Does Florida law require day care centers to use booster seats when transporting 4- and 5-year-olds?

Plain-English summary

Representative Mark Pafford, then House Democratic Leader, wrote to AG Pam Bondi after the Department of Children and Families began issuing warnings and citations to child care facilities that did not use booster seats for 4- and 5-year-olds in their vehicles. The 2016 session had seen a proposed House and Senate amendment that would have specifically exempted child care facilities from section 316.613, Florida Statutes. The amendment was withdrawn. The result was confusion about whether DCF was right that the statute reached day cares.

The AG read the statute and concluded that DCF had it right. Section 316.613(1)(a) required every operator of a motor vehicle transporting a child aged 5 or younger to use a crash-tested, federally approved child restraint device. For children aged 4 and 5, that could be a separate carrier, integrated child seat, or child booster seat. Paragraph (6) made clear that the duty rested on "the parent, guardian, or other person responsible for a child's welfare," and section 39.01(47) defined "other persons responsible for a child's welfare" to include employees of public or private child day care centers. The statute's narrow exemptions did not help: the "gratuitous transport" exemption did not cover paid day cares, the school-bus and large-truck exclusions from the definition of "motor vehicle" did not fit a typical day-care van, and the chauffeur-for-compensation exemption in paragraph (6) covered taxis and limousines, not licensed child care facilities. Until the legislature amended the law, day cares had to use booster seats.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The legislature has since revisited section 316.613 and the related DCF licensing rules in Chapter 402, Florida Statutes. Day care operators today should check the current statutory text and DCF's published transportation guidance rather than relying on this 2016 reading.

Common questions

Q: Did the proposed exemption become law?
A: No. The 2016 amendment to HB 7063 that would have specifically excluded child care facilities from section 316.613 was withdrawn from consideration before passage. The AG took the legislative inaction as a signal that the existing statute applied to day cares.

Q: What were the three booster-seat exemptions in section 316.613?
A: Paragraph (1)(a)2 allowed a 4- or 5-year-old to ride with a seat belt alone (no booster) if the child was being transported gratuitously by a non-family-member operator; in a medical emergency; or had a medical condition documented by a health-care professional that justified the exemption.

Q: Why didn't "gratuitous transport" cover day cares?
A: The opinion looked up "gratuitous" in Black's Law Dictionary (10th ed. 2014): "Done or performed without obligation to do so; given without consideration in circumstances that do not otherwise impose a duty." A licensed day care that charges parents and is contractually obligated to provide care is not transporting children gratuitously. The exemption was meant for ride-share neighbors, not for-profit centers.

Q: What about the school bus exemption?
A: Section 316.613(2) excluded a "school bus" (as defined in section 316.003(68)) from the definition of "motor vehicle" for child-restraint purposes. The opinion did not address whether a particular day care vehicle might qualify as a school bus, but typical day care vans and SUVs would not.

Q: Could a day care just contract out to a taxi or limousine to avoid the rule?
A: The opinion noted that paragraph (6) excluded chauffeur-driven taxis, limousines, sedans, vans, buses, and motor coaches when "the operator and the motor vehicle are hired and used for the transportation of persons for compensation." A day care that hires a taxi to transport children might fit that exemption on the vehicle side, but the opinion did not address whether the day care's own staff escorting the children would still be on the hook under the "other persons responsible" duty in section 39.01(47).

Q: What kind of restraint qualifies?
A: The statute required a "crash-tested, federally approved child restraint device." For children through age 3, only a separate carrier or vehicle-manufacturer integrated seat counted. For ages 4 and 5, the same options plus a child booster seat were acceptable.

Background and statutory framework

Section 316.613, Florida Statutes, is the state's child-restraint statute. It sits in Chapter 316 (the Florida Uniform Traffic Control Law), which generally preempts the field of traffic regulation. The interplay between the chapter's broad duty on "every operator" and its few narrow exemptions creates the kind of edge cases the AG had to address here.

Compounding the question was a definitional cross-reference outside Chapter 316. Section 39.01(47), Florida Statutes (part of the dependency and child protection chapter), defines "other persons responsible for a child's welfare" to include school employees and day care employees. Paragraph (6) of section 316.613 then folded that definition into the child-restraint duty: anyone responsible for the child's welfare, including a day care employee, owed the same restraint obligation as the parent.

The legislature's choice not to enact the 2016 carve-out left the AG with a textually clean reading: the duty applied, the exemptions did not fit, and DCF's enforcement was on solid ground until the legislature said otherwise.

Citations and references

Statutes:

• § 316.613, Fla. Stat. (child restraint requirements)
• § 316.614, Fla. Stat. (Florida Safety Belt Law)
• § 39.01(47), Fla. Stat. (definition of persons responsible for a child's welfare)

Legislative history cited: HB 7063, 2016 Legislative Session (proposed exemption, withdrawn).

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/child-care-facilities-child-restraint-devices
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8059

Original opinion text

The Honorable Mark S. Pafford

Democratic Leader

2240 Palm Beach Lakes Boulevard

Suite 102

West Palm Beach, Florida 33409-3403

Dear Representative Pafford:

This is in response to your letter of February 11, 2016, requesting an opinion as to whether child care facilities are encompassed by section 316.613, Florida Statutes, which requires the use of certain child-restraint devices, including booster seats, when transporting children aged 4 and 5. You state that the Department of Children and Families has issued warnings and citations to child care facilities that have not used booster seats for such children. An amendment was recently proposed in both the House and the Senate and then withdrawn from consideration that would have specifically excluded child care facilities from the scope of the law.[1] You inform us, however, that there is confusion as to whether the current law applies to child care facilities. As discussed below, it appears that public and private child care centers are subject to section 316.613, unless and until the Legislature decides to amend the provisions therein.

Section 316.613(1)(a), Florida Statutes, provides:

"(1)(a) Every operator of a motor vehicle as defined in this section, while transporting a child in a motor vehicle operated on the roadways, streets, or highways of this state, shall, if the child is 5 years of age or younger, provide for protection of the child by properly using a crash-tested, federally approved child restraint device.

1. For children aged through 3 years, such restraint device must be a separate carrier or a vehicle manufacturer's integrated child seat.

2. For children aged 4 through 5 years, a separate carrier, an integrated child seat, or a child booster seat may be used."

The final sentence of paragraph (6) of the statute provides:

"It is the obligation and responsibility of the parent, guardian, or other person responsible for a child's welfare as defined in s. 39.01 to comply with the requirements of this section." (e.s.)

Section 39.01(47), Florida Statutes, contains the definition referred to in paragraph (6):

"'Other persons responsible for a child's welfare' includes … an employee of any school, public or private child day care center, residential home, institution, facility, or agency[.]" (e.s.)

Section 316.613 contains express exemptions and exceptions, but none of these encompasses child care facilities. In the following provision, paragraph (1)(a)2 permits transport of children aged 4 and 5 using a safety belt alone without a child restraint device in three limited situations:

"[T]he requirement to use a child restraint device under this subparagraph does not apply when a safety belt is used as required in s. 316.614(4)(a) and the child:

a. Is being transported gratuitously by an operator who is not a member of the child's immediate family;

b. Is being transported in a medical emergency situation involving the child; or

c. Has a medical condition that necessitates an exception as evidenced by appropriate documentation from a health care professional."

The term, "gratuitous," used in paragraph (1)(a)2.a. above, is defined as: "Done or performed without obligation to do so; given without consideration in circumstances that do not otherwise impose a duty." Black's Law Dictionary (10th ed. 2014). Accordingly, "transported gratuitously" does not apply to children being provided transportation by public or private child care facilities.

Paragraph (2) of the statute excludes certain vehicles from the term "motor vehicles":

"(2) As used in this section, the term "motor vehicle" means a motor vehicle as defined in s. 316.003 that is operated on the roadways, streets, and highways of the state. The term does not include:

(a) A school bus as defined in s. 316.003(68).

(b) A bus used for the transportation of persons for compensation, other than a bus regularly used to transport children to or from school, as defined in s. 316.615(1)(b), or in conjunction with school activities.

(c) A farm tractor or implement of husbandry.

(d) A truck having a gross vehicle weight rating of more than 26,000 pounds.

(e) A motorcycle, moped, or bicycle."

Paragraph (6) excludes motor vehicles when the driver and vehicle are hired for compensation to provide transport:

"(6) The child restraint requirements imposed by this section do not apply to a chauffeur-driven taxi, limousine, sedan, van, bus, motor coach, or other passenger vehicle if the operator and the motor vehicle are hired and used for the transportation of persons for compensation."

None of these provisions constitutes a specific exemption or exception that encompasses child care facilities as a category.

It therefore appears that under the current version of section 316.613, Florida Statutes, public and private child care centers are subject to the statutory obligations included therein.

Sincerely,

Pam Bondi

Attorney General

PB/tebg

[1] See HB 7063, 2016 Legislative Session.