State v. Hy Vee Food Stores, Inc.

Decision Date07 June 1995
Docket NumberNo. 18693,18693
Citation533 N.W.2d 147
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. HY VEE FOOD STORES, INC., Defendant and Appellant.
CourtSouth Dakota Supreme Court

Mark Barnett, Atty. Gen., Frank Geaghan, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Thomas M. Frankman, Sandra K. Hoglund of Davenport, Evans, Hurtwitz & Smith, Sioux Falls, for defendant and appellant.


A corporation appeals its misdemeanor conviction for selling an alcoholic beverage to a person under age twenty-one. We affirm.

As part of an undercover sting operation Sioux Falls police sent a nineteen-year-old college student into a Hy Vee grocery store on March 19, 1993 to attempt to purchase liquor. Wearing a college sweatshirt and football jacket, the police infiltrator carried a bottle of whiskey to the checkout counter. Too young to sell liquor herself the cashier asked an older employee to scan the item. The cashier then took the purchase money and rang up the sale. Neither employee asked for identification to verify the purchaser's age.

Based upon the actions of these two employees, Hy Vee Food Stores, Inc. was charged with and found guilty in magistrate court of violating SDCL 35-4-78(1) by selling an alcoholic beverage to a person under twenty-one. The magistrate imposed a $200 fine. Neither employee was charged with committing a crime. Hy Vee appealed to circuit court seeking to have the statute declared unconstitutional. The circuit court upheld the conviction. Hy Vee asserts that the individual employees committed the wrongful acts, not the corporation, and appeals on the following issue:

Did Hy Vee's conviction under SDCL 35-4-78 violate its substantive due process rights by imposing vicarious criminal liability on the company for the illegal acts of its employees?


Hy Vee concedes its employees sold alcohol to an underage person in violation of SDCL 35-4-78(1): "No licensee may sell any alcoholic beverage: (1) To any person under the age of twenty-one years...." A violation of this section is a Class 1 misdemeanor punishable by one year in jail or a one thousand dollar fine, or both. SDCL 22-6-2. Hy Vee avers that the imposition of criminal penalties on it under SDCL 35-4-78 for acts of its employees constitutes an impermissible infringement upon Hy Vee's substantive due process rights in violation of both Article VI of the South Dakota Constitution and the 14th Amendment of the United States Constitution. The question is whether criminal liability can be imposed against an alcoholic beverage corporate licensee for the unlawful acts of its employees?

All legislative enactments arrive before us with a presumption in favor of their constitutionality; Hy Vee bears the burden of proving beyond a reasonable doubt that the law is unconstitutional. Crowley v. State, 268 N.W.2d 616, 618 (S.D.1978). "The constitution is not a grant but a limitation upon the lawmaking power of the state legislature and it may enact any law not expressly or inferentially prohibited by state and federal constitutions." Kramar v. Bon Homme County, 155 N.W.2d 777, 778 (S.D.1968).

"Due process of law," when applied to substantive rights, means that the government is without the right to deprive a person of life, liberty or property by an act that has no reasonable relation to any proper governmental purpose by which it is so far beyond the necessity of the case as to be an arbitrary exercise of governmental power.

Crowley, 268 N.W.2d at 619. Under this criterion we determine if the statute as applied to Hy Vee has "a real and substantial relation to the objects sought to be attained." Katz v. Board of Medical & Osteopathic Exam., 432 N.W.2d 274, 278 (S.D.1988). "Whenever within the bounds of reasonable and legitimate construction, an act of the legislature can be construed so as not to violate the constitution, that construction should be adopted." Matter of Certain Territorial Elec. Boundaries, 281 N.W.2d 65, 69-70 (S.D.1979) (citations omitted).

The law disfavors statutes which impose criminal liability without fault, much less those enactments which impose such liability vicariously. See Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). Yet states "have power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition...." Ferguson v. Skrupa, 372 U.S. 726, 730-31, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93 (1963); Holdridge v. United States, 282 F.2d 302 (8th Cir.1960).

Hy Vee notes certain "state supreme courts have directly addressed the constitutionality of similar statutes and have found them to be in violation of the liquor licensee's due process rights under the state and federal constitutions." Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959), cert. denied, 363 U.S. 848, 80 S.Ct. 1624, 4 L.Ed.2d 1731 (1960); Davis v. City of Peachtree City, 251 Ga. 219, 304 S.E.2d 701 (1983); State v. Guminga, 395 N.W.2d 344 (Minn.1986). In Koczwara, an individual owner-licensee was fined $500 and sentenced to three months in jail for the actions of an employee who sold liquor to a minor. Holding that imprisonment under these facts deprives the defendant of due process, the Court made an observation germane to our case:

Were this the defendant's first violation of the Code, and the penalty solely a minor fine of from $100-$300, we would have no hesitation in upholding such a judgment. Defendant, by accepting a liquor license, must bear such a financial risk.

Koczwara, 155 A.2d at 830. The Koczwara court overturned the jail sentence, but upheld the $500 fine. Id. at 831. In Davis v. City of Peachtree City, 251 Ga. 219, 304 S.E.2d 701 (1983), the court held that a violation of due process occurred when the president of a convenience store chain was fined $200 and given 60 days in jail with conditions for a suspended sentence when an employee sold wine to a minor. Georgia's Supreme Court held that imposing even a slight fine violates due process. Id. 304 S.E.2d at 704.

After one of his employees sold an alcoholic beverage to a minor, the restaurant owner in State v. Guminga, 395 N.W.2d 344 (Minn.1986), faced imprisonment and a fine under Minnesota law. Citing Davis, the Court declared that criminal penalties based upon vicarious liability under Minnesota law violated Guminga's due process rights: "Even if there is no prison sentence imposed, under the new statutory guidelines, a gross misdemeanor conviction will affect his criminal history score were he to be convicted of a felony in the future ... only civil penalties would be constitutional." Id. at 346.

We begin our analysis with the rather mundane observation that a corporation cannot act but through its agents. Well settled is the basic principle that criminal liability for certain offenses may be imputed to corporate defendants for the unlawful acts of its employees, provided that the conduct is within the scope of the employee's authority whether actual or apparent. New York Central & H.R.R. Co. v. United States, 212 U.S. 481, 29 S.Ct. 304, 53 L.Ed. 613 (1909) (recognizing the principle of respondeat superior in a criminal action against a corporation); FLETCHER CYCLOPEDIA OF THE LAW OF PRIVATE CORPORATIONS § 4942 (1993 rev. ed.).

Koczwara, Guminga, and Davis involved individuals subjected to vicarious liability for illegal liquor sales. We must leave for some future time, consequently, whether those precedents will guide us when an individual licensee comes before us to constitutionally challenge a conviction for the acts of an employee. Almost six decades ago this Court sustained vicarious criminal liability against a licensee for an employee's illegal sale to a minor, but the constitutional issues raised now were not dealt with then. State v. Schull, 279 N.W. 241 (S.D.1938).

Here, a corporate entity, not an individual, was charged with violating SDCL 35-4-78(1) and upon conviction only a fine was imposed. Pennsylvania's highest court in Koczwara, discerning the contrast, was "extremely careful to distinguish [its facts] from the question of corporate criminal liability." Koczwara, 155 A.2d at 829, n. 5. As early as State v. Taylor, 34 S.D. 13, 147 N.W. 72 (1914), we have recognized that a business entity may be held criminally liable for its actions. Corporations have been held criminally accountable in numerous circumstances involving a variety of crimes. See FLETCHER at § 4951 (listing cases upholding corporate criminal convictions).

Hy Vee urges us to avert constitutional entanglement by reading into the statute a knowledge or scienter requirement and hold that a corporate superior must know that an employee is selling liquor to an underage person and either consent to or ratify the act. See Bucy, Corporate Ethos: A Standard for Imposing Corporate Criminal Liability, 75 MINN.L.REV. 1095 (1991); Wayne R. LaFave & Austin W. Scott, Jr., SUBSTANTIVE CRIMINAL LAW, § 3.10, at 356 (1986). We decline to do so in this instance because "[l]egislative acts which are essentially public welfare regulatory measures may omit the knowledge element without violating substantive due process guarantees." State v. Stone, 467 N.W.2d 905, 906 (S.D.1991), (citing Holdridge, 282 F.2d at 310). Where "penalties commonly are relatively small, and conviction does no grave damage to an offender's reputation" under such circumstances statutes dispensing with a mens rea component have been upheld. Morissette v. United States, 342 U.S. 246, 256, 72 S.Ct. 240, 246, 96 L.Ed. 288, 295 (1952).

Hy Vee asserts that criminal liability should not be imputed here because it adopted a firm, oft-reiterated policy that its employees, new and old, must not sell liquor to underage persons. Its employee manual states:

Beer and alcohol sales--21 years old. I.D. check...

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