Daycare Legality

[Dynamo123]

What is the name of your state? Florida
We live in a home owner’s association in southern Florida. My wife runs a babysitting/childcare service in our home for about 6 families with kids ranging from 6 months to 3 years of age.

It was recently brought to our attention that in our HOA Bylaws it states in Article 8 entitled Prohibited Uses, Section 10, “No trade or business shall be conducted nor any commercial use made of any residential lot.”

On the other hand, the following quote is from the 2022 Florida Statutes (including 2022 Special Session A and 2023 Special Session B), Title 11, chapter 125, section 125.0109:
“Family day care homes; local zoning regulation.—The operation of a residence as a family day care home, as defined by law, registered or licensed with the Department of Children and Families shall constitute a valid residential use for purposes of any local zoning regulations, and no such regulation shall require the owner or operator of such family day care home to obtain any special exemption or use permit or waiver, or to pay any special fee in excess of $50, to operate in an area zoned for residential use.”

This Florida statute seems to suggest that operating a childcare/daycare service from one’s home is a legal and valid use despite any HOA’s Bylaws to the contrary.

This raises an obvious question and presumably there is some legal history or case law in which this conflict has been clarified.

Can anyone give me the link(s) to court decisions in this matter and hopefully a summary of the resolution (if any)?

 

[PayrollHRGuy]

Where in this...
“Family day care homes; local zoning regulation.—The operation of a residence as a family day care home, as defined by law, registered or licensed with the Department of Children and Families shall constitute a valid residential use for purposes of any local zoning regulations, and no such regulation shall require the owner or operator of such family day care home to obtain any special exemption or use permit or waiver, or to pay any special fee in excess of $50, to operate in an area zoned for residential use.”

...says HOAs can't limit the property under their jurisdiction?

I'll give you a hint. It isn't there. What your HOA rules are is a contractual agreement the homeowners entered into.

 

[quincy]

What is the name of your state? Florida
We live in a home owner’s association in southern Florida. My wife runs a babysitting/childcare service in our home for about 6 families with kids ranging from 6 months to 3 years of age.

It was recently brought to our attention that in our HOA Bylaws it states in Article 8 entitled Prohibited Uses, Section 10, “No trade or business shall be conducted nor any commercial use made of any residential lot.”

On the other hand, the following quote is from the 2022 Florida Statutes (including 2022 Special Session A and 2023 Special Session B), Title 11, chapter 125, section 125.0109:
“Family day care homes; local zoning regulation.—The operation of a residence as a family day care home, as defined by law, registered or licensed with the Department of Children and Families shall constitute a valid residential use for purposes of any local zoning regulations, and no such regulation shall require the owner or operator of such family day care home to obtain any special exemption or use permit or waiver, or to pay any special fee in excess of $50, to operate in an area zoned for residential use.”

This Florida statute seems to suggest that operating a childcare/daycare service from one’s home is a legal and valid use despite any HOA’s Bylaws to the contrary.

This raises an obvious question and presumably there is some legal history or case law in which this conflict has been clarified.

Can anyone give me the link(s) to court decisions in this matter and hopefully a summary of the resolution (if any)?

You live under the rules you contractually agreed to in your HOA documents. Your wife’s in-home childcare service violates these rules.

How was Article 8 of the HOA Bylaws “brought to [your] attention?” Has your wife been told to cease operation of her business?

 

[adjusterjack]

Your contractual obligation to the HOA, which you cheerfully agreed to when you bought the home, trumps the liberal zoning regulation.

If the HOA comes down on you, you will have to stop operating the day care, or be fined.

By the way, does your wife have proper liability insurance on her day care business? Your homeowners insurance does not provide liability coverage for the business. If negligence kills or injures the children, the claims could run into millions, not to mention the cost of a defense attorney even if no negligence is proven.

In case you haven't checked, take out your homeowner's policy and start by looking at the definition of "business," usually on the first page or so.

3. "Business" means:
a. A trade, profession or occupation engaged in on a full-time, part-time or occasional basis; or
b. Any other activity engaged in for money or other compensation, except the following:
(1) One or more activities, not described in (2) through (4) below, for which no "insured" receives more than $2,000 in total compensation for the 12 months before the beginning of the policy period;
(2) Volunteer activities for which no money is received other than payment for expenses incurred to perform the activity;
(3) Providing home day care services for which no compensation is received, other than the mutual exchange of such services; or
(4) The rendering of home day care services to a relative of an "insured".

Then look at the exclusions in the Liability section, usually the last few pages of the booklet.

E. Coverage E – Personal Liability And Coverage F – Medical Payments To Others
Coverages E and F do not apply to the following:
2. "Business"
a. "Bodily injury" or "property damage" arising out of or in connection with a "business" conducted from an "insured location" or engaged in by an "insured", whether or not the "business" is owned or operated by an "insured" or employs an "insured". This Exclusion E.2. applies but is not limited to an act or omission, regardless of its nature or circumstance, involving a service or duty rendered, promised, owed, or implied to be provided because of the nature of the "business".
3. Professional Services
"Bodily injury" or "property damage" arising out of the rendering of or failure to render professional services;
7. Sexual Molestation, Corporal Punishment Or Physical Or Mental Abuse
"Bodily injury" or "property damage" arising out of sexual molestation, corporal punishment or physical or mental abuse

I suggest she not let another child into the house unless she has the proper insurance. A child can be injured or killed in a moment of inattention. Without the proper insurance your financial future disappears.

Run a search for day care liability insurance. You may find that policies are reasonably priced.

 

[quincy]

Here is a link to information on, and laws that govern, childcare businesses in Florida:

https://www.myflfamilies.com/services/child-family/child-care/child-care-laws-and-requirements

 

[PayrollHRGuy]

Here is a link to information on, and laws that govern, childcare businesses in Florida:

https://www.myflfamilies.com/services/child-family/child-care/child-care-laws-and-requirements

Which has nothing to do with HOA rules and wouldn't override them.

This set of laws on the other hand may be of help.

CHAPTER 720
HOMEOWNERS’ ASSOCIATIONS

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0720/0720.html

 

[quincy]

Which has nothing to do with HOA rules and wouldn't override them.

This set of laws on the other hand may be of help.

CHAPTER 720
HOMEOWNERS’ ASSOCIATIONS

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0720/0720.html

It matters in that, HOA or not, daycares must be licensed and state laws must be followed. An HOA can regulate certain things, like restricting what or whether businesses can operate in their district, but HOAs cannot break state laws.

 

[PayrollHRGuy]

It matters in that, HOA or not, daycares must be licensed and state laws must be followed. An HOA can regulate certain things, like restricting what or whether businesses can operate in their district, but HOAs cannot break state laws.

The HOA isn't trying to run a daycare center so they aren't going to break any of those laws.

 

[quincy]

The HOA isn't trying to run a daycare center so they aren't going to break any of those laws.

 

[Dynamo123]

PayrollHRGuy and Quincy thank you for your attention to this matter.

PayrollHRGuy: The relevant clause is: “…shall constitute a valid residential use for purposes of any local zoning regulations, and no such regulation shall require the owner or operator of such family day care home to obtain any special exemption or use permit or waiver,…”

The phrase, “shall constitute a valid residential use” clearly implies that one may use their property for the purpose of a daycare facility.

The phrase in the by law, “No trade or business shall be conducted nor any commercial use made of any residential lot.” clearly contradicts the state statute in the case of a daycare facility – the state says you can, the HOA says you cannot. You are right in that HOA’s CAN limit properties under their jurisdiction. However there is a critical distinction between limiting a restriction (permission) and contradicting a restriction (permission). For example, suppose an HOA had a gambling facility on their premises for the residents and the state had a regulation that no one under the age of 18 can gamble. The HOA can if they so chose, further restrict the age of gambling on their premises to 21 - this is a further restriction. What the HOA cannot do is pass a bylaw that reduces the gambling age to say 16 – this is a contradiction of the state regulation. In my case the state law specifically says you can run such a facility but the HOA by law says you cannot – a contradiction.

Both you and Quincy also state correctly, “You live under the rules you contractually agreed to in your HOA documents. Your wife’s in-home childcare service violates these rules.” However there is another fundamental principle here in that contracts in violation of the law generally are not enforceable. For example, if party A hires party B to do something illegal, party B does the illegal act, party B cannot then turn around and sue party A for payment – the act was illegal and should not have been done in the first place.

Similarly, the HOA’s by law is illegal – it contradicts the state law which specifically allows such use. As such I should not be bound by an illegal by law – it should not have been adopted in the first place.

It came to our attention by a neighbor who brought it up in a board meeting. The board is discussing whether or not to send us a cease and desist notice.

Is it really the case that there is no case law in Florida testing this state law against what is undoubtedly a common HOA bylaw??

(Somebody mentioned to me the two cases of: 2018 Florida Supreme Court decision, Hernandez v. Crespo and the 2015 Florida appellate court decision, Milhomme v. City of Lauderhill, as supporting my position. Unfortunately I could not locate either of these cases)

 

[PayrollHRGuy]

The LAW is limiting GOVERNMENT action. The Bylaw of the HOA is limiting the act, not the GOVERNMENT.

 

[quincy]

HOAs cannot violate state laws.

HOAs can, however, make rules and regulations that restrict or prohibit their residents from engaging in activities that would be legal under state laws if in a different place, outside the HOA district.

For example, HOAs can prohibit homeowners from operating home businesses through an agreement signed between HOAs and their residents. This is not unlike how cities can prohibit through zoning certain businesses from operating in certain areas.

HOAs can also allow home businesses to operate in their districts through the same signed agreements between the HOAs and the residents.

HOAs cannot, however, permit businesses to operate in violation of state laws. For daycares, that would mean HOAs could permit home daycares but could not eliminate state laws that govern daycares (e.g., licensing, number of children per caregiver, etc).

Your HOA, in other words, can close down a home business operating in violation of their rules and regulations. The state could close down a home business operating in violation of state laws.

 

[adjusterjack]

For example, suppose an HOA had a gambling facility on their premises for the residents and the state had a regulation that no one under the age of 18 can gamble. The HOA can if they so chose, further restrict the age of gambling on their premises to 21 - this is a further restriction. What the HOA cannot do is pass a bylaw that reduces the gambling age to say 16 – this is a contradiction of the state regulation. In my case the state law specifically says you can run such a facility but the HOA by law says you cannot – a contradiction.

While your example is correct, you are comparing apples to elephants and your conclusion is wrong.

For example, if party A hires party B to do something illegal, party B does the illegal act, party B cannot then turn around and sue party A for payment – the act was illegal and should not have been done in the first place.

Again, example correct, but has nothing to do with your situaton.

Similarly, the HOA’s by law is illegal

No, it isn't. Spin it any way you want, but it's not illegal.

HOAs can also allow home businesses to operate in their districts through the same signed agreements between the HOAs and the residents.

That's right. They can allow a business (by exception, not obligation) or they can prohibit a business depending on the nature of the business.

It came to our attention by a neighbor who brought it up in a board meeting.

Yeah, I had a feeling that somebody made a complaint.

The board is discussing whether or not to send us a cease and desist notice.

What have you done about that so far? You've given us 9 yards of why they can't do this or they can't do that. Have you elucidated your position at the board meeting or a subsequent board meeting or with any kind of communication with the board.

Somebody mentioned to me the two cases of: 2018 Florida Supreme Court decision,

That somebody was a lawyer? No?

Hernandez v. Crespo and the 2015 Florida appellate court decision, Milhomme v. City of Lauderhill, as supporting my position. Unfortunately I could not locate either of these cases)

Well, I found Hernandez v Crespo and it's just one more apple compared to your elephant.

Hernandez v. Crespo, 211 So. 3d 19 - Fla: Supreme Court 2016 - Google Scholar

I searched Milhomme and City of Lauderhill with no matches. Doesn't matter. A lawsuit between an individual and a city would have nothing to do with a dispute between a homeowner and an HOA. You would have to search your local court records for the name of your HOA as a party to a lawsuit with a homeowner in the hope that you find something pertinent.

I suggest you review the following articles and see if they help you.

florida lawsuits HOA rules vs local ordinances at DuckDuckGo

 

[quincy]

I have yet to see any real advantage to living in a home that is governed by an HOA.

 

[adjusterjack]

I have yet to see any real advantage to living in a home that is governed by an HOA.

Same here. Have avoided buying HOA homes starting with my first home purchase in 1977.