How to Appeal Childcare Licensing Citations in California

A step-by-step guide for appealing Type A and Type B childcare licensing citations in California

The Licensing Appeal Guide

A Quick Note Before We Start

I’ve written this guide as a general resource to help childcare providers feel prepared to appeal Type A and Type B licensing citations. I’ve tried to include as much detail and specific advice as possible, but the information in here will not be applicable to every individual citation or situation. You should always closely follow the appeal rights provided with the citation to ensure that your appeal is submitted and handled correctly for your individual situation.

I am an attorney licensed to practice law in California, and this guide does contain insight and information into how childcare providers can protect and assert their legal rights. However, nothing in this guide is “legal advice” for any specific person or entity, and providing this guide to you does not create any “attorney-client relationship” between the author and anyone reading this guide.

If you’d like to get in touch, whether about something in this guide or for potential assistance with your own matter, please feel free to email me directly.

Introduction

I’m a Lawyer & Preschool Owner

Hi, I’m Howard Wu. In 2010, I graduated cum laude from th/e University of Pennsylvania Law School in Philadelphia, Pennsylvania. That same year, I met my future wife, Bridget. When we met, Bridget was working as a preschool teacher, and I saw immediately that she possessed incredible knowledge and passion for early childhood education.

After graduation, Bridget and I moved together to San Diego, where I began working as a civil litigation attorney at Latham & Watkins, one of the world’s largest law firms. Bridget spent just over a year teaching at a preschool in San Diego. Then in 2012, we opened Aspen Leaf Preschool together. In 2016, we opened our second location. In 2020, we opened our third and fourth locations.

During the time we’ve owned Aspen Leaf, I continued to work full-time as a litigation attorney, while also handling administrative and legal matters for the preschools, such as negotiating leases, handling payroll and insurance, and dealing with Community Care Licensing (“CCLD” or “Licensing”).

Helping Others & Reforming CCLD

I believe that childcare centers must be licensed and regulated. It is important that families know that the centers they send their children to meet some minimum standards for health and safety.

The problem is, CCLD as it currently exists is an agency that has clearly lost sight of its mission. The law that created CCLD begins by saying that the agency “shall not” review “the content of any educational or training program” in childcare centers, which means CCLD has no concern for the quality of the education preschools provide. Instead, the agency operates essentially as law enforcement, tasked only with enforcing the licensing regulations. On that front, the bureaucracy at CCLD has adopted many regulations that do nothing for health, safety, or quality. Moreover, because CCLD’s mission has always been centered around enforcement, its Licensing Program Analysts (“LPAs”) and Regional Managers are incentivized to see issuing citations as the mission, rather than serving the children, families, or providers.

Meanwhile, most childcare centers are small businesses, whose owners typically have no background in law, and who lack the time and resources to hire attorneys when CCLD oversteps. Thus, CCLD is rarely held accountable when it issues citations it shouldn’t, when it tries to enforce rules that don’t exist, or when it abuses its authority.

These factors have combined to create a toxic culture at CCLD. Its employees are hostile towards accountability and expect childcare providers to simply obey without question. The agency’s inspections of the state’s best preschools have become nothing but citation-hunting expeditions. The agency and its employees refuse to admit when they make a mistake, let alone apologize. And worst, when a center attempts to hold the agency accountable to its obligations under the law, the agency often retaliates, without regard for the harm done to children, families, the centers, or taxpayers.

I Disputed CCLD’s Authority & CCLD Retaliated

There is a law in California called the Administrative Procedures Act (the “APA”), which says that one agency cannot enforce another’s agency’s “guideline, order, or rule” until it first adopts that other agency’s rule as its own “regulation.”

During the COVID pandemic, the state Department of Public Health issued a statewide mask mandate in its “Guidance for the Use of Face Coverings.” CCLD exists in the Department of Social Services, so CCLD is a separate agency from the Department of Public Health. Thus, if CCLD wanted to enforce the Department of Public Health’s mask guidance, the APA required CCLD to first adopt the mask mandate as its own regulation. CCLD never did.

We took COVID seriously at Aspen Leaf and implemented many science-based policies to keep COVID out of the preschools and to reduce the risks of transmission. From the beginning, we saw that requiring masks on the children wouldn’t help achieve either goal. Why? Because children cannot wear masks when sleeping or eating. At full-day preschools like ours, that’s over three hours every day when the children could not be masked. Based on all the data on how COVID spread, it was clear that requiring masks on the children at other times wouldn’t reduce any of the risks, given the 3+ hours of daily unmasked time.

We therefore didn’t require masks inside our preschools, despite the mandates. We were open and transparent about why—we put our policy (and our reasoning) on our website. Because CCLD never adopted a regulation to enforce the Department of Public Health’s mask guidance, my legal opinion was that CCLD had no authority to enforce the mask mandates and thus couldn’t issue a licensing citation for failing to require masks. (If a sheriff’s deputy had come by to enforce the mask mandate, we would have complied, as the sheriff’s department did have jurisdiction to enforce the Department of Public Health’s mandate.)

CCLD inspected our preschools several times while the mask mandates were in place. Each time, the LPAs saw that we were not requiring masks, told us masks were required, but never issued a citation. That affirmed my theory that CCLD knew it didn’t have jurisdiction to enforce the mask mandates.

Then in January 2022, one parent complained to CCLD about the lack of masks at one of our locations. The LPA who had inspected that same location just a few weeks earlier telephoned me to instruct me to require masks at that location. I explained to her the scientific reasons why we weren’t requiring masks, and the legal reasons why CCLD lacked authority to enforce the mask mandate. I also said that I understood that she was only doing her job and that she might have to issue us a citation, in which case I would make my legal argument through the appropriate appeal process.

CCLD can’t tolerate being told that it “lacks authority” to do something, because a week later, CCLD retaliated against us in force. LPAs raided all of our locations simultaneously and spent four to six hours “investigating” something that was public information. The LPAs photographed and interviewed children and issued each location a Type A citation for failing to follow the mask guidance. They also delayed the licensing of one of our new locations, thus depriving us of the income we were ready to take in from families who were ready to enroll. The raids—and especially the child interviews—were clearly retaliatory and a flagrant abuse of authority, given that we were open and honest about our policy on masks.

CCLD’s actions were so egregious that it made national and even international news. CCLD has never provided a single explanation about why they felt the need to interview children, despite hundreds of inquiries from parents, media, and even elected state officials.

I immediately appealed all four citations through the normal process. I also filed an emergency “petition for writ of mandamus” in state court, which asked the court to rule that CCLD had no jurisdiction to enforce another department’s mask guidance because CCLD had never adopted a regulation to do so, as required by the Administrative Procedure Act. One week before the deadline for CCLD to respond in court, CCLD dismissed every citation they issued against us.

When our ordeal received media attention, I heard from a couple dozen preschool owners and administrators who shared their own stories of times that CCLD overstepped, retaliated, or abused their authority. Most of them told me that they knew at the time that CCLD was in the wrong, but they didn’t know how to fight back and that it would have been too expensive to hire a lawyer.

I decided I needed to help.

Avoiding Citations Is the Best Legal Strategy

I hope you never have to use this guide. As I said, I believe it’s important that childcare centers be licensed and regulated, and while some of the regulations are pointless or even counterproductive, it is nevertheless the law that providers follow all the regulations in Title 22 of the California Code of Regulations. The best way to do so is to make sure your directors and teachers are familiar with all the relevant regulations in Title 22, and to establish systems and processes to ensure that they’re followed. For example, at Aspen Leaf, we have checklists that we staple into every child and teacher folder so we can easily ensure that our students and teachers have every piece of required paperwork. (The checklists are included in the Licensing Appeal Kit you’ve purchased.)

Sometimes though, following the law isn’t enough to avoid a citation. Often, LPAs will try to enforce rules that don’t exist in Title 22 and will issue a citation when a provider fails to comply. The best way to avoid citations for these nonexistent rules is to push back politely but firmly in the first instance. If an LPA tries to tell you do something that you don’t think is required by Title 22, simply ask, “Can you please point me to the Title 22 regulation that requires us to do that?” This is simple and nonconfrontational. I have asked this question to LPAs numerous times over the years when I was confident that what they were telling us to do was not a requirement in Title 22. Usually, the analysts have said something like, “I’ll email you the regulation number when I get back to my desk,” but then never do (because the regulation did not exist) and then they never bring up their request again.

During orientations and trainings, CCLD itself will often recommend that providers ask, “Is that a rule or a recommendation?” when the provider suspects they are being asked to do something that Title 22 does not require. That question is fine and often effective, but if the analyst tells you it’s “a rule,” I still recommend that you ask them to point you to the specific Title 22 regulation.

Appealing Type A & Type B Citations

Overview

When CCLD issues a licensing citation (also referred to as a “deficiency”), the LPA will give you a copy of the citation report and a document called “Appeal Procedures for Applicants/Licensees” (form LIC9058). According to the Appeal Procedures, there are two different appeal paths depending on the situation—one procedure for any “Civil Penalty for Death, Serious Bodily Injury/Serious Injury or Physical Abuse” and a separate procedure for “Any other Civil Penalty or Deficiency.” This guide is focused on the second—"Any other Civil Penalty or Deficiency”)—which are the majority of citations issued against providers.

First, I need to emphasize how important it is to follow the rules for your appeal, especially the rules regarding timing. Failing to follow the rules can mean that you give up the right to challenge CCLD’s action, even if you have proof that CCLD was in the wrong. Following the rules is also necessary if you wish to challenge CCLD’s actions in state court. One important legal principle when challenging a state agency is that you must first “exhaust administrative remedies” before you can file a lawsuit or petition in court, which means that you went through all the procedures available at the agency to appeal your citation before you filed in state court.

For the Type A and Type B citations I’m addressing here (those not involving death, serious injury, or physical abuse), the first appeal is sent to the Regional Manager for your local CCLD Regional Office. If the Regional Manager denies your appeal, you can submit a second appeal to the Program Administrator in Sacramento. If that appeal is denied, you have “exhausted” your administrative remedies, and your next level of appeal would be in state court.

The “Secret” Third Level of Appeal - Superior Court

The Appeal Procedures say that the second level of appeal to the Program Administrator “is considered final, and concludes the licensee’s administrative appeal rights.” This wording can be misleading because it causes a lot of providers to think there’s nothing more they can do if the Program Administrator denies their appeal. In fact, there is another step—you can appeal in state court by filing a “petition for writ of administrative mandamus.”

A petition for writ of administrative mandamus (aka “petition for writ of mandamus” or “petition for writ of mandate”) is filed in California superior court, where normal civil lawsuits are filed. Every county in California has a superior court, and each superior court has numerous judges. The California Code of Civil Procedure is the set of rules that governs every aspect of a lawsuit, from how to file a complaint to how much time each side has to request documents and respond to document requests. The Code of Civil Procedure also has dozens of rules about exactly what has to be included in a petition for writ of mandamus (starting with C.C.P. section 1084). Each superior court also has its own set of rules, known as the “local rules.” These local rules typically cover things like page limits, font size, line numbering, and how specifically to submit documents to the judge.

The point is: I believe that nearly every provider is capable of writing and submitting first- and second-level appeals with CCLD on their own, without the assistance of an attorney. As I discuss below, the rules for first- and second-level appeals are straightforward. A petition for writ of mandamus, on the other hand, is a genuinely complex legal filing. Non-lawyers are allowed to represent themselves or their businesses in court even if they’re not licensed to practice law, and it is possible for a non-lawyer who is diligent and resourceful to put together a petition for writ of mandamus on their own. However, if your second-level appeal is denied and you want to appeal further, I do highly recommend an attorney to handle your petition for writ of mandamus.

You Need to Comply While Your Appeal Is Pending

If CCLD issues a citation you believe they had no right to issue, it is important to still “correct” the citation and continue to comply while your appeal is pending, because appealing a licensing citation does not pause the deficiency. (See Title 22 section 101196(a)(2) (“If the review is of a deficiency that has not been corrected, civil penalties continue to accrue during the review process.”).)

If you eventually win your appeal, it may seem unfair that you’ll have had to comply for months while waiting for a decision. Unfortunately, that’s just the reality of the law. If you continually refuse to comply, CCLD can escalate its penalties against you, and can even shut you down. If you win your appeal, you may be able to sue CCLD for the money you lost because they shut you down (more on this below), but in the meantime, you, your teachers, your students, and your families will have suffered because you were shut down. Nobody wants that. Thus, the best approach is to: (1) show CCLD that you’re complying and cooperating; (2) win your appeal; then, (3) with a victory in hand, sue the agency for any financial losses they caused you.

Evidence

Unless your argument is purely about the legal interpretation of a regulation, you will likely need to include evidence with your appeal. Exactly what evidence you’ll need will obviously depend on the specific facts and circumstances of your case, but there are some general guidelines to follow to make sure you’re saving or can assemble the evidence you might need.

Keep Written Records

Whenever possible, do everything in by email:

If you mail, fax, or drop off documents to licensing, email a copy as a PDF to your LPA and say, “I just [mailed/faxed/dropped off] the attached.” This creates a timestamped record that you sent the document.
If an LPA tells you something in person or over the phone, and that information is something you’ll be relying on, send a follow-up email that says, “Just writing to confirm what we discussed, which is that __.”
For difficult situations or decisions regarding children or families, send recaps by email.
If one of your employees witnesses something that might be relevant to a dispute in the future, have them send you an email immediately simply detailing what they observed (or if you were the witness, send an email to yourself). This creates a timestamped, contemporaneous account of the incident.

Keep Documents Organized & Easy to Find

Attorneys actually spend most of their time organizing documents. The ability to keep track of a huge number of documents, and to have a system for knowing which document is relevant for which issue, is actually most of what goes into preparing to take a lawsuit to trial.

Sometimes licensing citations involve allegations from months or even years ago. So it’s important not only to save documents but also to be able to find them. If you don’t already have a robust system for organizing documents, here are a few recommendations:

Create a folder in your computer where you save documents related to your center (if you have multiple centers, have multiple folders). It can help to have some (but not too many) sub-folders, for things like Licensing, Correspondence with Families, Teacher HR, etc.
Name documents with YYYY-MM-DD timestamps and a descriptive name to make things easier to find.
Ex: If you send a letter to licensing asking for a playground waiver, save the document as: 2023-01-23 ltr to licensing re playground waiver
As recommended above, email things to yourself. Make sure your email account is not set to automatically delete all documents after a certain period of time.

How to Find Evidence of Disparate Treatment by CCLD

One of the most common and most successful arguments you can make on appeal is to argue that, in issuing the citation, the agency treated you more harshly than it has treated other providers in similar situations. In my personal experience, the agency will always vehemently deny this, but it’s often true that LPAs and Regional Offices treat the same situations differently.

The way to succeed in making this argument is to accumulate undeniable evidence that CCLD has treated other providers differently—by presenting the agency with copies of its own reports. Fortunately, this evidence is readily available. Unfortunately, it takes a lot of time and effort to assemble it. Here are the steps for doing so:

Download CCLD’s database for Child Care Centers or Family Child Care Homes (whichever applies to you).
Look at your citation report and make a note of the Title 22 section that the LPA noted as the basis for the deficiency. Now search the spreadsheet (e.g., use CTRL-F) for that section. (E.g., if CCLD cited your facility for violating section 101223(a)(3), search the spreadsheet for “101223(a)(3)” or perhaps just “101223”).
Whenever you find a facility that was cited for the same Title 22 section, make a note (perhaps in a separate spreadsheet) of the facility number and the date of the citation.
Once you have your list, use CCLD’s Facility Search webpage and search for each facility using the facility number, search for each facility. In the “Reports” tab, download the report(s) that are closest to the date of the citation.
Read the report to find out if the citation was issued under similar facts.

This strategy works especially well if you’ve been issued a Type A citation, and you want to prove that CCLD typically issues Type B citations for the same issue. That’s because CCLD’s database lists the Title 22 section for citations it has issued. It takes much more effort to identify reports in which CCLD observed similar situations but issued no citation. It is possible, however, by doing the following:

Download the same facility database and sort the spreadsheet by Regional Office. Then, find all the facilities covered by your same Regional Office.
One by one, look up each facility in the Facility Search webpage and review all the reports to look for references to the same facts.

When I was appealing CCLD’s citations against us for not requiring masks on children, I used this method to download every single facility report that CCLD issued across all of California from April 2020 (the beginning of the pandemic) through the present. I then hired a few document reviewers to help me review every report. We put any report that mentioned “masks” or “face coverings” into a Google Drive folder. I then reviewed all of them one by one, and kept a spreadsheet that tracked how many times CCLD issued a Type A, Type B, or no citation at all. I provided this spreadsheet to the Regional Office within 30 business days after they requested any additional documents from us. I also printed out every licensing report, so that the pile of documents I dropped off to the Regional Office contained over 1,000 pages.

Expert Witnesses

Some citations can be defeated by bringing in an expert to explain in writing why the LPA was wrong to issue a citation. For example, an LPA once issued a Type B citation to one of our preschools when the LPA saw a photo of a four-year-old student using a public playground structure, where a nearby sign said the playground was “designed for children ages 5 to 12.” This was silly. Such signs are guidelines, not hard legal rules. Moreover, the four-year-old was the only child on the structure, was fully capable, and a teacher was nearby. After some research, I learned that playgrounds are designed using safety standards and best practices issued by an organization called ASTM International. I found a local inspector certified by ASTM International to inspect playground equipment (he typically inspected playground equipment installed at apartment complexes so the city would sign off on the project). He provided us with a report that explained how the ASTM safety standards “are not designed to limit activity based solely on age or birthdate” and “these ‘cut-off age’ separations are guidelines and not hard/fast rules.”

In instances where CCLD is referring to guidelines or standards outside Title 22 (and misinterpreting or misapplying them), it can be helpful (and surprisingly affordable) to find an expert who will write a short letter correcting CCLD’s understanding.

How to Write & Submit a 1st-Level Appeal

Providers have told me that they feel intimidated by the appeal process because it seems “too legal.” They worry that there are specific legal phrases that are required and they aren’t sure how to articulate their arguments in the right “legal way.” Don’t be intimidated. For the first- and second-level appeals, you just need to submit something in writing. There are no special forms or legal citations required.

The templates included in your Appeal Kit give you a basic template for putting together your appeal, but an appeal can be as simple as a letter with a single sentence: “We are appealing this citation because it was improperly issued.”

Determine the Reason(s) the Citation Should Not Have Been Issued

The first step in putting together your appeal is to identify the reason (or reasons) that the citation issued against your center should be reduced or overturned. This will of course depend on the individual facts and circumstances, but there are a few frameworks you can use to approach any citation. Generally speaking, there are three types of arguments you can make on appeal:

The LPA got the facts
The LPA incorrectly interpreted the regulation.
The LPA incorrectly concluded that enough evidence supported a complaint.

Arguing the Facts

When the LPA gets the facts wrong, the appeal tends to be easy to write because you simply have to explain the correct facts. The basic template for writing a fact-based argument is short and straightforward: “LPA issued this citation after concluding that __. However, that was not actually true. In fact, __.”

Example: LPA issued this citation after concluding that the center lacked a carbon monoxide detector. However, that was not actually true. In fact, the carbon monoxide detector was plugged in behind a bookcase in the entrance, which the teacher who showed LPA around did not realize. Attached is a photograph of the detector in its location, and a copy of the receipt showing it was purchased long before the inspection.

Arguing the Regulation

One of the last pages of your citation report will have a table that lists the “Deficiency Type, POC Date / Section Number” in one column, and “Deficiencies” in the next column. It will look like this:

The first column will list the regulation in Title 22 the LPA believes the center violated. In the “Deficiencies” column, the LPA will have a short summary of how the center allegedly violated that regulation.

Even if the LPA has the facts correct, the citation might still be improper if:

The regulation does not actually prohibit the thing the LPA observed (or does not require the thing the LPA said was required); or
The facts observed do not rise to the level of violating the regulation.

Though every citation is unique, there is a basic template you can use to organize and write your appeal if you believe the LPA applied the regulation incorrectly. I call the template “CRAC”:

Conclusion – state your position clearly and concisely.

Rule – state the rule or regulation at issue.

Application – apply the rule to the facts at hand.

Conclusion – reiterate your position about why the citation was wrong.

Here is an example of how to use the CRAC template:

LPA issued a Type A deficiency because our center had not yet requested that Sally Smith’s criminal record clearance be transferred and associated with our center. The citation should be overturned because a physical copy of Ms. Smith’s criminal record clearance was in her file and available on the premises at the time of LPA’s inspection, as LPA acknowledged. [CONCLUSION]

LPA’s report cites section 101170(e)(2) of Title 22, and states that section requires centers to request a transfer of a criminal record clearance from another facility prior to starting work at the new center. However, that interpretation of section 101170(e) is too narrow. In fact, section 101170(e) states that a facility must request a transfer of a criminal record clearance or “obtain a California clearance or a criminal record exemption.” [RULE]

Here, we acknowledge that our center had not yet requested that Ms. Smith’s criminal record clearance be transferred and associated with our center. However, Ms. Smith had obtained the California criminal record clearance. The documentation was in her file, which the LPA reviewed. [APPLICATION]

Thus, because Ms. Smith did have a criminal record clearance, and because evidence of that criminal record clearance was on site and available for inspection in Ms. Smith’s file, our center did comply with section 101170(e). The citation issued was therefore improper, and we respectfully appeal the citation and request it be overturned. [CONCLUSION]

One of the trickiest arguments to put together, though, is when the LPA technically did get the facts right, but that as a practical matter, the facts really did not rise to the level of a violation. This most often happens when CCLD is trying to retaliate or is just hunting for a pretext to punish a center or shut the center down. This sounds dramatic, but it happens more often than people may think. For example, here is a type B citation issued to a facility in June 2021 because of “a dead fly” and “trash by the shed outside”:

The LPA cited a section of the Title 22 that requires providers to “keep the center free of flies, other insects, and rodents.” So technically, yes, the regulation requires a center to be “free of flies” and the LPAs found a fly. But issuing a citation for a single dead fly? I’m sure you could find a single dead fly in even the cleanest preschools, the cleanest hospitals, or the cleanest laboratories in the state.

If CCLD issues you a citation that technically fits, but as a practical matter just seems unreasonable, you can argue that the citation was simply “not reasonable.” Use the same CRAC template, and in the “Application” section, explain why the citation was not reasonable. Your argument will have a greater chance of success if you’re also able to assemble evidence that LPAs have seen the same thing before (whether at your center or other centers) but did not issue citations in those instances. Below I go into detail on how to research licensing reports for other centers.

Arguing the Standard Was Not Met to Sustain a Complaint

If CCLD receives a complaint regarding your center, they will initiate an investigation. During the investigation, depending on the allegations, the LPA will likely interview staff, families, or even children; review documents; and gather any other evidence available. At the conclusion of the investigation, the LPA will decide that the complaint is either substantiated, unsubstantiated, or unfounded. In order to find the complaint “substantiated,” the LPA will have to conclude that there was “a preponderance of evidence” to prove the violation. “Preponderance of evidence” is a legal standard that basically means “more likely than not.” (See Masellis v. Law Office of Jensen, 50 Cal. App. 5th 1077 (Cal. Ct. App. 2020) (“Requiring proof that something is ‘more likely than not’ is a preponderance of the evidence standard.”).) (In criminal cases, as you’ve likely heard in movies and television, the standard is “beyond a reasonable doubt,” meaning that the evidence has to be so overwhelming that a reasonable person would not have any reasonable doubt about the proof. “Preponderance of the evidence” is a lower standard, which means there could still be some doubt or room for debate or disagreement.)

If CCLD finds that the complaint was “substantiated,” they will issue a Type A or Type B citation. At that point, you can approach the appeal just like any other—perhaps the LPA got the facts or regulation wrong—in which case you can use the templates above to craft your argument. But you may also want to argue that the LPA “weighed” the evidence incorrectly and was wrong to conclude that a “preponderance of the evidence” supported the violation. This will be very specific to the facts and evidence in your case, but in general, you’ll want to argue that the LPA gave too much weight to the evidence that supported the citation, and either ignored or gave too little weight to evidence in your favor.

As an example, let’s say a family complained that a child was left unsupervised. One former staff member, whom you fired for totally separate reasons, told the LPA in an interview that she and her co-teacher did leave the child unsupervised. Their co-teacher, who still works for you, says in her interview that they never left the child unsupervised. If the LPA issues a citation based on this evidence, you could argue that the LPA improperly weighed the evidence. With two witnesses giving opposite testimony, the LPA should have concluded that the evidence was 50/50 at best, and thus there was no “preponderance of evidence” in support of the citation.

Citing Evidence

In licensing appeals, there are no specific rules for how to submit and cite to evidence. Once you have your evidence assembled, you can simply attach all of it to the end of your appeal letter, and in your appeal, write “(see attachment)” wherever a sentence in your appeal is supported by an attachment. See the appeals included in your Licensing Appeal Kit for examples.

A Bulletpoint Appeal

In the above, I laid out the way I write appeals, which is based on how I wrote legal briefs as an attorney. If you don’t feel confident in writing an appeal this way, that’s okay. There are no rules in how an appeal must be written. The most important thing is that the appeal provides CCLD with all the relevant facts and all the available evidence.

In your Licensing Appeal Kit, you’ll find a template for a “bulletpoint appeal” that I’ve created. This template offers an easier and more structured way for you to appeal a licensing citation on your own. As you’ll see, the template provides space for you to simply list each fact, list evidence, and list the arguments CCLD should consider. No need to write in paragraphs or sentences or include citations, just list out everything CCLD should consider. If you are appealing multiple citations, I recommend submitting a separate bulletpoint appeal for each one, so you don’t have to worry about creating different sections for each citation.

Retaliatory Complaints Against Mandated Reporters

As a mandated reporter, you are required to report to the state when you or one of your teachers reasonably suspects that a child in your care has been subject to abuse. This is an important and sometimes heavy responsibility. While the identity of the mandated reporter is supposed to remain anonymous, parents or guardians who receive a subsequent visit from law enforcement or child welfare services can sometimes determine where the report came from. You should have a plan for how to explain the requirements of being a mandated reporter, so if the parent or guardian asks if the report came from your center, you can have a constructive and informative discussion.

Unfortunately, some families will be angry or embarrassed no matter what you say and may file a complaint against your center to retaliate. CCLD has a responsibility to investigate all complaints they receive. However, it is worth pointing out to CCLD when a complaint appears to have been retaliatory. After all, while CCLD has a responsibility to investigate complaints, they should also have an interest in protecting mandated reporters against retaliation (or at least an interest in not being used as a means of retaliation). You should bring this up during the investigation, but if the investigation results in a citation, it may make sense to include in your appeal a paragraph along these lines:

Based on the allegations, it is clear to us that the complaint CCLD received was submitted by [FAMILY]. As CCLD may be aware, it was necessary for us, as a mandated reporter, to submit a suspected child abuse report regarding [FAMILY’S] child on [DATE]. The complaint [FAMILY] submitted to CCLD appears to have been submitted in retaliation for the child abuse report we were required to submit. While we understand CCLD must investigate and take seriously every complaint it receives, it is important for CCLD to have this context when weighing the allegations and evidence [FAMILY] has sent.

Deadlines & Timing

In General

One of the most confusing aspects of licensing appeals is calculating timing, and especially figuring out when CCLD’s responses are due. As a general matter, the best tactic is always to submit your own filings early, so there can be no doubt that you met the applicable deadline. Likewise, if CCLD appears to miss its deadline to respond, it is a good idea to wait until there can be no doubt they were late before alerting them.

When it comes to appeals, the biggest thing that most providers don’t realize is that CCLD has a mandatory deadline to issue its decisions. California Health & Safety Code section 1596.99(j)-(k) is the law that sets forth the timing for provider appeals. The portion of the law that talks about when CCLD must respond to appeals says, “The licensee shall be notified in writing . . . within 60 business days . . . .” Under California law, “shall” means must. (See Cal. Gov’t Code section 14 (“‘Shall’ is mandatory and ‘may’ is permissive.”).)

If CCLD misses its deadline to send its written decision, your appeal should be automatically granted by law. For this reason, I actually suggest that providers appeal every citation, for there’s a very good chance the agency will miss its deadline to respond and should have to dismiss the citation. The problem, of course, is that CCLD may simply ignore this aspect of California law, as I know it has done before. To enforce this rule, it may be necessary for a provider to file a petition for writ of mandamus in state court.

Your Deadline to Appeal

Typically, your first-level appeal must be submitted within 15 business days after you receive the citation. “Business days” excludes Saturdays, Sundays, and government holidays. California Government Code sections 6700 and 6701 provide a list of days that the state of California recognizes as holidays.

As an example, consider this calendar of January 2024:

If CCLD inspects a facility on Monday, January 8 and issues a Type A or Type B citation on that day, then the facility would have to submit its appeal by Tuesday, January 30, because that would be the fifteenth “business day” after the citation was issued (with January 15 being a holiday (MLK Jr. Day)).

After you submit your appeal, you have an additional 30 business days to submit any additional documents or information in support of your appeal. Remember, this deadline is based on the date your appeal is submitted. Using the previous example, if the facility submitted its appeal on Monday, January 22nd (even though it had until Tuesday, January 30), then it has until March 6, 2024 (30 business days after January 22, 2024) to provide CCLD with any additional documents in support of its appeal.

This is where things get complicated. After a facility submits its appeal, CCLD has 30 business days to request additional documents from the facility. Understand that this step is different from the opportunity the facility has to provide additional documents. So, after a facility submits its appeal, two different things can happen within the next 30 business days: (1) the facility can, on its own, provide any additional documents it wants to provide in support of its appeal, and (2) CCLD can request additional documents from the facility.

In my experience, CCLD will send a letter requesting additional documents, though the letter is often a generic form letter that won’t request anything specific. According to the Appeal Procedures, the provider then has 30 business days to provide the requested information.

CCLD’s Deadline to Issue a Decision

According to the Appeal Procedures (and more importantly, to California Health & Safety Code sections 1596.99 and 1597.58), “The licensee shall be notified in writing of the licensing agency’s decision within 60 business days of the date when all necessary information has been provided to the department by the licensee.”

The safest way to calculate CCLD’s deadline is:

Start with the date you submitted your appeal.
Count 30 business days after that to find the last date that CCLD could send its letter requesting more information. If CCLD sent its letter before this date, use the later date (the date you calculated). If CCLD sent its letter after the date you calculated, use that date (and be sure to remember that CCLD sent its request late).
From the date you chose in step 2, count 30 business days to find the latest date you could have responded to CCLD’s request for information.

From the date you found in step 3, count 60 business days. The 60th business day is the absolute latest date the Regional Manager’s decision to your appeal could be sent.

CCLD’s Deadline Is Mandatory

This is worth repeating. Many providers do not realize that CCLD is required to issue its decision to an appeal by that 60-business day deadline. The California Health & Safety Code says the agency “shall” issue its decision within 60 days. In the law, the word “shall” means must. If CCLD does not issue its decision by its deadline, that technically means the agency has missed its chance to deny your appeal, and your appeal is supposed to be automatically granted. The agency will try to disagree and ignore this argument, and so it may be necessary to seek relief from California state court to enforce this rule.

If CCLD Misses Its Deadline

If it seems like the Regional Manager has missed their deadline to send you a decision on your appeal, wait at least a week. If the Regional Manager sent their decision by mail, it may have been mailed out on time but not arrive to you for several days. Once the Regional Manager’s decision is about 10 days late, contact the Regional Office to ask about the status of your appeal. If the Regional Office acknowledges that they have not decided your appeal yet, inform them that they missed the mandatory deadline to issue a response, so your appeal should be automatically granted, and that if it is not, your second-level appeal to the program administrator will include an argument about how the citation should be dismissed the Regional Manager missed the deadline to issue a decision. There’s a chance the Regional Manager will indeed dismiss the citation just so this mistake does not get brought to the attention of the Program Administrator when you file your second-level appeal.

Where to Send Your 1st-Level Appeal

The first level appeal is sent to the Regional Manager for the Regional Office that oversees your center. You can find the address by using the search tool or downloading the list of all Regional Offices on CCLD’s website. I recommend submitting your appeal two ways on the same day, by doing the following in this order:

Scan all of your appeal papers into your computer as a PDF.
Drop off your appeal papers to the Regional Office in person.
Email the PDF to the Regional Manager and the LPA, and mention that you dropped the papers off in person. (E.g., “Attached please find an electronic copy of our first-level appeal, which I submitted to your office in person today.”)

Submitting your appeal in person and by email will give you proof of the day you submitted your appeal, so the agency cannot later claim that it did not receive your appeal on time.

2nd-Level Appeals

A second-level appeal can be largely identical to the first-level appeal, so if your first-level appeal is denied, there is no reason not to submit a second-level appeal, as you’ve already done nearly all the work. Using the second-level appeal template in the Licensing Appeal Kit, you can essentially copy-and-paste the arguments from your first-level appeal into your second-level appeal.

Additional Arguments

There may be new arguments to include in your second-level appeal, depending on the circumstances:

The Regional Manager’s first-level decision was late. As I wrote above, CCLD actually has a mandatory deadline to respond to your appeals. If the Regional Manager missed their deadline to issue a decision to your first-level appeal, you should argue in your second-level appeal that the citation should be overturned because the agency missed its deadline to respond to your first-level appeal. (The second-level appeal template in your Licensing Appeal Kit includes this as a pre-written argument.)
The Regional Manager failed to address an argument. Don’t be surprised if it seems like the Regional Manager didn’t read your appeal closely or actually review the evidence you provided. If that happens, then in your second-level appeal, you should draw the Program Administrator’s attention to the fact that the Regional Manager failed to address an argument you raised or seemed to ignore evidence you provided. Then lay out your substantive arguments again.

Where to Send Your 2nd-Level Appeal

The second-level appeal for the Type A and Type B citations I cover in this guide are sent to the Program Administrator, whose name and address you’ll find by downloading the PDF of Regional Offices on CCLD’s website.

2nd-Level Appeal Deadlines

As I’ve reiterated numerous times, refer to the specific Appeal Procedures you received with your citation to understand the deadlines for your appeal. The current version of the Appeal Procedures states, “further appeal may be made the Program Administrator, following the same timeline as described above.”

That means your second-level appeal must be submitted within 15 business days following the decision on your first-level appeal. To ensure you make the deadline, calculate from the date written on the decision, not the date you actually received it.

After you submit your second-level appeal, the same confusing timeline regarding additional documents that applied with your first-level appeal will apply:

You have an additional 30 business days to submit additional documents or information in support of your appeal.
The Program Administrator has 30 business days to request any additional documents.
If and when you received a request from the Program Administrator for additional documents, you have 30 business days to respond (though it’s not necessary to respond or provide any additional documents in response).

CCLD’s Deadline to Issue a Decision

Like the Regional Manager, the Program Administrator has a mandatory deadline to issue a decision on your appeal. Use the same method I describe above to calculate when could be the latest possible date for the Program Administrator to issue a decision:

Start with the date you submitted your second-level appeal.
Count 30 business days after that to find the last date that CCLD could send its letter requesting more information. If CCLD sent its letter before this date, use the later date (the date you calculated). If CCLD sent its letter after the date you calculated, use that date (and be sure to remember that CCLD sent its request late).
From the date you chose in the last step, count 30 business days to find the latest date you could have responded to CCLD’s request for information.
From the date you found in step 3, count 60 business days. The 60th business day is the absolute latest date the Program Administrator could have sent a decision to your second-level appeal.

As I recommend above, if the deadline for the Program Administrator’s decision goes by without a decision, wait about ten days before contacting the Program Administrator’s office to check on the status. If they acknowledge that your appeal hasn’t been decided yet, inform them that they missed their mandatory deadline and so the appeal should automatically be granted.

Writ of Administrative Mandamus

As I explained above, the second-level appeal is not your last chance to appeal, even though the Appeal Procedures say, “[t]he Program Administrator’s decision is then considered final, and concludes the licensee’s administrative appeal rights.” What the Appeal Procedures don’t explain is that after “administrative appeal rights” are concluded, that is when one has the right to seek relief in state court (real court, not to the “administrative judges” who work as employees inside the Department of Social Services).

The next level of appeal would be to file a petition for writ of administrative mandamus in your local state court. In layman’s terms, petitioning for a writ of administrative mandamus means asking (“petitioning”) a court to order (“mandate”) an administrative agency to do something the law requires them to do. Here, your petition would argue that CCLD was legally required to do something (dismiss your citation), which it did not do.

Courts give some level of deference to government agencies, so petitions for writ of mandamus are only successful when it’s clear as black-and-white that the agency did not follow the law. For licensing citations, these black-and-white situations would be if CCLD lacked jurisdiction to issue its citation in the first place, did not dismiss the citation after missing its own deadline to respond to an appeal, or acted so unreasonably that no reasonable judge could allow the citation to stand.

A petition for writ of mandamus is a genuinely complex legal filing. In your Licensing Appeal Kit, I’ve included the full petition I filed to challenge CCLD’s jurisdiction to enforce the Department of Public Health’s mask mandates, so you can see what one entails. The petition I filed included:

A verified petition for writ of mandamus;
A memorandum of points and authorities (the “legal brief” laying out the arguments);
A declaration in support of the petition, which attached all of the evidence; and
The civil case cover sheet required in San Diego Superior Court

As I mentioned, each county in California has its own superior court, and each court has multiple judges, so there will be different and maybe additional documents required depending on the court. If you are considering a petition for writ of administrative mandamus, I recommend you consult a local attorney with experience in civil litigation and/or administrative law.

Preserving the Right to Sue for Money

If CCLD wrongfully caused you to lose money (they shut you down based on citations that were later overturned, or they improperly delayed licensing your center), you must file a Government Claim for Eligible Compensation within 6 months after CCLD took the action that caused you to lose money.

The Government Claim for Eligible Compensation form is simple and straightforward, and most people will be able to complete and submit the form without needing a lawyer or other assistance. The claim form and instructions are available on the California Office of Risk and Insurance Management website.

Once the California Office of Risk and Insurance Management receives your form, they may contact you to gather more information or perhaps to negotiate a settlement (paying you some amount). But the office may never contact you. If 45 days pass after you submit your Government Claim for Eligible Compensation and you don’t hear from anyone, then under California law you can consider your claim to be rejected, and you will have the right to file a lawsuit against the Department of Social Services. The 6-month deadline to file a Government Claim for Eligible Compensation is the not the only deadline to be aware of though. Depending on what it is CCLD did, there will be a “statute of limitations” that specifies how long you have to file a lawsuit (e.g., one year, two years, four years, etc.). Best to consult an attorney soon after CCLD wrongs you.

Contact Me with Questions or Feedback

To end, I want to thank you for the vital service you provide to California’s children and families. I know firsthand that you are undoubtedly underpaid and underappreciated. It often feels like a gut punch that the agency tasked with protecting the businesses in this vital sector is so broken, and thus so often an unnecessary drain on childcare providers’ time, energy, and finances.

Whether or not you ever have to use this guide—and I hope you don’t—I hope you find it useful. If you have questions or feedback, please feel free to reach out.

Sincerely, Howard Wu