How is the 2,000-foot residency limit measured for an Arkansas Level 3 or Level 4 sex offender, and does a homeschool group or church camp count as a school or youth center?
Plain-English summary
Ark. Code Ann. § 5-14-128(a)(1) prohibits a Level 3 or Level 4 registered sex offender from knowingly residing within 2,000 feet of the property on which a public or private elementary or secondary school, public park, youth center, or daycare facility is located. Violation is a Class D felony. The opinion request grew out of a real situation in Cleburne County: a Level 3 offender moved into a house roughly 350 feet (property line to property line) from Triple S Ranch, which hosts a church, multiple summer camps, and two homeschool groups, and includes a girls' dormitory about 2,000 feet from the offender's residence.
The AG worked through six questions, applying two interpretive principles: the cardinal rule of statutory construction (read the statute as written, giving words their ordinary meaning) and, because § 5-14-128 is a penal statute, the rule of lenity (ambiguities resolved in favor of the defendant).
On homeschool groups: a private homeschool group meeting weekly at a church location is NOT a "private elementary or secondary school." Section 5-14-128 does not define the term, but other Arkansas Code sections explicitly distinguish between "home schools" and "private schools" (e.g., § 6-15-510 lets a "home-schooled student" participate in a "private school" interscholastic activity, treating them as separate categories; § 9-28-111(c)(13)(C)(ii) lists home-schooled, public-school, and private-school students as three distinct categories; § 12-20-101(4) defines "private school" as a registered nonprofit accredited or licensed by an accrediting association recognized by the State Board of Education). Combined with the rule of lenity for penal statutes, the homeschool group at the Ranch does not trigger the 2,000-foot prohibition. The follow-up question on whether a "minimum weekly meeting schedule" requirement exists became moot.
On youth centers: the statutory definition is unusually broad. Under § 5-14-128(f)(3), a "youth center" is "any building, structure, or facility owned or operated by a not-for-profit organization or by this state or a county, city, or town in this state for use by minors to promote the health, safety, or general welfare of the minors." The statute imposes no minimum frequency or duration requirement. The girls' dormitory used to house minors during church camps almost certainly meets the definition: the dormitory is "for use by minors," and providing housing "promotes the health, safety, or general welfare of" those minors. The AG's view: the dormitory likely qualifies. The same logic answers Question 4 (church camp = youth center) and Question 5 (no minimum-presence-time requirement); the breadth of the statutory definition does not impose those filters.
On distance measurement: the statute is explicit that the protected end of the measurement is the "property on which a [protected entity] is located," meaning the property line of the protected entity (e.g., the Ranch's property line). The other end (the offender's residence) is less clear. The AG's view: a court would most likely measure to the actual building or structure in which the offender resides, not the offender's property line. The reasoning: the General Assembly knew how to use property-line language when it wanted to (§ 5-14-128(a)(1) used "property" expressly for the protected entity), and the rule of lenity for penal statutes favors the narrower reading for the defendant.
On removal: § 5-14-128(e)(1) provides that once the offender is charged with violating the statute, the offender "shall be ordered as a condition of his or her release from custody not to return to the location" where he or she was residing. The court having jurisdiction may, under § 5-14-128(e)(2), allow return to the residence before adjudication "if good cause is shown." The opinion does not specify a numeric "time frame" for eviction; the order is a condition of release.
What this means for you
Registered Level 3 or Level 4 sex offenders considering a residence in rural Arkansas
The 2,000-foot rule attaches to four kinds of protected entities: public or private elementary/secondary schools, public parks, youth centers, and daycare facilities. The breadth of "youth center" matters most in rural areas. A church camp is likely a "youth center" if its facilities are used by minors for purposes promoting their health, safety, or general welfare, even if the use is seasonal. A girls' dormitory used during summer camps almost certainly counts. Homeschool groups meeting weekly at a church location, by contrast, do not count as "private schools."
The distance is measured from the protected property's property line to the building or structure where you reside, not your property line. So a 350-foot lot-to-lot distance can still result in a 2,000-foot building-to-property-line distance if your house sits at the far end of your lot.
A violation is a Class D felony. If charged, you will likely be ordered not to return to the residence pending adjudication unless you show good cause to a court.
Defense attorneys representing a charged offender
Two arguments emerge from this opinion. First, on the entity classification: the statute's silence on "private school" definition combined with explicit statutory distinctions between homeschool and private school (§§ 6-15-510, 9-28-111, 12-20-101) supports a narrow reading. Penal-statute lenity (Short v. State; Sansevero v. State) cuts the same way. Second, on distance measurement: the AG opinion supports measuring to the offender's actual residence (building or structure), not the offender's property line; this can be dispositive in close cases. For "good cause" to return to residence pending adjudication, factual considerations include family hardship, alternative housing infeasibility, and the strength of the underlying classification dispute.
Prosecuting attorneys
The youth-center definition's breadth is a significant doctrinal asset. Buildings used seasonally for minors' health, safety, or general welfare almost certainly qualify, even when not in continuous use. The pre-adjudication release condition under § 5-14-128(e)(1) is automatic once the charge is filed; the burden shifts to the defendant to show "good cause" for return.
Homeschool cooperatives and church camp administrators
Whether your facility triggers the 2,000-foot residency restriction depends on whether you operate a "youth center" under the statute's broad definition (any not-for-profit-owned building used by minors for health, safety, or general welfare) or a school. A homeschool cooperative meeting weekly at a church location does NOT qualify as a "private school" under this opinion. A facility used to house minors (e.g., overnight camp dormitories) likely DOES qualify as a "youth center."
If you are a non-profit operating a youth-serving facility in rural Arkansas, the AG's reading means a Level 3 or Level 4 offender cannot reside within 2,000 feet of your property line (measured to their residence). The county sheriff and the offender's parole/probation officer monitor compliance.
Rural homeowners near a church camp or homeschool location
If you are a Level 3 or Level 4 offender purchasing property in rural Arkansas, due-diligence on neighboring uses matters. A neighboring church camp with overnight dormitories almost certainly creates a 2,000-foot residency restriction; a neighboring homeschool group meeting at a church likely does not. Distance is measured from the camp's property line to your residence.
Common questions
Does an Arkansas homeschool group meeting weekly at a church count as a "private school" for the sex offender residency rule?
No. Section 5-14-128 does not define "private school," but other Arkansas Code sections explicitly treat homeschools and private schools as separate categories. Combined with the rule of lenity for penal statutes, a homeschool group is not a "private elementary or secondary school" for purposes of the 2,000-foot residency restriction.
Does a summer church camp count as a "youth center"?
Likely yes. Section 5-14-128(f)(3) defines "youth center" very broadly: any building, structure, or facility owned or operated by a not-for-profit organization (or by the state or a local government) for use by minors to promote health, safety, or general welfare. Buildings used to house campers (such as a girls' dormitory) almost certainly qualify. The statute imposes no minimum-frequency or minimum-presence-time requirement.
How is the 2,000 feet measured?
The starting point is the property line of the protected entity (the school, park, youth center, or daycare). The endpoint is the actual building or structure where the offender resides, not the offender's property line. This reading follows the rule of lenity for penal statutes.
Is there a minimum amount of time minors must be present for a facility to be a "youth center"?
No. The statute has no time requirement. A facility used by minors to promote their health, safety, or general welfare qualifies even if the use is seasonal or intermittent.
What happens after a charge under § 5-14-128?
Under § 5-14-128(e)(1), the offender "shall be ordered as a condition of his or her release from custody not to return to the location" where he or she was residing. Under § 5-14-128(e)(2), the court may allow the offender to return to the residence pending adjudication if good cause is shown.
What is the penalty?
Violation by a Level 3 or Level 4 offender is a Class D felony under § 5-14-128(d). The statute also criminalizes a Level 4 offender residing within 2,000 feet of a church or other place of worship.
Are there grandfather exceptions?
Yes. The statute makes exceptions for offenders who owned and occupied the residence prior to the establishment of the protected entity or prior to the passage of the applicable statutory provision. Footnote 10 of the opinion notes those exceptions did not apply to the situation Senator Payton described.
Background and statutory framework
Residency restriction:
- Ark. Code Ann. § 5-14-128(a)(1): 2,000-foot prohibition for Level 3 or Level 4 offenders from public or private elementary/secondary school, public park, youth center, or daycare facility.
- Ark. Code Ann. § 5-14-128(d): Class D felony.
- Ark. Code Ann. § 5-14-128(f)(3): definition of "youth center."
- Ark. Code Ann. § 5-14-128(e)(1)-(2): pre-adjudication release condition and good-cause exception.
"Private school" cross-references:
- Ark. Code Ann. § 6-15-510 (homeschool/private-school distinction in interscholastic activities).
- Ark. Code Ann. § 9-28-111(c)(13)(C)(ii) (homeschooled, public-school, and private-school students as separate categories).
- Ark. Code Ann. § 12-20-101(4) (defining "private school" as a registered nonprofit accredited or licensed by an accrediting association recognized by the State Board of Education).
Construction principles:
- Cardinal rule (Macsteel; Weiss v. McFadden; Edwards v. State).
- Rule of lenity for penal statutes (Short v. State; Sansevero v. State).
Citations
- Ark. Code Ann. §§ 5-14-128(a)(1), (d), (e)(1)-(2), (f)(3); 6-15-510; 9-28-111(c)(13)(C)(ii); 12-20-101(4)
- Macsteel, Parnell Consultants v. Ark. Ok. Gas Corp., 363 Ark. 22, 210 S.W.3d 878 (2005)
- Weiss v. McFadden, 353 Ark. 868, 120 S.W.3d 545 (2003)
- Edwards v. State, 347 Ark. 364, 64 S.W.3d 706 (2002)
- Short v. State, 349 Ark. 492, 79 S.W.3d 313 (2002)
- Sansevero v. State, 345 Ark. 307, 45 S.W.3d 840 (2001)
Source
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2022-027
September 8, 2022
The Honorable John Payton
State Representative
P.O. Box 181
Wilburn, AR 72179-0181
Dear Representative Payton:
This is in response to your request for my opinion regarding Ark. Code Ann. § 5-14-128 (Supp. 2021) and the restrictions it places on a Level 3 or Level 4 registered sex offender's residency.
In this regard, you have provided the following background:
Earlier this year, a Level 3 registered sex offender provided notice that he had moved into a house in Cleburne County, near the property owned and operated by an organization called Triple S Ranch, LLC, hereafter referred to as the Ranch. The Ranch is home to a church that meets several times each week, hosts numerous student camps throughout the year (primarily during the summer months), and is utilized by two homeschool groups. Further, the homeschool groups meet at various times throughout the week. In addition to the homeschool groups that meet regularly during the school year, the Ranch hosts thousands of school-age children at multiple camps during the summer months. While the camps use the vast majority of the property, there are multiple buildings that are also used, including a girl's dormitory that is approximately two thousand (2,000) feet from the registered sex offender's residence. The measurement from the property line of the registered sex offender's address to the Ranch's property line is approximately three hundred fifty (350) feet.
With this background in mind, you have asked six questions, which I have set out below and will address in the order posed.
Question 1: Pursuant to and as documented within Arkansas Code § 5-14-128, a Level 3 or Level 4 registered sex offender is prohibited from living within two thousand (2,000) feet of the property on which a public or private school is located.
a. Does the definition of "private school" include a private homeschool group that holds classes weekly at a church location as part of their normal curriculum?
b. Is there any such requirement under the definition of "elementary or secondary school" that requires a minimum weekly meeting schedule for a homeschool group to qualify under this code section?
I gather that you are asking whether the weekly meeting place of a group of home-schooled children can qualify as a "private elementary or secondary school" for purposes of Ark. Code Ann. § 5-14-128. In my opinion, the answer is "no."
The relevant subdivision states that a "Level 3 or Level 4 offender may not knowingly reside within two thousand feet (2,000') of the property on which a public or private elementary or secondary school, public park, youth center, or daycare facility is located." Section 5-14-128 does not define what constitutes a "private elementary or secondary school," but other Code sections treat "private schools" and "home schools" as separate categories of schools, rather than including "home schools" within the definition of "private schools."
Furthermore, a violation of section 5-14-128 is a Class D felony. While the cardinal rule of statutory construction is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language, Arkansas courts have consistently held that penal provisions containing ambiguous language should be strictly construed with doubts resolved in favor of the defendant.
Consequently, I do not believe, based on the information you have provided, that Triple S Ranch, LLC ("the Ranch") would constitute a "private elementary or secondary school" for purposes of this statute.
Question 2: Pursuant to and as documented within Arkansas Code § 5-14-128, a Level 3 or Level 4 registered sex offender may not knowingly reside within two thousand (2,000) feet of the property on which a "youth center" is located. Youth Center is defined as any building, structure, or facility owned or operated by a not-for-profit organization or by this state or a county, city, or town in this state for use by minors to promote the health, safety, or general welfare of the minors.
a. Does this definition of "youth center" include seasonal (mostly summer months) church camps where minors (children under the age of 18) are campers who reside overnight for weeks at a time?
Section 5-14-128 provides a very broad definition of a "youth center," defining it as "any building, structure, or facility owned or operated by a not-for-profit organization or by this state or a county, city, or town in this state for use by minors to promote the health, safety, or general welfare of the minors." There are no additional qualifications regarding how long or how frequently the buildings, structures, or facilities must be used by minors. It is likely that any building owned or operated by a not-for-profit organization that is used as a dormitory to house minors during church camps qualifies as a "youth center." Such a building is "for use" by minors, and providing housing "promotes the health, safety, or general welfare of" those minors. Based on the information you have provided, the girls' dormitory on the Ranch's property likely falls under the definition of a "youth center."
Question 3: Pursuant to and as documented within Arkansas Code § 5-14-128, is the distance between a registered sex offender's residence and a neighboring entity, such as the Ranch, properly measured from property line to property line?
Section 5-14-128 states that a "Level 3 or Level 4 sex offender may not knowingly reside within two thousand feet (2,000') of the property on which a public or private elementary or secondary school, public park, youth center, or daycare facility is located." This reference to the property on which the protected entity is located makes clear that the measurement should start at the property line of the protected place, not at the walls or the edge of the protected building, structure, or facility itself.
Where the measurement should end is less clear. The statute only refers to the place where the sex offender "reside[s]." This could mean the actual building in which the offender lives, or it could mean the broader property on which that building is located. In my opinion, however, a court would most likely apply the former interpretation. Subdivision 5-14-128(a)(1)'s language referencing "the property on which a [protected entity] is located" demonstrates that where the General Assembly intended the prohibition to extend to the property line, it knew how to do so in unambiguous language. This fact, as well as the aforementioned maxim that penal provisions are to be strictly construed with doubts resolved in favor of the defendant, suggests that the distance is properly measured from the property line of the protected entity to the actual building or structure in which the offender resides.
Question 4: Pursuant to and as documented within Arkansas Code § 5-14-128, does the definition of "youth center" include a church camp?
Question 5: Pursuant to Arkansas Code § 5-14-128, is there any specific amount of time that a minor or minors need be present for the registered sex offender to be unable to reside in that particular area?
Please see my response to your second question above.
Question 6: Should a registered sex offender be found in violation of Arkansas Code § 5-14-128, what is the time frame in which said registered sex offender may be evicted or removed from the property or area in question?
A Level 3 or Level 4 offender who knowingly resides within two thousand feet of the property on which a public or private elementary or secondary school, public park, youth center, or daycare facility is located or a Level 4 offender who knowingly resides within two thousand feet of a church or other place of worship commits a Class D felony. Once the offender has been charged with violating section 5-14-128, "he or she shall be ordered as a condition of his or her release from custody not to return to the location where he or she was residing that was located within two thousand feet (2,000') of a public or private elementary or secondary school, public park, youth center, daycare facility, or church or other places of worship until the charge is adjudicated." However, "[t]he court having jurisdiction over the charge may order that the defendant be allowed to return to his or her residence before the adjudication of the charge if good cause is shown."
Sincerely,
LESLIE RUTLEDGE
Attorney General