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 whether “schoolhouse” includes facilities operated by public or private schools, day care centers, and similar entities. He also asked how Act 1172 of 2015 would affect that meaning.

The Attorney General predicted that courts would generally understand “schoolhouse” as a building used as a school or for giving instruction. That reading generally includes both public and private instructional facilities and day care centers. Whether a particular facility qualifies depends partly on its actual use and other facts. The AG said no Arkansas appellate court had settled the word's meaning in this context, so the opinion was a prediction rather than a binding definition.

Act 1172 would change the measurement, from building wall to building wall to property line to property line. It would also define “church” to include immediately adjacent church property used for church purposes. It would leave “schoolhouse” undefined. The AG rejected an argument that the church definition meant school instructional facilities outside the main building would need to be added expressly. She pointed to the Arkansas Supreme Court's treatment of gymnasiums and facilities for home economics and vocational agriculture as “school buildings.” The opinion says the new distance would be measured from the property line of the schoolhouse.

Currency note

The opinion describes Act 1172 as a future change. Check the current proximity statute, measurement rule, and permit guidance before relying on it for a location decision.

Background and statutory framework

The opinion says “schoolhouse” was undefined in the proximity law and elsewhere in the Arkansas Code. It quotes Young v. Linwood School Dist. No. 17, which in turn quoted an Arizona case defining a schoolhouse as “a building which is appropriated for the use of a school or schools, or as a place in which to give instruction.” The AG thought an Arkansas court would likely use that definition here.

The AG also explained why she saw no public school limitation. The proximity law protects churches, which are private, and an earlier proximity law had applied to private academies. These points supported her view that a private instructional facility could qualify. The opinion does not decide whether any named day care center or school building qualifies on its particular facts.

Common questions

Did the AG say day care centers count as schoolhouses?
Generally, yes, when the center gives instruction. The AG cautioned that facts about an individual facility could lead a court to a different answer.

Did private schools count?
Generally, yes. The AG saw no reason to exclude private instructional facilities, while reserving the answer for any specific site to its facts.

Did Act 1172 of 2015 change which buildings counted?
No. The AG said it left “schoolhouse” undefined and changed how the 1,000-foot distance would be measured, from building walls to property lines.

What was the practical effect of the property-line change?
The measurement point would become the property line of the schoolhouse and the property line of the liquor business. The opinion does not evaluate a particular permit site.

Could a school's gym or auditorium be considered the "schoolhouse" for measurement?
The AG cited Young's treatment of a gymnasium and facilities for home economics and vocational agriculture as “school buildings” to support including a school's instructional facilities generally. A specific facility still requires a factual assessment.

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