|
IS THIS HAPPENING IN YOUR COMMUNITY? Sara Barry, PCAM, CCAM, CMCA Children are sleeping in closets, there is animal feces all over the back yard, 9 of the 19 children in the home are infants (infant means a child under 2 years old), the home is licensed for 12 children (no more than three of whom may be infants), and there is only one person caring for all the children. (Actual San Francisco East Bay incident involving a day care home.) As you were reading the above were you picturing a run down home in the middle of a run down poverty stricken neighborhood? The above was reported by an employee of the Health and Welfare Services Department (it is all public record) after a surprise inspection was made at a 2700 sq. ft. home in the Danville/Blackhawk area. These were only a few of the reported violations found at the family day care home. Why were these conditions permitted to exist?........ When neighbors continued to complain about the noise level and lack of organized play at the above property, the State of California Health & Welfare Agency was called to inspect the property. It was amazing to find out that the agency normally only inspects when complaints are received and had not inspected the home since January of 1991 when the original permit was issued. As many of you know from personal experience, finding quality child care is a major problem. Our legislators clearly recognize the problem and are allowing the child care environment to exist in a home setting. They feel that neighborhood home care is necessary due to the dramatic shortage of other qualified facilities as more and more parents are entering the work force. By law, Association's in California cannot prohibit the operation of properly licensed and operated family day care homes. Health and Safety Code Section 1597.40 (c) states that every restriction or prohibition entered into, whether by way of covenant, condition upon use or occupancy, or upon transfer of title to real property, that restricts or prohibits directly, or indirectly limits, the acquisition, use, or occupancy of property for a family cay care home for children is void. The Association, however, can and should require that residential child care providers provide proof of either liability insurance covering injury to clients and guests in an amount of at least One Hundred Thousand Dollars per occurrence and Three Hundred Thousand Dollars in total annual aggregate or a bond in the aggregate amount of Three Hundred Thousand Dollars. Unfortunately, the statue allows family day care homes to operate without insurance or a bond if it maintains a file of affidavits signed by each parent with a child enrolled in the home that states that the parent knows the family day care home does not carry liability insurance or a bond according to the standards established by the State. If the day care provider rents the home, the affidavit also must state that the parent is informed that the liability insurance, if any, of the owner of the property or the homeowner's association, may not provide coverage for losses arising out of the operation of the family day care home, except to the extent that the losses are caused by an act or omission by the owner of the property or the homeowners' association for which the owner of the property or the homeowners' association would other wise be liable under the law. As a minimum, associations should enforce their right to be named as an additional insured on the family day care provider's insurance policy and the operators of the family day care home should be held responsible to assure compliance with other valid covenants, rules and regulations of the association, including proper supervision of children while on the common area. In some associations use of parts of the common area may be prohibited by the Association. An example would be in a single family home development which has pool and/or tennis rules and restricts guest to two guests per household. If an Association is faced with continual complaints about the violation of the quiet use and enjoyment of neighboring homes, what steps can be taken to protect the neighbors rights? I. Request a copy of the license for the provider in question from the Health Department. You may be surprised to find that the license you have been told exists doesn't. II. Require that the Association be shown as an additional insured on the providers policy. III. Request a copy of the Manual of Policies and Procedures, FAMILY DAY CARE HOMES FOR CHILDREN from the State of California Health and Welfare Agency Department of Social Services who supervises your county (or your state or local governing body if outside of the San Francisco Bay Area.) IV. Check the association's declaration (CC&R's) for restrictions which address nuisance issues and follow the association's published enforcement procedures regarding notices, hearings and fines. Board adopted rules in this area may not be sufficient to address the issue. As stated in the Danville example above, if you suspect that children may not be getting the best of care, there are more than the licensed number of children in the home or the children are being mistreated, contact the Community Care Licensing Division in your county to file a complaint and request an inspection. You will in most cases be doing the members of your association a favor as a majority of the children in the facility will be a resident in the same community. The complaint will ensure that at a minimum the State's rules are being observed and the children are possibly under better care. Below is the addresses and telephone numbers for the various counties in the San Francisco Bay Area. If you live outside of this area, check with your local governing and licensing agencies dealing with child care: Contra Costa and Alameda Counties:
As with all issues that affect California Civil Codes, Corporation Codes and your documents, it is best to have your legal counsel review your documents and give his/her advise regarding your particular association. Your documents may give you more or less authority than the typical association regarding other use restrictions. An association may not be able to prohibit certain businesses, but it can enforce other reasonable related restrictions. Sara Barry is one of the principle owners of Barry Consulting & Association Management (BCAM) an AAMC company located in San Ramon, CA
Portions
of this page Copyright 2004 Avalon Management Group Inc. All Rights Reserved, |
