HomeMy WebLinkAboutChild Care Law Center - Large Family Child Care Facility BUTTE COUNTY
ADM IN I STR,iNTION
OCT 0 1 2018
:'utte County Child Care Data
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Butte County only has el lough licensed child care for
24% of young children with working parents
utte
24% Children County
for Whom
Child Care is
Available
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Butte County has lost more than half of its supply of
Family Child Care Homes since 20041
Number of
Fa UyChiHdCare omes
in utte County
300
1,1 264
250 -
210
208
200
167
150 —
136 131 128
100 —
50
2004 2006 2008 2010 2012 2014 2017
1 The California Child Care Resource&Referral Network, California Child Care Portfolio(2017),available at
Ilttp /www.rrnetlevork.orclicalifomia child care portfolio.The California Child Care Portfolio data is also provided to tile Lucile Packard Foundation
for Children's Health,Kidsdata.org(2017),available at http://www.kidsdata.orq.
1
There are 123 Family Child Care Homes and
al ost two-thirds are Small Family Child Care
Butte County -2018
Small Large
Total
Family Family
Child Child Family
Child Care
Care Care
Homes
Homes Homes
73 50 123
In fifty- line percent of families wit l pre-school age chW re
all parents work (includes 2-parent and 1-parent ho vi es)
Butte County 2016
Total number of parents with children under
14,132
age 6
Number of families with children under age 6
8,302
with all parents in the labor force
The cost of child care has risen significantly since 2009 for all licensed child
family child care homes remain the least expensive cliloice.4
Cost of Child Care in Butte County
Increase in Percent of household
cost of child income for child care
Facility Age 2009 2017 care costs (1 infant and 1
preschooler)
$5,959 $8,603
Family Infants 44% t
Child 37%
Care Preschoolers $5,817 $8,031 38% t
Home
Child Infants $10,529 $12,726 21%
Care 48%
Center Preschoolers $7,212 $8,463 17%
2 Data provided by Valley Oak Children's Services on March 7,2018. Small family child care homes can serve a maximum of 8 children;large family
child care homes can serve a maximum of 14 children,with appropriate staffing.
3 United States Census Bureau,American Community Survey, Selected Economic Characteristics 2012-2016 5-Year Estimates for Butte County
available at http://factfinder.census.nov/facesitableservices/isfipaoesiproductview.xhtml?pid=ACS 14 5YR DP03&prodTvpe=table (2016).
4 Butte County median household income$44,366.United States Census Bureau,American Community Survey, Selected Economic Characteristics
2012-2016 5-Year Estimates for Butte County CA available at
https.//factfindercensus.00v/faces/tableservices/isf/paqes/productviewAhtml?pici=ACS 14 5YR DP03&proclType.table(2016).
2
Vta L~HNLD CARE LAW CENTER
445 CHURCH 5mser | 4m FLOOR SAN FRANCISCO, CA 94114 i 415.558.8005
vvm/uvocxneLAvvouc ompm@c* / LocAnsLavv,oxc
VIA ELECTRONIC AND U.S. MAIL
Board of Supervisors
Butte County
25 County Center Drive, Suite 200
Oroville, CA 95965
NaennoJ: dprkofthebnord@buttecounty.net
September 26, 2018
RE: Eliminating the Requirement for a Paved Road to be In Place or Installed on an
Existing Gravel Road, With No Exceptions,for a Large Family Child Care Facility
Dear Butte County Board of Supervisors,
We are very pleased that Butte County ("the County") is amending the requirement for
a paved road to be in place or installed on an existing gravel road, with no exceptions, for all
new large family child care facilities. Removing this requirement is a major step for the County
in coming into compliance with state law, the California Child Day Care Facilities Act ("the Act"),
andwe are happy to continue supporting the County in this effort.' Family child care is a
community service that helps children thrive, parents work, and communities prosper.
The Child Care Law Center ("CCLC") educates, advocates, and when necessary, litigates
to break down the barriers standing between families in need and good, affordable child care.
California family child care zoning law is one of our practice specialties.
The County's requirement that new large family child care homes have frontage on, and
access off, a paved road, or the construction of the appropriate road standard if the road is not
currently paved, does not comply with the Act.2 Per Butte County Development Services
Department's request, we analyzed and made proposed amendments to the Butte County
Zoning Ordinance, sections 24-159 (child care facilities) and 24-304 (child care definitions) in
zCa|.Hea|th &Safety Code§ 1597.30 et seq.; Letter from CCLC to Tim Snellings, Butte County Director of
Development Services, RE: Proposed Amendments to Butte County's Zoning Ordinance(June 30,2017). Letter
from CCLC to Felix\Nannenmacher, Butte County Chief Deputy County Counsel, RE Butte County's Ordinance and
Process for Approval of Large Family Child Care Homes(June 27,2017). Letter from CCLC to Butte County Board of
Supervisors RE: Removing or Reducing Permit Fees for Large Family Child Care Homes(June 12,2017).
zSoe[a|.Hea|th&SafetyCode& 1S97.46(a)(3)(nut|iningthecities'andcounties' pernnioib|eareayofzoning
regulation. Requirement to pave a road is not a permissible area),
1
June 2017.The elimination of the paved road requirement was included in our recommended
changes.
Not only is the requirement for large family child care homes to pave a road unlawful,
but it also exacerbates the crisis of unavailable child care in Butte County. We urge the Board of
Supervisors and the Development Services Department to eliminate this requirement and bring
its zoning ordinance and application process for family child care homes into compliance with
state law.
I. State Law Clearly Distinguishes Between Child Care Facilities, Child Care Centers,
Family Child Care Homes, and Large and Small Family Child Care Homes
At the August 28 meeting,the Board of Supervisors asked for clarification on the child
care terms used in the staff report.3 Under state law, all types of child care fall under the
umbrella of"child care facility." State law distinguishes between "child care center" and "family
child care home," and further between a "large family child care home" and a "small family
care home." It sets different levels of permissible local regulation for these separate categories
of child care. Family child care homes are located in the provider's home and can care for up to
14 children. Child care centers are located outside the provider's home and can be licensed to
care for many more children. Unlike most centers,family child care often offers families flexible
hours of care that accommodate their work schedules.
In passing special protections for family child care homes under the Act, the Legislature
recognized that many parents prefer child care in family homes located in their neighborhoods;
there are insufficient numbers of regulated family day care homes in California; and there is a
growing need for child care due to more parents working.5 The Legislature further stated, as a
public policy of"statewide concern," that family child care homes should be situated in normal
residential surroundings so as to give children the home environment which is conducive to
healthy and safe development, and that children in a family day care home should be provided
the same home environment as provided in a traditional home setting.6
Below are the state statutory definitions of different types of child care:
• "Child care facility" means a facility that provides nonmedical care to children under 18
years of age in need of personal services, supervision, or assistance essential for
sustaining the activities of daily living or for the protection of the individual on less than
3 Supervisor Maureen Kirk referred to family child care homes as"daycare centers" and Supervisor Doug Teeter
asked for clarity on the terms used in the staff report. Butte County Board of Supervisors meeting,August 28,
2018.
'The Cal. Health &Safety Code still has the term"day care,"which is outdated.Corresponding regulations update
the term to be"child care."Cal.Code of Regs.,tit. 22§§ 102352(f)(1)& 101152(c)(7).
5 Cal. Health&Safety Code§§1597.30(b)-(d).
6 Id. §1597.40(a).
2
a 24-hour basis. Child care facility includes child care centers, employer-sponsored child
care centers, and family child care homes.
o "Child care center" means any child care facility other than a family child care
home, and includes infant centers, preschools, extended child care facilities, and
schoolage child care centers.
o "Family child care home" means 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 child care home or a small family child care home.
w "Large family child care home" means a home that provides family child
care for 7 to 14 children, inclusive, including children under the age of 10
years who reside at the home, as set forth in the California Health &
Safety Code Section 1597.465 and as defined in the California Code of
Regulations Title 22.
or "Small family child care home" means a home that provides family child
care for eight or fewer children, including children under the age of 10
years who reside at the home, as set forth in the California Health &
Safety Code Section 1597.44 and as defined in the California Code of
Regulations Title 22.
To bring the City into compliance with state law for definitions of child care and help
prevent confusion between the different types, we strongly recommend inserting the correct
definitions in Butte County's ordinance.
II. The Act Places Strict Limits on Local Regulation of Family Child Care Homes
The Act preempts local zoning regulation of family child care and provides family child
care homes strong protection against burdensome local regulation and fees. The Legislature
has declared "this policy to be of statewide concern with the purpose of occupying the field [of
family day care regulation] 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."7
In order to encourage the establishment of family child care homes in residential
communities and address the lack of child care availability,the Act strictly limits local zoning
rules that may be applied to family day care homes.$ Under the Act, small family day care
homes are "considered a residential use of property for the purposes of all local ordinances"
and local authorities are prevented from requiring any permit or business license for small
7Id. §1597.40(a).
8 Id. §§1597.40, 1597.43, 1597.45(a)&1597.46;See§1597.30.
3
family child care homes.9 With respect to large family day care homes,there are three limited
options for local regulation:
(1) Classify the homes as permitted uses of residential properties for zoning purposes;
(2) Grant a nondiscretionary permit, without a hearing, to use a lot zoned for a single-
family home to any large family child care home that complies with reasonable local
standards, restrictions or requirements relating to spacing and concentration, parking,
traffic control, and noise;
(3) Grant a special use permit, which must be granted if the large family day care home
complies with local ordinances, if any, prescribing reasonable standards, restrictions,
and requirements relating to spacing and concentration, parking, traffic control, and
noise control. A hearing cannot be held before a decision is made on the zoning
application unless requested by the applicant or affected person.'°
Thus,the Act limits local zoning regulation of large family child care homes to
reasonable standards relating to four narrow factors: spacing and concentration;traffic control;
parking; and noise control ("four factors"). A zoning permit must be granted if those reasonable
standards are met.11 Regulations that fall outside the four factors are presumed in excess of
local authority to regulate family child care homes, unless they are applied with equal force to
all single family residences.12
Ill. Requiring Large Family Child Care Homes to Pave the Road Goes Beyond the Scope
of the Four Factors
In previous conversations with us,the County Planning Division has stated that the
reason for requiring a family child care provider to pave the road was to reduce the amount of
dust generated by cars driving on the unpaved road leading to her house.The issue of dust was
also brought up by Supervisors Maureen Kirk and Bill Connelly at the Board of Supervisors
meeting on August 28, 2018:
It's not a simple question is it? Is it a private road with several private houses or
businesses in front of this place that will increase the traffic?And then who would
maintain it? Or will we only allow it on a public gravel road?You have to work through
that before you bring it back here...lt would be one thing if it was their gravel road and
they maintained it. But again if it's not public and it's private, I don't know how you'd
get there without all the neighbors buying off or something, so still require this permit.13
9 Cal.Health&Safety Code§1597.45(a)-(b).Butte County's ordinance 24-159 Section D places restrictions on
small family child care homes,which is strictly forbidden by the Act.
16 Cal. Health&Safety Code§§1597.46(a)(1)-(3).
11 Id. §§1597.46{a)(2)&(3).
12 Id. §1597.47;See Id. §1597.40(a).
13 Supervisor Bill Connelly, Board of Supervisors Meeting,Aug.28,2018.
4
As we have iterated to the Planning Division many times, concerns about an increase in
dust and road maintenance do not fall under the permissible regulatory category of "traffic
control."The plain language definition of"traffic control" is: "control of the flow of traffic," as
"in a city, in the air, on the sea or on the railways."14 In CCLC's extensive experience in working
with local planning departments across the state,traffic control regulation has been limited to
addressing the number of cars coming and going from a family child care home during
particular times of day.
Moreover, a couple of the supervisors made incorrect assumptions about traffic related
to family child care without taking into account the County Public Works Department's support
to eliminate the paved road requirement, and how a family child care is very different from a
center. Supervisor Lambert erroneously made the following assumption:
As a person who lives on a gravel road, a county maintained gravel road, I would be
definitely concerned that adding 28 more traffic up and down the road needs to be
addressed— I'm sure it can be taken care of. But I happen to have a business down the
road from me that is not legal that runs trucks up and down all day long and destroys a
road that wasn't made to do that. Definitely be conscious of that. (Emphasis added)
Large family child care homes do not have a significant impact on traffic because
parents drop-off and pick-up their children at staggered times throughout the day—children
arrive and leave at various times throughout a given day, and some children attend child care
for only part-day or a few days per week. If a large family child care home cares for the
maximum amount of 14 children, two of the children must be school-age and therefore at least
two children only come in the afternoon for care. Some families have multiple children at the
same child care and carpool with other parents. Many times a family child care provider also
takes care of her/his own children who live in the home and must be included in the number of
children she/he cares for under state licensing capacity rules.Therefore, it is extremely rare for
a large family child care home to have 14 cars arriving twice every day, and all the parents
never arrive and pick up at the same time.
IV. Requiring the Pavement of the Road is Unreasonable, Expensive, and Contributes
to the Shortage of Child Care in the County
Requiring new large family child care homes to pave the road is egregiously costly and
definitely does not meet the Act's provision that "[t]he local government shall process a
required permit as economically as possible" and imposed conditions must be "reasonable" is
The estimated cost to pave a road as required by the code is between $50,000 to$60,000.
The estimated cost to pave the road is more than double a family child care provider's annual
14 See definition of"traffic control"at https://www.collinsdictionary.com/us/dictionary/english/traffic-control the
monitoring+the flow of traffic.
15 Cal. Health &Safety Code§ 1597.46(a)(2)-(3).
5
�
average p��a� a ���e �wn�can hard�affo�. Moreover, we know of
no other city or county that requires a family child care home to pave a road, even in rural
jurisdictions. The County's zoning permit cost of$704 is also expensive. Even in high cost areas
such as Marin County, the fees are much lower, ranging from $300 in Concord to $500 in
Larkspur. Cities such as Pittsburgh have zero fees by not requiring a zoning permit.17
Butte County only has enough licensed child care to serve 24%of the young children of
working parents, and family child care availability has decreased by over 50 percent since
2006.18 The County's exorbitant and burdensome permit process prevents the growth of child
care and forces providers out of business. It also unfairly punishes parents who already pay an
estimated 41% of their income on child care.19 Unlike other small businesses, child care
providers cannot grow a profit without passing costs onto hardworking parents because of
state licensing child care capacity rules that prevent them from caring for more children. Mr.
Slocum who testified at the August 28 meeting represents the many parents who also have a
very difficult time finding affordable child care near their home and that meets the days and
times they need.
V. The County's Zoning Ordinance Does Not Comply with the Act in Many Other
Areas and it Could Come Into Compliance with State Law By Eliminating the Zoning
Permit for Large Family Child Care Providers
Most of the requirements in the County Ordinance, Section 24-219, pertaining to minor
use permits and the application are unlawful as applied to large family child care homes.2° For
16 Statewide annuai median income for child care providers is$26,050. Bureau of Labor Statistics, Occupational
Emp|oymentondVVages, yWay20I7^http://www.h|s.wov/oes/cunent/oes399011.htm. C|ay5|ncum, Pavements
Engineer for California Nevada Cement Association and parent of a child at a small family child care in Butte
County,testified to the average cost of paving a road as required by the Butte County ordinance, "...we'reto|king
about 50 or 60 maybe more thousand dollars for a roadway to be in conformance with what is being asked in the
standar6s." Butte County Council Meeting,August 28, 2018.
oOnMarch 6,2017,the City of Pittsburg adopted amendments to the Pittsburg Municipal Code 18.50.010,
18.63.020, 18.60.030 to consider large family child care a residential use of property. Considering large family child
care homes a residential use of property complies with California Health&Safety Code§ 1597.46(a)(1) (explaining
that cities may"Classify these homes(large family child care homes] as a permitted use of residential property for
zoning purposes.").
z*The California Child Care Resource&Referral Network, Co/ifbm/uChild Care Portfolio(l0l7)'available ot
http://xvwvv.r,nmtwork.orn/ca|ifornia child care portfolio.The California Child Care Portfolio data is also provided
to the Lucile Packard Foundation for Children's Health, Kidsdoto.ung, under"Potential demand is defined as
children with working parents," available at http://www.kidsdata,org (2017),The number of family child care
homes[nButte County fell from ZG#in2OO4toll8inZUI7./d.
The median household income in Butte County is$43,444 and the average cost of infant care and preschool care
in Butte County is$9,456 per child.A household with two children would pay upwards of$18,912 a year in child
care costs.Census data at https://factfindercensus.gov/facesinav/isf/pages/community t^cts.^htm|!src=bknuk#
and child care cost data at the Lucile Packard Foundation for Children's Health, Kidsdata.org (2014),available at
hupliwwvv.kidodmm.org.
2°Child Care Law Center letter tnTim Sne||ings(June 3O, Z0I7);Child Care Law Center letter the Butte County
Board of Supervisors (June 12,2017).
6
example,the requirements pertaining to a building permit, environmental review, and
environmental impact report;title report; site plan and floor plan drawn to scale; automatic
hearing; location of outdoor play space and hours of operation, a 6-foot fence, and
discretionary decision making are disallowed under the Act and must eliminated.21 As outlined
on page 4 of this letter,the County can only regulate in four limited areas of zoning. The County
needs to stop requiring that large family child care providers obtain a minor use permit with
illegal provisions that apply to them.
The County could easily come into compliance with state law by exercising option (1)
under the Act (see page 4 above). Instead, Butte County currently exercises above option (3),
the most costly and burdensome permitting option for providers and the County's
administration. By adopting option (1), classifying large family child care homes a permitted use
of residential property like small family child care homes,the County would free up planning
staff time and resources. Other cities such as Pittsburg, CA voted to eliminate the fee and
permit requirement altogether because the City Council and Planning Commission considered
the condition impractical given the burdensome cost to child care providers,the critical need to
increase the availability of child care in the city and county, and the staff time and cost involved
in processing the zoning applications.22 The same reasons to eliminate the zoning permit
requirement apply in Butte County.
Should the County forgo option (1),then we strongly recommend the County adopt
option (2) under the Act, an administrative or"over the counter" permit without a hearing.
When cities and counties grant a right to appeal a zoning decision, neighbors mistakenly believe
they have a right to block final approval of a zoning permit for a child care provider who has
complied with all the permit requirements.23 An administrative use permit would streamline
the process for applicants, and decrease the time and resources expended in reviewing the
zoning permit for large family child care providers. If the County continues to require a permit,
it should instead create a low-or no-cost special use permit process for large family child care
homes that complies with conditions outlined in the Act.
Ill. Conclusion
Eliminating the paving requirement would be one major step in helping the County
abide by state law. Exempting family child care providers from the zoning permit requirement
all together would greatly encourage the growth of child care, support families, and bring the
County into compliance with state law. Child care for our youngest, most vulnerable residents
zi This is not a comprehensive list and other sections may need to be eliminated as well.
22 On March 6,2017,the City of Pittsburg adopted amendments to the Pittsburg Municipal Code§§18.50.010,
18.53.020, 18.60.030 to consider large family child care a residential use of property.Considering large family child
care homes a residential use of property complies with California Health&Safety Code§ 1597.46(a)(1)(explaining
that cities may"Classify these homes[large family child care homes]as a permitted use of residential property for
zoning purposes.").
za Cal.Health&Safety Code§1597.46(a)(3)(""[t]he use permit must be granted if the large family day care home
complies with local ordinances.").
7
helps all of us immediately and well into the future. When children thrive, parents can continue
working and contributing to the economy, and our communities grow stronger and more
prosperous,
Sincerely,
(^����~`~
�awnc Fwrstenfeid /~
Child Care Law Center
Cc: Supervisor Connelly: B[onneNy@ButteCounty.net
Supervisor Wahl: LVVah|@ButteComnty.nmt
Supervisor Kirk: MKirh@8utteCounty.net
Supervisor Lambert: District4@ButteCounty.oet
SupervisVrTeeter: DTeeter@8ut1e[ounty.net
Tim Snellings, Director of Development Services: tsnellings@buttecounty.net
Pete Caiarcn, Assistant Director, Development Services: pcalarco@buttecounty.net
Larry Grundmann, Planning Commission Chair: Icgrundmann@grnail.com
Jacquelyn Chase, Planning Commission First Vice Chair: jgcquechase@gmail.com
Loretta Torres, Planning Commission: lorettatorres92@gmail.com
Rocky (Daniel) Donati, Planning Commission: rockdoriati@aol.com
Phil John, Planning Commission: Piohm7179@aoicgml
Charles Thistlethwaite, Planning Division Manager: cthistlethwaite@buttecounty.net
To: Kevin Kish, Director, California Department of Fair Employment and Housing
From: Laurie Furstenfeld, Senior Staff Attorney, Child Care Law Center
RE: Strengthening Legal Protections for Family Child Care Providers
I. Child Care Law Center
Good, affordable child care gives children a strong start and creates opportunities for
families and communities. The Child Care Law Center ("CCLC") uses legal expertise to educate,
advocate, and, when necessary, litigate to secure child care--and better lives—for all. Our work
ensures that policies and laws are just and equitable for children,families and child care
providers. We are the only organization in the country devoted exclusively to the complex
issues that affect child care. California family child care renters' rights and zoning law are a
couple of our practice specialties.
II. Family Child Care
A family child care home is "a home that regularly provides care, protection, and
supervision for 14 or fewer children, in the [child care] provider's own home,for periods of less
than 24 hours a day, while the parents or guardians are away."1
State law proclaims, "family child care homes operated under the standards of state law
constitute accessory uses of residentially zoned and occupied properties and do not
fundamentally alter the nature of the underlying residential uses."2 Moreover, cities and
counties cannot prohibit the operation of either small or large family child care homes in single-
family dwellings.'
A small family child care home usually has only one adult child care provider who is the
person living in the licensed home, but some may have an assistant. Small family child care
homes may enroll six children, and have the option of enrolling up to two additional children, or
a total of eight, with no additional adult, if four conditions are met.4 Small family child care
homes must "be considered a residential use of property for the purposes of all local
ordinances." Local governments cannot apply any requirements to small family child care
homes that are not applied to all other single-family residences.'
A large family child care home has two family child care providers, at least one who must be
living in the licensed home, and an assistant. Large family child care homes may enroll up to 12
1 Cal. Health&Safety Code§1596.78(a).
2 Id. §1597.43.
3 Id. §1597.40
4 Id. §1597.44(conditions include"(a)At least one child is enrolled in and attending kindergarten or elementary
school and a second child is at least six years of age. (b)No more than two infants are cared for during any time
when more than six children are cared for.(c)The licensee notifies each parent that the facility is caring for two
additional schoolage children and that there may be up to seven or eight children in the home at one time. (d)The
licensee obtains the written consent of the property owner when the family day care home is operated on
property that is leased or rented.").
5 Id. § 1597.47.
1
children, and have the option of enrolling one or two additional children, for a total of 14, if the
similar four conditions are met.6 State law places strict limits on local authority to impose
requirements, such as zoning permits, on large family child care homes.
A. Family Child Care Facts and Provider Demographics
Licensed child care is available for only 25% of children with working parents in
California and the scarcity of child care continues to grow.' Family child care is particularly vital
for parents who need infant and toddler care, and who work variable and non-traditional
schedules. Family child care is also an essential community service that supports employers and
fosters economic development. Licensed family child care providers across the state have told
us that they need to close or cannot open because landlords refuse to rent to them and
threaten to evict them because they operate a family child care.They have also told us that
mortgage brokers and banks refuse to lend to them to purchase a home, and homeowners
insurance companies threaten to cancel policies or cover their homes based on having a family
child care home.' Licensed small family child care providers have also shared that they cannot
increase to a large license to serve more children for the same reasons. Other burdensome
obstacles that keep family child care providers out of business or unable to expand are the
exorbitant costs associated with obtaining a zoning permit keep them from becoming licensed
to care for more children. High zoning costs impose a severe financial hardship on family child
care providers whose statewide median income is $27,670 annually, and to the families who
absorb these expenses through the cost of child care.9 Burdensome requirements and harsh
treatment from landlords and cities disproportionally impact women of color and immigrants--
Women make up 95.6 percent of the child care workforce, compared with 47 percent of the
workforce as a whole.10 Women of color represent a majority of licensed family child care
6 Id. §1597.465.
The California Child Care Resource&Referral Network, California Child Care Portfolio(2017),available at
http://www.rrnetwork.org/california child care portfolio.The California Child Care Portfolio data is also provided
to the Lucile Packard Foundation for Children's Health, Kidsdata.org(2017),available at http://www.kidsdata.org.
8 The California Insurance Code provides for some protections for family child care homes with regard to cancelling
an insurance policy already in place.See Cal.Ins. Code§§676-676.1.
9 Statewide annual median income is for child care workers.Bureau of Labor Statistics,Occupational Employment
and Wages,May 2017,http://www.bls.gov/oes/current/oes399011.htm.
is Elise Gould,Child Care Workers Aren't Paid Enough To Make Ends Meet, Economic Policy Institute, Issue Brief
#405(Nov. 2015),available at http://www.epi.org/files/2015/child-care-workers-final.pdf; United States
Department of Labor,Civilian labor force by sex, 1970-2012, available at
http://www.d ol.gov/wb/stats/Civilian_la bor_force_sex_70_12_txt.htm.
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providers, more than one in three of whom identify as Latinas.11 Twenty-five percent of the
early childhood education and care workforce are immigrants.12
Ill. The California Child Day Care Facilities Act Preempts County and City Laws
In enacting the California Child Day Care Facilities Act ("the Act"), the Legislature
recognized that there are insufficient numbers of regulated family child care homes in
California, that there will be a growing need for child care facilities due to the increase in
working parents, and that many parents prefer child care located in their neighborhoods in
family homes.13 The Legislature further stated, as a public policy of"statewide concern,"that
family child care homes should be situated in normal residential surroundings so as to give
children the home environment which is conducive to healthy and safe development, and that
children in a family child care home should be provided the same home environment as
provided in a traditional home setting.14
In support of this policy, the Legislature stated a "purpose of occupying the field [of
family child care regulation] 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."15 Thus,the Act explicitly pre-empts local ordinances that conflict with its provisions.
IV. Landlord Protections under the Act
Family child care providers have a right to operate a family child care home in any
rental dwelling in which they reside, regardless of the type of unit (single family house,
apartment, etc.).16 Provisions in leases that prohibit businesses in rental property do not apply
to family child care homes. The Act offers:
(b) 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, 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.
11 Marcy Whitebook,et al.,California Early Care and Education Workforce Study: Licensed Family Child Care
Providers(2006),available at
htt p://www.i rl e.be rkeley.ed u/cscce/wp conte nt/uploads/2006/01/statew id e_p rovi d e rs.pdf.
12 Maki Park,et al., Migration Policy institute, Immigrant and Refugee Workers in the Early Childhood Education
Field:Taking a Closer Look, 17,(2015),available at
https://www.migration policy.org/sites/default/files/publications/ECEC-Workforce-Report.pdf.
13 Cal. Health&Safety Code§§ 1597.30(b)-(d).
14 Cal. Health&Safety Code§1597.40(a).
is id.
1e The Act and California Fire and Building Codes provide some statewide restrictions on family child care homes
concerning fire safety.
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(c) Except as provided in subdivision (d), 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 is void.17
In most cases, family child care providers need only notify landlords that they plan to
operate a small or large family child care home 30 days prior to caring for children. Family child
care providers must only obtain a landlord's permission if they want to expand their license to
care for 2 more school-age children (6 to 8 for a small family child care home, and 12 to 14 for a
large family child care home).18
V. Problems with the Tenant Protections for Family Child Care Homes under the Act
Two main problems with the state protections for family child care providers under the
Act is that (1)there is no private right of action, and (2)the "written instrument entered into"
language seems to exclude protections for family child care providers seeking housing or
homeowners insurance. Plaintiff family child care providers in a number of low-level court
decisions have successfully brought actions against landlords, Homeowners' Associations, and
mortgage lenders by applying federal and state civil rights laws with a private right of action,
including the Fair Housing Act, California Fair Employment and Housing Act, California Unruh
Civil Rights Act, and California Unfair Business Practices Act. 19 Please see the attached
document for a list and summary of known cases.
To strengthen protections for family child care providers against housing discrimination,
we are interested in possibly sponsoring legislation that would add a private right of action to
the Act for family child care providers (which could also apply to other types of violations of the
Act,for example unlawful zoning practices applied to family child care homes). Some civil rights
advocates have also suggested exploring the option of adding "family child care providers" as
protected class to the FEHA and/or Unruh Act. We are open to other ideas you may have in
strengthening the rights of family child care providers who rent or who want to rent or buy a
home. We are also interested in your thoughts about how to strengthen family child care
providers' rights with regard to homeowners insurance and landlords' homeowners insurance.
17 Cal. Health &Safety Code§ 1597.40(b)-(c)(emphasis added).
18 Id. §§1597.40(d), 1597.44(d), 1597.465(d).
19 42 USC§3601;Cal. Gov.Code§12955;Cal.Civil Code§§51,52;Cal. Bus.&Prof.Code§ 17200.Such claims
have included"source of income,""familial status,"and"gender"discrimination.
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