JASON J. BRIMMER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
December 3, 1999; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002323-MR
JASON J. BRIMMER
APPELLANT
APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE ROBERT J. JACKSON, JUDGE
ACTION NO. 98-CR-00015
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GARDNER AND KNOPF, JUDGES.
GARDNER, JUDGE:
Jason Brimmer (Brimmer) appeals from his
conviction for trafficking in a controlled substance within 1,000
yards of a school in violation of Kentucky Revised Statute (KRS)
218A.1411.
Brimmer maintains that a Montessori school is not a
“school” for purposes of KRS 218A.1411 and therefore, this Court
must reverse his conviction.
After carefully reviewing the facts
of this case and the applicable law, this Court affirms the
Jessamine Circuit Court’s judgment.
Brimmer and several other individuals were arrested
while trying to sell marijuana to a police informant near the ABC
Learning Tree Montessori School (ABC).
In January 1998, a grand
jury indicted Brimmer for trafficking in a controlled substance
within 1,000 yards of a school.
In May 1998, the circuit court
held a hearing regarding whether ABC was a “school” for purposes
of KRS 218A.1411.
The court heard evidence from ABC’s owner
regarding the school’s instruction and care for children ages
three to nine.
Following the hearing, the circuit court ruled
that ABC was a school building used primarily for classroom
instruction and that trafficking in a controlled substance within
1,000 yards of a school building could be prosecuted by the
Commonwealth.
Following this ruling, Brimmer entered a conditional
guilty plea to trafficking within 1,000 yards of a school.
He
reserved the right to appeal the circuit court’s ruling regarding
the status of ABC.
In September 1998, the circuit court imposed
judgment and sentenced Brimmer to one-year probation.
The court
stayed its judgment and order of probation pending disposition of
Brimmer’s appeal.
On appeal, Brimmer argues that the circuit court erred
by ruling that ABC is a “school” for purposes of KRS 218A.1411.
He maintains that ABC is a daycare business that markets itself
as a Montessori school and that the ABC building is not used
primarily for classroom instruction.
After reviewing the record
below including the testimony at the hearing, this Court has
concluded that the circuit court correctly ruled that ABC
constituted a “school” for purposes of KRS 218A.1411.
Under KRS 218A.1411,
Any person who unlawfully traffics in a
controlled substance classified in Schedules
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I, II, III, IV, or V, or a controlled
substance analogue in any building used
primarily for classroom instruction in a
school or any premises located within one
thousand (1,000) yards of any school building
used primarily for classroom instruction
shall be guilty of a Class D felony, unless a
more severe penalty is set forth in this
chapter, in which case the higher penalty
shall apply.
Kentucky courts have not addressed the issue of whether a
building used for a Montessori school constitutes a “school” or
building used primarily for classroom instruction pursuant to KRS
218A.1411.
In Sanders v. Commonwealth, Ky. App., 901 S.W.2d 51
(1995), this Court considered whether a defendant could be
convicted under KRS 218A.1411 for trafficking within 1,000 yards
of a college or university.
This Court rejected the appellant’s
argument that the statute applied only to elementary and
secondary schools.
The court noted, “[i]f the General Assembly
had intended to limit the application of the statute to
transactions within 1,000 yards of a primary or secondary school,
it surely would have employed those specific terms in the statute
rather than the generic term ‘school.’”
Id. at 52.
Courts from other jurisdictions have addressed issues
similar to the question facing this Court in the instant case.
In Cole v. City of Ruston, 573 So.2d 641 (La. Ct. App. 1991), a
merchant sought a permit to sell beer in a convenience store.
The applicable city ordinance prohibited granting a beer permit
for any premises situated within 300 feet or less of a public
playground or of a building used as a school.
A Montessori
school was located within 300 feet of the merchant’s business.
The applicant argued that the Montessori school was really a
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kindergarten, not a school within the meaning of the ordinance.
The court rejected the applicant’s argument, finding that the
Montessori school operated as a school—not solely as a nursery.
The court considered evidence that four-to seven-year-old
students were taught by a state-certified Montessori teacher
according to a detailed, state-certified plan of instruction
drawn in accordance with the Montessori method.
The court
concluded that the Montessori school was a school within the
meaning of the ordinance.
Id. at 643.
Similarly, in Risser v. City of Thomasville, 286 S.E.2d
727 (Ga. 1982), an applicant for a beer and wine license was
denied a license because his establishment was located within 100
yards of a church which operated a kindergarten.
A statute
prohibited the selling of beer or wine within 100 yards of any
school or schoolhouse.
The court found that the focus of the
kindergarten was educational and that it operated to actively
prepare children for the first grade.
The court concluded that a
kindergarten is a school within the ordinary and every day
meaning of that word and that the kindergarten was the type of
school that the statute was designed to protect.
Id. at 729.
Cf. Montessori Schoolhouse of Orange County, Inc. v. Dept. of
Social Services, 175 Cal. Rptr. 14 (Cal. App. 1981) (noting in
addressing whether the department of social services had
jurisdiction to license petitioner’s school as a day care
facility, that where an institution was primarily operated as a
school for educational purposes, the fact that, as part of that
function, it cares for or feeds children would not cause it to
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become an institution for the care of children and that each
institution must be examined individually to determine its true
character).
The circuit court correctly concluded in the case at
bar that ABC constituted a “school” or “school building” pursuant
to KRS 218A.1411.
The testimony presented before the circuit
court shows that ABC’s primary focus is educating children ages
three through nine.
While ABC once was a day care center, for
the last eight years it has been a Montessori school.
The
owner/director of ABC is a certified Montessori teacher who
received training through the University of Kentucky.
ABC’s
informational brochure describes it as a private school open to
all children regardless of race, nationality or financial status.
ABC’s curriculum includes reading, mathematics, geography,
history, practical life skills, science, creative development in
art, dramatics, creative expression and music.
The director
testified that each child receives attention based upon his or
her personal level of development.
Teachers at ABC give children
individual or group instruction regarding how to use
instructional materials on their level.
The director further
testified that ABC’s program is a total learning program similar
to primary education in public schools.
Typically, teachers
organize a group circle where children learn about different
issues such as the customs of other countries or the decimal
system.
They begin educating children at age three.
The younger
children typically receive less education instruction per day
while the older children receive more.
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The Montessori program
allows the older children to interact with and guide the younger
children as part of the program and, thus, it fosters individual
development.
ABC cares for and tutors some elementary school
students late in the day following their dismissal from their
regular schools.
Thus, ABC clearly fell within the term “school” or
“school building” contained in KRS 218A.1411.
The record reveals
that ABC’s primary purpose is educational instruction of young
children.
The circuit court correctly analyzed the common
dictionary definition of “school” and determined that ABC
constitutes a “school.”1
KRS 218A.1411 was enacted to safeguard
young children from the dangers of narcotics and drug trafficking
activity and to provide criminal sanctions to discourage
individuals from engaging in such activities near schools and
penalize them if they do so.
If this Court adopted Brimmer’s
argument regarding ABC and Montessori schools in general, we
would circumvent the public policy underlying the enactment of
KRS 218A.1411.2
For the foregoing reasons, this Court affirms the
judgment of the Jessamine Circuit Court.
KNOPF, JUDGE, CONCURS.
1
The American Heritage Dictionary, 1098 (1985), defines
school in part as “[a]n institution for the instruction of
children. . . .”
2
Brimmer also argues that the circuit court’s ruling will
have ramifications beyond the case at bar. Specifically, he
maintains that parents will face unintended tax consequences.
This argument addresses collateral matters which are not
pertinent to resolving the issue in this criminal case.
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DYCHE, JUDGE, CONCURS IN RESULT ONLY AND FILES A
SEPARATE OPINION.
DYCHE, JUDGE, CONCURRING.
reached by the majority.
I concur with the result
My approach to the “school”
definitional problem would be slightly different, however.
I
think it more appropriate to focus, not on the percentage of time
spent in actual classroom instruction, as opposed to meals, rest,
recreation, etc., but whether the primary use of the building is
for classroom instruction and related activities directly
involving students, as opposed to primary use as a bus garage,
maintenance building or other such school-related, but nonstudent use.
This would fulfill the purpose of the statute; that
is, to deter drug traffickers from plying their wares near the
students, without enhancing punishment for such conduct near a
building unlikely to house students.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert L. Gullette, Jr.
Bryan Thomas Goettl
Nicholasville, Kentucky
A. B. Chandler III
Attorney General
Anitria M. Franklin
Assistant Attorney General
Frankfort, Kentucky
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