California Assembly Bill AB1387 Amended / Bill

 BILL NUMBER: AB 1387AMENDED BILL TEXT AMENDED IN ASSEMBLY MARCH 26, 2015 INTRODUCED BY Assembly Member Chu FEBRUARY 27, 2015 An act  to amend Sections 1596.99 and 1597.58 of the Health and Safety Code,  relating to care facilities. LEGISLATIVE COUNSEL'S DIGEST AB 1387, as amended, Chu. Care facilities: civil  penalties: appeals.   penalties.   Existing law establishes the State Department of Social Services and sets forth its powers and duties, including, but not limited to, the licensing and administration of day care centers and family day care homes. Existing law authorizes the department to impose various civil penalties for a licensing violation under those provisions, as specified, and requires moneys collected from the imposition of those penalties to be deposited in the Child Health and Safety Fund and expended for certain purposes, including technical assistance, orientation, training, and education of licensed daycare centers.   This bill would delete the requirement that moneys collected from the imposition of certain penalties and deposited in the Child Health and Safety Fund be used for assisting families with the identification, transportation, and enrollment of children in another day care center or family day care home upon the revocation or suspension of the license of a day care center or family day care home.   Existing law establishes the State Department of Social Services and sets forth its powers and duties, including, but not limited to, the licensing and administration of community care facilities, residential care facilities for persons with chronic life-threatening illnesses, residential care facilities for the elderly, child day care centers, and family day care homes.  Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:  SECTION 1.   Section 1596.99 of the   Health and Safety Code   , as added by Section 8 of Chapter 813 of the Statutes of 2014, is amended to read:  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 may levy a civil penalty. (b) The amount of the civil penalty shall not be less than twenty-five dollars ($25) nor more than fifty dollars ($50) per day for each violation of this chapter except where 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 determined by the department. In no event shall a civil penalty assessment exceed one hundred fifty dollars ($150) per day per violation. (c) Notwithstanding Sections 1596.893a, 1596.893b, and 1596.98, the department shall assess an immediate civil penalty of one hundred fifty  dollars  ($150) per day per violation for any of the following serious violations: (1) Fire clearance violations, including, but not limited to, overcapacity, inoperable smoke alarms, and inoperable fire alarm systems. (2) Absence of supervision, including, but not limited to, a child left unattended, supervision of a child by a person under 18 years of age, and lack of supervision resulting in a child wandering away. (3) Accessible bodies of water. (4) Accessible firearms, ammunition, or both. (5) Refused entry to a facility or any part of a facility in violation of Section 1596.852, 1596.853, or 1597.09. (6) The presence of an excluded person on the premises. (d) 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 licensee licensed, among all of the licensee's facilities, to care for 30 or less children. (2) Ten thousand dollars ($10,000) for a licensee licensed, among all of the licensee's facilities, to care for 31 to 100, inclusive, children. (3) Fifteen thousand dollars ($15,000) for a licensee licensed, among all of the licensee's facilities, to care for more than 100 children. (e) (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 licensee licensed, among all of the licensee's facilities, to care for 30 or less children. (B) Five thousand dollars ($5,000) for a licensee licensed, among all of the licensee's facilities, to care for 31 to 100, inclusive, children. (C) Ten thousand dollars ($10,000) for a licensee licensed, among all of the licensee's facilities, 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. (f)  Prior to   Before  the issuance of a citation imposing a civil penalty pursuant to subdivision (d) or (e), the decision shall be approved by the director. (g) Notwithstanding Sections 1596.893a, 1596.893b, and 1596.98, any day care center that is cited for repeating the same violation of this chapter or Chapter 3.4 (commencing with Section 1596.70)  ,  within 12 months of the first violation is subject to an immediate civil penalty of one hundred fifty dollars ($150) for each day the violation continues until the deficiency is corrected. (h) Any day care center that is assessed a civil penalty under subdivision (g) and that repeats the same violation of this chapter within 12 months of the violation subject to subdivision (g) shall be assessed an immediate civil penalty of one hundred fifty dollars ($150) for each day the violation continues until the deficiency is corrected. (i) 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, and to assist families with the identification, transportation, and enrollment of children to another day care center when a family's day care center's license is revoked or temporarily suspended.   providers.  (j) (1) The department shall adopt regulations setting forth the appeal procedures for deficiencies. (2) 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 10 days of receipt of the notice of a civil penalty assessment and shall provide all supporting documentation at that time. The review shall be conducted by a regional manager of the Community Care Licensing Division. If the regional manager determines that the civil penalty was not assessed in accordance with applicable statutes or regulations of the department, he or she may amend or dismiss the civil penalty. The licensee shall be notified in writing of the regional manager's decision within 60 days of the request to review the assessment of the civil penalty. (3) The licensee may further appeal to the program administrator of the Community Care Licensing Division within 10 days of receipt of the notice of the regional manager's decision and shall provide all supporting documentation at that time. If the program administrator determines that the civil penalty was not assessed in accordance with applicable statutes or regulations of the department, he or she may amend or dismiss the civil penalty. The licensee shall be notified in writing of the program administrator's decision within 60 days of the request to review the regional manager's decision. (4) The licensee may further appeal to the deputy director of the Community Care Licensing Division within 10 days of receipt of the notice of the program director's decision and shall provide all supporting documentation at that time. If the deputy director determines that the civil penalty was not assessed in accordance with applicable statutes or regulations of the department, he or she may amend or dismiss the civil penalty. The licensee shall be notified in writing of the deputy director's decision within 60 days of the request to review the program administrator's decision. (5) Upon exhausting the deputy director review, a licensee may appeal a civil penalty assessed pursuant to subdivision (d) or (e) 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. (6) 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. (k) The department shall, by January 1, 2016, amend its regulations to reflect the changes to this section made by the act that added this subdivision. (l) This section shall become operative on July 1, 2015.  SEC. 2.   Section 1597.58 of the   Health and Safety Code   , as added by Section 10 of Chapter 813 of the Statutes of 2014, is amended to read:  1597.58. (a) In addition to the suspension, temporary suspension, or revocation of a license issued under this chapter, the department may levy a civil penalty. (b) The amount of the civil penalty shall not be less than twenty-five dollars ($25) nor more than fifty dollars ($50) per day for each violation of this chapter except where 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 determined by the department. In no event shall a civil penalty assessment exceed one hundred fifty dollars ($150) per day per violation. (c) Notwithstanding Sections 1596.893a, 1596.893b, 1597.56, and 1597.62 the department shall assess an immediate civil penalty of one hundred fifty dollars ($150) per day per violation for any of the following serious violations: (1) Any violation that results in the injury, illness, or death of a child. (2) Absence of supervision, including, but not limited to, a child left unattended, a child left alone with a person under 18 years of age, and lack of supervision resulting in a child wandering away. (3) Accessible bodies of water. (4) Accessible firearms, ammunition, or both. (5) Refused entry to a facility or any part of a facility in violation of Sections 1596.852, 1596.853, 1597.55a, and 1597.55b. (6) The presence of an excluded person on the premises. (d) For a violation that the department determines resulted in the death of a child, the civil penalty shall be assessed as follows: (1) Five thousand dollars ($5,000) for a small family day care home, as described in Section 1597.44. (2) Seven thousand five hundred dollars ($7,500) for a large family day care home, as described in Section 1597.465. (e) (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) One thousand dollars ($1,000) for a small family day care home, as described in Section 1597.44. (B) Two thousand dollars ($2,000) for a large family day care home, as described in Section 1597.465. (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. (f)  Prior to   Before  the issuance of a citation imposing a civil penalty pursuant to subdivision (d) or (e), the decision shall be approved by the director. (g) Notwithstanding Sections 1596.893a, 1596.893b, 1597.56, and 1597.62, any family day care home that is cited for repeating the same violation of this chapter or Chapter 3.4 (commencing with Section 1596.70), within 12 months of the first violation is subject to an immediate civil penalty assessment of up to one hundred fifty dollars ($150) and may be assessed up to fifty dollars ($50) for each day the violation continues until the deficiency is corrected. (h) Any family day care home that is assessed a civil penalty under subdivision (g) that repeats the same violation of this chapter within 12 months of the violation subject to subdivision (g) shall be assessed an immediate assessment of up to one hundred fifty dollars ($150) and may be assessed up to one hundred fifty dollars ($150) for each day the violation continues until the deficiency is corrected. (i) Notwithstanding any other law, revenues received by the state from the payment of civil penalties imposed on licensed family day care homes 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 family day care home  providers, and to assist families with the identification, transportation, and enrollment of children to another family day care home when a family' s family day care home's license is revoked or temporarily suspended.   providers.  (j) (1) The department shall adopt regulations setting forth the appeal procedures for deficiencies. (2) 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 10 days of receipt of the notice of a civil penalty assessment and shall provide all supporting documentation at that time. The review shall be conducted by a regional manager of the Community Care Licensing Division. If the regional manager determines that the civil penalty was not assessed in accordance with applicable statutes or regulations of the department, he or she may amend or dismiss the civil penalty. The licensee shall be notified in writing of the regional manager's decision within 60 days of the request to review the assessment of the civil penalty. (3) The licensee may further appeal to the program administrator of the Community Care Licensing Division within 10 days of receipt of the notice of the regional manager's decision and shall provide all supporting documentation at that time. If the program administrator determines that the civil penalty was not assessed in accordance with applicable statutes or regulations of the department, he or she may amend or dismiss the civil penalty. The licensee shall be notified in writing of the program administrator's decision within 60 days of the request to review the regional manager's decision. (4) The licensee may further appeal to the deputy director of the Community Care Licensing Division within 10 days of receipt of the notice of the program director's decision and shall provide all supporting documentation at that time. If the deputy director determines that the civil penalty was not assessed in accordance with applicable statutes or regulations of the department, he or she may amend or dismiss the civil penalty. The licensee shall be notified in writing of the deputy director's decision within 60 days of the request to review the program administrator's decision. (5) Upon exhausting the deputy director review, a licensee may appeal a civil penalty assessed pursuant to subdivision (d) or (e) 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. (6) 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. (k) The department shall, by January 1, 2016, amend its regulations to reflect the changes to this section made by the act that added this subdivision. (l) This section shall become operative on July 1, 2015.  SECTION 1.   It is the intent of the Legislature to enact legislation that would revise the appeal procedures for a deficiency of a care facility licensed by the State Department of Social Services.