Rush v. Obledo

• Decision Date: 28 March 1985
• Docket Number: No. 83-2623,83-2623
• Parties: Kathleen RUSH, Eleanor Fraser and San Mateo County Daycare Association, Plaintiffs-Appellees, v. Mario OBLEDO, Secretary of California Health and Welfare Agency, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 713

756 F.2d 713

Kathleen RUSH, Eleanor Fraser and San Mateo County Daycare Association, Plaintiffs-Appellees, v. Mario OBLEDO, Secretary of California Health and Welfare Agency, et al., Defendants-Appellants.

No. 83-2623.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 4, 1984.

Decided March 28, 1985.

Louis E. Wolcher, Pettit & Martin, Marcia Rosen, Kathleen Murray, San Francisco, Cal., for plaintiffs-appellees.

Stephanie Wald, Deputy Atty. Gen., San Francisco, Cal., for defendants-appellants.

Appeal from the United States District Court for the Northern District of California.

Before FERGUSON and NELSON, Circuit Judges, and JAMESON, ^* District Judge.

FERGUSON, Circuit Judge:

In this case the issue is whether California state statutes and regulations permitting warrantless inspections of family day care homes violate the Fourth Amendment to the United States Constitution, enforceable against the states through the Fourteenth Amendment. Concluding that the vital governmental interest in the protection of children furthered by warrantless inspections is paramount, and that the regulation of family day care homes is sufficiently pervasive so "that the owner of such a facility cannot help but be aware that he 'will be subject to effective inspection,' " Donovan v. Dewey, 452 U.S. 594, 603, 101 S.Ct. 2534, 2540, 69 L.Ed.2d 262 (1981) (quoting United States v. Biswell, 406 U.S. 311, 316, 92 S.Ct. 1593, 1596, 32 L.Ed.2d 87 (1972)), we hold that properly limited warrantless inspections of family day care homes fall within the "pervasively regulated business" exception to the warrant requirement and thus do not violate the Fourth Amendment. United States v. Biswell, 406 U.S. 311, 316, 92 S.Ct. 1593, 1596, 32 L.Ed.2d 87 (1972). See Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970).

I. FACTS

In 1981, plaintiffs, an operator of a licensed family day care home and an association of licensed family day care providers, brought suit seeking a declaratory judgment that a California state statute ¹ and its implementing regulation ² which permit warrantless inspections of family day care homes were unconstitutional. They also sought an injunction against further warrantless inspections under these provisions. The district court, concluding that such warrantless searches of family day care homes were not justified either under the "pervasively regulated business" exception to the warrant requirement or on a general "reasonableness" basis, held that the challenged statute and regulation violated the Fourth Amendment and enjoined further warrantless inspections of family day care homes. Rush v. Obledo, 517 F.Supp. 905 (N.D.Cal.1981).

The state appealed to this court and also requested a stay of the injunction pending appeal. The request for a stay was denied. While the appeal was still pending, the California Legislature enacted new statutes governing licensing and operation of family day care homes, Cal.Health & Safety Under the new scheme, the statute which plaintiffs had originally challenged was made inapplicable to family day care homes. ³ Under a newly-enacted section, Cal.Health & Safety Code Sec. 1597.55, unannounced inspections were limited but were made mandatory for the renewal of a license and were required annually for ten percent of all licensed family day care homes. ⁴ The new statutory scheme applied only to homes providing care to more than one family other than the caregiver's, Cal.Health & Safety Code Sec. 1597.51(b), removed all criminal sanctions for violation of statutes and regulations, and limited warrantless searches to areas of the home in which family day care services are provided or to which the children have access. 22 Cal.Admin.Code Sec. 88030(a)(2). Finding these factors relevant to the district court's decision, this court remanded the case to the district court for consideration of the constitutionality of the amended statutory and regulatory scheme.

Code Secs. 1597.50-1597.65, and the California Department of Social Services (the "Department") issued new implementing regulations. 22 Cal.Admin.Code Secs. 88001-88038.

On remand, the district court permitted additional discovery and conducted a hearing on the parties' cross-motions for summary judgment. The court reaffirmed its previous decision by holding that the new regulatory scheme continued to violate the Fourth Amendment by permitting warrantless searches which unreasonably intruded upon the privacy of the home; but because of the removal of criminal penalties from the statutes, the court altered its prior decision by lowering the standard for the issuance of warrants, which it had previously imposed, to one requiring probable cause as defined for administrative searches in Marshall v. Barlow's, Inc., 436 U.S. 307, 320-21, 98 S.Ct. 1816, 1824-25, 56 L.Ed.2d 305 (1978). The Legislature, however, subsequently reinstated criminal penalties. Cal.Health & Safety Code Sec. 1597.63. When the district court became aware of the legislative action, it filed an amended decision which provided that in cases where family day care providers are subject to criminal sanctions, warrantless searches and standards for issuance of warrants must meet criminal search requirements.

The state again appealed to this court. While the appeal was pending, the California Legislature again enacted new statutes governing child day care facilities, including family day care homes. The statutes presently in effect retain section 1597.55 in The existing regulations promulgated by the Department, which limit section 1597.55, remain in effect until new ones are adopted or until July 1, 1985, whichever comes first. Cal.Health & Safety Code Sec. 1596.81(b). Neither these regulations nor any others, to our knowledge, limit exercise of inspection authority under section 1596.852.

                force, eliminate the exemption for homes providing care to children with less than one family other than the caregiver's, and continue the provisions for criminal penalties.  The most significant change in the new statute was the enactment of section 1596.852, which broadly authorizes unannounced inspections. 5   Indeed, this case has come full circle, for the text of section 1596.852 is identical to the language initially challenged by the plaintiffs. 6
                

II. THE CALIFORNIA REGULATORY SCHEME

Recognizing that "affordable, quality licensed child care is critical to the well-being of parents and children" and that "good quality child day care services are an essential service for working parents," the California Legislature enacted statutes governing the licensing of child day care facilities and the health and safety conditions therein. Cal.Health & Safety Code Secs. 1596.72(e), 1596.73(e). See id. Secs. 1596.70-1597.65. Child day care facilities include day care centers and family day care homes. Id. Sec. 1596.750. This case involves only family day care homes.

Family day care homes are very different from institutional day care centers. A family day care home is a private residence in which care, protection, and supervision are regularly provided for periods of less than twenty-four hours per day for twelve or fewer children while their parents or guardians are away. Cal.Health & Safety Code Sec. 1596.78. The person who owns and operates the family day care home is called the "provider." Id. Sec. 1596.791. Generally, the provider is a mother caring for her own children in her home who also undertakes to care for others' children for compensation. The California Legislature has expressly manifested its intent to preserve a traditional home environment in family day care homes and requires that such homes be situated in normal residential surroundings. Cal.Health & Safety Code Sec. 1597.40(a).

Family day care homes must be licensed by the State and are subject to health and safety requirements with respect to their interiors and yards. See Cal.Health & Safety Code Secs. 1596.80, 1597.52, 1597.53, 1597.54; 22 Cal.Admin.Code Sec. 88028. The Department is authorized by statute to establish, administer and monitor a licensing program for family day care homes in accordance with the statutory licensing requirements for such facilities, Cal.Health & Safety Code Sec. 1596.871 (previously Sec. 1597.51), and to adopt such rules and regulations as may be necessary to carry out the provisions of the statutes governing child day care facilities. Id. Sec. 1596.81(a).

Two separate provisions of California law authorize unannounced inspections. Section 1597.55 of the California Health and Safety Code requires the Department to make warrantless inspections of family day care homes in four different situations: (1) prior to the initial licensing of a provider, (2) for the renewal of a license, (3) on the basis of a complaint and a follow-up visit to assure any violation has been corrected, and (4) for the mandatory annual inspection of ten percent of all licensed family day care homes. Cal.Health & Safety Code Sec. 1597.55(a), (b), (d), (e). Under this statute, unannounced visits may be made at any time. Id. Sec. 1597.55(e). Another

statute, section 1596.852, authorizes any officer, employee, or agent of the Department to enter and inspect any place providing personal care, supervision, and services at any time, with or without notice, to secure compliance with, or to prevent a violation of, any applicable statute. Id. Sec. 1596.852. See also id. Sec. 1596.71.

III. ANALYSIS UNDER THE FOURTH AMENDMENT

We now consider the plaintiffs' contention that warrantless inspections of family day care homes as authorized by these California statutes violate the Fourth Amendment as applied to the states through the Fourteenth Amendment. ⁷ We review decisions granting summary judgment de novo. National Union Fire Insurance Co. v. Argonaut Insurance Co., 701 F.2d 95, 96 (...