Is a Daycare Facility a "School" to Trigger "Drug Free School" Mandatory Minimum Sentence

“Drug Free School Zone” 

Mandatory Minimum Sentence

          In Pennsylvania, if a person is convicted of a violating section 780-113(a)(30) of the Drug Act, which generally prohibits the delivery, possession with intent to deliver, or the manufacture of drugs, and if the delivery of drugs occurs within 1,000 feet of the real property of any “school”, then the person is subject a two year mandatory minimum sentence.  This mandatory 

minimum sentence is commonly referred to as the “drug free school zone” law.  Many people believe that the “drug free school zone” law is intended to prevent drug dealing to children, but there is actually another mandatory minimum sentence law that punishes drug deliveries to people under 18.  The intent behind the “drug free school zone” is that drug dealing is often associated with guns and violence, and the legislature is seeking to punish people more severely that bring the dangerous activity in the vicinity of schools.  While the law was passed with good intentions, the Pennsylvania Sentencing Commission, based at Penn State University, actually recommended to the legislature that the law should be repealed.

Is a Daycare Facility a “School”

          A recent case required the Superior Court of Pennsylvania to determine whether a daycare facility should be considered a preschool and thus trigger the “drug free school zone” mandatory minimum sentence.  In the case, the prosecution argued that since the daycare facility was licensed by the Department of Health and engaged in some educational activities on a daily basis, it was in fact a preschool.  The Court held that it was a daycare facility and not a preschool because the facility did not employ any state licensed teachers and did not consider itself to be a preschool.  The facility called itself a daycare.

While the Court held that the daycare was not a preschool, it still had to consider whether a daycare facility should be considered a “school” for purposes of the “drug free school zone” statute.  The prosecution argued that since the laws intent is to protect children from the danger of drug activity, the legislature intended the phrase “school” to include a daycare facility.  As the “drug free school zone” statute is a criminal law, the Court noted that it is required to strictly construe the words in the law and cannot give them extra meanings or definitions.  The Court stated that other Pennsylvania law referenced both schools and daycare facilities.  If the legislature had intended to include daycare facilities under the school zone mandatory minimum sentencing scheme, then it needed to include such language in the law.  As the “drug free school zone” only references “school” and not a daycare facility, the court stated that a daycare facility would not trigger application of the “drug free school zone” law.

Impact on State College Drug Delivery Cases

          This case will probably have a minimal impact on how drug cases are handled in Centre County.  The “drug free school zone” mandatory minimum sentence law will continue to have a huge impact on downtown State College drug delivery cases.  The word “school” includes both private and public 

elementary, high school, colleges, and universities.  Much of downtown State College falls within a “drug free school zone” based upon the presence of Penn State University, the State College School District, and the downtown State College area has a plethora of churches that have preschool programs.  This case may cause drug defense attorneys to more closely scrutinize a preschool facility and try to argue that the facility is in fact a daycare and not a “school.”  Regretfully, if the defense attorney’s argument is rejected the judge, the client is the ultimate loser as the client is sentenced to a mandatory minimum sentence of two years incarceration, often for giving a small amount of marijuana to a friend.