REPORT TITLE:
Family Child Care


DESCRIPTION:
(1)  Includes condominiums, apartments, and 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 apartment 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 home.  Limits child care
   in condominiums, apartments, and townhouses to care of at
   least 2 children whose parents or guardians reside in the
   building if caring for 5 or 6 children, and 1 child or more
   whose parents or guardians reside in the building if caring
   for 4 children or less.  Sunsets in 2 years.
(2)  Establishes a child care facilities grant fund to provide
   start-up or expansion capital to family child care homes and
   centers that are licensed or are seeking a license.  Makes
   an appropriation to the child care facilities grant fund.
   (SB513 HD2)

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


                   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 intended for any
 
10 type of use or uses, and with an exit to a public street or
 
11 highway or to a common element or elements leading to a public
 
12 street or highway, and may include such appurtenances as garage
 
13 and other parking space, storage room, balcony, terrace, and
 
14 patio.
 
15      "Association" or "association of apartment owners" has the
 
16 same meaning as under chapters 514A and 421J, and means all of
 
17 the apartment owners acting as a group in accordance with the
 
18 bylaws and declaration or, a nonprofit, incorporated, or
 
19 unincorporated organization upon which responsibilities are
 
20 imposed and to which authority is granted in a declaration which
 

 
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 1 governs a planned community, and includes any other governing
 
 2 body of a community with common elements and common interests.
 
 3      "Common elements" has the same meaning as defined in chapter
 
 4 514A-3, and also includes "common area" as defined in chapter
 
 5 421J-2 to mean real property within a planned community which is
 
 6 owned or leased by the association or is otherwise available for
 
 7 the use of its members or designated as common area in or
 
 8 pursuant to the association declaration.
 
 9      "Condominium" means the ownership of single units, with
 
10 common elements, located on property within a condominium
 
11 property regime created pursuant the chapter 514A.
 
12      "Declaration" means the instrument by which the property is
 
13 submitted to chapter 514A, as provided in that chapter, and such
 
14 declaration as from time to time amended, as well as any recorded
 
15 instrument, however denominated, that imposes on an association
 
16 maintenance or operational responsibilities for the common area
 
17 and creates the authority in the association to impose on units,
 
18 or on the owners or occupants of the units, any mandatory payment
 
19 of money as a regular annual assessment or otherwise in
 
20 connection with the provisions, maintenance, or services for the
 
21 benefit of some or all of the units, the owners, or occupants of
 
22 the units or the common areas, including any amendment or
 
23 supplement to the instrument.
 

 
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 1      "Family child care home" means a private residence,
 
 2 including a home, condominium, apartment, or townhouse, at which
 
 3 care may be provided for three to no more than six children, who
 
 4 are unrelated to the caregiver by blood, marriage, or adoption at
 
 5 any given time; provided that a family child care home in a
 
 6 condominium, apartment, or townhouse means one that provides care
 
 7 for:
 
 8      (1)  Two or more children whose parents or guardians reside
 
 9           within the condominium, apartment, or townhouse when
 
10           there are five or six children receiving care in a
 
11           family child care home; and
 
12      (2)  One or more children whose parents or guardians reside
 
13           within the condominium, apartment, or townhouse when
 
14           there are four or fewer children receiving care in a
 
15           family child care home.
 
16      "Townhouse" means a series of individual apartments or units
 
17 having architectural unity and common elements, with each
 
18 apartment or unit extending from ground to roof, and where
 
19 apartments or units may share a common wall or be free-standing
 
20 structures, including townhouse projects that are created
 
21 pursuant to chapters 514A and 421J, as well as projects that are
 
22 not created pursuant to those chapters but are governed by an
 
23 association.
 

 
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 1      "Unit" means a physical portion of a planned community
 
 2 designated for separate ownership or occupancy.
 
 3      §  -2   Family child care homes; authorization.(a)  No
 
 4 association shall prohibit the operation of a family child care
 
 5 home that complies with subsection (c), by an owner-occupant in a
 
 6 townhouse; except that an association may limit the number of
 
 7 apartments or units used as a family child care home to no less
 
 8 than one per cent, and no more than three per cent, of the total
 
 9 number of apartments in any townhouse project.
 
10      (b)  An association of a condominium or apartment complex
 
11 other than a townhouse project may authorize the use of an
 
12 apartment or unit as a family child care home through the
 
13 approval of a majority of the owners of the condominium or
 
14 apartment complex, where majority is defined in the association
 
15 bylaws or other association documents, or by any other method
 
16 specified in the association bylaws or other association
 
17 documents.  Any family child care home authorized under this
 
18 subsection shall be subject to any conditions and limitations
 
19 thus approved by the association.  Associations shall be immune
 
20 from liability as provided by section 663-  if the authorization
 
21 of the family care home and the family care home authorized,
 
22 complies with requirements under sections 514A-   (a) and (b),
 
23 and section 663- .
 

 
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 1      (c)  A family child care home under subsection (a) shall
 
 2 comply with the Equal Opportunity for Individuals With
 
 3 Disabilities (Americans With Disabilities Act of 1990, Title 42
 
 4 United States Code section 12101, et seq., as amended); provided
 
 5 that any improvements or remodeling made to the particular
 
 6 apartment or unit out of which the family child care home
 
 7 operates, or to the apartment's common elements, to comply with
 
 8 the Americans With Disabilities Act as it applies to the family
 
 9 child care home, shall be made and paid for by the operator of
 
10 the family child care home.
 
11      If the American with Disabilities Act requires that
 
12 establishment of a family child care home requires modifications
 
13 or improvements to the common elements, the operator of the
 
14 family child care home shall obtain approval of the modifications
 
15 or improvements from the association before undertaking any
 
16 construction.
 
17      Immunity from liability under section 663-   shall apply to
 
18 family child care homes established in compliance with this
 
19 subsection, as well as the provisions of section 663-   . 
 
20      (d)  An association may as a condition precedent to the
 
21 establishment of a child care business authorized under
 
22 subsection (a), or otherwise authorized by the association,
 
23 require the operator of the child care business to:
 

 
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 1      (1)  Indemnify, hold harmless, and defend the association
 
 2           against all claims, including costs and attorneys'
 
 3           fees, whether brought by judicial or administrative
 
 4           action, relating to the operation of a family child
 
 5           care home as well as to common elements that are
 
 6           traversed by persons going to and from the family child
 
 7           care home;
 
 8      (2)  Reimburse the association for the amount of any
 
 9           increase in the association's liability insurance
 
10           premiums attributable by the insurer for the operation
 
11           of the family child care home;
 
12      (3)  Require the parent, guardian, and caretaker of the
 
13           child being cared for in the family child care home to
 
14           sign a waiver of claims for liability against the
 
15           association; and
 
16      (4)  Obtain liability insurance to cover the family child
 
17           care home and the common elements that meets the
 
18           approval of the association and that names the
 
19           association as an additional named insured, for
 
20           liability claims arising solely from the operation of
 
21           the child care business; provided that:
 
22           (A)  Policy limits shall be determined in accordance
 
23                with the declaration; and
 

 
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 1           (B)  The liability policy of the family child care home
 
 2                shall be the sole remedy for any injury occurring
 
 3                to the child subject to care in the family child
 
 4                care home, and the parent, guardian, or caretaker
 
 5                of a child subject to care in the family child
 
 6                care home."
 
 7      SECTION 2.  Chapter 663, Hawaii Revised Statutes, is amended
 
 8 by adding a new section to be appropriately designated and to
 
 9 read as follows:
 
10      "§663-    Liability for operation of a family child care
 
11 home.  (a) Where a child care home has been established in
 
12 compliance with section     -2(a) and (c), the association shall
 
13 not be liable for any claims or causes of action for injury to a
 
14 child that is the subject of the care of the family child care
 
15 home, or to any of the child's relatives, guardians, or
 
16 caretakers, that occur within the family child care home or on
 
17 the common elements of the townhouse, condominium, or apartment
 
18 in which the family child care home is located.
 
19      (b)  This section shall not apply to an association that:
 
20      (1)  Allows the operation of a family child care home that
 
21           is:
 
22           (A)  Not operated by an owner-occupant;
 
23           (B)  Above the fourth floor; or
 

 
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 1           (C)  Not in compliance with the Americans With
 
 2                Disabilities Act;
 
 3           or
 
 4      (2)  Allows more than three per cent of the total number of
 
 5           units subject to the association to be used as a family
 
 6           child care home.
 
 7      (c)  As used in this section:
 
 8      "Apartment" shall have the same meaning as in section   -1;
 
 9      "Association of apartment owners" shall have the same
 
10 meaning as in section    -1 ;
 
11      "Common elements" shall have the same meaning as in section
 
12    -1;
 
13      "Condominium" shall have the same meaning as in section 
 
14    -1;
 
15      "Declaration" shall have the same meaning as in section    -
 
16 1;
 
17      "Family child care home" shall have the same meaning as in
 
18 section    -1; and
 
19      "Townhouse" shall have the same meaning as in section 
 
20    -1."
 
21      SECTION 3.  Section 46-15.35, Hawaii Revised Statutes, is
 
22 amended by amending subsection (b) to read as follows:
 

 
 
 
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 1      "(b)  For the purposes of this section, "family child care
 
 2 home" means a private [home where six or fewer children are cared
 
 3 for.] residence, including a home, or a condominium, apartment,
 
 4 or townhouse as those terms are defined in section    -1, at
 
 5 which care may be provided for three to no more than six
 
 6 children, who are unrelated to the caregiver by blood, marriage,
 
 7 or adoption at any given time; provided that a family child care
 
 8 home in a condominium, apartment, or townhouse means one that
 
 9 provides care for:
 
10      (1)  Two or more children whose parents or guardians reside
 
11           within the condominium, apartment, or townhouse when
 
12           there are five or six children receiving care in a
 
13           family child care home; and
 
14      (2)  One or more children whose parents or guardians reside
 
15           within the condominium, apartment, or townhouse when
 
16           there are four or fewer children receiving care in a
 
17           family child care home."
 
18      SECTION 4.  Section 346-151, Hawaii Revised Statutes, is
 
19 amended by amending the definition of "family child care home" to
 
20 read as follows:
 
21      ""Family child care home" means a private [home] residence,
 
22 including a home, or a condominium, apartment, 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
 
 2 unrelated to the caregiver by blood, marriage, or adoption, at
 
 3 any given time[.]; provided that a family child care home in a
 
 4 condominium, apartment, or townhouse means one that provides care
 
 5 for:
 
 6      (1)  Two or more children whose parents or guardians reside
 
 7           within the condominium, apartment, or townhouse when
 
 8           there are five or six children receiving care in a
 
 9           family child care home; and
 
10      (2)  One or more children whose parents or guardians reside
 
11           within the condominium, apartment, or townhouse when
 
12           there are four children or fewer receiving care in a
 
13           family child care home.
 
14      (d)  As used in this section:
 
15      "Apartment" shall have the same meaning as defined in
 
16 section     -1;
 
17      "Condominium" shall have the same meaning as defined in
 
18 section     -1; and
 
19      "Townhouse" shall have the same meaning as defined in
 
20 section     -1."
 
21      SECTION 5.  Section 501-231, Hawaii Revised Statutes, is
 
22 amended by amending subsections (b) and (c) to read as follows:
 
23      "(b)  This provision shall not apply to:
 

 
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 1      (1)  Housing for older persons as defined by 42 United
 
 2           States Code section 3607(b)(2);
 
 3      (2)  Limited-equity housing cooperatives created pursuant to
 
 4           chapter 421H; or
 
 5      (3)  Cooperative housing corporations created pursuant to
 
 6           chapter 421I[;
 
 7      (4)  Condominium property regimes created pursuant to
 
 8           Chapter 514A; or
 
 9      (5)  Townhouse projects that consist of a series of three or
 
10           more individual dwelling units having architectural
 
11           unity and a common wall between each adjacent unit and
 
12           in which the owners of the units are members of an
 
13           association which is responsible for common areas
 
14           available for use by the members of the association].
 
15      (c)  For the purposes of this section "family child care
 
16 home" means a private [home where six or fewer children are cared
 
17 for.] residence, including a home, or a condominium, apartment,
 
18 or townhouse, as those terms are defined in section     -1, at
 
19 which care may be provided for three to no more than six
 
20 children, who are unrelated to the caregiver by blood, marriage,
 
21 or adoption at any given time; provided that a family child care
 
22 home located in a condominium, apartment, or townhouse means a
 
23 home that provides care for:
 

 
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 1      (1)  Two or more children whose parents or guardians reside
 
 2           within the condominium, apartment, or townhouse when
 
 3           there are five or six children receiving care in a
 
 4           family child care home; and
 
 5      (2)  One or more children whose parents or guardians reside
 
 6           within the condominium, apartment, or townhouse when
 
 7           there are four children or fewer receiving care in a
 
 8           family child care home."
 
 9      SECTION 6.  Section 502-111, Hawaii Revised Statutes, is
 
10 amended by amending subsections (b) and (c) to read as follows:
 
11      "(b)  This provision shall not apply to:
 
12      (1)  Housing for older persons as defined by 42 United
 
13           States Code section 3607(b)(2);
 
14      (2)  Limited-equity housing cooperatives created pursuant to
 
15           chapter 421H; or
 
16      (3)  Cooperative housing corporations created pursuant to
 
17           chapter 421I[;
 
18      (4)  Condominium property regimes created pursuant to
 
19           chapter 514A; or
 
20      (5)  Townhouse projects that consist of a series of three or
 
21           more individual dwelling units having architectural
 
22           unity and a common wall between each adjacent unit and
 
23           in which the owners of the units are members of an
 

 
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 1           association which is responsible for common areas
 
 2           available for use by the members of the association].
 
 3      (c)  For the purposes of the section, "family child care
 
 4 home" means a private [home where six or fewer children are cared
 
 5 for.] residence, including a home, or a condominium, apartment,
 
 6 or townhouse, as defined in section    -1, at which care may be
 
 7 provided for three to no more than six children, who are
 
 8 unrelated to the caregiver by blood, marriage, or adoption at any
 
 9 given time; provided that a family child care home located in a
 
10 condominium, apartment, or townhouse means a home that provides
 
11 care for:
 
12      (1)  Two or more children whose parents or guardians reside
 
13           within the condominium, apartment, or townhouse when
 
14           there are five or six children receiving care in a
 
15           family child care home; and
 
16      (2)  One or more children whose parents or guardians reside
 
17           within the condominium, apartment, or townhouse when
 
18           there are four children or fewer receiving care in a
 
19           family child care home."
 
20                              PART II
 
21      SECTION 7.  The legislature finds that one way to improve
 
22 the quality of life for children is to increase the supply and
 
23 quality of child care.  One indicator of increased supply and
 

 
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 1 quality of care is an increase in the number of providers
 
 2 receiving licenses or accreditation.  One strategy to increase
 
 3 licensing and accreditation is to help providers overcome the
 
 4 financial obstacles to starting or expanding their child care
 
 5 business.
 
 6      The purpose of this part is to establish a child care
 
 7 facilities grant fund to provide start-up or expansion capital to
 
 8 family child care homes and centers that are licensed or are
 
 9 seeking a license.
 
10      SECTION 8.  Chapter 346, Hawaii Revised Statutes, is amended
 
11 by adding a new section to part VIII to be appropriately
 
12 designated and to read as follows:
 
13      "§346-    Child care facilities grant fund.  (a)  There is
 
14 established the child care facilities grant fund to be
 
15 administered by the department.  The purpose of the fund shall be
 
16 to make grants for child care facilities.  Each grant shall not
 
17 exceed $25,000, and shall be used as start-up capital or as
 
18 expansion capital for family child care homes or centers that are
 
19 appropriately licensed or will become appropriately licensed.
 
20      (b)  All moneys appropriated by the legislature for purposes
 
21 of subsection (a) shall be deposited into the fund."
 
22      SECTION 9.  There is appropriated out of the general
 
23 revenues of the State of Hawaii the sum of $1 or so much thereof
 

 
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 1 as may be necessary for fiscal year 1999-2000 to be deposited
 
 2 into the child care facilities grant fund for the purposes of
 
 3 this part.
 
 4      The sum appropriated shall be expended by the department of
 
 5 human services for the purposes of this part.
 
 6                             PART III
 
 7      SECTION 10.  Statutory material to be repealed is bracketed.
 
 8 New statutory material is underscored.
 
 9      SECTION 11.  This Act shall take effect upon its approval;
 
10 provided that:
 
11      (1)  Sections 1 and 2 shall apply to child care businesses,
 
12           family child care homes, apartments, condominiums, and
 
13           townhouses that are in existence as of the effective
 
14           date of this Act;
 
15      (2)  Section 9 shall take effect on July 1, 1999; and
 
16      (3)  Part I shall be repealed on June 30, 2001.