T.L. Goodwin, Colonel Director Arkansas State Police #3 Natural Resources Drive P. O. Box 5901 Little Rock, AR 72215
Dear Colonel Goodwin:
This Office has received your request for an opinion on the following questions:
1. If a service station is card-operated (computer) and the gas is pre-paid for before the card is issued, is the service station "open to the public" if only those individuals having a card can dispense gas into their automobiles?
2. What would distinguish between "open to the public" and "not open to the public?"
The answer to your question number one is that the service station is not "open to the public." "Open to the public" is not defined in the State Fire Prevention Code but from a reading of the case law that has interpreted what this phrase means, a definition can be formulated. "Open to the public" is defined as any premises which by their physical nature, function, custom, usage, notice, or other circumstances could cause a reasonable person to believe no permission to enter or remain is required. The service station you describe in your hypothetical situation could only be used by someone who had pre-paid for the gasoline and who was also in possession of a card which activated a computer. A reasonable person could only believe that by its restricted usage, the service station described in your hypothetical situation was not "open to the public."
The distinction between the phrases "open to the public" and "not open to the public" is that in premises "open to the public" there is a general invitation to the public to enter, remain and use those premises without permission from anyone. In premises "not open to the public" permission is required before a person can enter and remain on those premises for any purpose.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Bill Luppen.