This morning, the Colorado Senate on a 32 to 1 vote, passed Senate Bill 20-126 (“SB 126”) on third reading. Senators Tammy Story (D-Boulder, Denver, Gilpin and Jefferson Counties) and Jim Smallwood (R-Douglas County) are the primary sponsors of the bill and introduced this bipartisan piece of legislation to require HOAs in Colorado to permit the existence of licensed family child care homes in their communities.
These sponsors claim that SB 126 is necessary because many HOAs across Colorado prohibit residents from having day care businesses in their homes and since so many folks live in HOAs in Colorado, this has created a day care desert. In particular, SB 126 provides that regardless of whether there are prohibitions on day care businesses in the declaration, bylaws or rules and regulations of an HOA, as a matter of public policy, HOAs cannot prohibit the operation of licensed day care homes in their communities.
It is true that it is not uncommon for HOAs in Colorado to prohibit day care businesses in their communities. This is largely because of the potential liability to the HOAs associated with these businesses, the noise related nuisances that day cares can create and the fact that the common elements and amenities of HOAs are intended for the use of the residents of the HOAs. The parks, tot lots, swimming pools and other amenities of HOAs, were never intended to become overcrowded by children in day care who do not live in these communities. In addition, kids will be kids, and it is not uncommon for them to be hurt while using slides, swings, swimming pools or just tripping over a curb.
Luckily for HOAs in Colorado, Senator Angela Williams recognized the risk of kids in day care being hurt on the common elements and while using the amenities and was adamant that this liability should rest with the owners and operators of these day care businesses and should not be passed onto the HOAs. As a result, Senator Williams passed an amendment on the floor of the Senate which permits HOAs to require the owners and operators of day care businesses to carry liability insurance coverage and that the coverage shall name the HOA as an additional insured and be primary over the liability coverage which the HOA carries.
SB 126 will now move over to the Colorado House of Representatives for consideration. We expect the bill to pass the House and ultimately be signed into law. Keep an eye out on this blog for updates on SB 126 and for recommendations on how to address the requirements of this legislative, if it is signed into law.