Residential Day Care Licenses

The Department of Children, Youth, and Families [the “Department”] may immediately and summarily suspend a child care license when: (a) it finds that conditions in the licensed facility constitute an imminent danger to a child or children in care; or (b) the public health, safety, or welfare requires emergency action.  This regulation is permissive. In some cases, the Department has taken summary action to suspend a license when its licensor suspected that the licensee was not, in fact, living at the residential childcare facility that has been licensed and concluding some sort of deception on the part of the licensee that makes them inherently untrustworthy, thus a danger to children.  Thus, assuming there is a violation for not spending enough time at the residential childcare facility, suspension or revocation may apply but not a summary suspension or the emergency action regulation WAC 170-03-0300(1) specifically. As for the alleged violation itself…Washington does not require a family daycare provider to have a single or exclusive residence, and other buildings on the premises may be licensed instead of the living quarters.  The licensee is a person “[w]ho resides in the home licensed for family home child care.” A “Family day care provider” is one who “regularly provides early childhood education and early learning services for not more than twelve children in the provider’s home in the family living quarters.”  “’ Family living quarters’ means a licensee’s residence and other spaces or buildings on the premises that meet the facility requirements of Chapter 110-300B of the WAC and are approved by the department for child care.”The plain language of WAC 110-300B-0010 and RCW 43.215.010(1)(c) define “child day care center” distinctly from “family day care provider.”  However, the distinction only seems material in the context of zoning in Washington’s statute, and it is not necessarily material how much time a licensee spends at the licensed residence for the purposes of being licensed as a “family day-care provider” in Washington.  “Family day-care provider” is expressly incorporated in RCW 36.70.757(4), RCW 36.70A.450(4), RCW 35.63.185(4), and RCW 35A.63.215(4), all of which bar prohibitions by cities and/or counties (depending) of the use of a residential dwelling as a family day-care provider’s home facility in areas zoned for residential or commercial use.  By way of example, RCW 36.70.757 states:

Family day-care provider's home facility—County may not prohibit in residential or commercial area—Conditions.

(1) Except as provided in subsections (2) and (3) of this section, no county may enact, enforce, or maintain an ordinance, development regulation, zoning regulation, or official control, policy, or administrative practice that prohibits the use of a residential dwelling, located in an area zoned for residential or commercial use, as a family day-care provider's facility serving twelve or fewer children.(2) A county may require that the facility: (a) Comply with all building, fire, safety, health code, and business licensing requirements; (b) conform to lot size, building size, setbacks, and lot coverage standards applicable to the zoning district except if the structure is a legal nonconforming structure; (c) is certified by the department of children, youth, and families licensor as providing a safe passenger loading area; (d) include signage, if any, that conforms to applicable regulations; and (e) limit hours of operations to facilitate neighborhood compatibility, while also providing appropriate opportunity for persons who use family day-care who work a nonstandard work shift.(3) A county may also require that the family day-care provider, before state licensing, require proof of written notification by the provider that the immediately adjoining property owners have been informed of the intent to locate and maintain such a facility. If a dispute arises between neighbors and the day-care provider over licensing requirements, the licensor may provide a forum to resolve the dispute.(4) This section may not be construed to prohibit a county from imposing zoning conditions on the establishment and maintenance of a family day-care provider's home serving twelve or fewer children in an area zoned for residential or commercial use, if the conditions are no more restrictive than conditions imposed on other residential dwellings in the same zone and the establishment of such facilities is not precluded. As used in this section, "family day-care provider" is as defined in RCW 43.216.010.   [Emphasis added].However, the Department has been giving undue importance to how much time a licensee resides on the premises and unfortunately arbitrarily taking emergency actions when there is no imminent danger to a child or children in care or to the public health, safety, or welfare.  It is unfortunate to see facilities of good repute for vibrant learning and early childcare being essentially put out of business by the Department’s arbitrary actions. WAC 170-03-0300(1).See Islam v. State, Dep't of Early Learning, 157 Wn. App. 600, 616, 238 P.3d 74 (2010) regarding emergency action.RCW 43.216.325(1).WAC 110-300B-1050.RCW 43.216.010(1)(c).WAC 110-300B-0010.