Denial of License

101205

(a) Except as specified in Section 101181, which provides for issuance of a provisional license based upon substantial compliance, the Department shall deny an application for a license if the applicant is not in compliance with applicable laws and regulations. The Department shall issue the denial in accordance with Health and Safety Code Section 1597.11.

(1) The Department shall deny an application if the applicant fails to pay any civil penalty assessments, unless payment arrangements acceptable to the Department have been made.

(2) The Department may deny an application for licensure or revoke a license if the applicant/licensee, staff and/or volunteers violate Health and Safety Code Section 1596.885.

(A) Section 1596.885 of the Health and Safety Code states:

"The department may deny an application for or suspend or revoke any license, registration, or special permit issued under this act upon any of the following grounds and in the manner provided in this act:

"(a) Violation by the licensee, registrant, or holder of a special permit of this act or of the rules and regulations promulgated under this act.

"(b) Aiding, abetting, or permitting the violating of this act or of the rules and regulations promulgated under this act.

"(c) Conduct which is inimical to the health, morals, welfare, or safety of either an individual in or receiving services from the facility or the people of this state.

"(d) The conviction of a licensee, or other person specified in Section 1596.871, at any time before or during licensure, of a crime as defined in Section 1596.871.

"(e) Engaging in acts of financial malfeasance concerning the operation of a facility, including, but not limited to, improper use or embezzlement of client moneys and property or fraudulent appropriation for personal gain of facility moneys and property, or willful or negligent failure to provide services for the care of clients."

(3) The Department shall deny an application for licensure for grounds specified in Health and Safety Code Section 1596.952(b).

(A) Health and Safety Code Section 1596.952(b) states:

"(b) The department shall not issue a provisional license or license to any corporate applicant that has a member of the board of directors, the executive director, or an officer who is not eligible for licensure pursuant to Section 1596.851 and 1596.8898."

(4) An application shall not be denied solely because the applicant is a parent who has administered or will continue to administer corporal punishment not constituting child abuse, as defined in Penal Code Section 11165(g) or Health and Safety Code Section 1531.5(c), on his/her own child(ren).

(A) Section 11165, subdivision (g) of the Penal Code states:

Child abuse means a physical injury which is inflicted by other than accidental means on a child by another person. Child abuse also means the sexual assault of a child or any act or omission proscribed by Section 273a (willful cruelty or unjustifiable punishment of a child) or 273d (corporal punishment or injury). Child abuse also means the neglect of a child or abuse in out-of-home care.

(B) Section 273(a) of the Penal Code states:

Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of such child to be injured, or willfully causes or permits such child to be placed in such situation that its person or health is endangered, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison for 2, 4 or 6 years.

Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of such child to be injured, or willfully causes or permits such child to be placed in such situation that its person or health may be endangered, is guilty of a misdemeanor.

(C) Section 273(d) of the Penal Code states:

Any person who willfully inflicts upon any child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for 2, 4 or 6 years, or in the county jail for not more than one year.

(D) Section 1531.5(c) of the Health and Safety Code states:

Child abuse means a situation in which a child suffers from any one or more of the following:

1. Serious physical injury inflicted upon the child by other than accidental means.

2. Harm by reason of intentional neglect or malnutrition or sexual abuse.

3. Going without necessary and basic physical care.

4. Willful mental injury, negligent treatment, or maltreatment of a child under the age of 18 by a person who is responsible for the child's welfare under circumstances which indicate that the child's health or welfare is harmed or threatened thereby, as determined in accordance with regulations prescribed by the Director of Social Services.

5. Any condition which results in the violation of the rights or physical, mental, or moral welfare of a child or jeopardizes the child's present or future health, opportunity for normal development, or capacity for independence.

(b) If an application is denied, the Department shall inform the applicant of the denial in writing.

(1) The notice shall include the reasons for the denial. The notice shall also advise the applicant of the right to appeal as provided for by Health and Safety Code Section 1596.879.

(c) If the application for a license is denied, the application processing fee shall be forfeited.

(1) Health and Safety Code Section 1596.879 provides in part:

Immediately upon the denial of any application for a license or for a special permit, the department shall notify the applicant in writing. Within 15 days after the department mails the notice, the applicant may present his or her written petition for a hearing to the department. Upon receipt by the department of the petition, the petition shall be set for hearing. The hearing 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.

(2) Health and Safety Code Section 1596.887 provides in part:

Proceedings for the suspension, revocation, or denial of a license under this chapter 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.

In all proceedings conducted in accordance with this action, the standard of proof to be applied shall be the preponderance of the evidence.

(d) Notwithstanding any appeal action, the child care center is unlicensed and shall not operate pending adoption by the Director of a decision on the denial action.

NOTE: Authority cited: Section 1596.81, Health and Safety Code. Reference: Sections 1596.81, 1596.856, 1596.885, 1596.891, 1596.95, 1596.952(b), and 1597.05, Health and Safety Code; and Sections 15374 and 15376, Government Code.