REPORT TITLE:
Family Child Care


DESCRIPTION:
Includes condominium, apartments, and planned community units
townhouses as types of residences eligible to be used as family
child care homes.  Requires townhouse projects to allow family
child care homes that meet certain conditions.  Provides for
conditional immunity of associations of condominium apartment
owners, planned community unit owners and townhouse owners from
liability arising from the operation of family child care home on
association premises.  Allows associations to place conditions
relating to liability and insurance on the authorization of
family child care homes.  Sunsets in 2 years.  (SB513 CD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        513
THE SENATE                              S.B. NO.           S.D. 2
TWENTIETH LEGISLATURE, 1999                                H.D. 2
STATE OF HAWAII                                            C.D. 1
                                                        
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO FAMILY CHILD CARE.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1                              PART I
 
 2      SECTION 1.  The Hawaii Revised Statutes is amended by adding
 
 3 a new chapter to be appropriately designated and to read as
 
 4 follows:
 
 5                             "CHAPTER
 
 6                      FAMILY CHILD CARE HOMES
 
 7      �   -1  Definitions.  Unless it is plainly evident from
 
 8 the context that a different meaning is intended, as used herein:
 
 9      "Apartment" means a part of the property of a condominium
 
10 project intended for any type of use or uses, and with an exit to
 
11 a public street or highway or to a common element or elements
 
12 leading to a public street or highway, and may include such
 
13 appurtenances as garage and other parking space, storage room,
 
14 balcony, terrace, and patio.
 
15      "Association" means:
 
16      (1)  All of the apartment owners acting as a group in
 
17           accordance with the bylaws and declaration; and
 
18      (2)  A nonprofit, incorporated, or unincorporated
 
19           organization upon which responsibilities are imposed
 

 
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 1           and to which authority is granted in a declaration that
 
 2           governs a planned community,
 
 3 and includes any other governing body of a residential community
 
 4 with common elements and common interests.
 
 5      "Common elements" or "common area" means:
 
 6      (1)  The same as defined in section 514A-3; and
 
 7      (2)  Real property within a planned community that is owned
 
 8           or leased by the association or is otherwise available
 
 9           for the use of its members or designated as common area
 
10           in or pursuant to the declaration.
 
11      "Condominium" means the ownership of single apartments, with
 
12 common elements, located on property within a condominium
 
13 property regime.
 
14      "Declaration" means:
 
15      (1)  The instrument by which property is submitted to
 
16           chapter 514A, as provided in that chapter, and such
 
17           declaration as from time to time amended; and
 
18      (2)  Any recorded instrument, however denominated, that
 
19           imposes on an association maintenance or operational
 
20           responsibilities for the common area and creates the
 
21           authority in the association to impose on units, or on
 
22           the owners or occupants of the units, any mandatory
 
23           payment of money as a regular annual assessment or
 

 
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 1           otherwise in connection with the provisions,
 
 2           maintenance, or services for the benefit of some or all
 
 3           of the units, the owners, or occupants of the units or
 
 4           the common areas, including any amendment or supplement
 
 5           to the instrument.
 
 6      "Family child care home" means a private residence,
 
 7 including an apartment, unit, or townhouse, where care may be
 
 8 provided for three to no more than six children, who are
 
 9 unrelated to the caregiver by blood, marriage, or adoption at any
 
10 given time.
 
11      "Planned community" has the same meaning as set forth in
 
12 section 421J-2.
 
13      "Townhouse" means a series of individual apartments or units
 
14 having architectural unity and common elements, with each
 
15 apartment or unit extending from ground to roof or from the first
 
16 or second floor to roof, and where apartments or units may share
 
17 a common wall or be free-standing structures, including townhouse
 
18 projects that are created pursuant to chapters 514A and 421J, as
 
19 well as projects that are not created pursuant to those chapters
 
20 but are governed by an association; provided that "townhouse"
 
21 shall not include any apartments or units located in a building
 
22 of more than three stories.
 
23      "Unit" means a physical portion of a planned community
 

 
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 1 designated for separate ownership or occupancy.
 
 2      �  -2   Family child care homes; authorization.(a)  No
 
 3 association of a townhouse project shall prohibit the operation
 
 4 of a family child care home; provided that the family child care
 
 5 home:
 
 6      (1)  Is operated by the owner-occupant of the townhouse in
 
 7           which the family child care home is located;
 
 8      (2)  Is operated in a ground floor unit with a ground floor
 
 9           entry; and
 
10      (3)  Complies with subsections (b) and (c).
 
11 An association of a townhouse project may impose on a family
 
12 child care home conditions and limitations as set forth in
 
13 subsection (e).
 
14      (b)  Every family child care home located in a townhouse
 
15 project shall give the association written notice of intent to
 
16 commence operation as a family child care home no later than
 
17 ninety days prior to commencing operation.   Family child care
 
18 homes that fail to give such written notice shall not commence
 
19 operation.  Any family child care home existing on the effective
 
20 date of this Act shall notify the association within sixty days
 
21 of the effective date of this Act.  If a family child care home
 
22 commences or continues operation without providing such notice
 
23 within the prescribed time limit required under this section:
 

 
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 1      (1)  The association shall be absolved of any and all
 
 2           liability for the operation of the family child care
 
 3           home; and
 
 4      (2)  The family child care home shall indemnify, save, and
 
 5           hold the association harmless from and against all
 
 6           claims and actions and all costs and expenses arising
 
 7           from the operation of the family child care home.
 
 8      (c)  A family child care home located in a townhouse project
 
 9 shall comply with the Equal Opportunity for Individuals With
 
10 Disabilities Act (Americans With Disabilities Act of 1990, 42
 
11 U.S.C. 12101, et seq., as amended); provided that any
 
12 improvements or remodeling made to the particular apartment or
 
13 unit out of which the family child care home operates, or to the
 
14 corresponding common elements, to comply with the Americans With
 
15 Disabilities Act as it applies to the family child care home,
 
16 shall be made and paid for by the operator of the family child
 
17 care home.  If the Americans with Disabilities Act requires that
 
18 establishment of a family child care home requires modifications
 
19 or improvements to the common elements, the operator of the
 
20 family child care home shall obtain approval of the modifications
 
21 or improvements from the association before undertaking any
 
22 construction.
 
23      (d)  An association may authorize the use of an apartment or
 

 
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 1 unit as a family child care home by obtaining the approval of a
 
 2 majority of the owners of the condominium project or planned
 
 3 community, where majority is defined in the association bylaws or
 
 4 other association documents, or by any other method specified in
 
 5 the association bylaws or other association documents.  The
 
 6 family child care home authorized shall be subject to any
 
 7 conditions and limitations approved by the majority of the owners
 
 8 of the condominium project or planned community, or approved by
 
 9 any other method specified in the association bylaws or other
 
10 association documents.
 
11      (e)  An association may:
 
12      (1)  Impose conditions on the establishment or operation of
 
13           a family child care home that are necessary for
 
14           association immunity from liability under section
 
15           663-   , including:
 
16           (A)  Requiring the family child care home to comply
 
17                with the Americans With Disabilities Act;
 
18           (B)  Limiting the number of apartments or units used as
 
19                a family child care home to no less than one per
 
20                cent, and no more than three per cent, of the
 
21                total number of apartments or units in any
 
22                townhouse project;
 
23           (C)  Limiting family care homes that may be established
 

 
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 1                to those operated by an owner-occupant; and
 
 2           (D)  Restricting family care homes to the fourth or
 
 3                lower floor;
 
 4           and
 
 5      (2)  Require the operator of the family child care home, as
 
 6           a condition precedent to the establishment of the
 
 7           family child care home, to:
 
 8          (A)   Indemnify, hold harmless, and defend the
 
 9                association against all claims, including costs
 
10                and attorneys' fees, whether brought by judicial
 
11                or administrative action, relating to the
 
12                operation of a family child care home as well as
 
13                to common elements that are traversed by persons
 
14                going to and from the family child care home;
 
15          (B)   Reimburse the association for the amount of any
 
16                increase in the association's liability insurance
 
17                premiums attributable by the insurer to the
 
18                operation of the family child care home;
 
19          (C)   Require the parent, guardian, and caretaker of the
 
20                child being cared for in the family child care
 
21                home to sign a waiver of claims for liability
 
22                against the association; and
 
23          (D)   Obtain liability insurance to cover the family
 

 
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 1                child care home and the common elements that meets
 
 2                the approval of the association and that names the
 
 3                association as an additional named insured, for
 
 4                liability claims arising solely from the operation
 
 5                of the child care business; provided that:
 
 6                (i)  Policy limits shall be determined in
 
 7                     accordance with the declaration; and
 
 8               (ii)  The liability policy of the family child care
 
 9                     home shall be the sole remedy for any injury
 
10                     occurring to the child subject to the care of
 
11                     the family child care home, and the parent,
 
12                     guardian, or caretaker of a child subject to
 
13                     the care of the family child care home.
 
14          In the event that coverage for the family child care
 
15          home is excluded from the association policy and an
 
16          alternative source of liability coverage for the same
 
17          risk or risks is unavailable, the association may
 
18          prohibit the establishment of the family child care
 
19          home.
 
20      (f)  Associations shall be immune from liability for the
 
21 operation of the family child care home as provided under section
 
22 663-   ."
 
23      SECTION 2.  Chapter 663, Hawaii Revised Statutes, is amended
 

 
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 1 by adding a new section to be appropriately designated and to
 
 2 read as follows:
 
 3      "�663-    Liability for operation of a family child care
 
 4 home.  (a)  Where a family child care home is authorized and
 
 5 established in compliance with this section, the association
 
 6 shall not be liable for any claims or causes of action for any
 
 7 injury to a child that is subject to the care of the family child
 
 8 care home, or to any of the child's relatives, guardians, or
 
 9 caretakers, that occur within the family child care home or on
 
10 the common elements of the condominium project, planned
 
11 community, or townhouse project in which the family child care
 
12 home is located.
 
13      (b)  This section shall not apply to an association that:
 
14      (1)  Allows the operation of a family child care home that
 
15           is:
 
16           (A)  Not operated by an owner-occupant;
 
17           (B)  Above the fourth floor; or
 
18           (C)  Not established in compliance with the Equal
 
19                Opportunity for Individuals With Disabilities Act,
 
20                (Americans With Disabilities Act of 1990, 42
 
21                U.S.C. 12101, et seq., as amended);
 
22           or
 
23      (2)  Allows more than three per cent of the total number of
 

 
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 1           apartments subject to the association to be used as a
 
 2           family child care home.
 
 3      (c)  As used in this section:
 
 4      "Apartment" has the same meaning as set forth in
 
 5 section   -1;
 
 6      "Association" has the same meaning as set forth in
 
 7 section   -1;
 
 8      "Common elements" has the same meaning as set forth in
 
 9 section   -1;
 
10      "Condominium" has the same meaning as set forth in
 
11 section   -1;
 
12      "Family child care home" has the same meaning as set forth
 
13 in section   -1;
 
14      "Planned community" has the same meaning as set forth in
 
15 section   -1; and
 
16      "Townhouse" has the same meaning as set forth in
 
17 section   -1."
 
18      SECTION 3.  Section 46-15.35, Hawaii Revised Statutes, is
 
19 amended by amending subsection (b) to read as follows:
 
20      "(b)  For the purposes of this section, "family child care
 
21 home" means a private [home where six or fewer children are cared
 
22 for.] residence, including an apartment, unit, or townhouse, as
 
23 those terms are defined in section    -1, at which care may be
 

 
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 1 provided for three to no more than six children who are unrelated
 
 2 to the caregiver by blood, marriage, or adoption at any given
 
 3 time."
 
 4      SECTION 4.  Section 346-151, Hawaii Revised Statutes, is
 
 5 amended by amending the definition of "family child care home" to
 
 6 read as follows:
 
 7      ""Family child care home" means a private [home] residence,
 
 8 including a home, apartment, unit, or townhouse, as those terms
 
 9 are defined in section    -1, at which care may be provided for
 
10 three to no more than six children[,] who are unrelated to the
 
11 caregiver by blood, marriage, or adoption, at any given time."
 
12      SECTION 5.  Section 501-231, Hawaii Revised Statutes, is
 
13 amended by amending subsections (b) and (c) to read as follows:
 
14      "(b)  This provision shall not apply to:
 
15      (1)  Housing for older persons as defined by 42 United
 
16           States Code section 3607(b)(2);
 
17      (2)  Limited-equity housing cooperatives created pursuant to
 
18           chapter 421H; or
 
19      (3)  Cooperative housing corporations created pursuant to
 
20           chapter 421I[;
 
21      (4)  Condominium property regimes created pursuant to
 
22           Chapter 514A; or
 
23      (5)  Townhouse projects that consist of a series of three or
 

 
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 1           more individual dwelling units having architectural
 
 2           unity and a common wall between each adjacent unit and
 
 3           in which the owners of the units are members of an
 
 4           association which is responsible for common areas
 
 5           available for use by the members of the association].
 
 6      (c)  For the purposes of this section "family child care
 
 7 home" means a private [home where six or fewer children are cared
 
 8 for.] residence, including an apartment, unit, or townhouse, as
 
 9 those terms are defined in section     -1, at which care may be
 
10 provided for three to no more than six children who are unrelated
 
11 to the caregiver by blood, marriage, or adoption at any given
 
12 time."
 
13      SECTION 6.  Section 502-111, Hawaii Revised Statutes, is
 
14 amended by amending subsections (b) and (c) to read as follows:
 
15      "(b)  This provision shall not apply to:
 
16      (1)  Housing for older persons as defined by 42 United
 
17           States Code section 3607(b)(2);
 
18      (2)  Limited-equity housing cooperatives created pursuant to
 
19           chapter 421H; or
 
20      (3)  Cooperative housing corporations created pursuant to
 
21           chapter 421I[;
 
22      (4)  Condominium property regimes created pursuant to
 
23           chapter 514A; or
 

 
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 1      (5)  Townhouse projects that consist of a series of three or
 
 2           more individual dwelling units having architectural
 
 3           unity and a common wall between each adjacent unit and
 
 4           in which the owners of the units are members of an
 
 5           association which is responsible for common areas
 
 6           available for use by the members of the association].
 
 7      (c)  For the purposes of the section, "family child care
 
 8 home" means a private [home where six or fewer children are cared
 
 9 for.] residence, including an apartment, unit, or townhouse, as
 
10 defined in section    -1, at which care may be provided for three
 
11 to no more than six children who are unrelated to the caregiver
 
12 by blood, marriage, or adoption at any given time."
 
13      SECTION 7.  Statutory material to be repealed is bracketed.
 
14 New statutory material is underscored.
 
15      SECTION 8.  This Act shall take effect upon its approval;
 
16 provided that:
 
17      (1)  Sections 1 and 2 shall apply to child care businesses,
 
18           family child care homes, condominium projects, planned
 
19           communities, and townhouses that are in existence as of
 
20           the effective date of this Act; and
 
21      (2)  This Act shall be repealed on June 30, 2001; provided
 
22           that sections 46-15.35, 346-151, 501-231 and 502-111,
 
23           Hawaii Revised Statutes, shall be reenacted in the same
 

 
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 1           form in which they existed on the day before the
 
 2           approval of this Act.