Under Arkansas's 1,000-foot rule for retail liquor permits, does 'schoolhouse' include private schools and day care centers, and did Act 1172 of 2015 change what counts as a schoolhouse?

Plain-English summary

Arkansas law prohibits issuing a retail liquor permit for a business within 1,000 feet of a church or schoolhouse. Representative Kim Hammer asked the AG what the word "schoolhouse" meant in that proximity law, especially whether it covered "a facility owned and operated by a public or private school, a public or private day care center, or a similar entity." He also asked whether Act 1172 of 2015 changed the analysis.

The AG had three points.

First, "schoolhouse" was not defined in the proximity law and not defined elsewhere in the Arkansas Code in a way that controlled this question. No Arkansas appellate court had construed the word in the proximity context. The AG predicted a court would adopt the definition the Arkansas Supreme Court used in Young v. Linwood School District No. 17 (1936), itself borrowing from Alexander v. Phillips (Ariz. 1927): "a building which is appropriated for the use of a school or schools, or as a place in which to give instruction."

Second, that definition generally would cover the kinds of facilities Representative Hammer named, including day care centers, "at least to the extent the school, day care center, or other entity gives instruction." The AG saw no reason to limit the protection to public facilities, noting that the proximity law also covered churches (all of which are private), and that an 1875 Arkansas predecessor statute had been applied to private academies and upheld in Blackwell v. State (1880) and Boyd v. Bryant (1879). The AG cautioned that whether a specific facility qualified would depend on the facts.

Third, Act 1172 of 2015 did not change the meaning of "schoolhouse." Act 1172 made three changes to § 3-4-206: it added a definition of "church" (including immediately adjacent property used for church purposes), it switched the 1,000-foot measurement from building-wall-to-building-wall to property-line-to-property-line, and it made other minor changes. It did not define "schoolhouse" or alter the word's meaning. The new property-line measurement applied to schoolhouses just as it did to churches: the 1,000 feet would be measured from the school property line.

The AG also addressed a potential argument that defining "church" to include adjacent property used for church purposes might imply that "schoolhouse" should be narrowed to exclude adjacent property. The AG rejected that inference. Under Young v. Linwood, "school buildings" already covered ancillary facilities like gymnasiums, home economics, and vocational agriculture buildings. The property-line rule would simply measure from the property line of the schoolhouse, which made the adjacent-property point moot.

Currency note

This opinion was issued in 2015. 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.

Background and statutory framework

Ark. Code Ann. § 3-4-206 was the retail liquor proximity statute. Before Act 1172 of 2015, the Alcoholic Beverage Control Division regulations measured the 1,000-foot distance from building wall to building wall (§ 1.33(6)(A) of the ABC Division regulations). That meant the question whether a particular structure on a school's campus counted as a "schoolhouse" was often the practical issue, because the measuring point moved depending on which structure qualified.

Act 1172 of 2015 was scheduled to take effect July 22, 2015 (no emergency clause, no specified effective date). It made three substantive changes:

1. Added a definition of "church" that included "immediately adjacent property owned or leased by the church that is used for church purposes."
2. Changed the measurement rule from building-to-building to property-line-to-property-line.
3. Made other minor changes.

What Act 1172 did not do mattered for the AG's answer: it did not define "schoolhouse" or alter its meaning.

The AG located the relevant case law in Young v. Linwood School District No. 17 (Ark. 1936), which had construed "school buildings" (a related but distinct phrase) to cover ancillary facilities like gymnasiums and vocational facilities. Young quoted with approval the Arizona Supreme Court's definition of "schoolhouse" in Alexander v. Phillips (1927): "a building which is appropriated for the use of a school or schools, or as a place in which to give instruction." The AG predicted Arkansas courts would adopt that formulation.

The history of Arkansas proximity laws also supported the broad reading. An 1875 Act (Acts of Arkansas 1874-75, p. 206) had applied to private academies but not public schools, and the Arkansas Supreme Court upheld its constitutionality in Blackwell v. State (1880) and Boyd v. Bryant (1879). That history undermined any argument that the modern proximity law was intended to protect only public schools.

The AG flagged one limit. The word "schoolhouse" appeared in other parts of the Arkansas Code (for example, § 6-11-127 in the public school context) where it might refer only to public school district facilities. The 2015 opinion was about the proximity law specifically and should not be taken as a general gloss on what "schoolhouse" meant elsewhere in the Code.

Common questions

Did the AG say day care centers count as schoolhouses?
Generally, yes, if they give instruction. The AG predicted a court would treat a typical day care center as a schoolhouse under the proximity law, but said the answer for any particular facility was a fact question.

Did private schools count?
Yes. The AG noted that the proximity law already protected churches (all private), that an 1875 predecessor statute had been applied to private academies, and that nothing in the modern law signaled an intent to limit "schoolhouse" to public facilities.

Did Act 1172 of 2015 change which buildings counted?
No. Act 1172 left the word "schoolhouse" undefined. It changed how the 1,000-foot distance was measured (property line to property line) and added a definition of "church," but the question of what counts as a schoolhouse remained governed by ordinary language and case law.

What was the practical effect of the property-line change?
A retail liquor business near a large school campus could be within 1,000 feet of the campus boundary while being more than 1,000 feet from the nearest building. Under the old building-to-building rule, the business might be permitted. Under the new property-line rule, the same business would be denied a permit. The change made the proximity law more restrictive overall.

Could a school's gym or auditorium be considered the "schoolhouse" for measurement?
Under the old building-to-building rule, the question mattered. Young v. Linwood supported a broad reading covering ancillary facilities. After Act 1172, the school's property line was the measuring point, so the question of which building counted lost most of its practical importance.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2015-040
June 18, 2015

The Honorable Kim Hammer
State Representative
1411 Edgehill
Benton, AR 72015-3128

Dear Representative Hammer:

This is my opinion on your questions about the law that prohibits issuing retail liquor permits for businesses within 1000 feet of a church or schoolhouse. Act 1172 of 2015 will change this proximity law by adding a definition of "church," providing that distances are to be measured from the church or schoolhouse property line to the liquor-business property line, and making other minor changes.

You ask in essence what the word "schoolhouse" means in the proximity law (particularly whether it includes "a facility owned and operated by a public or private school, a public or private day care center, or a similar entity") and whether and how Act 1172 will change the word's meaning.

RESPONSE

In my opinion:

(1) Courts likely will interpret "schoolhouse" (for purposes of the proximity law) generally to mean a building used as a school or otherwise for giving instruction;

(2) Courts likely will interpret "schoolhouse" generally to include "a facility owned and operated by a public or private school, a public or private day care center, or a similar entity," but certain facts about a specific facility might cause a court to hold it not to be a schoolhouse even though it is described by the quoted language; and

(3) Act 1172 will not change the meaning of the word "schoolhouse" though it will change how the proximity law is applied to schoolhouses as well as churches.

DISCUSSION

Meaning of "Schoolhouse"

The word "schoolhouse" is not defined in the current proximity law, and Act 1172 provides no definition. The word is not defined elsewhere in the Arkansas Code. No Arkansas appellate court (or federal court interpreting Arkansas law) has opined on the word's meaning in this or a similar context. As an executive-branch officer, the Attorney General cannot conclusively define a word used in legislation.

In my opinion, however, an Arkansas court facing the question probably will look to a case in which the Arkansas Supreme Court, interpreting the meaning of "school buildings," quoted with approval from an Arizona case defining the word "schoolhouse" as "a building which is appropriated for the use of a school or schools, or as a place in which to give instruction." Young v. Linwood School Dist. No. 17, 193 Ark. 82, 84, 97 S.W.2d 627 (1936) (quoting Alexander v. Phillips, 31 Ariz. 503, 254 P. 1056 (1927)).

In my opinion, "schoolhouse," as so defined, generally includes "a facility owned and operated by a public or private school, a public or private day care center, or a similar entity," at least to the extent the school, day care center, or other entity gives instruction.

Your inquiry may be focused mostly on the public/private distinction. In my opinion, "schoolhouse" generally includes private as well as public instructional facilities. The proximity law includes churches, all of which are private. Thus there appears no legislative intent (or plausible reason) to limit the law's protections to people using public facilities. At least one early proximity law applied to private academies but not to the public schools; and it was held to be constitutional in at least two cases. Act of March 2, 1875, Acts of Arkansas 1874-75, p. 206; Blackwell v. State, 36 Ark. 178 (1880); Boyd v. Bryant, 35 Ark. 69 (1879).

Whether a facility is a "school" or a place in which instruction is given are questions that will depend at least in part on the prevailing facts. While the facts pertaining to most day care centers and facilities of "similar entities" likely will be such that they will be "schoolhouses," certain facts might cause a court to hold otherwise with respect to a particular facility.

Effect of Act 1172

Act 1172 will change the application and effect of the proximity law with respect to schoolhouses (and churches) by changing the way in which distances are measured. Under current law, distances are measured from building wall to building wall. After Act 1172, distances will be measured from property line to property line.

But Act 1172 will not, in my opinion, change the meaning of the word "schoolhouse." It certainly will not do so expressly, as it will not add a definition of "schoolhouse," which will remain undefined in the proximity law.

It is true that Act 1172 will define "church" (also not defined in the current proximity law) to include "immediately adjacent property owned or leased by the church that is used for church purposes." And one might argue that this revision implies that "schoolhouse" should also be interpreted to include adjacent property used for school purposes. But in my view, "schoolhouse" already will generally be interpreted to include all of a school's instructional facilities, not just the main school building. Such an approach is consistent with the Court's holding in Young that a gymnasium and facilities for home economics and vocational agriculture are "school buildings." As so interpreted, Act 1172's property-line rule means that the distance will be measured from the property line of the "schoolhouse."

Assistant Attorney General J.M. Barker prepared this opinion, which I approve.

Sincerely,

LESLIE RUTLEDGE
Attorney General
LR/MB:cyh