AGO IAL102306.

• Case Date: October 23, 2006
• Court: New Mexico

New Mexico Attorney General Opinions 2006. AGO IAL102306. October 23, 2006 Honorable Terry Marquardt New Mexico House of Representatives 903 New York Avenue Alamogordo, New Mexico 88310 RE: Request for Opinion--Children, Youth and Families Department RegulationsDear Representative Marquardt: You requested our advice on whether certain Children, Youth and Families Department ("Department" or "CYFD") regulations relating to licensing of pre-school childcare centers violate the United States Constitution or exceed the Department's scope of authority. The regulations in question are 8.16.2.21.B, 8.16.2.6, and 8.15.2.15 NMAC. These regulations deal with childcare centers and the provision for a minimum level of service regarding the health, safety, and well-being of children. Based on our examination of the relevant New Mexico constitutional, statutory and case law authorities, and on the information available to us, we conclude that these regulations do not raise a constitutional issue or exceed the Department's authority. The Department Secretary is given broad discretion and authority to "make and adopt such reasonable and procedural rules and regulations as may be necessary to carry out the duties of the department and its divisions." NMSA 1978, § 9-2A-7(D) (1993). This includes the authority to establish criteria for curriculum statements or minimum requirements for childcare centers. See NMSA 1978, §§ 24-1-3 (I) (2001) and 24-1-5 (2005) ("Public Health Act"). The statutory grant of authority in this case is plain and unambiguous and therefore there is no need for statutory construction. See State v. McHorse, 85 N.M. 753, 517 P.2d 75 (Ct. App. 1973). Pursuant to this grant of authority, the Department Secretary has enacted regulation 8.16.2.21.B NMAC, which states, "All licensed centers must have a curriculum statement which includes play as the primary mode of learning." Your letter expressed concern that the Department may be violating the First Amendment of the United States Constitution by requiring private church schools to adopt a curriculum statement that allows "play" as the primary mode of learning. This issue, however, is not ripe for review. The Department has noticed in the New Mexico Register a revision of the above regulation, whereby the phrase "play as the primary mode of learning", is removed in its...