Report Title:

Family Child Care Homes

 

Description:

Authorizes townhouse renters to operate FCCHs; limits liability insurance that associations may require of FCCHs to $1,000,000; increases from one to three percent the limit associations may set on FCCH units; clarifies that associations may only require FCCH compliance with applicable ADA requirements; allows associations to impose only conditions or requirements that are generally applicable to all townhouses in the project or are specifically authorized under the FCCH law.

 

HOUSE OF REPRESENTATIVES

H.B. NO.

1161

TWENTY-FIRST LEGISLATURE, 2001

  

STATE OF HAWAII

  

 

A BILL FOR AN ACT

 

relating to family child care homes.

 

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

SECTION 1. Section 502C-2, Hawaii Revised Statutes, is amended as follows:

1. By amending the title and subsection (a) to read:

"[[]§502C-2[]] Family child care homes; authorization. (a) No association of a townhouse project shall prohibit the operation of a family child care home; provided that the family child care home:

(1) Is operated by the [owner-occupant] occupant of the townhouse in which the family child care home is located;

(2) Is operated in a ground floor unit with a ground floor entry; and

(3) Complies with subsections (b) and (c).

An association of a townhouse project may impose on a family child care home conditions and limitations in addition to those generally applicable to other townhouses in the townhouse project as set forth in subsection (e)."

2. By amending subsections (c), (d), and (e) to read:

"(c) A family child care home located in a townhouse project shall comply with all applicable requirements under the Equal Opportunity for Individuals with Disabilities Act (Americans with Disabilities Act of 1990, 42 U.S.C. 12101, et seq., as amended); provided that any improvements or remodeling made to the particular apartment or unit out of which the family child care home operates, or to the corresponding common elements, to comply with the Americans with Disabilities Act as it applies to the family child care home, shall be made and paid for by the operator of the family child care home. If the Americans with Disabilities Act requires that establishment of a family child care home requires modifications or improvements to the common elements, the operator of the family child care home shall obtain approval of the modifications or improvements from the association before undertaking any construction.

(d) An association may authorize the use of an apartment or unit as a family child care home by obtaining the approval of a majority of the owners of the condominium project or planned community, where majority is defined in the association bylaws or other association documents, or by any other method specified in the association bylaws or other association documents. The family child care home authorized shall not be subject to any conditions and limitations [approved by the majority of the owners of the condominium project or planned community, or approved by any other method specified in the association bylaws or other association documents.] not generally applicable to other townhouses in the townhouse project or specifically authorized under this section.

(e) An association may:

(1) Impose conditions on the establishment or operation of a family child care home that are necessary for association immunity from liability under section 663-1.53, including:

(A) Requiring the family child care home to comply with all applicable requirements under the Americans with Disabilities Act;

(B) Limiting the number of apartments or units used as a family child care home to [no less than one per cent, and no more than] three per cent[,] of the total number of apartments or units in any townhouse project;

(C) Limiting family care homes that may be established to those operated by an [owner-occupant] occupant; and

` (D) Restricting family [[]child[]] care homes to the fourth or lower floor;

and

(2) Require the operator of the family child care home, as a condition precedent to the establishment of the family child care home, to:

(A) Indemnify, hold harmless, and defend the association against all claims, including costs and attorneys' fees, whether brought by judicial or administrative action, relating to the operation of a family child care home as well as to common elements that are traversed by persons going to and from the family child care home;

(B) Reimburse the association for the amount of any increase in the association's liability insurance premiums attributable by the insurer to the operation of the family child care home; and

[(C) Require the parent, guardian, and caretaker of the child being cared for in the family child care home to sign a waiver of claims for liability against the association; and

(D)] (C) Obtain liability insurance to cover the family child care home and the common elements that meets the approval of the association and that names the association as an additional named insured, for liability claims arising solely from the operation of the child care business; provided that:

(i) Policy limits shall be determined in accordance with the declaration; provided that in no case shall the policy required exceed $1,000,000; and

(ii) The liability policy of the family child care home shall be the sole remedy for any injury occurring to the child subject to the care of the family child care home, and the parent, guardian, or caretaker of a child subject to the care of the family child care home.

In the event that coverage for the family child care home is excluded from the association policy and an alternative source of liability coverage for the same risk or risks is unavailable, the association may prohibit the establishment of the family child care home."

SECTION 2. Section 663-1.53, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) This section shall not apply to an association that:

(1) Allows the operation of a family child care home that is:

(A) Not operated by an [owner-occupant;] occupant;

(B) Above the fourth floor; or

(C) Not established in compliance with all applicable requirements under the Equal Opportunity for Individuals with Disabilities Act, (Americans With Disabilities Act of 1990, 42 U.S.C. 12101, et seq., as amended);

or

(2) Allows more than three per cent of the total number of apartments subject to the association to be used as a family child care home."

SECTION 3. Act 242, Session Laws of Hawaii 1999, is amended by amending section 8 to read as follows:

"SECTION 8. This Act shall take effect upon its approval; provided that[:

(1) Sections] sections 1 and 2 shall apply to child care businesses, family child care homes, condominium projects, planned communities, and townhouses that are in existence as of the effective date of this Act[; and

(2) This Act shall be repealed on June 30, 2001; provided that sections 46-15.35, 346-151, 501-231, and 502-111, Hawaii Revised Statutes, shall be reenacted in the same form in which they existed on the day before the approval of this Act]."

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect on June 29, 2001.

INTRODUCED BY:

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