Most childcare providers in California don’t know that Community Care Licensing (CCLD) has a mandatory deadline to respond to appeals. Preschool owners and administrators I’ve spoken with have told me that they have appealed Type A and Type B citations, but CCLD never responded, so they just gave up. But if CCLD fails to decide an appeal on time, that means the citation should automatically be dismissed. Here’s why:
The childcare licensing agency must follow the law
The section of the California Health & Safety Code that lays out the timeline to appeal licensing citations (section 1596.99, among others) says that the licensing agency “shall” notify the facility of its decision on an appeal within a certain number of day. Under California law, “shall” means “must.”
It can be complicated to calculate exactly when CCLD’s deadline would be to respond to your appeal. This is because the “provider appeal rights” includes squishy dates for when the agency can “request” more information, and when you as the provider “may” provide it. It is also complicated because the appeal rights use “business days” and not “calendar days.” Thus, you must not count weekends and holidays when calculating the deadline.
Roughly speaking, CCLD’s deadline will be about 120 business days after you submit your appeal.
What do I do if CCLD misses the deadline?
If the Regional Manager misses their deadline to respond to your first-level appeal, you should contact them and let them know that the citation should automatically be dismissed, and if it’s not, you’ll raise the argument in your second-level appeal. Most CCLD employees are terrified of having their mistakes pointed out to their supervisors, so the Regional Manager may just dismiss your citation. If they don’t though, you should argue in your second-level appeal that the citation should automatically be dismissed because the Regional Manager’s decision was “untimely.” Below is an argument you can copy-and-paste directly into an email to the Regional Manager and/or into your second-level appeal:
Health and Safety Code section 1596.99(k)(1) reads, in relevant part: “The licensee shall be notified in writing of the regional manager’s decision within 60 business days of the date when all necessary information has been provided to the department by the licensee.” Together with the 30 business days CCLD has to request additional information upon receiving an appeal, and the 30 business days a licensee then has to provide additional information, a Regional Manager’s written decision on a timely first-level appeal is due no more than 120 business days from the date the first-level appeal was submitted.
This 120 business day deadline is mandatory under California law. Section 1596.99(k)(1) states that the licensee “shall be notified in writing of the regional manager’s decision within 60 business days[.]” (Emphasis added.). Under California law, the word “shall” creates a mandatory duty. Tarrant Bell Property, LLC v. Super. Ct., 51 Cal. 4th 538 (2011) (“Under well-settled principles of statutory construction, we ordinarily construe the word ‘may’ as permissive and the word ‘shall’ as mandatory, particularly when a single statute uses both terms. In other words, when the Legislature has, as here, used both ‘shall’ and ‘may’ in close proximity in a particular context, we may fairly infer the Legislature intended mandatory and discretionary meanings, respectively.”) (internal quotations and citations omitted); see also, e.g., Cal. Gov’t Code § 14 (“‘Shall’ is mandatory and ‘may’ is permissive.”) Here, the Regional Manager did not provide a written decision until approximately __ business days had passed following the timely submission of the first-level appeal, which is well outside the 120 business day deadline for a timely decision. Accordingly, the Regional Manager failed to comply with the mandatory duty imposed by Health and Safety Code section 1596.99, and the citation issued ___ should therefore be dismissed based on that technicality.
If the Program Administrator denies your second-level appeal (or if they’re the one that misses their deadline to respond), there’s a third level level of appeal that CCLD doesn’t tell providers about–a petition for writ of mandate, filed in state court. That appeal, however, typically requires the assistance of a lawyer.
Get the Licensing Appeal Kit.
Researched & written by a lawyer and preschool owner, for childcare providers.
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Step-by-Step Guide to Appeal Licensing Citations (eBook only)
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