bill is waiting to be heard in the Assembly Appropriations Committee.

AB 378 (Limon, 2019) provides that family childcare providers have the right to form, join, and participate in the activities of a provider organization of their own choosing for the purpose of representing them and bargaining on matters related to the terms and conditions of their employment. The bill is waiting to be heard by the Assembly Appropriation Committee.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 4/29/19)

California Child Care Resource and Referral Network (co-source)

Child Care Law Center (co-source)

United Domestic Workers of America-AFSCME Local 3930/AFL-CIO (co-source)

Alexander Child Care and Preschool

Bananas

Build Up for San Mateo County's Children

California Alternative Payment Program Association

California Association for the Education of Young Children

California Family Child Care Network

California Labor Federation, AFL-CIO

California State Council of Service Employees

California Women's Law Center

Center for Law and Social Policy

Children Now

Cocokids

Community Action Partnership of San Luis Obispo County, Inc.

Community Child Care Council of Sonoma County

Equal Rights Advocates

Eric Guerra, Councilmember, City of Sacramento

Fair Housing Advocates of Northern California

Family Child Care Association of San Francisco

Family Resource and Referral Center of San Joaquin

First 5 Santa Clara County

First 5 Sonoma County

Grace

Marin Family Child Care Association

Momsrising

Morning Song School

National Council of Jewish Women California

National Women's Law Center

Parent Voices California

Public Counsel

San Diego County Family Child Care Association

Sierra Nevada Children's Services

Solano Family & Children's Services

The Future Supporting Family Childcare

Western Center on Law & Poverty, Inc.

Wonderschool

OPPOSITION: (Verified 4/29/19)

None received

Prepared by: Taryn Smith / HUMAN S. /

5/1/19 15:20:48

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2019-2020 Regular Session

Bill No: SB 234 (Author:Skinner)

Version: March 21, 2019

Hearing Date: April 2, 2019

Fiscal: Yes

Urgency: No

Consultant: TSG

SUBJECT

Family day care homes

DIGEST

This bill proposes a series of clarifications and modifications of zoning and landlord-tenant laws designed to protect and promote the operation of residentially based family childcare facilities.

EXECUTIVE SUMMARY

As the California Legislature has repeatedly recognized in findings and declarations, the availability of quality, affordable, and local childcare is critical to child development, parental success, and the state economy more generally. Family-based childcare in residential settings can be an important source of such quality, affordable, and local childcare. With this in mind, California has enacted a series of laws that authorize and protect the right to operate family childcare facilities in residential settings. Yet, the shortage of quality, local, and affordable childcare in California remains acute. To try to address the problem, this bill would make a series of modifications and clarifications to zoning, permitting, and landlord-tenant laws. In particular, key elements of the bill would: (1) require local governments to treat large family child care homes (up to 12-14 children) as residential use for purposes of all local ordinances; (2) prevent landlords from rejecting tenant applicants solely based on the tenant’s intention to provide child care at the property; (3) clarify that licensed family day care homes are permitted to operate in apartments and other types of multifamily units; and (4) ensure that family child care providers receive notice of their rights and access to remedies under the law.

The bill is sponsored by the California Child Care Resource and Referral Network,

Child Care Law Center, United Domestic Workers of America-AFSCME Local 3930/AFL-CIO. Support comes from childcare providers, labor, and women’s rights advocates. There is no known opposition to the bill at this time. It passed out of the Senate Committee on Human Services by a vote of 6-0.

PROPOSED CHANGES TO THE LAW

Existing state law:

1. Makes legislative findings that:
2. child day care facilities can contribute positively to a child’s emotional, cognitive, and educational development;
3. it is California’s intent to provide a comprehensive, quality system for licensing child day care facilities to ensure a quality day care environment;
4. the system of licensure requires a special understanding of the unique characteristics and needs of the children served by child day care facilities; and
5. good quality childcare services are an essential service for working parents. (Health & Saf. Code § 1596.72(a-c and e).)
6. Sets forth legislative intent to establish within the California Department of Social Services (CDSS) an organizational structure to separate licensing of child day care facilities from other types of licensed facilities. (Health & Saf. Code § 1596.72(d).)
7. States that the purposes of the California Child Day Care Facilities Act (CDCFA) are to:
8. streamline the administration of child care licensing and thereby increase the efficiency and effectiveness of this system;
9. encourage the development of licensing staff with knowledge and understanding of children and child care needs;
10. provide providers of child care with technical assistance about licensing requirements; enhance consumer awareness of licensing requirements and the benefits of licensed child care; and
11. recognize that affordable, quality licensed childcare is critical to the well-being of parents and children in this state. (Health & Saf. Code § 1596.73.)
12. 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. (Health & Saf. Code § 1596.78 (a).)
13. Defines a “large family day care home” to be a home that provides family day care for seven to 14 children, including children under the age of 10 years who reside at the home, as specified. (Health & Saf. Code § 1596.78(b).)
14. Defines a “small family day care home” to be a home that provides family day care for eight or fewer children, including children under the age of 10 years who reside at the home. (Health & Saf. Code § 1596.78(c).)
15. Sets forth legislative finding and declarations that:
16. the Legislature has a responsibility to ensure the health and safety of children in family homes that provide day care;
17. there are insufficient numbers of regulated family day care homes in California; there will be a growing need for child day care facilities due to the increase in working parents;
18. many parents prefer child day care facilities located in their neighborhoods in family homes; there should be a variety of child care settings, including regulated family day care homes, as suitable alternatives for parents;
19. the program to be operated by the state should be cost effective, streamlined, and simple to administer in order to ensure adequate care for children placed in family day care homes, while not placing undue burdens on the providers; and
20. the state should maintain an efficient program of regulating family day care homes that ensures the provision of adequate protection, supervision, and guidance to children in their homes. (Health & Saf. Code § 1597.30.)
21. Declares the Legislature’s intent that family day care homes for children should be situated in normal residential surroundings so as to give children the home environment which is conducive to healthy and safe development. (Health & Saf. Code § 1597.40(a).)
22. Makes it the public policy of this state to provide children in a family day care home the same home environment as provided in a traditional home setting. (Health & Saf. Code § 1597.40(a).)
23. Declares that the public policy set forth in (9), above, is of statewide concern, with the purpose of occupying the field to the exclusion of municipal zoning, building and fire codes, and regulations governing the use or occupancy of family day care homes for children, except as specified, and to prohibit any restrictions relating to the use of single-family residences for family day care homes for children except as provided by this chapter. (Health & Saf. Code § 1597.40(a).)
24. Declares void every provision in a written instrument entered into relating to real property which purports to forbid or restrict the conveyance, encumbrance, leasing, or mortgaging of the real property for use or occupancy as a family day care home for children. Further voids every restriction or prohibition in any such written instrument as to the use or occupancy of the property as a family day care home for children. (Health & Saf. Code § 1597.40(b).)
25. Declares void, except as specified, every restriction or prohibition entered into, whether by way of covenant, condition upon use or occupancy, or upon transfer of title to real property, which restricts or prohibits directly, or indirectly limits, the acquisition, use, or occupancy of such property for a family day care home for children. (Health & Saf. Code § 1597.40(c).)
26. Requires a prospective family day care home provider, who resides in a rental property, to provide 30 days’ written notice to the landlord or owner of the rental property prior to the commencement of operation of the family day care home, with specified exceptions. (Health & Saf. Code § 1597.40(d)(1).)
27. Authorizes a landlord to charge a greater security deposit to a family day care home provider than that charged to other tenants so long as the total amount charged does not exceed the maximum permissible by law. (Health & Saf. Code § 1597.40(d)(4).)
28. Applies all of the following to small family day care homes:
29. the use of a single-family residence as a small family day care home shall be considered a residential use of property for the purposes of all local ordinances;
30. no local jurisdiction shall impose a business license, fee, or tax for the privilege of operating a small family day care home;
31. use of a single-family dwelling for purposes of a small family day care home shall not constitute a change of occupancy for purposes of state law regarding residential occupancies or for purposes of local building codes; and
32. a small family day care home shall contain a fire extinguisher and smoke detector device that meets standards established by the State Fire Marshal and one or more functioning carbon monoxide detectors that meet State Fire Marshal requirements. CDSS shall account for the presence of the carbon monoxide detectors during inspections. (Health & Saf. Code § 1597.45.)
33. Prohibits a city, county, or city and county from prohibiting large family day care homes on lots zoned for single-family dwellings, requires them to either classify these homes as a permitted use of residential property for zoning purposes or establish a process for applying for a permit to use the property as a large family day care home, as specified. Such permits shall be granted if the large family day care home complies with local ordinances, prescribing reasonable standards, restrictions, and requirements concerning spacing and concentration, traffic control, parking, and noise control relating to those homes, and complies with specified regulations adopted by the State Fire Marshal. (Health & Saf. Code § 1597.46(a and b).)
34. Exempts large family day care homes from the California Environmental Quality Act. (Health & Saf. Code § 1597.46 (c).)
35. Provides that use of a single-family dwelling for a large family day care home is not a change of occupancy for purposes of state law regarding residential occupancies or purposes of local building and fire codes. (Health & Saf. Code § 1597.46(d).)
    
36. Requires a large family day care home to have one or more functioning carbon monoxide detectors that meet State Fire Marshal requirements, which CDSS shall check for during inspections. (Health & Saf. Code § 1597.46(e).)
37. Requires large family day care homes to be considered as single-family residences for the purposes of the State Uniform Building Standards Code and local building and fire codes, except with respect to any additional standards specifically designed to promote the fire and life safety of the children in these homes adopted by the State Fire Marshal pursuant to this subdivision. The State Fire Marshal shall adopt separate building standards specifically relating to the subject of fire and life safety in large family day care homes, as specified. (Health & Saf. Code § 1597.46(f).)
38. Declares that the protections for family day care homes shall not be construed to:
39. preclude any city, county, or other local public entity from placing restrictions on building heights, setback, or lot dimensions of a family day care facility as long as such restrictions are identical to those applied to other single-family residences;
40. preclude the application to a family day care facility for children of any local ordinance which deals with health and safety, building standards, environmental impact standards, or any other matter within the jurisdiction of a local public entity as long as such restrictions are applied equally to other single-family residences;
41. prohibit or restrict the abatement of nuisances by a city, county, or city and county as long as such restrictions are applied equally to other single-family residences. (Health & Saf. Code § 1597.47.)
42. Requires all family day care homes for children to apply for a license, as specified. (Health & Saf. Code § 1597.54.)
43. Requires every family day care home for children to have one or more carbon monoxide detectors in the facility that meet the specified standards and requires CDSS to account for the presence of these detectors during inspections. (Health & Saf. Code § 1597.543.)

This bill:

1. Revises and recasts provisions of law regarding licensed large and small family day care homes in order to:
2. require local governments to treat licensed large family day care homes as a residential use of property for the purposes of all local ordinances, giving large family day care homes the same status as small family day care homes with respect to local ordinances;
3. update housing protections for licensed family day care providers to ensure they will not be prohibited from living in a home solely based on the fact that they are operating a family day care home;
4. clarify that licensed family day care homes are permitted to operate in apartments and other types of multifamily units;
5. clarify that family day care providers may be subject to remedies and procedures available to them under the Fair Employment and Housing Act (FEHA) based on potential violation of the CDCFA; and
6. require the State Fire Marshall to update the building and fire standards relating to life and fire safety for large and small family day care homes, as specified.
7. Adds legislative findings and declarations regarding the shortage of regulated childcare, the importance of regulated childcare, and the need to promote the development and expansion of regulated childcare.
8. Makes technical and conforming changes.

COMMENTS

1. Importance of quality, affordable, and local child care; shortage thereof in California

As described in greater depth in the Senate Human Services Committee analysis of this bill, the availability of quality, affordable, and local childcare is important for child development, to parents’ ability to work, and to the success of the economy more broadly. (Sen. Com. on Human Services, Analysis of SB 234 (2019-2020 Reg. Sess.) Mar. 11, 2019 Hearing Date.) California has for many years now recognized the critical role of residential, family-based childcare in meeting that need. (Health & Saf. Code § 1596.72.)

To those points, it is worth adding that the availability and provision of family-based childcare also has a gender equity component. In spite of some improvements, women in opposite sex relationships continue to bear a disproportionate share of childcare duties, compared with their male counterparts.^[1] As a result, the availability of quality, affordable childcare has a significant impact on gender equity more broadly. Mothers who can depend on the availability of good childcare are more likely to work and can more easily advance professionally and financially as a result.

As also noted in the Senate Human Services Committee analysis, California currently faces a significant and growing shortage of childcare and the problem appears to be getting worse. (Sen. Com. on Human Services, Analysis of SB 234, supra, p. 5.)

2. Ongoing barriers to child care provision in residential settings

The author and sponsors of this bill assert that California’s shortage in quality, affordable, and local childcare can be traced, at least partially, to ongoing barriers to the operation of family-based childcare in residential settings. While the state has a number of laws on the books designed to facilitate and protect family based childcare operations in residential settings, the author and sponsors believe that modifications and clarifications are needed for these laws to have their intended effect.

The principal problems that the author and sponsors perceive are described below, together with an explanation of what this bill would do to address the issue.

• 1. Burdensome local requirements for large family child care homes

California law governing family-based childcare divides facilities into two sizes. “Small” family day care homes are facilities that provide supervision for up to eight children under the age of 10. “Large” family day care homes are facilities providing care to up to 14 children.

Under existing law, small family day care homes are automatically designated as residential use, meaning that local governments cannot impose additional zoning requirements on small family day care homes that the local governments do not impose on people who do nothing beyond living at the property. (Health & Saf. Code § 1597.45(a).) Similarly, local governments cannot treat small family based day care operations as a change of use for building code or state fire purposes. (Health & Saf. Code § 1597.45(c).) Finally, local governments cannot charge small family day care operators a business license, tax, or fee. (Health & Saf. Code § 1597.45(b).)

By contrast, local governments have legal authority to impose some zoning requirements on large family day care homes in areas zoned for single-family dwellings. (Health & Saf. Code § 1597.46.) In theory, this authority must be exercised reasonably and is limited to matters involving spacing and concentration; traffic control; parking; and noise control. (Ibid.) In practice, according to the author and sponsors of this bill, cities and counties impose unnecessarily burdensome and very costly zoning requirements for large family childcare homes. In some cases, they state, the costs associated with obtaining the necessary zoning permits can run from $3,000 to $10,000.

In effect, while facilitating small family-based day care operations, existing law allows local governments to interpose significant practical barriers to the operation of larger day care operations. These barriers likely dissuade at least some operators from opening large family-based day cares or scaling up, thus reducing the overall availability of quality, affordable, and locally based child care.

To address this problem, this bill would require local governments to treat large family-based childcare operations just as they do small ones. Thus, all family-based childcare operations would be considered residential use, could not be considered a change of use for building or fire code purposes, and could not be made subject to a business license, tax, or fee.

• 1. The “not yet entered into” excuse for refusing to rent or sell to family child care providers

Existing California law states:

[e]very provision in a written instrument entered into relating to real property which purports to forbid or restrict the conveyance, encumbrance, leasing, or mortgaging of the real property for use or occupancy as a family day care home for children, is void and every restriction or prohibition in any such written instrument as to the use or occupancy of the property as a family day care home for children is void. (Health & Saf. Code § 1697.40(b.) (Emphasis added.)

According to the author and sponsors of this bill, landlords frequently latch on to the modifying clause “entered into” in this provision, and similar phrasing in the following subdivision, to reject prospective tenants who indicate their intent to use the property for family-based child care. In other words, the landlords claim that because no rental agreement has yet been “entered into,” they are free to discriminate against family-based childcare providers in precisely the way the statute appears intended to prevent.

Landlords who take this approach appear to be misreading the law. As one California appellate court stated, in regard to Health and Safety Code § 1597.40:

the tense of the key words “entered into” literally points to both covenants already “entered into” as well as covenants which will be “entered into” in the future. The natural inference is that the statute should apply to both categories. (Barrett v. Dawson (1998) 61 Cal.App.4th 1048, 1053. Internal citation omitted.)

Regardless, to remove any doubt that might hang over interpretation of the phrase “entered into” in the statute, and to try to eradicate what the author and sponsors assert is a common practice among landlords, this bill would strike the “entered into” modifier from the statute. To reinforce the point, the bill would also add language stating that “[a] property owner or manager shall not refuse to sell or rent, or refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a home to a person because that person is a family day care provider.”

While the proposed language should remove any lingering doubt about landlords’ obligation to treat child care providers as they would any other prospective tenant, in the context of the overall statute, the word “home” could be confusing here. “Home” is the term used in existing law, but as a key purpose of this bill is to clarify what type of homes family-based child care providers cannot be kept out of (see Comment 3(c) below), greater precision seems especially important here. Thus, though it makes for a rather long sentence, the author may wish to consider substituting the phrase “a home” with the phrase: “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.” That language tracks with the bill’s definition of what a family day care home includes, which is in itself a reflection of terms used in the fire code. All of which is to say that the proposed language might provide greater clarity and consistency across the statutes, even if it is wordy.

c. Codifying existing law against excluding childcare providers from apartments and other residential multi-family dwellings

The existing text of the California Child Day care Facilities Act (CCDFA) makes a few references to “single-family dwellings” and “single-family residences” throughout. The author and sponsors report that, as a result, some local governments and landlords apparently believe family childcare is only protected in single-family dwellings. Based on this interpretation, they occasionally attempt to prevent home childcare facilities from operating in multi-family dwellings, such as apartment buildings.

There are several reasons to believe that legal protections for providers of family childcare are not, in fact, limited to single-family dwellings. First, courts have acknowledged that the anti-discrimination provisions of the federal Fair Housing Act (42 U.S.C. §§ 3601 - 3619), the state Fair Employment and Housing Act (Gov. Code § 12000 et seq.) and the Unruh Act (Civ. Code § 51) can be applicable to situations in which a housing provider excludes a potential tenant or purchaser because of an expressed intent to engage in child care. (See, e.g., Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386; Rana v. Gu (N.D. Cal. 2016) 220 F.Supp.3d 989; Vance v. Bakas (N.D.Cal. Mar. 1, 2006, No. C 05-3385 PVT) 2006 U.S.Dist.LEXIS 11183.) None of these rulings was contingent on the property in question being a single-family dwelling.

Second, two California state agencies, the Community Care Licensing Division within the California Department of Social Services, and the Office of the State Fire Marshal, have issued sub-regulatory guidance stating that family child care is permissible in apartments and other residential multi-family dwellings.^[2]

Consistent with these interpretations and so as to prevent multi-family housing providers from continuing to rely on the “single-family dwelling” and “single-family residence” language in the CCDFA as a way to justify preventing family-based child care providers from operating within their buildings, this bill would spell out all of the types of residential buildings where child care operations are protected: detached single-family dwellings, townhouses, dwelling units within a dwelling, and dwelling units within a covered multifamily dwelling in which the underlying zoning allows for residential uses. As previously noted, this language is a bit cumbersome, but the terms derive from the fire code, and thus provide valuable consistency and clarity across statutes.

Codifying the right of childcare providers to operate in apartments and other types of multi-family dwellings will enable some additional family-based childcare operations to open in that context. It seems unlikely to result in a widespread proliferation of such operations, however, at least not throughout individual apartment complexes. Even if legally permissible and protected against discrimination by a landlord, family-based child care operations still have to be able to pass the state’s child care licensing requirements. (Health & Saf. Code § 1597.54.)

Still, landlords and nearby tenants may object that codifying protections for family-based child care will make such operations effectively untouchable, even when noise levels reach the rare and extreme point of constituting a genuine nuisance in the same way that constant, raucous partying or late night rock band rehearsals might.^[3] To assuage any such concerns, the author may wish to add language to the bill clarifying that: “[n]othing in this section shall alter the existing rights of landlords and tenants with respect to addressing and resolving issues related to noise, lease violations, nuisances or conflicts between landlords and tenants.”

1. Increasing awareness of family-based child care provider rights

The CDCFA lacks an express enforcement mechanism. However, many of the CDCFA’s provisions protecting home child care providers against discrimination on the basis of their child care operations track closely with anti-discrimination provisions found elsewhere in the law, including the Fair Housing Act, FEHA, and the Unruh Act, among others. Not surprisingly, therefore, family-based childcare providers have had significant success defending their childcare operations using these other statutes. Yet, according to this bill’s author and sponsors, few childcare providers are aware of these laws or the relative ease with which aggrieved providers could report violations and seek redress through the administrative agencies charged with enforcing these laws.

To address this limited awareness, this bill would require CDSS to notify all family day care home license applicants of the remedies and procedures available to them under FEHA. Presumably this would include the right to file administrative complaints with the Department of Fair Employment and Housing against local government as well as public or private housing providers for discriminating against childcare providers based on familial status, source of income, and gender, among other possible theories. The notification would also point out that such discrimination could be alleged based on the failure to comply with the protections afforded to child care providers by the CDCFA.

The notification could perhaps also inform applicants for a home childcare license of the protections they may be entitled to under other statutes as well. The problem is that there are many statutes that convey legal protections for childcare providers, leaving a problem of where to draw the line. Since FEHA is a major source of those protections and comes with a convenient administrative enforcement mechanism, the author has made the policy choice, for the time being, that the notification will go no further than FEHA and related provisions of the CDCFA.

3. Proposed amendments

In order to address the issues set forth in the Comments above, the author proposes to incorporate amendments into the bill that would:

• clarify precisely what types of residential properties are covered under this bill; and
• clarify that the bill does not alter landlord and tenant rights to address and resolve issues related to noise, lease violations, nuisances, or conflicts.

The specific amendments are as follows:

Amendment 1

On page 6, in line 9, strike out “home” and insert:

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

Amendment 2

On page 6, in lines 14 and 15, strike out “the home” and insert:

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,

Amendment 3

On page 7, after line 13, insert:

(g) Nothing in this section shall alter the existing rights of landlords and tenants with respect to addressing and resolving issues related to noise, lease violations, nuisances or conflicts between landlords and tenants.”

4. Arguments in support of the bill

According to the author:

Family child care is vitally important for families and our communities, but child care has increasingly become too expensive and difficult for parents to find. Finding quality, affordable child care close to home shouldn’t have to feel like winning the lottery, but for too many parents, it does. Licensed child care is available for only 23% of children with working parents, and the numbers keep getting worse. Cities and counties have effectively blocked the creation and expansion of large family day care homes through onerous zoning laws and permitting regulations, leaving families with nowhere to turn. Many family child care providers have also been forced to shut down due to property owners unlawfully prohibiting family child care. This legislation helps struggling families who are too often asked to sacrifice their child’s well-being and get the child care they need to support their families. This legislation will especially help women, including family child care providers and many of whom are women of color.

As a sponsor of the bill, Public Counsel writes:

The number one legal request received by Public Counsel’s [Early Care & Education (ECE)] Law unit is related to landlord opposition, retaliation, and harassment over the child care provider’s operation of the family child care home. […] This is a huge obstacle to the opening and operation of family child care homes in our communities and results in less supply and access to quality child care. The ECE Law unit also regularly gets calls regarding city zoning laws that make it very costly and onerous for large family child care providers to operate.

In support, Stronger California Advocates Network writes:

Nearly 40 years ago, California recognized the importance of family child care when the Legislature established protections for family child care homes in communities through the Child Day Care Facilities Act (CDCFA). But the law has not kept pace with our needs, and loopholes have caused uneven application by cities, burdensome local regulations, and a lack of housing protections. SB 234 will update the law[…].

SUPPORT

American Federation of State, County and Municipal Employees, AFL-CIO (sponsor)

Child Care Law Center (sponsor)

Network (sponsor)

Service Employee International Union California (sponsor)

United Domestic Workers of America – AFSCME Local 3930/AFL-CIO (sponsor)

9to5

Child Care Coordinating Council of San Mateo

ACCE

Alexander Preschool

American Association of University Women

Angela’s Family Day care

Bananas Inc.

Brancart & Brancart

Build Up for San Mateo County’s Children

California Alternative Payment Program Association, Children’s Foundation

California Asset Building Coalition

California Association of the Education of Young Children

California Child Care Resource & Referral Network

California Domestic Workers Coalition

California Employment Lawyers Association

California Family Child Care Network

California Labor Federation

California Latinas for Reproductive Justice

California Partnership

California Women’s Law Center

California Work and Family Coalition

Career Ladders Project

Center for Law and Social Policy

The Center for Popular Democracy

CoCoKids

Community Action Partnership of San Luis Obispo County

Community Child Care Council of Sonoma County

Creative Journeys In-Home Preschool & Child Care

Del Norte Child Care Council

End Hunger

Equal Rights Advocates

Fair Housing Advocates of Northern California

Family Child Care Association of San Francisco

Family Resource & Referral Center

First 5 California

First 5 Santa Clara County

First 5 Sonoma County

Fun and Learning Child care

The Future Supporting Family Child care Association of Contra Costa County

GRACE

Eric Guerra, Sacramento City Councilmember

Kidango

Legal Aid at Work

Little Scholars Preschool

Marin Child Care Council

Marin Family Child Care Association

Moms Rising

Morning Song Preschool and Childcare

Mujeres Unidas y Activas

National Council of Jewish Women California

National Women’s Law Center

Opportunity Institute

Parent Voices

Project Sentinel

Public Counsel

Raising California Together

San Diego County Family Child Care Association

Soaring Wings

Solano Family & Children’s Services

The Stronger California Advocates Network

Tater Tots Day care

Tradewomen, Inc.

United Food and Commercial Workers, Western States Council

Voices for Progress

Western Center on Law and Poverty

The Women’s Foundation of California

Wonderschool

Three individuals

OPPOSITION

None known

RELATED LEGISLATION

Pending Legislation:

AB 378 (Limon, 2019) authorizes family child care providers, as defined, to form, join, and participate in the activities of provider organizations, as defined, and to seek the certification of a provider organization to act as the representative for family child care providers on matters related to child care subsidy programs pursuant to a petition and election process overseen by the Public Employment Relations Board or a neutral third party designated by the board. AB 378 is currently pending consideration before the Assembly Committee on Judiciary.

AB 1716 (Kiley, 2019) requires family child care home education network contractors to offer providers at least 12 hours of training and technical assistance in group or individual settings annually. AB 1716 is currently pending consideration before the Assembly Committee on Human Services.

Prior Legislation:

AB 2386 (Mullin, Ch. 503, Stats. 2014) required home child day care facilities to have one or more functioning carbon monoxide detectors.

SB 1965 (Klopp, Ch. 449, Stats 1996) required family day care home providers in rental property to provide written notice to the landlord or property owner of the operation of the family day care home. The bill also authorized a landlord or property owner to demand an increased security deposit for operation of the family day care home.

SB 163 (Watson, Ch. 1233, Stats. 1983) created separate definitions for “small family day care home” (care for up to 6 children) and “large family day care home” (care for up to 12 children) and create a separate licensing scheme for both types of care. The bill also allowed for cities and counties to require a zoning permit for large family day care homes.

AB 1670 (Torres, Ch. 1162, Stats. 1981) created most of the current housing protection for family day care homes.

PRIOR VOTES:

Senate Human Services Committee (Ayes 6, Noes 0)

**************

1. Parker, Despite Progress, Women Still Bear Heavier Load Than Men in Balancing Work and Family (Mar. 10, 2015) Pew Research Center https://www.pewresearch.org/fact-tank/2015/03/10/women-still-bear-heavier-load-than-men-balancing-work-family/ (as of Mar. 23, 2019). ↑

2. See Family Child Care Self Assessment Guide Tenants Rights, California Department of Social Services, Community Care Licensing Division http://ccld.ca.gov/res/pdf/FamilyChild careSelfAssessGuideTenantRights.pdf (as of Mar.27, 2019) at p. 6 (“Even though the Health and 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.”); see also California State Fire Marshal Code Interpretation 00-002 (Apr. 21, 2000) (“It was not the intent of the code to prohibit large family day care homes in Group R, Division 1 Occupancies. While most of these facilities may be found in single family dwellings, a large family day care facility may be located in an Group R, Division 1 occupancy (such as an apartment building) if all the code provisions are met (e.g., day cares may not be located above or below the first story as per Section 310.15.5; the occupant load as per Table 10-A must not be exceeded; two exits must be provided from the apartment housing the day care as per table10-A, etc.).”) ↑

3. The ordinary, even boisterous play of children could not, presumably, reach this level, since, if it did, most family status discrimination could be justified on the grounds that kids, being kids, constitute a nuisance. ↑

SENATE COMMITTEE ON HUMAN SERVICES

Senator Hurtado, Chair

2019 - 2020 Regular

Bill No: SB 234

Subject: Family daycare homes

SUMMARY

This bill revises and recasts statutes regarding licensed family daycare homes pertaining to local zoning laws and housing protections.

ABSTRACT

Existing Law:

1. Makes a series of Legislative findings regarding child day care facilities’ contribution to a child’s emotional, cognitive and educational development; the intent of this state to provide a comprehensive, quality system for licensing child day care facilities to ensure a quality day care environment; and that the system of licensure requires a special understanding of the unique characteristics and needs of the children served by child day care facilities. (HSC 1596.72 (a-c)
2. States Legislative intent to establish within the California Department of Social Services (CDSS) an organizational structure to separate licensing of child day care facilities from other types of licensed facilities and that good quality child day care services are an essential service for working parents. (WIC 1596.72 d and e)
3. States that the purposes of the California Child Day Care Act (CDCA) are to streamline the administration of child care licensing and thereby increase the efficiency and effectiveness of this system; encourage the development of licensing staff with knowledge and understanding of children and child care needs; provide providers of child care with technical assistance about licensing requirements; enhance consumer awareness of licensing requirements and the benefits of licensed child care; and recognize that affordable, quality licensed child care is critical to the well-being of parents and children in this state. (HSC 1596.73)
4. Defines a “family day care home” to be 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. (HSC 1596.78 (a))
5. Defines a “large family day care home” to be a home that provides family day care for seven to 14 children, inclusive, including children under the age of 10 years who reside at the home, as specified. (HSC 1596.78 (b))
6. Defines a “small family day care home” to be a home that provides family day care for eight or fewer children, including children under the age of 10 years who reside at the home, as specified. (HSC 1596.78 (c))
7. States Legislative finding and declarations that the Legislature has a responsibility to ensure the health and safety of children in family homes that provide day care; there are insufficient numbers of regulated family day care homes in California; there will be a growing need for child day care facilities due to the increase in working parents; many parents prefer child day care located in their neighborhoods in family homes; there should be a variety of child care settings, including regulated family day care homes, as suitable alternatives for parents; the program to be operated by the state should be cost effective, streamlined, and simple to administer in order to ensure adequate care for children placed in family day care homes, while not placing undue burdens on the providers; and the state should maintain an efficient program of regulating family day care homes that ensures the provision of adequate protection, supervision, and guidance to children in their homes. (HSC 1597.30)
8. States Legislative intent that family day care homes for children should be situated in normal residential surroundings so as to give children the home environment which is conducive to healthy and safe development. Further states that it is the public policy of this state to provide children in a family day care home the same home environment as provided in a traditional home setting. Makes Legislative declaration that this policy is to be of statewide concern with the purpose of occupying the field to the exclusion of municipal zoning, building and fire codes and regulations governing the use or occupancy of family day care homes for children, except as specifically provided for in this chapter, and to prohibit any restrictions relating to the use of single-family residences for family day care homes for children except as provided by this chapter. (HSC 15697.40 (a))
9. Declares void every provision in a written instrument entered into relating to real property which purports to forbid or restrict the conveyance, encumbrance, leasing, or mortgaging of the real property for use or occupancy as a family day care home for children.  Further voids every restriction or prohibition in any such written instrument as to the use or occupancy of the property as a family day care home for children. (HSC 15697.40 (b))
10. Declares void, except as specified, every restriction or prohibition entered into, whether by way of covenant, condition upon use or occupancy, or upon transfer of title to real property, which restricts or prohibits directly, or indirectly limits, the acquisition, use, or occupancy of such property for a family day care home for children. (HSC 15697.40 (c))
11. Requires a prospective family day care home provider, who resides in a rental property, to provide 30 days’ written notice to the landlord or owner of the rental property prior to the commencement of operation of the family day care home, as specified. (HSC 15697.40 (d))
12. Requires that all of the following apply to small family day care homes:
13. The use of a single-family residence as a small family day care home shall be considered a residential use of property for the purposes of all local ordinances.
14. No local jurisdiction shall impose a business license, fee, or tax for the privilege of operating a small family day care home.
15. Use of a single-family dwelling for purposes of a small family day care home shall not constitute a change of occupancy for purposes of state law regarding residential occupancies or for purposes of local building codes.
16. A small family day care home shall contain a fire extinguisher and smoke detector device that meet standards established by the State Fire Marshal and one or more functioning carbon monoxide detectors that meet State Fire Marshal requirements. CDSS shall account for the presence of the carbon monoxide detectors during inspections. (HSC 1597.45)
17.  Prohibits a city, county, or city and county from prohibiting large family day care homes on lots zoned for single-family dwellings, requires them to either classify these homes as a permitted use of residential property for zoning purposes or establish a process for applying for a permit to use the property as a large family day care home, as specified. Such permits shall be granted if the large family day care home complies with local ordinances, prescribing reasonable standards, restrictions, and requirements concerning spacing and concentration, traffic control, parking, and noise control relating to those homes, and complies with specified regulations adopted by the State Fire Marshal. (HSC 1597.46 (a and b))
18. Excludes a large family day care home from being subject to the specified environmental quality laws. (HSC 1597.46 (c))
19. Prohibits use of a single-family dwelling for the purposes of a large family day care home from constituting a change of occupancy for purposes of state law regarding residential occupancies and or purposes of local building and fire codes. (HSC 1597.46 (d))
20. Requires a large family day care home to have one or more functioning carbon monoxide detectors that meet State Fire Marshal requirements. CDSS shall account for the presence of the carbon monoxide detectors during inspections. (HSC 1597.46 (e))
21. Requires large family day care homes to be considered as single-family residences for the purposes of the State Uniform Building Standards Code and local building and fire codes, except with respect to any additional standards specifically designed to promote the fire and life safety of the children in these homes adopted by the State Fire Marshal pursuant to this subdivision. The State Fire Marshal shall adopt separate building standards specifically relating to the subject of fire and life safety in large family day care homes, as specified. (HSC 1597.46 (f))
22. Declares that the provisions of this chapter shall not be construed to: preclude any city, county, or other local public entity from placing restrictions on building heights, setback, or lot dimensions of a family day care facility as long as such restrictions are identical to those applied to other single-family residences; preclude the application to a family day care facility for children of any local ordinance which deals with health and safety, building standards, environmental impact standards, or any other matter within the jurisdiction of a local public entity; prohibit or restrict the abatement of nuisances by a city, county, or city and county. Prohibits such ordinance or nuisance abatement from distinguishing family day care facilities from other single-family dwellings, except as otherwise provided. (HSC 1597.47)
23. Requires all family day care homes for children to apply for a license, as specified. (WIC 1597.54)
24. Requires every family day care home for children to have one or more carbon monoxide detectors in the facility that meet the specified standards and requires CDSS to account for the presence of these detectors during inspections. (HSC 1597.543)

This Bill:

1. Revises and recasts provisions of law regarding licensed large and small family daycare homes in order to:
2. Require local governments to treat licensed large family daycare homes as a residential use of property for the purposes of all local ordinances. This would give large family daycare homes the same status as small family daycare homes with regard to local ordinances.
3. Update housing protections for licensed family daycare providers to ensure they will not be prohibited from living in a home solely based on the fact that they are operating a family daycare home.
4. Clarify that licensed family daycare homes are permitted to operate in apartments and other types of multifamily units.
5. Clarify that family daycare providers may be subject to remedies and procedures available to them under the Fair Employment and Housing Act (FEHA) based on potential violation of the CDCFA.
6. Requires State Fire Marshall to update the building and fire standards relating to life and fire safety for large and small family daycare homes, as provided.
7. Adds Legislative findings and declarations regarding the shortage of regulated childcare, the importance of regulated childcare, and the need to promote the development and expansion of regulated childcare.
8. Makes technical conforming changes.

FISCAL IMPACT

This bill has not yet been analyzed by a fiscal committee.

BACKGROUND AND DISCUSSION

Purpose of the Bill:

According to the author, childcare provided in licensed family daycare homes is “vitally important for families and our communities, but childcare has increasingly become too expensive and difficult for parents to find.” The author further states that cities and counties have “put up too many barriers” that impeded the creation and expansion of family daycare homes. Additionally, according to the author, many family daycare providers have been “forced to shut down due to property owners unlawfully prohibiting family childcare.”

“This legislation helps struggling families who are too often asked to sacrifice their child’s well-being and get the childcare they need to support their families. This legislation will especially help women, including family childcare providers and many of whom are women of color,” per the author.

Shortage of Childcare Providers

Childcare comes in many forms, including unlicensed care provided by family, friends and neighbors; early childhood education programs; licensed family daycare homes; and licensed childcare centers.  Within these categories are additional subcategories that allow parents to further refine the setting in which their children will receive care.  Regardless of the setting, childcare is largely unavailable and unaffordable for parents throughout California. 

While there are approximately 280,000 childcare slots in licensed family daycare homes, the California Child Care Resource and Referral Network (R&R Network) reports that licensed childcare is available for only 23 percent of children with working parents, and that gap is projected to increase over time.^[1] According to the R&R Network, the statewide number of licensed family childcare providers has fallen by 30 percent (11,785) between 2008 and 2017.

The licensure, maintenance, and operation of child day care centers and family daycare homes in the state are governed by the CDCA. This law and the corresponding regulations establish, among other things, general health and safety requirements, staff-to-child ratios, and provider training requirements for licensed childcare. CDSS is charged with ensuring licensed childcare facilities meet health and safety standards through monitoring facilities, providing technical assistance, and establishing partnerships with providers, parents, and the childcare community. 

This bill is focused on licensed family daycare homes, which, in contrast to childcare centers, provide childcare in a homelike residential setting.  Family daycare homes provide an often more affordable and close to home option for parents seeking childcare.  Family daycare homes are licensed in two categories: large family daycare homes, which may care for up to 14 children and small family daycare homes, which may care for up to eight children.  There are other differences between the two license categories such as staff-to-child ratio, staff training requirements, and conditions on the physical environment of the home.

Licensed family daycare homes play an important role in the childcare market. Family daycare providers offer flexible hours for parents who have non-traditional work schedules in home environments that are frequently close to where families live. According to the R&R Network, 41 percent of family daycare homes provide full-time and part-time slots and offer evening, weekend or overnight care. Comparatively, only three percent of childcare centers provide care during non-traditional work hours. Compared to centers, they are more likely to care for infants, are more affordable for families, and meet families’ linguistic and cultural needs. The annual cost of infant care in a family daycare home is almost $6,000 less than care provided in childcare centers.^[2]

This bill proposes to make it easier for childcare providers to operate licensed large family daycare homes by shoring up housing protections and removing barriers that might keep existing small family daycare providers from expanding into a large provider or the opening of new large family daycare homes.  

Local Zoning Laws

This bill requires local governments to treat licensed large family daycare homes as a residential use of property for the purposes of all local ordinances. This would give large family daycare homes the same status as small family daycare homes with regard to local ordinances. Many cities and counties have imposed zoning requirements for large family daycare homes. According to the sponsor, the cost of obtaining zoning permits in some cities and counties can range between $3,000 and $10,000.

This can be cost prohibitive for a family childcare providers. While no income data was available for licensed family daycare homes, the Bureau of Labor Statistics reports that the average annual wage for employees of childcare institutions is about $27,000/year^[3] According to the sponsor, the operators of licensed daycare homes make far less than that amount. The sponsors report that licensed large family daycare home providers often earn $5 to $10 per hour.

Housing Protections

This bill updates housing protections for licensed family daycare providers which is intended to ensure such providers will not be prohibited from living in a home solely based on the fact that they are providing childcare. According to the sponsor, existing law gives some property owners the impression that, absent a written agreement with a licensed childcare provider, they can refuse to rent or sell a home to childcare providers. Per the sponsor, family daycare providers are routinely turned down from living in or purchasing all types of homes because they intend to provide home based childcare. These denials happen despite the childcare providers’ rights to operate a family daycare home as provided by CDCFA and the Fair Employment and Housing Act (FEHA), per the sponsor.

Additionally, the bill clarifies that childcare providers can have remedies and procedures available to them under the FEHA if their protections are violated under the CDCFA. The CDCFA, which includes all the land-use and housing protections specifically for family daycare homes, lacks language telling providers they can hold local governments and others accountable for violating the law. Consequently, many family daycare providers have nowhere to turn if their protections are violated, per the sponsor.

This bill also clarifies that licensed family daycare homes are allowed to operate in apartments and other types of multifamily units. According to the sponsor, reference to the terms “single-family dwelling” and “single-family residence” in existing laws have caused some local governments and land owners to prohibit family daycare providers from operating in apartments and other types of residential multi-family dwellings. This is despite guidance from CDSS and the State Fire Marshal indicating that such prohibition is not allowed:

• CDSS’s publication titled “Family Child Care Self-Assessment Guide – Tenant Rights,” states, in part, “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.”
• Additionally, the State Fire Marshal, which oversees the fire inspection and safety of family child care homes, has also issued guidance that says family child care homes are permitted in apartments. In Code Interpretation number 00-002. The State Fire Marshal has opined that “it was not the intent of the code to prohibit large family day care homes in Group R, Division 1 Occupancies (which are apartments and condominiums). While most of these facilities may be found in single family dwellings, a large family day care facility may be located in an Group R, Division 1 occupancy (such as an apartment building) if all the code provisions are met.”

Related/Prior Legislation:

SB 174 (Leyva) would provide Legislative intent to enact legislation that would establish a single regionalized state reimbursement rate system for childcare, preschool, and early learning services to achieve specified objectives. The bill would require the State Department of Education to create a plan for the single regionalized state reimbursement rate system and ensure that the plan’s methodology includes certain things, including that the state’s diverse early childhood education teachers and providers will be competitively compensated. This bill has not yet been heard in Senate Education Committee.

AB 125 (McCarty) provides Legislative intent to enact legislation that would establish a single regionalized state reimbursement rate system for childcare, preschool, and early learning services that would achieve specified objectives. This bill is awaiting referral to a committee.

AB 378 (Limon) would authorize family childcare providers, as defined, to form, join, and participate in the activities of provider organizations, as defined, and to seek the certification of a provider organization to act as the representative for family childcare providers on matters related to childcare subsidy programs pursuant to a petition and election process overseen by the Public Employment Relations Board or a neutral 3rd party designated by the board. This bill is awaiting referral to a committee.

AB 1716 (Kiley) would require family childcare home education network contractors to offer providers at least 12 hours annually of training and technical assistance in group or individual settings. This bill is awaiting referral to a committee.

AB 2386 (Mullin, Chapter 503, Statutes of 2014) requires community care facilities, residential care facilities for the elderly, and child day care facilities and homes to have one or more functioning carbon monoxide detectors, as specified.

COMMENTS

This bill proposes to make changes to local governing zoning requirements for licensed large family daycare homes; housing protections for licensed family daycare providers; clarifies that licensed family daycare homes are allowed in apartments and other types of multifamily units; and clarifies that childcare providers can have remedies and procedures available to them under DFEH. While these statutes affect the operation and regulation of licensed family daycare homes, housing and local zoning laws are outside of the purview of this committee. Should this bill move out of this committee, the housing issues will be addressed in the Senate Judiciary Committee.

This bill does not impact any of the other health and safety codes affecting the oversight and regulation of large and small family daycare homes.

POSITIONS

Support:

California Child Care Resource and Referral Network (Co-sponsor)

Child Care Law Center (Co-sponsor)

United Domestic Workers of America-Afscme Local 3930/Afl-Cio (Co-sponsor)

Alexander Child Care and Preschool
Bananas, INC.
Build Up For San Mateo County's Children
California Alternative Payment Program Association
California Family Child Care Network
California State Council of Service Employees
California Women’s Law Center
Children Now
Cocokids
Community Action Partnership Of San Luis Obispo County, Inc.
Community Child Care Council Of Sonoma County
Equal Rights Advocates
Eric Guerra, Councilmember, City of Sacramento
Fair Housing Advocates of Northern California
Family Child Care Association Of San Francisco
Family Resource and Referral Center of San Joaquin
First 5 Sonoma County
GRACE
Marin Family Child Care Association
MOMSRISING
Morning Song School
National Council of Jewish Women (NCJW) CA
Public Counsel
San Diego County Family Child Care Association
Sierra Nevada Children’s Services
Solano Family & Children’s Services
The Future Supporting Family Child Care
Western Center on Law & Poverty, INC.
Wonderschool

Oppose:

None

-- END --

1. https://rrnetwork.org/assets/general-files/FCC-decline-slides_final.pdf ↑

2. https://rrnetwork.org/assets/general-files/FCC-decline-slides_final.pdf ↑

3. http://www.bls.gov/oes/current/oes399011.htm ↑