MS 2023-06-R-Edwards-June-23-2023-Registered-Sex-Offenders-and-Public-Beaches June 23, 2023

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?

Short answer: A registered sex offender who wishes to reside less than 500 feet from a public beach in Mississippi must get advance approval from the Director of the Department of Public Safety Sex Offender Registry under Section 45-33-26, which prohibits being 'in or about' a public beach without approval. Whether a public beach also fits the separate 3,000-foot residency restriction in Section 45-33-25(4)(a) (covering 'playground, ballpark or other recreational facility') is a fact question the AG declined to decide.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

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 prohibits a registered sex offender from "be[ing] 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 talks about visiting or being near a beach rather than residing there, the AG concluded that residing within 500 feet would necessarily put the offender "in or about" the beach, requiring 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 noted standard plain-meaning analysis (defining "recreation" and "facility" using ordinary dictionary meanings) and said the local governing authority can make the determination, subject to court review.

What this means for you

Sex offender registrants and their attorneys

The 500-foot question has a clear answer: you cannot reside within 500 feet of a public beach in Mississippi without first getting written approval from the Director of the DPS Sex Offender Registry. The 3,000-foot question is unsettled. If your prospective residence is within 3,000 feet of a public beach, the conservative course is either (a) to seek advance approval through the same Director, treating the beach as a recreational facility, or (b) to choose a different residence. Local prosecutors may take the position that the beach is a recreational facility and prosecute, leaving you to argue the issue in court.

City prosecutors and police chiefs in coastal towns

You can confidently enforce Section 45-33-26(1)(b) against registered offenders living within 500 feet of a public beach without advance approval. For Section 45-33-25(4)(a) and the 3,000-foot rule, you have prosecutorial discretion: you can charge if you take the position that a beach is a recreational facility, but you should expect a defense challenge and a fact-intensive hearing. Documenting the public's actual recreational use of the specific beach (lifeguards, signage, families, beach equipment rentals) strengthens the case.

DPS Sex Offender Registry Director and staff

Expect requests for advance approval to be near or within sight of the Gulf beaches. The opinion reinforces that your office is the correct gatekeeper and that approval is contemplated by the statute. Build a paper trail for grant or denial decisions.

Coastal municipal officials and beach managers

Public beaches that allow children to congregate, especially with playground equipment, lifeguard stations, or family-oriented programming, are clearly captured by Section 45-33-26(1)(b). Putting up signage referencing the registry restrictions can help educate residents and registrants alike.

Citizens and local advocates

If you live near a public beach and are concerned about sex offender residency near you, the law gives you two layers: (1) Section 45-33-26's 500-foot "in or about" rule with advance-approval gating, and (2) the contestable 3,000-foot rule under Section 45-33-25(4)(a). Reach out to local law enforcement to flag concerns; the registry-director approval process is supposed to be a real check, not a rubber stamp.

Common questions

What is the difference between Sections 45-33-25 and 45-33-26?
Section 45-33-25 contains the basic registration requirements and the residency restrictions. Section 45-33-26 lists additional restrictions on where registered offenders may go and what they may do, including the public beach restriction.

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

Who is the Director of the DPS Sex Offender Registry?
A staff member at the Mississippi Department of Public Safety. The Department maintains the registry and processes requests for advance approval to be present in restricted areas.

Is the 500-foot threshold mentioned 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 500 feet would qualify. The actual reach of "in or about" is fact-specific; a registrant living closer than 500 feet is clearly within the rule, but living somewhat farther might still trigger it depending on the beach configuration.

What about Pass Christian's specific beaches?
The opinion did not say whether a particular Pass Christian beach is a "recreational facility" for Section 45-33-25(4)(a) purposes. Local officials and a court would need to make that call.

How does approval get sought and granted?
The Director of the DPS Sex Offender Registry handles the approval process. Registrants should contact the registry to learn the current procedure and submit any required documentation in advance of moving.

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 years."

Section 45-33-26(1)(b) addresses presence rather than residency. It bars a registered sex offender from "visit[ing] or be[ing] 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 assess whether a public beach is a "recreational facility" but stopped short of deciding because that determination is fact-specific (Section 7-5-25 limits the AG's official opinion authority to questions of law). The opinion provides 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 leaves the application to local officials and 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

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
1. 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.
2. 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