California Health and Safety Code Sec. 1597.45 (SB 234) makes small (up to 8 children) and large (up to 14 children) family daycare homes a residential use by right, so Daly City cannot require a home occupation or use permit, or impose a business license, fee, or tax, for operating a licensed family daycare home.
Under HSC Sec. 1597.45, 'The use of a home as a small or large family daycare home shall be considered a residential use of property and a use by right for the purposes of all local ordinances, including, but not limited to, zoning ordinances,' and 'A local jurisdiction shall not impose a business license, fee, or tax for the privilege of operating a small or large family daycare home.' Use as a family daycare home is not a change of occupancy for building code purposes. HSC Sec. 1596.78 defines a small family daycare home as caring for eight or fewer children and a large family daycare home as caring for 7 to 14 children, in the provider's own home. These state rules preempt Daly City's home occupation conditions in DCMC Ch. 17.36 for licensed family daycare; providers are licensed by the California Department of Social Services, Community Care Licensing Division. Daly City may only apply health, safety, and building standards that apply uniformly to all residences with the same zoning designation.
A family daycare home still requires a state license from the Department of Social Services; operating an unlicensed daycare is a violation of state licensing law enforceable by CDSS. Local nuisance and uniformly applied building and safety codes continue to apply, but Daly City cannot deny, condition, or charge for the residential daycare use itself.
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