State v. Schaitel
| Decision Date | 28 January 1986 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE OF WISCONSIN, Plaintiff-Respondent, v. DENNIS SCHAITEL, Defendant-Appellant. 84-2433-CR. |
| Court | Wisconsin Court of Appeals |
Appeal from a judgment and order of the circuit court for Monroe county: James W. Rice, Judge.
Before GARTZKE, P.J., DYKMAN, J. and EICH, J.
Dennis Schaitel appeals from an amended judgment convicting him of violating sec. 125.66(1), Stats., 1 and art. III, sec. 32(11) of the Monroe County Zoning Ordinances, 2 and from an order denying his post-conviction motions. The issues on appeal are: (1) whether sec. 125.66(1) is unconstitutionally vague and overbroad; (2) whether the trial court erred in ruling that Schaitel could be convicted of multiple separate violations of the zoning ordinance; and (3) whether simultaneous multiple convictions under sec. 125.66(1), alone implicate the repeat offender provision of that section.
The state concedes that the court erred by imposing sentences composed of both fines and imprisonment when it concluded that the multiple convictions in this case were second or subsequent convictions under the repeat offender provision of sec. 125.66(1), Stats. Because we conclude Schaitel has no valid constitutional claim, we affirm those convictions, vacate the sentences imposed, and remand solely for resentencing. We also conclude that sales of liquor on three separate occasions may give rise to separate violations of the Monroe county zoning ordinances, because the legality of the land use during each transaction must be determined separately, and affirm those convictions.
Dennis Schaitel owned land and a residence in a district of the town of Sparta zoned for agriculture. Schaitel had applied for a liquor license and a tavern permit on a number of occasions. These applications, and those for zoning changes to 'commercial' or 'forestry and recreation,' were denied.
In late 1983, Schaitel converted one floor of his tri-level home into a bar. The facility contained a long, L-shaped bar with bar stools; a back bar holding various liquor bottles, a microwave oven, a rack of packaged snack goods and cigarettes, and a cash register; a roll-top cooler containing over 200 cans of beer and soft drinks; signs denominating various 'donation' prices for beverages and snacks; a stereo system, a television and video recorder; a pin-ball machine, a juke box and a pool table; and various tables, benches and chairs. Schaitel claims the facility was the club house for the private Riverside Club. 3 The cost of a club membership was $1.00 and the club purportedly had about 400 members.
In early November, 1983, Monroe County Deputy Sheriff Richard Yunk received an anonymous telephone tip that Schaitel was operating a tavern in his home. Yunk began regular observation of the Schaitel residence on his rounds. He later testified that he routinely saw 20 to 30 cars parked at the home, often after bar time.
Also in November, 1983, Deputy Sheriff Steven Marshall purchased a Riverside Club membership and went to the Schaitel residence on three occasions. He testified that on each occasion he requested, and was served, one or more mixed drinks over the bar. Marshall also testified that, although he was never asked to pay, the money he placed on the bar for all but one of those drinks was taken by the person tending bar and placed in the cash register. 4 Samples of the drinks taken by Marshall tested positive for alcohol.
On November 19, 1983, the sheriff searched the Schaitel residence pursuant to a search warrant, confiscating the beer, liquor and cigarettes found on the premises. Schaitel was subsequently convicted of three counts of selling intoxicating liquor without a license; one count of possession of intoxicating liquor with intent to sell; three counts of evading the provisions of the law under sec. 125.67, Stats.; 5 and three counts of operating a tavern without a conditional use permit in an area zoned for agriculture. His sentences under sec. 125.66 and the repeat offender provision of sec. 125.66(1), included both fines and jail terms.
Schaitel filed a number of post-conviction motions. 6 The first requested that the judgment of conviction regarding the counts of selling or possession with intent to sell be vacated and the complaint be dismissed on the ground that sec. 125.66(1), Stats., is unconstitutionally vague and overbroad. This motion was denied.
Schaitel then moved for relief from convictions under both secs. 125.66(1) and 125.67, Stats., alleging that the charges arose from the same conduct--that is, the unlicensed transfer of alcohol beverages for consideration--and that both convictions could not stand under sec. 939.66. 7 The trial court granted this motion and ordered an amended judgment of conviction deleting the sec. 125.67 counts. The state has not appealed.
Third, Schaitel moved for a new trial regarding the counts of violation of the zoning ordinance. He argued that, because his activity was a continuous operation, it was plain error to instruct the jury that it could find him guilty of three counts of operating a tavern in an agricultural district. This motion was denied.
Finally, Schaitel moved to vacate the sentences of imprisonment imposed under sec. 125.66(1), Stats., on the ground that the second and third counts did not constitute second or subsequent convictions under that section. That motion was also denied. Schaitel appeals.
A conviction under sec. 125.66(1), Stats., requires proof of two elements: (1) that the accused sold intoxicating liquor or possessed it with intent to sell; and (2) that the accused did not hold the appropriate license. Schaitel argues that sec. 125.66(1), Stats., is unconstitutionally vague and overbroad. The trial court considered this issue on motions after verdict. The parties dispute whether this issue was timely raised at trial.
However, even if a constitutional issue is raised for the first time on appeal, we may in our discretion consider it if 'it is in the best interests of justice to do so, if both parties have had the opportunity to brief the issue and if there are no factual issues that need resolution." In Interest of Baby Girl K, 113 Wis.2d 429, 448, 335 N.W.2d 846, 856 (1983), appeal dismissed, ---- U.S. ----, 79 L.Ed.2d 670 (1984), quoting Laufenberg v. Cosmetology Examining Board, 87 Wis.2d 175, 187, 274 N.W.2d 618, 624 (1979). We will consider the constitutionality of sec. 125.66(1) in the exercise of our discretion. In this respect we differ with the dissent, which considers the question as a matter of right.
The meaning of 'sell' under ch. 125 is defined in sec. 125.02(20), which provides in part: "Sell', 'sold', 'sale' or 'selling' means any transfer of alcohol beverages with consideration or any transfer without consideration if knowingly made for purposes of evading the law relating to the sale of alcohol beverages . . ..' Schaitel contends that the provision barring transfers without consideration in order to knowingly evade the law is unconstitionally vague and overbroad. The instructions given the jury by the trial court included both definitions of 'sell' under sec. 125.02(20), Stats. There was no objection to this instruction.
Though a facially invalid statute may be challenged at any time, the statute attacked must affect a litigant in some way. State v. Holmes, 106 Wis.2d 31, 315 N.W.2d 703, 707 (1982). The portion of the statutory definition of 'sell' now attacked by Schaitel, and discussed in the dissent, has nothing to do with this lawsuit. Schaitel was not charged with transferring alcohol beverages without consideration. The evidence at trial in no way showed a transfer without consideration, and Schaitel did not contend that the transfer was without consideration. The complaint alleged only that Schaitel transferred three alcohol beverages, and that he received $1.00, 90cents and 90cents respectively for the beverages. The evidence supports these charges. 8 Though the trial court included the now-attacked definition of 'sell' in the jury instructions, that portion of the instruction was surplusage, given the issues actually litigated. Furthermore, even if the court erred in unnecessarily including the challenged definition of 'sell' in a jury instruction, the error would not undermine our confidence in the outcome of the case. If erroneously given, the instruction was harmless. State v. Dyess, 124 Wis.2d 525, 545, 370 N.W.2d 222, 230-31 (1985).
The construction of a statute is a question of law which we may review independently. State v. Gavigan, 122 Wis.2d 389, 391, 362 N.W.2d 162, 164 (Ct.App. 1984). While we must construe penal statutes strictly in favor of the accused, State v. Schmit, 115 Wis.2d 657, 665-66, 340 N.W.2d 752, 757 (Ct.App. 1983), we must also balance this requirement against the presumption that all statutes are constitutional. In Matter of Guardianship of Nelson, 98 Wis.2d 261, 266, 196 N.W.2d 736, 738 (1980). A heavy burden is placed upon a party challenging the constitutionality of a statute, and reasonable doubts are to be resolved in favor of the statute's validity. Id.
Schaitel maintains that the phrase 'evading the law relating to the sale of alcohol beverages . . .' is impermissibly vague. He asserts that the statute provides no guidance to the person seeking to lawfully dispense liquor without coming under the terms of ch. 125. Schaitel testified that all the alcohol served was either brought to and stored at the bar by individual members or was given to members for a minimal donation to cover club expenses. Therefore, he claims to have had no reason to believe he...
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