State v. Balistreri

• Decision Date: 20 November 1978
• Docket Number: No. 77-425-CR,77-425-CR
• Citation: 87 Wis.2d 1,274 N.W.2d 269
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Tony BALISTRERI, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 269

274 N.W.2d 269

87 Wis.2d 1

STATE of Wisconsin, Plaintiff-Respondent, v. Tony BALISTRERI, Defendant-Appellant.

No. 77-425-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 23, 1978.

Opinion Released Nov. 20, 1978.

Opinion Filed Nov. 20, 1978.

Franks & Pikofsky, S. C., Milwaukee, submitted brief for defendant-appellant.

Bronson C. La Follette, Atty. Gen., and David J. Becker, Asst. Atty. Gen., submitted brief for plaintiff-respondent.

Before MOSER, P. J., and BROWN and BODE, JJ.

BROWN, Judge.

On April 10, 1975, Mr. and Mrs. Herbert J. Weber were at their home located in Racine when the defendant, Mr. Balistreri, arrived. Mrs. Weber and Mr. Balistreri discussed desired improvements to their home, which included a new front porch with an awning and railings, and covering for the wood trim on the upper part of the house. That evening, Mr. Balistreri gave them an estimate of the cost, and as a result of their agreement a document was drawn up by Mr. Balistreri and signed by the Webers and the defendant. That same evening the Webers gave the defendant a check in the amount of $50.00. On the next day, Mrs. Weber called Mr. Balistreri to cancel the contract because her husband thought the price was too high and was of the opinion that it also included window and door trim. During the telephone conversation, Mr. Balistreri offered to do the window and door trim for an additional $200.00. Mrs. Weber agreed to that. There was no other written document between the Webers and Mr. Balistreri.

Thereafter, Herbert J. Weber signed a criminal complaint on August 19, 1975 in which Mr. Balistreri was charged with three violations of the regulations contained in Wis.Adm.Code ch. Ag 110 relating to home improvement trade practices. Wis.Adm.Code ch. Ag 110 was promulgated by the Department of Agriculture of the State of Wisconsin under sec. 100.20(2), Stats. The defendant was charged under sec. 100.26(3), Stats., which provides:

Any person who violates s. 100.15, 100.19, 100.20 or 100.22, or who intentionally refuses, neglects or fails to obey any regulation made under s. 100.19 or 100.20 shall, for each offense, be fined not less than $25 nor more than $5,000, or imprisoned in the county jail for not more than one year or both.

The three violations were: (1) failure to specify the beginning and completion date in the home improvement contract, contrary to Wis.Adm.Code § Ag 110.05(2) (d), ¹ (2) contracting for liquidated damages in excess of legal limit, contrary to Wis.Adm.Code § Ag 110.05 (7) ² and (3) changing the terms of a written home improvement contract without reducing the changes to writing, contrary to Wis.Adm.Code § Ag 110.05(1). ³

At trial, the defense offered no evidence and moved to dismiss for insufficiency of the evidence. The court took the case under advisement and rendered a written decision. The defendant was found guilty of each of the three counts and was fined $1,000 on each count. An appeal was taken to the circuit court. The circuit court affirmed the judgment of the county court. From the circuit court's judgment affirming the trial court's judgment, the present appeal has been taken.

Mr. Balistreri's first argument is that the county court for Racine County lacked subject matter jurisdiction over this case. Balistreri argues that this action was brought under sec. 100.20(6), Stats., which provides:

The department may commence an action In circuit court in the name of the state to restrain by temporary or permanent injunction the violation of any order issued under this section. (Emphasis added.)

Mr. Balistreri proposes that since the action was brought under this section of the statutes, it properly should be before a circuit court rather than a county court.

Mr. Balistreri's argument must fail, however. This action was not brought under sec. 100.20(6), Stats. It was brought pursuant to sec. 100.26(3), Stats. Section 100.20(6), Stats., relates to injunctive relief used to restrain the violation of a regulation made under sec. 100.20, Stats. In the present case we are not dealing with injunctive relief. We are dealing instead with the section which provides for the imposition of criminal penalties resulting from violations of consumer protection regulations. In fact, the criminal complaint that commenced this action specifically alleged that the offenses which the defendant committed were contrary to sec. 100.26(3), Stats. Therefore, since it is a criminal complaint brought pursuant to sec. 100.26(3), the county court had subject matter jurisdiction over the criminal prosecution.

Balistreri's next argument is that the district attorney was not a proper person to bring this prosecution for violations of Wis.Adm.Code ch. Ag 110. It is Balistreri's view that the enforcement mechanism of the Wisconsin Administrative Code is vested exclusively in the Department of Agriculture which has the power to issue an injunction against a person whose business practices are found to be unfair. What Balistreri fails to recognize is that an injunction is only one of three different sanctions that the State of Wisconsin can use in protecting the consumers. Criminal prosecution is another sanction. Where the sanction of a criminal prosecution is used, the district attorney is the proper person to initiate the action. ⁴ Therefore the defendant's argument that the district attorney is not the appropriate person to bring this criminal prosecution must fail.

Balistreri finally contends that the trial court committed prejudicial error in construing sec. 100.26(3), Stats. As stated above, sec. 100.26(3), provides for criminal sanctions to anyone who "intentionally refuses, neglects or fails to obey any regulation made under sec. 100.19 or 100.20 . . . . The trial court held that the word "intentionally" in that statute modifies only the word immediately following it, "refuses," and not the succeeding words "neglects or fails. " Balistreri claims that the trial court erred when it reached a conclusion that you cannot "intentionally neglect to do anything. " He cites case law outside the state of Wisconsin for the proposition that neglect means a sense of designed refusal or unwillingness to perform one's duty with respect to another. ⁵ Balistreri argues that he neglected to follow the rules and regulations set forth in the agricultural code in this case, but he says that he cannot be convicted of mere neglect unless it is proven by evidence beyond a reasonable doubt that the neglect was by design and was therefore intentional. Moreover, Balistreri claims that the Wisconsin Supreme Court has already construed sec. 100.26(3), Stats., to provide that it is only an "(i)ntentional failure to obey a regulation adopted pursuant to the administrative code (which) is subject to the penalties imposed by sec. 100.26(3). " State v. Lambert, 68 Wis.2d 523, 526, 229 N.W.2d 622, 624 (1975).

We disagree. The court in Lambert did not construe sec. 100.26(3), Stats., to mean that any violation must be intentional before one may be subject to criminal penalties. All the court held in Lambert was that when one intentionally fails to obey a regulation pursuant to the Administrative Code, that person can be subjected to criminal penalties under sec. 100.26(3), Stats. The court did not discuss the question of whether unintentional violations of the Administrative Code are subject to criminal penalties as well. Therefore, Lambert Is inapposite to the question before us.

Thus, the question remains whether the word "intentionally" in sec. 100.26(3), Stats., modifies only the word "refuses" immediately...