Lora, Seidman and Milmed.
This matter is before the court for the second time as the result of a remand to the Division of Youth and Family Services of the Department of Human Services (formerly the Department of Institutions and Agencies) for a further hearing. It involves a challenge by privately owned, nonsectarian, child day care centers to a regulation promulgated by the Department pertaining to the transportation of children to and from such day care centers. The regulation provided that "[w]hen more than six children are transported in one vehicle, there shall be another adult in the vehicle in addition to the driver." N.J.A.C. 10:122-2.7(d)(1).
Appellants had contended the regulation was arbitrary and unreasonable, and also unconstitutionally discriminatory in its application because of the exemption of other types of child day care centers. They sought and obtained a hearing before the Division of Youth and Family Services. At the conclusion thereof the hearing officer filed a report in which, after reviewing the testimony presented, he found the regulation to be reasonable. Though recognizing the existence of a potential equal protection issue, since certain "nursery schools" were exempt from the regulation, he refrained from deciding the issue, considering it "beyond the scope of his adjudicatory function." The Director of the Division issued a final determination that the "rule in question is valid and must be enforced."
On appeal from that determination another Part of this court, in an unreported opinion, found ample credible evidence in the record to support the Director's conclusion that the regulation was a reasonable and valid exercise of the rulemaking authority of the Department. That holding was affirmed essentially for the reasons expressed in the opinions of the hearing officer and the Director. However, since no decision had been rendered on petitioner's equal protection
contention, the matter was remanded for a further hearing on the issue, with requisite findings of fact and conclusions of law to follow. We quote from the earlier opinion:
We are unable to conclude, on what is before us, whether there exists a legitimate State purpose bearing a rational relationship to this classification.
On the remand the hearing officer concluded from the proofs presented that the "second adult regulation" was a reasonable regulation adopted pursuant to a rational statute and did not deny appellants equal protection. He recommended the issuance of an order requiring compliance. The Director adopted the report and recommendation and issued an order directing appellants to provide a second adult in each vehicle transporting more than six children.
The present appeal ensued. The single point argued is that "[t]he recommendation of the hearing officer adopted by respondent in the light of the evidence adduced upon remand and his findings thereon, contravenes the mandate of this court and compels judgment for petitioner." For reasons which follow, we affirm.
In 1946 the Legislature enacted N.J.S.A. 18A:70-1 et seq. , requiring a certificate of approval "issued by the commissioner [of education] under rules prescribed by him with the approval of the State board [of education]" for the operation of a child care center. Such center, as used in the chapter, was defined as including
Not included were the following:
a. The state board of child welfare [now the Division of Youth and Family Services] of the department of institutions and agencies [now the Department of Human Services], or
b. Any aid society of a properly organized and accredited church or fraternal society organized for aid ...