State v. Beaudry

• Decision Date: 03 April 1985
• Docket Number: No. 83-1783-CR,83-1783-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Janet BEAUDRY, Agent, Sohn Manufacturing Company, d/b/a Village Green Tavern, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 593

365 N.W.2d 593

123 Wis.2d 40

STATE of Wisconsin, Plaintiff-Respondent, v. Janet BEAUDRY, Agent, Sohn Manufacturing Company, d/b/a

Village Green Tavern, Defendant-Appellant-Petitioner.

No. 83-1783-CR.

Supreme Court of Wisconsin.

Argued Nov. 27, 1984.

Decided April 3, 1985.

Gregory J. Paradise, Madison, argued, for defendant-appellant-petitioner; Mohs, MacDonald & Widder, Madison, on briefs.

Michael R. Klos, Asst. Atty. Gen., argued, for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

ABRAHAMSON, Justice.

This is a review of a published decision of the court of appeals, State v. Beaudry, 119 Wis.2d 96, 349 N.W.2d 106 (Ct.App.1984), affirming a judgment of conviction by the Circuit Court for Sheboygan county, John Bolgert, Circuit Judge. The court of appeals affirmed the judgment, and we affirm the decision of the court of appeals.

The jury found the defendant, Janet Beaudry, the agent designated by the corporation pursuant to sec. 125.04(6)(a), Stats.1981-82, of the alcoholic beverage laws, ¹ guilty of the misdemeanor of unlawfully remaining open for business after 1:00 a.m. in violation of sec. 125.68(4)(c), which prohibits premises having a "Class B" license from remaining open between the hours of 1:00 a.m. and 8:00 a.m. ² The tavern manager, not the defendant personally, had kept the tavern open, giving drinks to friends, contrary to his instructions of employment. On the basis of the judgment the defendant was ordered to pay a fine in the amount of $200.00. ³

The defendant raises two issues on appeal: (1) whether the statutes impose vicarious criminal liability on the designated agent of a corporate licensee for the conduct of a corporate employee who violates sec. 125.68(4)(c), Stats. 1981-82, and (2) whether there is sufficient evidence to support the verdict in the case. Before we discuss these two issues, we shall set forth the facts.

I.

The facts are undisputed. The defendant, Janet Beaudry, and her husband, Wallace Beaudry, are the sole shareholders of Sohn Manufacturing Company, a corporation which has a license to sell alcoholic beverages at the Village Green Tavern in the village of Elkhart Lake, Sheboygan county. Janet Beaudry is the designated agent for the corporate licensee pursuant to sec. 125.04(6)(a), Stats.1981-82.

Janet Beaudry's conviction grew out of events occurring during the early morning hours of February 9, 1983. At approximately 3:45 a.m., a deputy sheriff for the Sheboygan County Sheriff's Department drove past the Village Green Tavern. He stopped to investigate after noticing more lights than usual inside the building and also seeing two individuals seated inside. As he approached the tavern, he heard music, saw an individual standing behind the bar, and saw glasses on the bar. Upon finding the tavern door locked, the deputy sheriff knocked and was admitted by Mark Witkowski, the tavern manager. The tavern manager and two men were the only persons inside the bar. All three were drinking. The deputy sheriff reported the incident to the Sheboygan County district attorney's office for a formal complaint.

At about noon on February 9, the tavern manager reported to Wallace Beaudry about the deputy's stop earlier that morning. After further investigation Wallace Beaudry discharged the tavern manager on February 11.

On March 2, 1983, the Sheboygan County Sheriff's Department served the defendant with a summons and a complaint charging her with the crime of keeping the tavern open after hours contrary to sec. 125.68(4)(c), Stats., and sec. 125.11(1), Stats. The tavern manager was not arrested or charged with an offense arising out of this incident.

The case was tried before a jury on May 20, 1983. At trial Janet Beaudry testified that she was not present at the tavern the morning of February 9. Wallace Beaudry testified that Janet Beaudry had delegated to him, as president of Sohn Manufacturing, the responsibilities of business administration associated with the Village Green Tavern; that he had hired Mark Witkowski as manager; that he had informed Witkowski that it was his duty to abide by the liquor laws; and that he never authorized Witkowski to remain open after 1:00 a.m., to throw a private party for his friends, or to give away liquor to friends.

Witkowski testified that he had served drinks after hours to two men. During cross-examination Witkowski confirmed that Wallace Beaudry had never authorized him to stay open after hours; that he had been instructed to close the tavern promptly at the legal closing time; that he knew it was illegal to serve liquor after 1:00 a.m. to anyone, including friends; that his two friends drank at the bar before 1:00 a.m. and had paid for those drinks; that he was having a good time with his friends before closing hours and wanted to continue partying and conversing with them after 1 a.m.; that after closing hours he was simply using the tavern to have a private party for two friends; that he did not charge his friends for any of the liquor they drank after 1:00 a.m.; and that by staying open he was trying to benefit not Wallace Beaudry but himself.

At the close of evidence, the jury was instructed that the law required the premises to be closed for all purposes between 1:00 a.m. and 8:00 a.m. and that if the jury found that there were patrons or customers on the premises after 1:00 a.m., it must find the premises open contrary to statute.

The jury was also instructed regarding Janet Beaudry's liability for the conduct of the tavern manager: As designated agent of the corporation, the defendant had full authority over the business and would be liable for the tavern manager's violation of the closing hour statute if he was acting within the scope of his employment. The instructions, which are pattern instructions Wis.J.I.Cr. 440 (1966), describe what activities are within the scope of employment and what are outside the scope of employment. Specifically, the jury was instructed as follows regarding the defendant's liability for the conduct of the tavern manager:

"It is also the law of the State of Wisconsin that violations of statutes regulating the sale of liquor do not require a showing of a willful or intentional act.

"It is a law that when a corporation is a licensee, the corporation vests in its agent, in this case Janet Beaudry, full control and authority over the premises and of the conduct of all business on the premises relative to alcohol beverages that the licensee could have exercised if it were a natural person.

"Under Wisconsin law if a person employs another to act for him [sic ] in the conduct of his [sic ] business, and such servant or agent violates the law, as in this case relating to open after hours, then the employer is guilty of that violation as if he [sic ] had been present or had done the act himself [sic ], if such act was within the scope of the employment of the servant or agent. It is no defense to prosecution under the statute that the employer was not upon the premises, did not know of the acts of his [sic ] servant or agent, had not consented thereto, or even had expressly forbidden such act.

"A servant or agent is within the scope of his employment when he is performing work or rendering services he was hired to perform and render within the time and space limits of his authority and is actuated by a purpose in serving his employer in doing what he is doing. He is within the scope of his employment when he is performing work or rendering services in obedience to the express orders or directions of his master of doing that which is warranted within the terms of his express or implied authority, considering the nature of the services required, the instructions which he has received, and the circumstances under which his work is being done or the services are being rendered.

"A servant or agent is outside the scope of his employment when he deviates or steps aside from the prosecution of his master's business for the purpose of doing an act or rendering a service intended to accomplish an independent purpose of his own, or for some other reason or purpose not related to the business of his employer.

"Such deviation or stepping aside from his employer's business may be momentary and slight, measured in terms of time and space, but if it involves a change of mental attitude in serving his personal interests, or the interests of another instead of his employer's, then his conduct falls outside the scope of his employment.

"If you are satisfied beyond a reasonable doubt from the evidence in this case that Mark Witkowski, the employee of the registered agent, committed the acts charged in the complaint, that Mark Witkowski was the servant or agent of the defendant, and that the acts charged in the complaint were committed by him in the scope of his employment, then you should find the defendant guilty.

"If, however, you are not so satisfied, then you must find the defendant not guilty."

Having been so instructed, the jury returned a verdict of guilty.

II.

In light of the facts and these instructions, we consider first the question of whether the statutes impose vicarious criminal liability on a designated agent for the illegal conduct of the tavern manager in this case, i.e., remaining open after 1:00 a.m.

The state's prosecution of the defendant under the criminal laws rests on a theory of vicarious liability, that is respondeat superior. Under this theory of liability, the master (here the designated agent) is liable for the illegal conduct of the servant (here the tavern manager). ⁴ The defendant asserts, contrary to the position of the state, that the statutes do not impose vicarious criminal liability on her as designated agent of the corporation for the tavern manager's illegal conduct.

While the focus in this case is on the defendant's vicarious criminal liability, it is helpful to an understanding of vicarious liability to compare it with the...