H. B. 2462
(By Delegates Fleischauer, Givens, Houston,
L. White, Compton, Hutchins and Marshall)
[Introduced January 29, 1999; referred to the
Committee on the Judiciary.]
A BILL to amend chapter forty-nine of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article two-e, relating
to statewide zoning preemption for family child care;
findings and declarations; declaration of intent;
declaration of public policy; providing any provisions in a
contract regarding real estate which prohibits the operation
of a family day-care home is void; prospective family
day-care center to provide thirty-day notice to landlord;
allowing landlord to require increased security deposit for
day-care usage; conditions for providing care for six to
eight children; local governmental duties related to large
family day-care homes; use of single-family dwelling for
day-care may not constitute change of occupancy; state fire
marshal to propose rules for safety; prohibiting local government from adopting any building ordinance inconsistent
with fire marshal's proposed legislative rules; authorizing
large family day-care homes to care for twelve to fourteen
children upon meeting certain conditions; providing the
provisions of the article may not preclude local
governmental authorities from placing certain restrictions;
limiting licensing reviews of family day-care homes;
providing family day-care homes subject to this article are
not licensed under section six, article two-b of this
chapter but is subject to licensure under this article;
requirement that family day-care homes maintain liability
insurance; providing in lieu of liability insurance that
parental affidavits be obtained indicating knowledge of lack
of liability insurance; providing owner of property be named
on a family day-care policy as additional insured, if
certain conditions are met; requirement that day-care homes
apply for license under this article; day-care homes with
licenses in existence as of the twenty-eighth day of March,
one thousand nine hundred ninety-nine, deemed to have
license under this article; requirement that department
propose rules regarding age-appropriate immunization
requirements; department to differentiate degrees of
violations of approved rules by the impact on children;
prohibiting site or unannounced visits except under certain circumstances; requirement that department notify day-care
home regarding deficiencies; providing for a civil penalty
and requiring department to propose rules for imposing civil
penalties; requirement that department use one application
form for all family day-care homes, establish a consumer
education program and administer an orientation program;
requiring department to grant or deny license after
application made upon completion of certain contingencies.
Be it enacted by the Legislature of West Virginia:
That chapter forty-nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article two-e, to read
as follows:
ARTICLE 2E. STATEWIDE ZONING PREEMPTION FOR FAMILY CHILD CARE.
§49-2E-1. Findings and declarations.
The Legislature finds and declares:
(a) It has a responsibility to ensure the health and safety
of children in family homes that provide day-care.
(b) That there are insufficient numbers of regulated family
day-care homes in this state.
(c) There will be a growing need for child day-care
facilities due to the increase in working parents.
(d) Many parents prefer child day-care located in their
neighborhoods in family homes.
(e) There should be a variety of child care settings,
including regulated family day-care homes, as suitable
alternatives for parents.
(f) That 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.
(g) That 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.
§49-2E-2. Intent; declaration of policy; certain contractual
provisions void; notice to landlord; and, landlord allowed to require increased security deposit.
(a) It is the intent of the Legislature 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. 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.
The Legislature declares this policy 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 article.
(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.
(c) Except as provided in subsection (d) of this section,
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.
(d) (1) A prospective family day-care home provider, who
resides in a rental property, shall provide thirty days' written
notice to the landlord or owner of the rental property prior to the commencement of operation of the family day-care home.
(2) For family day-care home providers who have relocated an
existing licensed family day-care home program to a rental
property on or after the first day of January, two thousand, less
than thirty days' written notice may be provided in cases where
the department approves the operation of the new location of the
family day-care home in less than thirty days, or the home is
licensed in less than thirty days, in order that service to the
children served in the former location not be interrupted.
(3) A family day-care home provider in operation on rental or
leased property as of the first day of January, two thousand,
shall notify the landlord or property owner in writing at the
time of the annual license fee renewal, or by the thirty-first
day of March, two thousand, whichever occurs later.
(4) Notwithstanding any other provision of law, upon
commencement of, or knowledge of, the operation of a family
day-care home on his or her property, the landlord or property
owner may require the family day-care home provider to pay an
increased security deposit for operation of the family day-care
home. The increase in deposit may be required notwithstanding
that a lesser amount is required of tenants who do not operate
family day-care homes. In no event, however, shall the total
security deposit charged exceed the maximum allowable under
existing law.
§49-2E-3. Additional findings and declarations; congregate care
facilities.
The Legislature finds and declares all of the following:
(a) Family day-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. Family day-care homes draw
clients and vehicles to their sites during a limited time of day
and do not require the attendance of a large number of employees
and equipment.
(b) The uses of congregate care facilities are
distinguishable from the uses of family day-care homes operated
under the standards of state law. For purposes of this section,
a "congregate care facility" means a "residential facility,"
which provides "residential child care" as defined by section
two, article two-b, chapter forty-nine. Congregate care
facilities are used throughout the day and night, and the
institutional uses of these facilities are primary uses of the
facilities, not accessory uses, and draw a large number of
employees, vehicles and equipment compared to that drawn to
family day-care homes.
(c) The expansion permitted for family day-care homes by this
article is not appropriate with respect to congregate care facilities, or any other facilities with quasi-institutional
uses. Therefore, with these provisions, the Legislature does not
intend to alter the legal standards governing congregate care
facilities and these provisions are not intended to encourage, or
be a precedent for, changes in statutory and case law governing
congregate care facilities.
§49-2E-4. Small family day-care homes.
A small family day-care home may provide care for more than
six and up to eight children, without an additional adult
attendant, if all of the following conditions are met:
(a) At least two of the children are 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.
§49-2E-5. Applicable criteria to small day-care homes.
All of the following shall apply to small family day-care
homes:
(a) 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.
(b) No local jurisdiction shall impose any business license,
fee or tax for the privilege of operating a small family day-care
home.
(c) Notwithstanding any law to the contrary, use of a
single-family dwelling for purposes of a small family day-care
home shall not constitute a change of occupancy.
(d) A small family day-care home shall contain a fire
extinguisher and smoke detector device that meet standards
established by the state fire marshal.
§49-2E-6. Local governments estopped from prohibiting large
family day-care homes on lots zoned for single- family dwellings.
All of the following shall apply to large family day-care
homes:
(a) No city, county or other local authority may prohibit
large family day-care homes on lots zoned for single-family
dwellings, but must 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 any large family day-care home that
complies with local ordinances prescribing reasonable standards,
restrictions and requirements concerning spacing and
concentration, traffic control, parking and noise control
relating to such homes, and complies with subsection (d) of this
section, and any regulations adopted by the state fire marshal
pursuant to that subsection. Any noise standards shall be
consistent with local noise ordinances implementing the noise
element of the general plan and shall take into consideration the
noise level generated by children. The permit issued pursuant to
this paragraph shall be granted by the zoning administrator, if
any, or if there is no zoning administrator by the person or
persons designated by the planning agency to grant such permits,
upon the certification without a hearing;
(3) Require any large family day-care home to apply for a
permit to use a lot zoned for single-family dwellings. The
zoning administrator, if any, or if there is no zoning
administrator, the person or persons designated by the planning
agency to handle the use permits shall review and decide the
applications. The use permit shall be granted if the large
family day-care home complies with local ordinances, if any,
prescribing reasonable standards, restrictions and requirements
concerning spacing and concentration, traffic control, parking
and noise control relating to such homes, and complies with subsection (d) of this section, and any approved legislative
rules from the state fire marshal pursuant to that subsection.
Any noise standards shall be consistent with local noise
ordinances implementing the noise element of the general plan and
shall take into consideration the noise levels generated by
children. The local government shall process any required permit
as economically as possible, and fees charged for review shall
not exceed the costs of the review and permit process. Not less
than ten days prior to the date on which the decision will be
made on the application, the zoning administrator or person
designated to handle such use permits shall give notice of the
proposed use by mail or delivery to all owners shown on the last
equalized assessment roll as owning real property within one
hundred foot radius of the exterior boundaries of the proposed
large family day-care home. No hearing on the application for a
permit issued pursuant to this paragraph shall be held before a
decision is made unless a hearing is requested by the applicant
or other affected person. The applicant or other affected person
may appeal the decision. The appellant shall pay the cost, if
any of the appeal.
(b) Notwithstanding any law to the contrary, use of a
single-family dwelling for the purposes of a large family
day-care home shall not constitute a change of occupancy.
(c) Large family day-care homes shall be considered as single-family residences for the purposes of any uniform building
standards code or local building or fire codes, except with
respect to any additional standards specifically designed to
promote the safety of the children in these homes adopted by the
state fire marshal pursuant to this subsection. The state fire
marshal shall propose legislative rules designed to provide
separate building standards specifically relating to the subject
of fire safety in large family day-care homes. These standards
upon legislative approval shall apply uniformly throughout the
state and shall include, but not be limited to: (1) The
requirement that a large family day-care home contain a fire
extinguisher or smoke detector device or both, which meets
standards established by the state fire marshal; (2)
specification as to the number of required exits from the home;
and (3) specification as to the floor or floors on which day-care
may be provided.
No city, county, district or other local authority may adopt
or enforce any building ordinance or local rule relating to the
subject of fire safety in large family day-care homes which is
inconsistent with any standards resulting from proposed
legislative rules by the state fire marshal which are
legislatively approved, except to the extent the building
ordinance or local rule applies to single-family residences in
which day-care is not provided.
(d) No later than the first day of April, two thousand one,
the state fire marshal shall propose legislative rules designed
to meet the building standards required in subsection (d) and any
other rules necessary to implement the provisions of this
section.
§49-2E-7. Large family day-care home.
A large family day-care home may provide care for more than
twelve children and up to and including fourteen children, if all
of the following conditions are met:
(a) At least two of the children are at least six years of
age.
(b) No more than three infants are cared for during any time
when more than twelve children are being cared for.
(c) The licensee notifies a parent that the facility is caring
for two additional schoolage children and that there may be up to
thirteen or fourteen 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.
§49-2E-8. Preclusion of local authorities to place restrictions
on family day-care facilities.
The provisions of this article may not preclude any city,
county or other local governmental authority 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. The provisions
of this chapter shall not be construed to 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 governmental authority. The
provisions of this chapter also shall not be construed to
prohibit or restrict the abatement of nuisances by a city, county
or other local governmental authority. However, such ordinance
or nuisance abatement may not distinguish family day-care
facilities from other single-family dwellings, except as
otherwise provided in this article.
§49-2E-9. Limitations on licensing reviews.
(a) Licensing reviews of a family day-care home for children
shall be limited to health and safety considerations and may not
include any reviews of the content of any educational or training
programs of the facility.
(b) No home may be licensed or registered as a large family
day-care home after the first day of January, two thousand two,
unless the provider has at least one year's experience as a
regulated small family day-care home operator or as an
administrator of a licensed day-care center. The director may waive this requirement upon a finding that the applicant has
sufficient qualifying experience.
§49-2E-10. Application of article.
No family day-care home subject to this article may be
licensed under the provisions of section six, article two-b of
this chapter, but is subject to licensure exclusively in
accordance with this article which applies to family day-care
homes.
§49-2E-11. Requirement of liability coverage.
(a) All family day-care homes for children shall maintain in
force either liability insurance covering injury to clients and
guests in the amount of at least one hundred thousand dollars per
occurrence and three hundred thousand dollars in the total annual
aggregate, sustained on account of the negligence of the licensee
or its employees, or a bond in the aggregate amount of three
hundred thousand dollars. In lieu of the liability insurance or
the bond, the family day-care home may maintain a file of
affidavits signed by each parent with a child enrolled in the
home which meets the requirements of this subsection. The
affidavit shall state that the parent has been informed that the
family day-care home does not carry liability insurance or a bond
according to standards established by the state. If the provider
does not own the premises used as the family day-care home, the affidavit shall also state that the parent has been informed that
the liability insurance, if any, of the owner of the property may
not provide coverage for losses arising out of, or in connection
with, the operation of the family day-care home, except to the
extent that the losses are caused by, or result from, an action
or omission by the owner of the property for which the owner of
the property would otherwise be liable under the law. These
affidavits shall be on a form provided by the department and
shall be reviewed at each licensing inspection.
(b) A family day-care home that maintains liability insurance
or a bond pursuant to this section, and that provides care in
premises that are rented or leased, shall name the owner of the
property as an additional insured party on the liability
insurance policy or bond if all of the following conditions are
met:
(1) The owner of the property makes a written request to be
added as an additional insured party.
(2) The addition of the owner of the property does not result
in cancellation or nonrenewal of the insurance policy or bond
carried by the family day-care home.
(3) Any additional premium assessed for this coverage is paid
by the owner of the property.
§49-2E-12. License applications; requirements.
All family day-care homes for children, shall apply for a license under this article, except that any home which on the
twenty-eighth day of March, one thousand nine hundred
ninety-nine, had a valid and unexpired license to operate as a
family day-care home for children under other provisions of law
shall be deemed to have a license under this chapter for the
unexpired term of the license at which time a new license may be
issued upon fulfilling the requirements of this article.
An applicant for licensure as a family day-care home for
children must file with the department, pursuant to its rules, an
application on forms furnished by the department, which include,
but is not limited to, the following:
(a) A brief statement confirming that the applicant is
financially secure to operate a family day-care home for
children. The department shall not require any other specific or
detailed financial disclosure.
(b) (1) Evidence that the small family day-care home contains
a fire extinguisher or smoke detector device, or both, which
meets existing standards enforced by the state fire marshal or
evidence that the large family day-care home meets existing
standards enforced by the state fire marshal;
(2) Evidence satisfactory to the department that there is a
fire escape and disaster plan for the facility and that fire
drills and disaster drills will be conducted at least once every
six months. The documentation of these drills shall be maintained at the facility on a form prepared by the department
and shall include the date and time of the drills;
(c) The fingerprints of any applicant of a family day-care
home license, and any other adult, to be obtained by and
maintained with the state police;
(d) Evidence that no adult in the home during the time that
children are to be under care is afflicted with tuberculosis.
(e) Evidence of the ability of the applicant to comply with
this article and the requirements of article two-b of this
chapter.
(f) Evidence that the applicant and all other persons
residing in the home are of reputable and responsible character.
The evidence shall include, but not be limited to, a criminal
record clearance check conducted by the department, employment
history and character references;
(g) Failure of the applicant to cooperate with the licensing
agency in the completion of the application shall result in the
denial of the application. Failure to cooperate means that the
information described in this section and in applicable rules of
the department has not been provided, or not provided in the form
requested by the licensing agency, or both;
(h) Other information as may be required by the department
for the proper administration and enforcement of this article.
§49-2E-13. Immunization requirements for children served by day-care providers.
(a) The department shall propose legislative rules regarding
age-appropriate immunization requirements for enrolled children
for family day-care homes.
(b) All family day-care homes for children shall maintain
evidence that enrolled children have met the age-appropriate
immunization requirements required by this section.
(c) The department shall clearly differentiate degrees of
violations of rules approved by the Legislature for purposes of
this article by the impact upon children in care.
(d) The department shall implement this section only to the
extent appropriated funds are available to do so.
§49-2E-14. Site and unannounced visits.
No site visits, or unannounced visits or spot checks, shall
be made under this article except as provided in this section.
(a) An announced site visit shall be required prior to the
initial licensing of the applicant;
(b) An unannounced site visit shall be required for the
renewal of a license;
(c) A public agency under contract with the department may
make spot checks if it does not result in any cost to the state.
However, spot checks shall not be required by the department;
(d) The department shall make an unannounced site visit on the basis of any complaint received relating to the safety or
well-being of children receiving care at the particular child
day-care home;
(e) In addition to any site visit or spot check authorized
under this section, the department shall annually make
unannounced visits on ten percent of all family day-care homes
for children licensed under this article. The unannounced visits
may be made at any time, including the time of a request for a
renewal of a license;
(f) An unannounced site visit shall adhere to both of the
following conditions:
(1) The visit shall take place only during the facility's
normal business hours or at any time family day-care services are
being provided;
(2) The inspection of the facility shall be limited to those
parts of the facility in which family day-care services are
provided or to which the children have access;
(g) The department shall implement this section during
periods that section twelve of this article is not being
implemented.
§49-2E-15. Additional criteria for site visits and unannounced
visits.
No site visits or unannounced visits or spot checks, shall be made under this article except as provided in this section.
(a) An announced site visit shall be required prior to the
licensing of the applicant;
(b) An unannounced site visit shall be required on or before
every third anniversary of the issuance of the license;
(c) A public agency under contract with the department may
make spot checks if they do not result in any cost to the state.
However, spot checks shall not be required by the department;
(d) An unannounced site visit to all licensed family day-care
homes shall be made annually and as often as necessary to ensure
compliance. The site visits required under subsection (b) of
this section, may count towards the annual visit required by this
subsection;
(e) The department or licensing agency shall make an
unannounced site visit on the basis of a complaint and a follow
up visit if it deems it prudent or necessary in relation to
insuring the safety and welfare of any child. At no time may
other site visit requirements described by this section prevent
a timely site visit response to a complaint;
(f) The department shall make annual unannounced spot visits
on twenty percent of all family day-care homes for children
licensed under this article. The unannounced visits may be made
at any time, and are in addition to the visits required by
subsections (b), (c) and (d) of this section;
(g) An unannounced site visit shall comply with both of the
following conditions:
(1) The visit shall take place only during the time family
day-care services are being provided;
(2) The inspection of the facility shall be limited to those
parts of the facility in which family day-care services are
provided or to which the children have access;
(h) The department shall implement this section only to the
extent appropriated funds are available.
§49-2E-16. Notification regarding deficiencies.
(a) The department shall notify a family day-care home in
writing of all deficiencies in its compliance with this article
and the rules adopted pursuant to this article, and shall set a
reasonable length of time for compliance by the family day-care
home.
Upon a finding of noncompliance, the department may levy a
civil penalty not to exceed fifty dollars per day, to be paid to
the department each day until the department finds the family
day-care home in compliance.
(b) In developing a plan of correction, both the licensee and
the department shall give due consideration to the following
factors:
(1) The gravity of the violation;
(2) The history of previous violations;
(3) The possibility of a threat to the health or safety of
any child in the facility;
(4) The number of children affected by the violation;
(5) The availability of equipment or personnel necessary to
correct the violation, if appropriate; and
(c) The department shall propose legislative rules designed
to establish procedures for the imposition of civil penalties
under this section.
§49-2E-17. Duties of department.
The department shall do all of the following:
(a) Develop and utilize one application form for all family
day-care homes for children requesting a new license;
(b) Establish for parents a consumer education program
annually on the law and rules governing family day-care homes for
children under this article and the role of the state and other
public entities and local associations in relation to family day- care homes for children. In planning this program, the
department shall seek the assistance of other public entities and
local associations;
(c) Administer an orientation program for new operators of
family day-care homes for children that may be conducted directly
by the department or by contract with local governments or family
day-care home associations.
§49-2E-18. Requirement of action on license application.
The department and the local agencies with which it contracts
for the licensing of family day-care homes for children shall
grant or deny a license to a family day-care home for children
within thirty days after receipt of all appropriate licensing
application materials as determined by the department, provided
both of the following conditions are met:
(a) A site visit has been completed and the family day-care
home has been found to be in compliance with licensing standards;
(b) The applicant and each person who the applicant intends
to employ as an employee of the day-care facility has obtained a
criminal record clearance, or been granted a criminal record
exemption by the department or the local contracting agency.
The department shall conduct an initial site visit within
thirty days after the receipt of all appropriate licensing
application materials.
§49-2E-19. Operation without license; cease and desist orders.
(a) When the department determines that a family day-care
home for children is operating without a license and notifies the
unlicensed provider of the requirement for the license, the
department may issue a cease and desist order only if it finds
and documents that continued operation of the facility will be
dangerous to the health and safety of the children it serves or
if a license held by the facility has been revoked by the
department within two years preceding the determination of unlicensed operation. In all other cases where the department
determines such a facility is operating without a license and
notifies the unlicensed provider of the requirements for the
license, the department may issue a cease and desist order only
if the unlicensed provider does not apply for a license within a
reasonable time after the notice.
(b) If an unlicensed family day-care home fails to respond to
a cease and desist order issued pursuant to subsection (a) of
this section, or if the department determines it necessary to
protect the immediate health and safety of the children, the
department may bring an action to enjoin the home from continuing
to operate.
(c) The district attorney of a county shall, upon application
by the department, institute and conduct the prosecution of any
action brought by the department against an unlicensed family
day-care home located in that county.
§49-2E-20. Authority to impose civil penalties.
(a) The department may impose civil penalties of twenty-five
dollars per day for uncorrected violations that present an
immediate or potential risk to the health and safety of children
in care.
(b) The department shall implement this section only to the
extent appropriated funds are available.
NOTE: The purpose of this bill is to provide for statewide
zoning, preemption for family child care. The bill includes
provisions that provide the following: It sets forth findings and
declarations; it provides contracts involving real property that
seek to prohibit the operation of day-care homes are void; it
sets forth a notice requirement for prospective day-care
operators to notify their landlords while providing landlords may
require greater security deposits for day-care usage; the bill
differentiates between large and small day-care homes setting out
criteria relative to both; it requires the state fire marshal
propose legislative rules for fire safety while prohibiting local
governments from adopting building ordinances in consistent with
any approved legislative rules regarding fire safety in a
day-care home; it provides guidelines for licensing reviews of
day-care homes while mandating that family day-care homes subject
to its provisions are not to be licensed under §49-2B-6; it
requires day-care homes to maintain liability insurance or a
bond, but allows in lieu thereof the submission of parental
affidavits acknowledging that the day-care home is without or
with too little liability coverage; it sets out age-appropriate
immunization requirements for children being served; it allows
the department to assess civil penalties against violations by
day-care homes; it provides for site and unannounced visits under
certain circumstances; and it requires the department to notify
day-care homes regarding deficiencies, among other provisions.
The main thrust of the bill is to provide "preemption," (i.e. a
legal mechanism which gives legal authority to a higher level of
government to supersede or displace a lower level of government's
laws or regulations). In the case of family child care, state
preemption is used to eliminate or lessen restriction restrictive
zoning ordinances imposed by local governments, typically
municipalities. Therefore, the ultimate intention of the bill is
to take power away from local government from prohibiting family
child-care homes.
This article is new; therefore, strike-throughs and
underscoring have been omitted.