Code Section

Health and Safety Code - HSC

DIVISION 2. LICENSING PROVISIONS [1200 - 1797.8]

  ( Division 2 enacted by Stats. 1939, Ch. 60. )
  

CHAPTER 3.5. Day Care Centers [1596.90 - 1597.21]

  ( Chapter 3.5 added by Stats. 1984, Ch. 1615, Sec. 10. )
  

ARTICLE 2. Licensure Requirements [1596.95 - 1596.99]
  ( Article 2 added by Stats. 1984, Ch. 1615, Sec. 10. )

  
1596.99.  

(a) In addition to the suspension, temporary suspension, or revocation of a license issued under this chapter or Chapter 3.4 (commencing with Section 1596.70), the department shall levy civil penalties as follows:

(b) (1) The amount of the civil penalty shall be one hundred dollars ($100) per day for each violation of this chapter if a facility fails to correct a deficiency after being provided a specified length of time to correct the deficiency.

(A) If a licensee or a licensee’s representative submits evidence to the department that the licensee has corrected a deficiency, and the department, after reviewing that evidence, has determined that the deficiency has been corrected, the civil penalty shall cease as of the day the department received that evidence.

(B) If the department deems it necessary, the department shall inspect the facility within five working days after the department receives evidence pursuant to subparagraph (A) to confirm that the deficiency has been corrected.

(C) If the department determines that the deficiency has not been corrected, the civil penalty shall continue to accrue from the date of the original citation.

(D) If the department is able to verify that the deficiency was corrected prior to the date on which the department received the evidence pursuant to subparagraph (A), the civil penalty shall cease as of that earlier date.

(2) (A) If the department issues a notification of deficiency to a facility for a repeat violation of a violation specified in paragraph (1), the department shall assess an immediate civil penalty of two hundred fifty dollars ($250) per repeat violation and one hundred dollars ($100) for each day the repeat violation continues after citation. The notification of deficiency shall state the manner in which the deficiency constitutes a repeat violation and shall be submitted to a supervisor for review and approval.

(B) For purposes of this section, “repeat violation” means a violation within 12 months of a prior violation of a statutory or regulatory provision designated by the same combination of letters or numerals, or both letters and numerals.

(C) Notwithstanding subparagraphs (A) and (B), the department, in its sole discretion, may reduce the civil penalty for the cited repeat violation to the level of the underlying violation, as applicable, if it determines that the cited repeat violation is not substantially similar to the original violation.

(3) If the nature or seriousness of the violation or the frequency of the violation warrants a higher penalty or an immediate civil penalty assessment, or both, as provided in this chapter, a correction of a deficiency shall not impact the imposition of a civil penalty.

(c) The department shall assess an immediate civil penalty of five hundred dollars ($500) per violation and one hundred dollars ($100) for each day the violation continues after citation, for any of the following serious violations:

(1) Any violation that the department determines resulted in the injury or illness of a child.

(2) Fire clearance violations, including, but not limited to, overcapacity, inoperable smoke alarms, and inoperable fire alarm systems.

(3) Absence of supervision, including, but not limited to, a child left unattended, and supervision of a child by a person under 18 years of age.

(4) Accessible bodies of water, when prohibited by this chapter or regulations adopted pursuant to this chapter.

(5) Accessible firearms, ammunition, or both.

(6) Refused entry to a facility or any part of a facility in violation of Section 1596.852, 1596.853, or 1597.09.

(7) The presence of a person subject to a department Order of Exclusion on the premises.

(d) If the department issues a notification of deficiency to a facility for a repeat violation of a violation specified in subdivision (c), the department shall assess an immediate civil penalty of one thousand dollars ($1,000) per repeat violation and one hundred dollars ($100) for each day the repeat violation continues after citation. The notification of deficiency shall state the manner in which the deficiency constitutes a repeat violation and shall be submitted to a supervisor for review and approval.

(e) For a violation that the department determines resulted in the death of a child, the civil penalty shall be assessed as follows:

(1) Seven thousand five hundred dollars ($7,500) for a facility licensed to care for 30 or fewer children.

(2) Ten thousand dollars ($10,000) for a facility licensed to care for 31 to 100, inclusive, children.

(3) Fifteen thousand dollars ($15,000) for a facility licensed to care for more than 100 children.

(f) (1) For a violation that the department determines constitutes physical abuse or resulted in serious injury, as defined in Section 1596.8865, to a child, the civil penalty shall be assessed as follows:

(A) Two thousand five hundred dollars ($2,500) for a facility licensed to care for 30 or fewer children.

(B) Five thousand dollars ($5,000) for a facility licensed to care for 31 to 100, inclusive, children.

(C) Ten thousand dollars ($10,000) for a facility licensed to care for more than 100 children.

(2) For purposes of this subdivision, “physical abuse” includes physical injury inflicted upon a child by another person by other than accidental means, sexual abuse as defined in Section 11165.1 of the Penal Code, neglect as defined in Section 11165.2 of the Penal Code, or unlawful corporal punishment or injury as defined in Section 11165.4 of the Penal Code when the person responsible for the child’s welfare is a licensee, administrator, or employee of any facility licensed to care for children, or an administrator or employee of a public or private school or other institution or agency.

(g) (1) Before the assessment of a civil penalty pursuant to subdivision (e) or (f), the decision shall be approved by the program administrator of the Community Care Licensing Division.

(2) (A) The department shall reduce the amount of a civil penalty due pursuant to subdivision (e) or (f) by the amount of the civil penalty already assessed for the underlying violation.

(B) If the amount of the civil penalty that the department has already assessed for the underlying violation exceeds the amount of the penalty pursuant to subdivision (e) or (f), the larger amount shall prevail and be due and payable as already assessed by the department.

(h) Notwithstanding any other law, revenues received by the state from the payment of civil penalties imposed on licensed child care centers pursuant to this chapter or Chapter 3.4 (commencing with Section 1596.70), shall be deposited in the Child Health and Safety Fund, created pursuant to Chapter 4.6 (commencing with Section 18285) of Part 6 of Division 9 of the Welfare and Institutions Code, and shall be expended, upon appropriation by the Legislature, pursuant to subdivision (f) of Section 18285 of the Welfare and Institutions Code exclusively for the technical assistance, orientation, training, and education of licensed day care center providers.

(i) (1) A notification of a deficiency written by a representative of the department shall include a factual description of the nature of the deficiency fully stating the manner in which the licensee failed to comply with the specified statute or regulation, and, if applicable, the particular place or area in which the deficiency occurred. The department shall make a good faith effort to work with the licensee to determine the cause of the deficiency and ways to prevent any repeat violations.

(2) The department shall adopt regulations setting forth the appeal procedures for deficiencies.

(j) (1) A licensee shall have the right to submit to the department a written request for a formal review of a civil penalty assessed pursuant to subdivisions (d) and (e) within 15 business days of receipt of the notice of a civil penalty assessment and shall provide all available supporting documentation at that time. The review shall be conducted by the deputy director of the Community Care Licensing Division. The licensee may submit additional supporting documentation that was unavailable at the time of submitting the request for review within the first 30 business days after submitting the request for review. If the department requires additional information from the licensee, that information shall be requested within the first 30 business days after receiving the request for review. The licensee shall provide this additional information within 30 business days of receiving the request from the department. If the deputy director determines that the civil penalty was not assessed, or the finding of the deficiency that resulted in the assessment of the civil penalty was not made, in accordance with applicable statutes or regulations of the department, he or she may amend or dismiss the civil penalty or finding of deficiency. The licensee shall be notified in writing of the deputy director’s decision within 60 business days of the date when all necessary information has been provided to the department by the licensee.

(2) Upon exhausting the review described in paragraph (1), a licensee may further appeal that decision to an administrative law judge. Proceedings shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code, and the department shall have all the powers granted by those provisions. In all proceedings conducted in accordance with this section, the standard of proof shall be by a preponderance of the evidence.

(3) If, in addition to an assessment of civil penalties, the department elects to file an administrative action to suspend or revoke the facility license that includes violations relating to the assessment of the civil penalties, the department review of the pending appeal shall cease and the assessment of the civil penalties shall be heard as part of the administrative action process.

(4) Civil penalties shall be due and payable when administrative appeals have been exhausted. Unless payment arrangements have been made that are acceptable to the department, a civil penalty not paid within 30 days shall be subject to late fees, as specified by the department in regulation.

(k) (1) A licensee shall have the right to submit to the department a written request for a formal review of any other civil penalty or deficiency not described in subdivision (j) within 15 business days of receipt of the notice of a civil penalty assessment or a finding of a deficiency, and shall provide all available supporting documentation at that time. The review shall be conducted by a regional manager of the Community Care Licensing Division. The licensee may submit additional supporting documentation that was unavailable at the time of submitting the request for review within the first 30 business days after submitting the request for review. If the department requires additional information from the licensee, that information shall be requested within the first 30 business days after receiving the request for review. The licensee shall provide this additional information within 30 business days of receiving the request from the department. If the regional manager determines that the civil penalty was not assessed, or the finding of the deficiency was not made, in accordance with applicable statutes or regulations of the department, he or she may amend or dismiss the civil penalty or finding of deficiency. The licensee shall be notified in writing of the regional manager’s decision within 60 business days of the date when all necessary information has been provided to the department by the licensee.

(2) Upon exhausting the review described in paragraph (1), the licensee may further appeal that decision to the program administrator of the Community Care Licensing Division within 15 business days of receipt of notice of the regional manager’s decision. The licensee may submit additional supporting documentation that was unavailable at the time of appeal to the program administrator within the first 30 business days after requesting that appeal. If the department requires additional information from the licensee, that information shall be requested within the first 30 business days after receiving the request for the appeal. The licensee shall provide this additional information within 30 business days of receiving the request from the department. If the program administrator determines that the civil penalty was not assessed, or the finding of the deficiency was not made, in accordance with applicable statutes or regulations of the department, he or she may amend or dismiss the civil penalty or finding of deficiency. The licensee shall be notified in writing of the program administrator’s decision within 60 business days of the date when all necessary information has been provided to the department by the licensee. The program administrator’s decision is considered final and concludes the licensee’s administrative appeal rights regarding the appeal conducted pursuant to this paragraph.

(3) Civil penalties shall be due and payable when administrative appeals have been exhausted. Unless payment arrangements have been made that are acceptable to the department, a civil penalty not paid within 30 days shall be subject to late fees, as specified by the department in regulation.

(l) The department shall, by January 1, 2016, amend its regulations to reflect the changes to this section made by Section 8 of Chapter 813 of the Statutes of 2014.

(m) Notwithstanding the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), the department may implement and administer the changes made by the act that added this subdivision through all-county letters or similar written instructions until regulations are adopted pursuant to the Administrative Procedure Act.

(n) This section shall become operative on July 1, 2017.

(Repealed (in Sec. 13) and added by Stats. 2016, Ch. 823, Sec. 14. (AB 2231) Effective January 1, 2017. Section operative July 1, 2017, by its own provisions.)