Colorado § 26.5-5-317 - Denial of license - suspension - revocation - probation - refusal to renew license - fines.

§ 26.5-5-317. Denial of license - suspension - revocation - probation - refusal to renew license - fines.

(1) When an application for a license has been denied by the department, the department shall notify the applicant in writing of the denial by mailing a notice to the applicant at the address shown on the application. Any applicant who is aggrieved by the denial may pursue the remedy for review as provided in subsection (9) of this section if the applicant, within thirty days after receiving the notice, petitions the department to set a date and place for hearing, affording the applicant an opportunity to be heard in person or by counsel. All hearings on the denial of licenses shall be conducted in conformity with the provisions and procedures specified in article 4 of title 24, as in the case of the suspension and revocation of licenses.

(2) The department may deny an application, or suspend, revoke, or make probationary the license of any facility regulated and licensed pursuant to this part 3 or assess a fine against the licensee pursuant to section 26.5-5-323 if the licensee, an affiliate of the licensee, a person employed by the licensee, or a person who resides with the licensee at the facility:

(a) Is convicted of any felony, other than those offenses specified in section 26.5-5-309 (4), or child abuse, as specified in section 18-6-401, the record of conviction being conclusive evidence thereof, notwithstanding section 24-5-101; or have entered into a deferred judgment agreement or a deferred prosecution agreement to any felony, other than those offenses specified in section 26.5-5-309 (4) or child abuse, as specified in section 18-6-401; or should the department have a certified court order from another state indicating that the applicant, licensee, person employed by the licensee, or any person residing with the licensee has been convicted of a felony, other than those offenses specified in section 26.5-5-309 (4), under a law of any other state or the United States or has entered into a deferred judgment agreement or a deferred prosecution agreement in another state as to a felony, other than those offenses specified in section 26.5-5-309 (4); or

(b) Is convicted of third degree assault, as described in section 18-3-204; any misdemeanor, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in section 18-6-800.3; the violation of a protection order, as described in section 18-6-803.5; or any misdemeanor offense in any other state, the elements of which are substantially similar to the elements of any one of the offenses described in this subsection (2)(b). As used in this subsection (2)(b), "convicted" has the same meaning as set forth in section 26.5-5-309 (4)(a)(II).

(c) Is determined to be insane or mentally incompetent by a court of competent jurisdiction and, if a court enters, pursuant to part 3 or part 4 of article 14 of title 15, or section 27-65-110 (4) or 27-65-127, an order specifically finding that the mental incompetency or insanity is of such a degree that the licensee is incapable of operating a family child care home or child care center, the record of such determination and entry of such order being conclusive evidence thereof; or

(d) Uses any controlled substance, as defined in section 18-18-102 (5), including retail marijuana, or consumes any alcoholic beverage during the operating hours of the facility or is under the influence of a controlled substance or alcoholic beverage during the operating hours of the facility; or

(e) Is convicted of unlawful use of a controlled substance as specified in section 18-18-404; unlawful distribution, manufacturing, dispensing, sale, or possession of a controlled substance as specified in section 18-18-403.5 or 18-18-405; or unlawful offenses relating to marijuana or marijuana concentrate as specified in section 18-18-406; or

(f) Consistently fails to maintain standards prescribed and published by the department; or

(g) Furnishes or makes any misleading or any false statement or report to the department; or

(h) Refuses to submit to the department any reports or refuses to make available to the department any records required by it in making investigation of the facility for licensing purposes; or

(i) Fails or refuses to submit to an investigation or inspection by the department or to admit authorized representatives of the department at any reasonable time for the purpose of investigation or inspection; or

(j) Fails to provide, maintain, equip, and keep in safe and sanitary condition premises established or used for child care pursuant to standards prescribed by the department of public health and environment and the department or by ordinances or regulations applicable to the location of such facility; or

(k) Willfully or deliberately violates any of the provisions of this part 3 or any of the standards prescribed and published in department rule pursuant to this part 3; or

(l) Fails to maintain financial resources adequate for the satisfactory care of children served in regard to upkeep of premises and provision for personal care, medical services, clothing, and other essentials in the proper care of children; or

(m) Is charged with the commission of an act of child abuse or an unlawful sexual offense, as specified in section 18-3-411 (1), if:

(I) Such individual has admitted committing the act or offense and the admission is documented or uncontroverted; or

(II) The administrative law judge finds that such charge is supported by substantial evidence; or

(n) Admits to an act of child abuse or if substantial evidence is found that the licensee, person employed by the licensee, or person who resides with the licensee in the licensed facility has committed an act of child abuse. As used in this subsection (2)(n), "child abuse" has the same meaning as that ascribed to the term "abuse" or "child abuse or neglect" in section 19-1-103 (1); or

(o) Is the subject of a negative licensing action.

(3) The department may deny an application to renew a license based on the grounds set forth in subsection (2) of this section. The denial is effective upon the expiration of the existing license. The existing license does not continue in effect even though the applicant for renewal files a request for hearing or appeal.

(4) The department may deny an application for a child care facility license pursuant to this part 3 if the applicant is a relative affiliate of a licensee of a child care facility licensed pursuant to this part 3, which licensee is the subject of a previous negative licensing action or is the subject of a pending investigation by the department that may result in a negative licensing action.

(5) (a) (I) The department shall deny an application for a license under the circumstances described in section 26.5-5-309 (4). The department shall revoke or suspend a license previously issued if:

(A) The licensee, person employed by the licensee, or person residing with the licensee is thereafter convicted or if it is later discovered that the licensee, person employed by the licensee, or person residing with the licensee had previously been convicted of any of the criminal offenses set forth in section 26.5-5-309 (4); or

(B) The department has a certified court order from another state indicating that the licensee, person employed by the licensee, or person residing with the licensee is thereafter convicted of, or if it is later discovered that the licensee, person employed by the licensee, or person residing with the licensee had previously been convicted of, a criminal offense under a law of any other state or of the United States that is similar to any of the criminal offenses set forth in section 26.5-5-309 (4); or

(C) The licensee, an affiliate of the licensee, a person employed by the licensee, or a person who resides with the licensee at the facility has been determined to be insane or mentally incompetent by a court of competent jurisdiction and the court has entered, pursuant to part 3 or part 4 of article 14 of title 15 or section 27-65-110 (4) or 27-65-127, an order specifically finding that the mental incompetency or insanity is of such a degree that the licensee is incapable of operating a family child care home or child care center, the record of the determination and entry of the order being conclusive evidence thereof.

(II) As used in this subsection (5)(a), "convicted" means a conviction by a jury or by a court and includes a deferred judgment and sentence agreement, a deferred prosecution agreement, a deferred adjudication agreement, an adjudication, and a plea of guilty or nolo contendere.

(b) A certified copy of the judgment of a court of competent jurisdiction of such conviction or deferred judgment and sentence agreement, deferred prosecution agreement, deferred adjudication agreement, or a certified court order from another state indicating such an agreement from another state is prima facie evidence of such conviction or agreement.

(6) The department shall deny an application for an entity licensed under this part 3 and shall revoke the license of an entity licensed under this part 3 if the entity cultivates marijuana pursuant to the authority in section 16 of article XVIII of the state constitution.

(7) The department may assess fines, pursuant to the provisions of section 26.5-5-323, against a licensee or a person employed by the licensee who willfully and deliberately or consistently violates the standards prescribed and published by the department or the provisions of this part 3.

(8) The department shall determine the existence of convictions identified in this section according to the records of the Colorado bureau of investigation, the Colorado state courts data access system at the state judicial department, or any other source, as set forth in section 26.5-5-316 (1)(a)(II).

(9) The department shall suspend or revoke a license only in conformity with the provisions and procedures specified in article 4 of title 24, and after a hearing thereon as provided in said article 4; except that an administrative law judge shall conduct all hearings under this part 3 and issue an initial decision. The executive director shall review the initial decision and issue the final decision of the department. A licensee is not entitled to a right to cure any of the charges described in subsection (2)(a), (2)(c), (2)(d), or (2)(m)(I) of this section. A hearing does not prevent or delay any injunctive proceedings instituted under the provisions of section 26.5-5-320.

Source: L. 2022: Entire article added with relocations, (HB 22-1295), ch. 123, p. 760, § 3, effective July 1. L. 2023: IP(2), (2)(b), and (8) amended, (HB 23-1235), ch. 434, p. 2550, § 17, effective June 7; (2)(c) amended, (HB 23-1301), ch. 303, p. 1836, § 64, effective August 7. L. 2024: (5)(a)(I)(C) amended, (HB 24-1450), ch. 490, p. 3422, § 68, effective August 7.

Editor's note: This section is similar to former § 26-6-108 as it existed prior to 2022.

ANNOTATION

Annotator's note. Since § 26.5-5-317 is similar to § 26-6-108 as it existed prior to the 2022 amendment to article 5 of title 26.5, which resulted in the relocation of provisions, relevant cases decided under that section have been included in the annotations to this section.

Day care license revocation proceedings are civil in nature, but they occur in an administrative agency context. McPeck v. Colo. Dept. of Soc. Servs., 919 P.2d 942 (Colo. App. 1996).

Applied in Cavanaugh v. State Dept. of Soc. Servs., 644 P.2d 1 (Colo. 1982).