ILNews

Home day care presents first-impression

Jennifer Nelson
January 1, 2007
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The Court of Appeals ruled on a case of first impression involving whether a licensed child care facility constitutes residential or commercial use of the owner's residence.

In Jeannie Lewis-Levett v. Richard D. Day and Martha A. Day, 50A03-0705-CV-199, Lewis-Levett appealed the trial court's summary judgment ruling in favor of the Days. As owners and operators of Golfview Estates, the Days recorded covenants applicable to the lots there, which prevents buildings in the neighborhood being used for "any trade, business, manufacture or profession." Lewis-Levett began a licensed day care in her home in the neighborhood, caring for up to 12 children during the week. On her tax forms, she indicated 60 percent of her home is used for the day care.

The Days filed a complaint requesting a temporary and permanent injunction against Lewis-Levett's day care in her residence and attorney fees; Lewis-Levett filed a motion for summary judgment. The trial court granted summary judgment in favor of the Days and awarded attorney fees.

Lewis-Levett argued the trial court erred in granting summary judgment enjoining her from running the licensed day care in her home because a licensed day care is residential use of her home. She cited Stewart v. Jackson, 635 N. E. 2d 186, 193, where the Court of Appeals held that the operation of an unlicensed home day care constituted residential use and did not violate the restrictive covenants of its neighborhood.

The question of whether a licensed day care constitutes residential use is a matter of first impression for the court because Stewart is limited to unlicensed day care in homes. In Stewart, the court examined the number of children in the day care, its income, and the increase of traffic to determine whether it was residential use.

In this case, Lewis-Levett cares for 12 children, which means she could have 12 vehicles coming and going from her home throughout the day - more than normal for the neighborhood. She also uses 60 percent of her home for the business. Because the Indiana legislature has enacted extensive regulation of licensed day care homes that have more than six children, it shows them to be commercial enterprises.

The Court of Appeals affirmed the summary judgment enjoining Lewis-Levett from operating a licensed home day care. Public policy in favor of home day care is not without limits; although public policy favors home day care, such policy isn't violated by the enforcement of the restrictive covenants in this case, Judge Edward Najam wrote for the majority.

The Days cross-appealed the trial court ruling, saying it erred in not enjoining Lewis-Levett from having any type of child care in her home. The evidence showed she ran a licensed day care, so the trial court granted the relief requested in the amended complaint because the trial court did not have the case of "any" day care before it when ruling. The Court of Appeals denied the Day's cross appeal.
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  1. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

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