State v. JC Sports Bar, Inc.

• Decision Date: 29 October 1993
• Docket Number: No. 69236,69236
• Citation: 861 P.2d 1334,253 Kan. 815
• Parties: STATE of Kansas, Appellant, v. JC SPORTS BAR, INC., and Jong S. Song, Appellees.
• Court: Kansas Supreme Court

Page 1334

861 P.2d 1334

253 Kan. 815

STATE of Kansas, Appellant, v. JC SPORTS BAR, INC., and Jong S. Song, Appellees.

No. 69236.

Supreme Court of Kansas.

Oct. 29, 1993.

Syllabus by the Court

1. Rules of statutory construction are stated and applied.

2. The legislature has the power to enact criminal statutes which create absolute liability offenses requiring no knowledge or intent on the part of the accused.

3. The language "knowingly or unknowingly permit" in K.S.A.1992 Supp. 41-2615(a), a criminal statute, does not clearly indicate a legislative purpose to impose absolute liability as required by K.S.A. 21-3204.

4. K.S.A.1992 Supp. 41-2615(a) does not establish absolute liability for the prohibited conduct described therein.

Thomas P. Alongi, Asst. County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellant.

Steven L. Opat, of Harper, Hornbaker, Altenhofen & Opat, Chtd., Junction City, was on the brief, for appellees.

HOLMES, Chief Justice:

The State of Kansas appeals upon a question reserved from a decision of the district court in which the defendants, JC Sports Bar, Inc., and Jong S. Song, were each acquitted of one count of violating K.S.A.1992 Supp. 41-2615(a). The appeal is denied.

K.S.A.1992 Supp. 41-2615 provides:

"(a) No licensee or permit holder, or any owner, officer or employee thereof, shall knowingly or unknowingly permit the consumption of alcoholic liquor or cereal malt beverage by a minor on premises where alcoholic beverages are sold by such licensee or permit holder.

"(b) Violation of this section is a misdemeanor punishable by a fine of not less than $100 and not more than $250 or imprisonment not exceeding 30 days, or both."

In a trial to the district magistrate judge, both defendants were found guilty as charged. On appeal to the district judge pursuant to K.S.A. 22-3609a, both defendants were acquitted, and the State has now appealed.

Before the district judge the case was submitted on the transcript of the proceedings before the district magistrate judge, stipulations, briefs, and arguments of counsel. The facts are uncontroverted.

In the early morning hours of May 2, 1992, Wayne A. Weibel, a liquor control investigator for the Alcoholic Beverage Control Division of the State Department of Revenue, and Lieutenant Al Boskey, of the Geary County Sheriff's Office, were conducting random bar checks in Junction City. While looking through the front windows of the JC Sports Bar, the officers observed Thomas K. Hoffman, a minor, pick up a white plastic cup and drink from it. Lt. Boskey recognized Hoffman and knew that he was a minor. Hoffman had been playing pool with an acquaintance who had left the bar shortly before, leaving a partial cup of beer on an unoccupied table. After Hoffman took a drink from the cup, Weibel and Boskey entered the bar, took possession of the cup and its contents, and issued Hoffman a misdemeanor citation. The cup contained beer, a cereal malt beverage specified in the statute, K.S.A.1992 Supp. 41-2615(a). Hoffman later pled guilty and testified for the State in this proceeding.

The JC Sports Bar is owned by the defendant JC Sports Bar, Inc., which is the holder of a cereal malt beverage license for the premises. The defendant Jong S. Song is the owner of the corporation. Agent Weibel testified that at the time the officers observed Hoffman's activities, Mr. Song was also standing on the sidewalk outside the bar. The evidence is uncontroverted that neither Song nor any employee or agent of JC Sports Bar, Inc., sold or gave Hoffman the beer which Hoffman drank. There was no evidence that Song or any employee of the bar even knew that Hoffman had taken a drink of someone else's beer.

JC Sports Bar, Inc., and Jong S. Song were both charged with one count of "knowingly or unknowingly" permitting the consumption of a cereal malt beverage by Thomas K. Hoffman, a minor. On appeal de novo from the district magistrate judge, the district judge received and reviewed the trial transcript, briefs, and stipulations and thereafter on December 23, 1992, heard arguments of counsel based upon the record submitted. Following argument, the court made the following findings and rulings:

"All right. The Court has examined both the facts from the transcript that was presented and has acknowledged--or has noticed--noted those facts--excuse me--as they were recited in the briefs.

"Court would find that ... there was a juvenile inside of the premises; that--that's not alleged to have been any violation, for the juvenile to be on the premises.

"The premises sold cereal malt beverages. The--the cereal malt beverage is alleged to have been sold to some other person inside this tavern.

"At the--at some point in time, two officers were outside the premises on the sidewalk and through the window viewed this juvenile take a drink from a foam cup or a container of some sort, and then proceeded into the tavern to apprehend the young man, and I believe he was prosecuted for that offense.

"As to where the owner or manager or anyone was at that point in time, one officer stated that it was his recollection that that person or that owner who was operating the tavern was outside the premises, with them, on the sidewalk at that time, and those are the facts which were established by the transcript which I read.

"The Court would find that 41-2615 requires that, for there to be a violation, by licensee or permit holder where alcoholic beverages are sold or cereal malt beverages are sold, that no licensee or permit holder or any owner or officer shall knowingly or unknowingly permit the consumption of alcoholic liquor.

"Now, emphasis by the briefs has been arguing the question of whether or not it was knowingly or unknowingly permitted.

"Court finds that, from the evidence, there is no evidence that it was either knowingly or unknowingly permitted, because there is no evidence that it was, in fact, permitted, whether knowingly or unknowingly.

"And since there was no act which was actually done by the owner or any representative or agent of the tavern or licensee, the Court finds that the--that constitutionally this person--or, neither the person, the corporation, or the bar itself, or the owner thereof or the operator thereof can be charged in this particular instance with this particular offense and would enter a finding of not guilty, because there was no actual permission or act of permission, whether it was knowingly or unknowingly, that has been shown by the evidence in this case, and that is the Court's finding and the reason for the Court's finding."

In the journal entry signed by the district judge and approved by counsel for all parties, the court's conclusions of law were summarized as follows:

"(1) K.S.A. 41-2615 requires, as an element of proof, evidence constituting an act which falls within the statutory language '... knowingly or unknowingly permit ...';

"(2) that there is no evidence that the owner or any employee of the bar committed any act 'knowingly or unknowingly';

"(3) that because there was no illegal act committed by the owner (licensee) or agent (employee), there is no act which constitutes any conduct which falls within the statutory language of 'knowingly or unknowingly permit';

"(4) therefore, there was no criminal violation of the law by any party other than the minor Thomas Hoffman."

The issue now before the court is whether the language "knowingly or unknowingly permit" as set forth in K.S.A.1992 Supp. 41-2615(a) imposes an absolute duty to prohibit the consumption of alcoholic liquor or cereal malt beverage by minors on a licensee's premises. Or stated another way, does the statute create an absolute liability offense?

Before addressing the issue of whether the district court erred in its interpretation of K.S.A.1992 Supp. 41-2615(a), we reiterate some of the cardinal rules of statutory construction. " 'Interpretation of a statute is a question of law.' " Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). "When determining a question of law, this court is not bound by the decision of the district court." Memorial Hospital Ass'n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). "Our criminal statutes are to be construed strictly against the State." State v. Sexton, 232 Kan. 539, 543, 657 P.2d 43 (1983).

"The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. ... When the legislature revises an existing law ... it is presumed that the legislature intended to make some change in the law as it existed prior to the amendment." State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987).

Finally, K.S.A.1992 Supp. 77-201 Second states:

"Words and phrases shall be construed according to the context and the approved usage of the language, but technical words and phrases, and other words and phrases that have acquired a peculiar and appropriate meaning in law, shall be construed according to their peculiar and appropriate meanings."

In this case, the State contends the district court erred in its interpretation and application of the language in the statute involved which, for convenience, will be repeated here. K.S.A.1992 Supp. 41-2615 provides:

"(a) No licensee or permit holder, or any owner, officer or employee thereof shall knowingly or unknowingly permit the consumption of alcoholic liquor or cereal malt beverage by a minor on premises where alcoholic beverages are sold by such licensee or permit holder.

"(b) Violation of this section is a misdemeanor punishable by a fine of not less than $100 and not more than $250 or imprisonment not exceeding 30 days, or both." (Emphasis added.)

The State contends that the plain language of the statute imposes an absolute duty upon drinking establishments and their owners, officers, and employees to prohibit the consumption of...