Can a registered sex offender in Mississippi live within 500 feet of a public beach, and does the 3,000-foot rule for playgrounds apply to beaches?

Subject

Registered Sex Offenders and Public Beaches

Recipient

Raymond L. Edwards, Esq., City Prosecutor, Pass Christian

Plain-English summary

Pass Christian's prosecutor asked two related questions about how Mississippi's sex offender laws apply to public beaches on the Gulf Coast. First, can a registered sex offender lawfully live less than 500 feet from a public beach? The AG's answer turns on Section 45-33-26(1)(b), which makes it unlawful for a registered sex offender to "visit or be in or about any public beach or public campground where minor children congregate without advance approval from the Director of the Department of Public Safety Sex Offender Registry." Although Section 45-33-26 addresses being near a beach rather than residing there, the AG concluded that residing within 500 feet would put the offender "in or about" the beach, so it requires advance approval.

Second, does Section 45-33-25(4)(a)'s 3,000-foot residency restriction (which lists "playground, ballpark or other recreational facility utilized by persons under the age of eighteen years") apply to public beaches? The AG declined to decide. Whether a public beach is a "recreational facility" within the meaning of that statute is a factual determination the AG cannot make under Section 7-5-25. The opinion set out the ordinary-meaning definitions of "recreation" and "facility" and said the local governing authority should make the determination, subject to court review.

What this means for you

Sex offender registrants and their attorneys

The opinion holds that residing less than 500 feet from a public beach puts a registrant "in or about" the beach under Section 45-33-26(1)(b), so it requires advance approval from the Director of the DPS Sex Offender Registry. Whether the separate 3,000-foot residency restriction in Section 45-33-25(4)(a) reaches a public beach was left undecided: the AG said whether a beach is a "recreational facility" is a factual question it could not resolve, one for the local governing authority subject to court review.

City prosecutors and law enforcement in coastal towns

For Section 45-33-26(1)(b), the opinion holds that a registrant must have advance approval to be "in or about" a public beach, and concluded that residing within 500 feet falls within that. For the 3,000-foot rule in Section 45-33-25(4)(a), the opinion did not decide whether a public beach is a covered "recreational facility"; it identified that as a factual determination for the local governing authority, subject to court review.

DPS Sex Offender Registry director and staff

The opinion identifies the Director of the DPS Sex Offender Registry as the official whose advance approval Section 45-33-26(1)(b) requires before a registrant may be "in or about" a public beach.

Coastal municipal officials

The opinion's holding rests on Section 45-33-26(1)(b), which addresses public beaches "where minor children congregate." Whether a particular beach also falls under the 3,000-foot residency restriction's "recreational facility" language is the open question the AG left to local officials and the courts.

Common questions

What is the difference between Sections 45-33-25 and 45-33-26?
Section 45-33-25 contains the registration requirements and the residency restrictions, including the 3,000-foot rule. Section 45-33-26 lists additional restrictions on where registered offenders may go, including the public beach restriction in subsection (1)(b).

What does "in or about" a public beach mean?
The phrase is broader than just "on" the beach. The AG read it to cover residing within 500 feet, on the reasoning that residing that close puts the registrant "in or about" the beach.

Who is the Director of the DPS Sex Offender Registry?
An official at the Mississippi Department of Public Safety. The Department maintains the registry and is the office the statute names for advance approval to be present in restricted areas.

Is the 500-foot threshold in the statute?
The 500-foot figure came from the prosecutor's question, not the statute. Section 45-33-26(1)(b) bars being "in or about" a public beach without approval, and the AG concluded that residing within 500 feet qualifies. The statutory test is "in or about" the beach, not a fixed distance.

What about Pass Christian's specific beaches?
The opinion did not decide whether any particular Pass Christian beach is a "recreational facility" for Section 45-33-25(4)(a) purposes. The opinion left that to the local governing authority and, ultimately, a court.

Background and statutory framework

Mississippi's sex offender statute imposes residency restrictions in Section 45-33-25(4)(a). That subsection prohibits a registered sex offender from residing within 3,000 feet of "the real property comprising a public or nonpublic elementary or secondary school, a child care facility, a residential child-caring agency, a children's group care home or any playground, ballpark or other recreational facility utilized by persons under the age of eighteen (18) years."

Section 45-33-26(1)(b) addresses presence rather than residency. It makes it unlawful for a registered sex offender to "visit or be in or about any public beach or public campground where minor children congregate without advance approval from the Director of the Department of Public Safety Sex Offender Registry."

The AG used Section 1-3-65's plain-meaning rule to consider whether a public beach is a "recreational facility" but stopped short of deciding, because that determination is fact-specific and Section 7-5-25 limits the AG's official opinion authority to questions of law. The opinion provided ordinary-language definitions ("recreation" as refreshment of mind or body through amusing or stimulating activity; "facility" as something created to serve a particular function), but left the application to local officials and the courts.

Citations

• Miss. Code Ann. § 1-3-65 (plain-meaning rule)
• Miss. Code Ann. § 7-5-25 (AG opinions limited to questions of law)
• Miss. Code Ann. § 45-33-25 (sex offender registration and residency restrictions)
• Miss. Code Ann. § 45-33-25(4)(a) (3,000-foot residency restriction near schools, child care, and recreational facilities)
• Miss. Code Ann. § 45-33-26 (additional location restrictions)
• Miss. Code Ann. § 45-33-26(1)(b) (public beach and campground prohibition without registry director approval)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/06/R.Edwards-June-23-2023-Registered-Sex-Offenders-and-Public-Beaches.pdf

Original opinion text

June 23, 2023
Raymond L. Edwards, Esq.
City Prosecutor, Pass Christian
Post Office Box 277
Pass Christian, Mississippi 39571
Re:

Registered Sex Offenders and Public Beaches

Dear Mr. Edwards:
The Office of the Attorney General has received your request for an official opinion.

Questions Presented

1. Is a registered sex offender in violation of the law by residing less than five hundred feet
   from a public beach?
2. Is a public beach within the definition of "playground, ballpark or other recreational
   facility" in Mississippi Code Annotated Section 45-33-25(4)(a)?
   Brief Response
3. A registered sex offender who wishes to reside less than five hundred feet from a public
   beach must receive advance approval from the Director of the Department of Public Safety
   Sex Offender Registry pursuant to Section 45-33-26, which provides that registered sex
   offenders may not lawfully be in or about a public beach without advance approval.
4. Whether a public beach fits within the definition of "playground, ballpark or other
   recreational facility" as set forth in Section 45-33-25(4)(a) requires a factual determination
   upon which this office may not opine.
   Applicable Law and Discussion
   Section 45-33-26(1)(b) provides, in pertinent part, that "[i]t is unlawful for a person required to
   register as a sex offender under Section 45-33-25 to visit or be in or about any public beach or
   public campground where minor children congregate without advance approval from the Director
   of the Department of Public Safety Sex Offender Registry." (Emphasis added). The statute does
   not contemplate the residence of a sex offender in relation to a public beach, but it does prohibit a
   sex offender from "be[ing] in or about any public beach" without approval. Id. (Emphasis added).
   Therefore, a registered sex offender would be required to have advance approval to reside less than
   five hundred feet from a public beach.
   In response to your second question, Section 45-33-25(4)(a), which contemplates the residence of
   a sex offender, does not explicitly address residence in relation to a public beach. It does, however,
   prohibit a sex offender from residing within three thousand feet of "the real property comprising a
   public or nonpublic elementary or secondary school, a child care facility, a residential child-caring
   agency, a children's group care home or any playground, ballpark or other recreational facility
   utilized by persons under the age of eighteen (18) years." (Emphasis added).
   Although "recreational facility" is not defined in that chapter or elsewhere in the Code, "[a]ll words
   and phrases contained in the statutes are used according to their common and ordinary acceptation
   and meaning; but technical words and phrases according to their technical meaning." Miss. Code
   Ann. § 1-3-65. "Recreation" is defined as "refreshment of one's mind or body after work through
   activity that amuses or stimulates; play." The American Heritage Dictionary of the English
   Language (4th ed. 2006). "Facility" is defined as "something created to serve a particular
   function." Id. Whether a public beach fits within the definition of "recreational facility" as used in
   Section 45-33-25(4)(a) requires a factual determination which we are unable to make by official
   opinion. Miss. Code Ann. § 7-5-25. Such determination should be made by the governing authority
   subject to review by a court of competent jurisdiction.
   If this office may be of any further assistance to you, please do not hesitate to contact us.
   Sincerely,
   LYNN FITCH, ATTORNEY GENERAL
   By:

/s/ Abigail C. Overby
Abigail C. Overby
Special Assistant Attorney General