When does the Arkansas 25 mph school zone speed limit apply? Does it apply during ball games or other school events outside instructional time?

Plain-English summary

Representative Joe Farrer asked when the 25 mph school zone speed limit in Ark. Code Ann. § 27-51-212(a) actually applies. The statute says no person shall exceed 25 mph "when passing a school building or school zone during school hours when children are present and outside the building." Farrer's specific subquestions were:

1. During school hours, do children actually have to be present, or does the law trigger any time school is in session?
2. Does the law apply during school events like ball games when children are present?
3. Does an officer have to personally see children in close proximity to the school zone?
4. In other words, is the trigger the presence of children or the event that might have children present (school in session, ballgames, etc.)?

AG Leslie Rutledge gave a tight statutory reading. The statute's three conditions are conjunctive (linked by "and"): school hours, children present, and children outside the building. All three must be true. No one element by itself triggers the rule. So:

• "Children" must be present and outside the building. School "being in session" alone is not enough; if the children are inside the building all day, the statute does not apply.
• "School hours" is the open term. The statute does not define it. Neither does case law. The AG follows the office's long-standing rule against creating controlling definitions of undefined statutory terms.
• The legislature did define "school day" elsewhere as a day on which classes are in session and students receive at least six hours of instructional time (§ 6-16-102(a)(1)). The legislature chose not to define "school hours" the same way, and "school hours" is clearly a different concept than "school day."

The AG read "school hours" as likely covering arrival, instructional, and departure time. She said it might also extend to some before-school and after-school extracurricular activities. The AG declined to draw a hard line on after-school events because the further from the conventional school day, the more vulnerable the application becomes to an as-applied due-process challenge under the vagueness doctrine.

On Question 3, the AG declined to answer because whether an officer must personally see children in close proximity is a fact-specific evidentiary question that prosecutors and trial courts must decide case by case based on the proof available.

The AG closed with a reminder that even when the school-zone statute does not apply, motorists in Arkansas are on notice under § 27-51-104 (careless driving) and at common law (Thomas v. Newman) to "keep a constant lookout to avoid injury to pedestrians" and to exercise care "commensurate with the danger reasonably to be anticipated."

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.

Background and statutory framework

The three conjunctive conditions

Section 27-51-212(a) reads: "No person shall operate a motor vehicle in excess of twenty-five miles per hour (25 m.p.h.) when passing a school building or school zone during school hours when children are present and outside the building." The three conditions, joined by "and," all must be present:

1. Passing a school building or school zone. A "school zone" is the 300 feet on either side of a school building or school grounds under § 27-51-213(a)(1).
2. During school hours. The statute's open term, discussed below.
3. Children present and outside the building. Both presence and out-of-building status are required. Children who are only inside the building do not meet that condition.

A motorist who satisfies the first condition (passing a school zone) but fails either of the other two is not in violation.

Why "school hours" matters

Section 27-51-212 is a penal statute. The penalties are in § 27-51-214 (fines, jail, or both). Penal statutes must be strictly construed (State ex rel. Sargent v. Lewis) and must provide ascertainable standards of guilt under due-process principles, so that "persons of average intelligence" need not guess at the statute's meaning (State v. Torres; Holloway v. State Board of Architects).

The Arkansas Supreme Court has tolerated some flexibility in penal statutes under Torres: "flexibility, rather than meticulous specificity or great exactitude, in a statute is permissible as long as its reach is clearly delineated in words of common understanding." But "the earlier in the morning or later in the evening that a school speed limit is enforced, the more susceptible it will be to an as-applied due process challenge," as the AG put it.

Why the AG would not define "school hours"

The AG's office has long held that, "in the absence of a legislatively or judicially formulated definition of a [statutory] term, it is inappropriate for the Attorney General, being a member of the executive branch of government, to formulate a controlling definition." Op. Att'y Gen. 1998-05. The AG cited prior opinions applying that rule (2013-139, 2010-002, 2005-294, 2000-338). For "school hours," the AG would offer a description of what the term likely encompasses but would not draw a hard boundary; that is the legislature's or the courts' job.

Ball games and after-school events

The AG said the speed limit would apply to a ball game held during "school hours" if the other statutory conditions were met. She thought the term might cover some extracurricular activities but declined to define its outer boundary. She noted that later evening enforcement would be more susceptible to an as-applied due-process challenge.

The AG also pointed to the careless-driving statute and the common-law duty of care. Even when the 25 mph school-zone limit does not apply, a motorist driving past a school where children are visible cannot drive carelessly. Thomas v. Newman puts the rule plainly: a motorist must "keep a constant lookout to avoid injury to pedestrians, and should anticipate their presence."

Common questions

Q: When does the 25 mph school zone speed limit apply in Arkansas? A: All three conditions must be met simultaneously: you are passing a school building or school zone, it is during school hours, and children are both present and outside the building. If any one of the three is missing, the statute does not apply.

Q: Does "school in session" by itself trigger the 25 mph limit? A: No. Children must be present and outside the building. If students are all inside during instructional time, the speed limit does not apply.

Q: Does the opinion decide whether the 25 mph limit applies when school is closed but children are outside on a Saturday? A: No. The opinion does not address that scenario. It says only that "school hours" likely includes student arrival, instructional, and departure time and may extend to some before-school or after-school extracurricular events, without defining the precise boundaries.

Q: Does the 25 mph limit apply during evening sports events at the school? A: It depends on whether the event falls within "school hours" and children are present outside the building. The AG said some after-school events might qualify but did not define when school hours end.

Q: Does an officer have to actually see children in close proximity to write a ticket? A: The AG declined to answer this. It is a fact-specific evidentiary question. The prosecutor or city attorney has to assess whether the available proof meets the burden of proof on the elements.

Q: What is the school zone speed limit penalty?
A: Section 27-51-214 sets fines and jail time. The AG did not specify the amounts in this opinion; current amounts should be verified against the statute as in effect.

Q: Is the rule different for "school day" versus "school hours"? A: Yes. The legislature defined "school day" in § 6-16-102(a)(1) as a day with classes in session and at least six hours of instructional time. "School hours" is undefined and a different concept. The AG cannot import the "school day" definition into "school hours."

Citations and references

Statutes:

• Ark. Code Ann. § 27-51-212(a) (Repl. 2010) (25 mph school zone speed limit)
• Ark. Code Ann. § 27-51-213(a)(1) (Repl. 2010) (300-foot school zone definition)
• Ark. Code Ann. § 27-51-214 (Repl. 2010) (speeding-in-school-zone penalties)
• Ark. Code Ann. § 27-51-104 (Repl. 2010) (careless driving)
• Ark. Code Ann. § 6-16-102(a)(1) (Repl. 2013) (definition of "school day")

Cases:

• MacSteel Div. of Quanex v. Arkansas Oklahoma Gas Corp., 363 Ark. 22, 210 S.W.3d 878 (2005) (rules of statutory interpretation)
• City of N. Little Rock v. Montgomery, 261 Ark. 16, 546 S.W.2d 154 (1977) (natural import of legislative language)
• State ex rel. Sargent v. Lewis, 335 Ark. 188, 979 S.W.2d 894 (1998) (penal statutes strictly construed)
• Trice v. City of Pine Bluff, 279 Ark. 125, 649 S.W.2d 179 (1983) (criminal statutes interpreted for what they say)
• State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992) (vagueness and flexibility in penal statutes)
• Holloway v. Arkansas State Bd. of Architects, 352 Ark. 427, 101 S.W.3d 805 (2003) (vagueness doctrine)
• Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979)
• Thomas v. Newman, 262 Ark. 42, 553 S.W.2d 459 (1977) (motorist's duty to anticipate pedestrian presence)

Source

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

Official summary

Are provisions of the Arkansas school zone speed law, codified at Ark. Code Ann. 27-51-212, applicable only during school hours? Q2) Is the school zone speed law triggered by the presence of children? Q3) Is the school zone speed law in effect during school events, such as ball games, where children are also present? Q4) Does an officer actually have to see children in close proximity to the speed zone area? RESPONSE: In my opinion, the school-zone speed limit law applies when a motorist is passing a school building or school zone during school hours when children are present and are outside of the school building. While State law does not provide a definition of "school hours," the term likely includes student arrival time, instructional time, and departure time. The term also may be flexible enough to encompass time for some before-school or after-school extracurricular events, but I cannot define the precise boundaries of "school hours." I must decline to answer Question 3 as that presents a fact-specific, evidentiary question for the attorney prosecuting an alleged violation to consider.

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2016-005

March 31, 2016

The Honorable Joe Farrer
State Representative
199 Lewisburg Road
Austin, AR 72007-9455

Dear Representative Farrer:

You have requested my opinion on several questions concerning Ark. Code Ann. § 27-51-212, which establishes a 25-mph speed limit for motor vehicles passing through a school zone. Your main question is: When does the school-zone speed limit law apply? As follow up, you have posed the following event-specific questions:

1. During school hours while the speed limit is 25 [mph], do children have to be present or is the law triggered by school being in session?

2. Is the school-zone speed law in effect during school events, such as ball games, where children are also present?

3. Does an officer actually have to see children in close proximity to the speed-zone area?

4. In other words, is the law triggered by the presence of children or an event at which children might be present, e.g., school in session, ballgames, after-school events, etc.?

RESPONSE

In my opinion, the school-zone speed limit law applies when a motorist is passing a school building or school zone during school hours when children are present

323 CENTER STREET, SUITE 200 • L!TTLE ROCK, ARKANSAS 72201 TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKANSASAG .GOV

The Honorable Joe Farrer
State Representative
Opinion No. 2016-005
Page 2

and are outside of the school building. While State law does not provide a definition of "school hours," the term likely includes student arrival time, instructional time, and departure time. The term also may be flexible enough to encompass time for some before-school or after-school extracurricular events, but I cannot define the precise boundaries of "school hours." I must decline to answer Question 3 as that presents a fact-specific, evidentiary question for the attorney prosecuting an alleged violation to consider.

DISCUSSION

In considering your questions, I am guided by the reasonable rules of statutory interpretation, the primary rule being to read a statute as it is written:

The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary meaning and usually accepted meaning in common language. [Courts] construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. When the language of the statute is plain and unambiguous, there is no need to resort to rules of statutory construction. When the meaning is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served . . . and other appropriate means that shed light on the subject. 1

Additionally, "the meaning of a statute must be determined from the natural and obviou import of th language used by the legislature without resorting to subtle and forced con truction for the purpose of limiting or extending the meaning. " 2 Finally penal statutes including the statute at issue here, 3 are strictly construed, and nothing is taken as intended that is not clearly expressed. 4 "In civil law, [the

1
MacSteel Div. of Quanex v. Arkansas Oklahoma Gas Corp., 363 Ark. 22, 30, 210 S.W.3d 878, 882-83 (2005) (internal citations omitted). 2 City ofN. Little Rockv. Montgomery, 261 Ark. 16, 18, 546 S.W.2d 154, 155 (1977).
3
The penalties for speeding in a school zone, which include fines, jail time, or both, are found at Ark. Code Ann.§ 27-51-214 (Repl. 2010). 4 See State ex rel. Sargent v. Lewis, 335 Ark. 188, 191, 979 S.W.2d 894, 896 (1998).

The Honorable Joe Farrer
State Representative
Opinion No. 2016-005
Page 3

courts] inquire into what the legislature meant but in criminal law we inquire into only what the statute means." 5

The school-zone speed limit law provides:

No person shall operate a motor vehicle in excess of twenty-five miles per hour (25 m.p.h.) when passing a school building or school zone during school hours when children are present and outside the building. 6

The plain language of the statute clearly makes it unlawful for a motorist to exceed 25 miles per hour when passing a school building or in a school zone 7 under three express circumstances: 1) during school hours; 2) when children are present; and, 3) when the children are outside of the school building. The statute's language and conjunctive structure (its use of the word "and") make it clear that all three circumstances must be in place for a violation to occur.

The statute does contain an ambiguity that cannot be resolved by the text alone. Specifically, the term "school hours" is not defined. Neither the legislature nor the courts have ever defined the term "school hours;" accordingly, I cannot provide a controlling definition of the term. 8 The term "school hours" is clearly different from the term "school day," which the legislature has defined. 9

Because the term "school hours" is ambiguous, we can look to the statute's purpose and objective to try to help us interpret it. However, as we use such

5
Trice v. City of Pine Bluff, 279 Ark. 125, 129, 649 S.W.2d 179, 181 (1983).
6
Ark. Code Ann.§ 27-51-212(a) (Rep!. 2010).
7
State law defines a "school zone" as the distance of 300 feet on either side of a sc.hool building or school grounds. See Ark. Code Ann.§ 27-51-213(a)(l) (Rep!. 2010). 8 It is a long-standing policy of the Attorney General's office, and one to which my office adheres, that "in the absence of a legislatively(] or judicially formulated definition of a [statutory] term, it is inappropriate for the Attorney General, being a member of the executive branch of government, to formulate a controlling definition." Op. Att'y Gen. 1998-05. See also Ops. Att'y Gen. 2013-139, 2010-002, 2005-294, 2000-338 (and opinions cited therein). 9 See Ark. Code Ann.§ 6-16-102(a)(l) (Repl. 2013) (defining a "school day" as "a day in which classes are in session and students receive at least six (6) hours of instructional time.").

The Honorable Joe Farrer
State Representative
Opinion No. 2016-005
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interpretive tools, we must bear in mind that this is a penal statute. Under constitutional due-process grounds, a penal statute must have ascertainable standards of guilt such that "persons of average intelligence" need not have to guess at the statute's meaning and differ as to its application. 10 Moreover, the law must give fair warning in definite language of the prohibited act, and cannot be so broad that it becomes susceptible to arbitrary and discriminatory enforcement. 11 Of course, as explained by the Arkansas Supreme Court in State v. Torres, even criminal statutes can be pliant at times without running afoul of the Constitution; statutes need not expressly identify or list every possible set of circumstances where a violation may occur:

[F]lexibility, rather than meticulous specificity or great exactitude, in a statute is permissible as long as its reach is clearly delineated in words of common understanding. Moreover, impossible standards of specificity are not constitutionally required, even in criminal statutes. A statute will meet constitutional muster if the language conveys sufficient warning when measured by common understanding and practice. Additionally, it is not necessary that all kinds of conduct falling within the reach of the statute be particularized and the statute will not be struck down as vague only because marginal cases could be put where doubts might arise. 12

The statute's primary purpose and objective is to protect school children from being struck by motorists who are speeding in a school zone. Thus, it seems reasonable, for the purposes of this statute, that the term "school hours" would encompass more of the school day than just instructional time (when the children are most likely to be inside the school building). It seems likely the term would also include the hours when children are arriving and departing from school (when they are most likely to be outside the school building). In my opinion and as a general matter, most people would commonly understand that school hours

10
State v. Torres, 309 Ark. 422, 424-25, 831 S.W.2d 903, 904 (1992) (internal citations omitted).
11
See id. at 425, 831 S.W.2d at 904. See also Holloway v. Arkansas State Bd. of Architects, 352 Ark. 427, 436-37, IOI S.W.3d 805, 811-12 (2003) (stating that a statute cannot be '~so vague and standardless that it leaves judges free to decide, without any legally fixed standards, what is prohibited and what is not on a case-by-case basis."). 12 309 Ark. at 425, 831 S.W.2d at 904-05 (citing Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979)) (emphasis added).

The Honorable Joe Farrer
State Representative
Opinion No. 2016-005
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include those parts of the day before and after instructional time. That is, they would know that "school hours" essentially means when the school is open for its students, both in the mornings as students begin arriving and in the afternoons when they are dismissing.

But given the purpose and objective of the statute, and the flexibility referenced in the Torres analysis, the term "school hours" could likely also include time before arrival and after dismissal to account for students being at school for extracurricular activities. But the earlier in the morning or later in the evening that a school speed limit is enforced, the more susceptible it will be to an as-applied due process challenge. With this in mind, regarding after-school activities, as the afternoon gets later and later, it is possible that a court faced with this question could find that a reasonable person would not understand that "school hours" are still occurring. In fact, your fourth question seems to acknowledge that some school-related events occur "after school." But because neither the legislature nor the courts have defined "school hours," I cannot say when "school hours" definitively begin or end for the purposes of this statute. 13

Question 1: During school hours while the speed limit is 25 [mph], do children have to be present or is the law triggered by school being in session?

As explained above, the statute applies when a motorist is passing a school building or school zone during school hours when children are present and are outside of the school building.

Question 2: Is the school-zone speed law in effect during school events, such as ballgames, where children are also present?

Please see the analysis above regarding the likely parameters of "school hours." If school events, such as ballgames you reference, are being held during what are considered "school hours," then the statute would apply. As I have stated, the term may be flexible enough to encompass some time for before-school or after- school events. But, again, I cannot opine on where those lines are drawn. Of course, while the specific statute at issue may not apply in specific cases, motorists in Arkansas are generally on notice to avoid careless driving 14 and to exercise the

13
See note 8 and accompanying text, supra.
14
See Ark. Code Ann.§ 27-51-104 (Rep!. 2010) .

The Honorable Joe Farrer
State Representative
Opinion No. 2016-005
Page 6

care "commensurate with the danger reasonably to be anticipated." 15

Question 3: Does an officer actually have to see children in close proximity to the speed-zone area?

I must respectfully decline to answer this question, as it is beyond the scope of an Attorney General's opinion. This is a fact-specific, evidentiary question that a local prosecuting or city attorney will have to consider, on a case-by-case basis, in determining whether the charging jurisdiction is able to meet its burden of proof.

Question 4: In other words, is the law triggered by the presence of children or an event at which children might be present, e.g., school in session, ballgames, after-school events, etc.?

Please review my responses above.

Sincerely,

~:u:~
Attorney General

15
Thomas v. Newman, 262 Ark. 42, 49, 553 S.W.2d 459, 463 (1977) (stating further that "[a] motorist must keep a constant lookout to avoid injury to pedestrians, and should anticipate their presence ... " and that "[a] person operating an automobile and seeing children ahead must exercise such care as a man of ordinary prudence would exercise under the circumstances").