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Daycare Center and Family Home Forum>Second Level Appeal/ Inspection Authority
Unregistered 09:12 AM 05-26-2014
So I received my first level appeal response, and they did not remove the citation. Here is a portion of my next response that goes to the Regional Manager.

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The fourth paragraph of the appeal response says
"When I wrote "plus additional days and hours on request" this gave licensing the authority to visit your FCCH on (*date removed*), and any other days thereafter. According to the Health and Safety Code section 1596.8535 (a) the department shall conduct site visits only during the period beginning one hour before and ending one hour after the facility's normal business hours or at any time childcare services are being provided"

This does not give licensing the right to do a site visit 24 hours, 7 days a week. It is my understanding that providers can provide care outside of their normal business hours without listing it on their application. Listing "plus additional days and hours on request" does not translate into my normal hours are 24/7. Yes they are free to come by any family child care home at any time within reason outside of normal hours, and if they are providing services they can do a site visit and inspection, as allowed by codes, regulations, and laws, however for this visit family child care services were not being provided.

Lets go more in depth to the 'inspection authority'. In the attached page I was given from (*name removed*), licensing program manager from one of your handbooks you can see where in Health and Safety code section 1596.8535 (a) it has a * after the phrase unannounced site visit. When you look down at the bottom of the code section you will find what the * references. You will find section 1597.55a, and a court case Rush v. Obledo (these can readily be found referenced at the bottom of the code in other locations as well). When you read the court case they clarify that code section 1596.8535a, which includes child care centers, is too general, and overbroad for family child care homes. While the code read a little differently in 1985, the ruling still applies, and it spells out exactly what is allowed for warrant less inspections of family child care homes. "Warrantless inspections are permissible in those portions of the provider's home where day care activities take place only when the home is being operated as a family day care business. Such inspections, however, cannot be justified in purely private contexts"

Clarifying this inspection authority is not only important to me, but other family child care providers as well, so I have begun to include more of them in the conversation.

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This is in California, but the inspection authority affects us all. This has already gone to court, so I'm hoping that I don't need to do that, but I'm willing to take it as far as it needs to go. Didn't they recently change the New York regulations to say they could do inspections at any time? Here is the court case I referenced, I would recommend reading especially the section "B. Standards for the Exercise of Inspection Authority" http://scholar.google.com/scholar_ca...=2006&as_vis=1
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mom2many 07:43 AM 05-27-2014
I'm anxious to hear how they will respond. I had what I considered an unfair citation a few years ago, in which I appealed.

One issue was reversed and the regional mgr had the LPA take it out of the report, because it was not a violation to have a car seat on my premises.

However, I was unable to get the other issue reversed, which had to do with the new "preferred" method of using tot locks on my bathroom vanity. Even though another LPA had approved the child proof lock that I was using just six prior to this & it had been cleared and approved by numerous other licensing personnel over the course of 26 years!

I felt the appeal process fell on deaf ears and basically went no where! This is one of my concerns with CA, because too much is left open to an individual's interpretation and the appeal process is not heard by an outside entity of licensing to ensure checks and balances within the department.

I still cannot understand how they can cite you for a violation when you are clearly not even open for business that day!

Please update on what happens with this!
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Heidi 08:58 AM 05-27-2014
Can someone link the original thread?
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Blackcat31 09:04 AM 05-27-2014
Originally Posted by Heidi:
Can someone link the original thread?
Pretty sure this is the original thread

https://www.daycare.com/forum/showth...ion+California
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Margarete 02:13 PM 05-27-2014
Originally Posted by mom2many:
I'm anxious to hear how they will respond. I had what I considered an unfair citation a few years ago, in which I appealed.

One issue was reversed and the regional mgr had the LPA take it out of the report, because it was not a violation to have a car seat on my premises.

However, I was unable to get the other issue reversed, which had to do with the new "preferred" method of using tot locks on my bathroom vanity. Even though another LPA had approved the child proof lock that I was using just six prior to this & it had been cleared and approved by numerous other licensing personnel over the course of 26 years!

I felt the appeal process fell on deaf ears and basically went no where! This is one of my concerns with CA, because too much is left open to an individual's interpretation and the appeal process is not heard by an outside entity of licensing to ensure checks and balances within the department.

I still cannot understand how they can cite you for a violation when you are clearly not even open for business that day!

Please update on what happens with this!
I can't believe not using the 'preferred" latches got you a citation. Look at page 2 of spring 2013 newsletter where the state talks about locks vs inaccessible http://ccld.ca.gov/res/pdf/CCUpdateSpring2013.pdf
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mom2many 03:21 PM 05-27-2014
Originally Posted by Margarete:
I can't believe not using the 'preferred" latches got you a citation. Look at page 2 of spring 2013 newsletter where the state talks about locks vs inaccessible http://ccld.ca.gov/res/pdf/CCUpdateSpring2013.pdf
Thanks! Wish I would have that info to fight it! This incident happened in Jan 2010. I had quoted title 22 regs in my appeal, because it merely states that items under my vanity needed to be made "inaccessible", which is what the child proof latch did indeed do!

It was very upsetting because 4 months prior in August 2009, it was found 100% in compliance. It was toiletry type items... Nothing lethal like poison, meds or cleaning products.

I guess in Santa Clara Co, they had decided to have providers start using the magnetic 2 part locks at about the same time I was cited. New providers were being told this info at their orientation, but for providers like myself... We had NO idea! It was not in any updates at that time yet!

I was told after my appeal by the regional mgr that different counties within the state of CA couldn't even agree on this issue, so maybe now that has been resolved with this Spring 2013 update that you shared the link too.

I would have been totally fine being "advised" of this change, but when she emptied out my vanity cabinet and began citing me, I was livid!
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crazydaycarelady 03:41 PM 05-27-2014
That is how Montana rolls too. They make new regs all the time but don't tell anybody. They expect us to print off the HUGE regulation book and go through it trying to figure out what has changed! Then they come and cite for things that we didn't know about. They got me last time because in addition to emergency numbers on the master list of parents phone numbers we now have to have the actual hospital phone numbers too! Well who knew?
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