Opinion Number ( 2003 )

Dear Ms. Alcock:

This office is in receipt of the request for an opinion of the Attorney General in regard to the establishment of a "Drug Free Zone" around a church by the Terrebonne Parish Consolidated Government which operates under a Home Rule Charter. We have been informed that a Terrebonne Parish Council member attempted to offer legislation to establish a "Drug Free Zone" around a church in his district, and relative to this you ask the following questions:

1. Can the Terrebonne Parish Consolidated Government, without its own ordinance, apply the provisions of R.S. 17:405 to create Drug Free Zones around churches pursuant to R.S. 40:981.3?

2. In the alternative, you ask whether the Terrebonne Parish Consolidated Government can draft an ordinance which would allow parish government, at the request of a church which has previously created a drug free zone in accordance with R.S. 40:981.3, create maps which indicate the boundaries of that Church's drug free zone, and to file that map as an official public document with the Clerk of Court for the Parish?

3. Would such an ordinance and the expenditures it requires constitute a prohibited donation of public funds or would is constitute a violation of the separation of church and state?

Pursuant to R.S. 40:981.3, Violation of Unifom Controlled Dangerous Substances Law, it is provided in paragraph (A)(3) as follows:

(a) Any person who violates a felony provision of R.S. 40:900 through R.S. 40:970 of the Uniform Controlled Dangerous Substance Law while on any religious building property, public housing authority property, or within one one thousand feet of any such property, if the area is posted as a drug-free zone, shall upon conviction, be punished in accordance with Subsection E of this Section.

(b) In order for the provisions of this Section to apply to religious buildings or to public housing authority property, the building must be posted as a drug-free zone as provided herein. The design and posting of the signs shall be at the discretion of the entity that owns or has authority over the religious building or public housing authority property. In order to post the areas as a drug-free zone, the signs shall be located in a visible manner on or near each religious building or public housing authority property indicating, that such area is a drug-free zone, that such zone extends for a distance of one thousand feet, and that a felony violation of the Uniform Controlled Dangerous Substance Law will subject the offender to severe penalties under law.

It is further provided in Paragraph C (4) that "`Religious building property' means property on which is located any church, synagogue, mosque, or other building structure, or place used for religious worship or other religious purposes."

We note that in Atty.Gen.Op. 96-258 this office recognized that R.S.17:405 pertains to drug free zones for an area within one thousand feet of any property used for school purposes and "to include all property used for school purposes including not only school playgrounds, but any building or area owned by the state or a political subdivision and used or operated as a playground or recreational facility." It was concluded, "Therefore, the St. James Parish Council can enact an ordinance with regard to Drug Free Zones for the Parish playgrounds in St. James Parish."

Subsequently, this opinion was clarified in Atty.Gen.Op. 96-258A to specify that "a playground or recreational facility can be considered in a Drug Free Zone only when the property is used for a school purpose." It was then concluded, "Therefore, St. James Parish Council can enact an ordinance concerning Drug Free Zones for the Parish playgrounds in St. James Parish only if the playgrounds are used for a school purpose by any school within one thousand feet of any such property and school buses."

R.S. 17:405, "Drug free zone; notice; signs" sets forth what constitutes a "drug free zone". It was pursuant to enactment of Act 668 of 1999, that the definition of a "drug free zone" in R.S. 17:405 was expanded, and the title of this Act points out it is to include any building or area owned by any quasi-public agency or body and used or operated as a community center, and any public housing dwelling, and further defined property used for school purposes to mean "all property used for school purposes, including but not limited to school playgrounds."

R.S. 17:405(B) further provides, "The local governing authority which has jurisdiction over zoning matters in which each drug free zone is located shall publish a map clearly indicating the boundaries of each drug free zone in accordance with the specifications in Subsection A. The drug free zone map shall be made an official public document and placed with the clerk of court for the parish or parishes in which the drug free zone is located."

In regard to your first question as to whether the Parish Government can apply the provisions of R.S. 17:405 to create a Drug Free Zone around churches pursuant to R.S. 40:981.3 without it own ordinance, we would conclude it cannot inasmuch as R.S. 40:981.3 states that in order for the provision to apply, the area is to be posted as a drug-free zone and "the design and posting of the signs shall be at the discretion of the entity that owns or has authority over the religious building." (Emphasis added).

In response to your second question whether the Parish Government can draft an ordinance which would allow them to create maps which indicate the boundaries of the Church's drug free zone "at the request of a church which has previously created a drug free zone", we would conclude they can. We do not find that only those drug free zones listed in R.S. 17:406 should be included in creating maps indicating the boundaries of the drug free zones, but that all drug free zones should be included that are posted as required by R.S. 40:981.3. While R.S. 17:405 creates drug free zones for property used for school purposes, areas operated as a playground or recreational facility, community centers, and public housing dwellings, it mandates that the local governing authority "which has jurisdiction over zoning matters in which each drug free zone is locatedshall publish a map indicating the boundaries of each drug free zone." (Emphasis added.)

Finally, we do not find that the expenditures required for an ordinance in this matter would constitute a prohibited donation of public funds or violation of the separation of church and state inasmuch as the purpose is to enforce the provisions of law in regard to the Uniform Controlled Dangerous Substances Law, which is a mandate of the State.

We hope this sufficiently answers your inquiry, but if we can be of further assistance, do not hesitate to contact us.

Very truly yours,

RICHARD P. IEYOUB ATTORNEY GENERAL

By: ____________________ BARBARA B. RUTLEDGE Assistant Attorney General

RPI/bbr

DATE RELEASED: January 23, 2003