State v. Sleeth, 54912

• Decision Date: 16 June 1983
• Docket Number: No. 54912,54912
• Citation: 664 P.2d 883,8 Kan.App.2d 652
• Parties: STATE of Kansas, Appellee, v. Darlene E. SLEETH, d/b/a Tiger Island, Inc., Appellant.
• Court: Kansas Court of Appeals

Page 883

664 P.2d 883

8 Kan.App.2d 652

STATE of Kansas, Appellee, v. Darlene E. SLEETH, d/b/a Tiger Island, Inc., Appellant.

No. 54912.

Court of Appeals of Kansas.

June 16, 1983.

Syllabus by the Court

1. The fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statutes. Legislative intent is to be determined by a general consideration of the entire act. Effect should be given, if possible, to the entire statute and every part thereof. To this end it is the duty of the court, so far as practicable, to reconcile the different provisions so as to make them consistent, harmonious and sensible. Where a statute is plain and unambiguous, this court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Where various provisions of an act conflict, this court should attempt to reconcile such provisions in order to make them harmonious and sensible. [Following Arduser v. Daniel International Corp., 7 Kan.App.2d 225, Syl. p 1, 640 P.2d 329, rev. denied 231 Kan. 799 (1982).]

2. It is a fundamental rule that penal statutes must be strictly construed in favor of the persons sought to be subjected to their operations. The rule of strict construction simply means that ordinary words are to be given their ordinary meaning. Such a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it.

3. K.S.A. 41-2615 is neither purely penal, nor purely regulatory, in nature, but is a hybrid of the two.

4. The first full sentence of K.S.A. 41-2615 prohibits, inter alia, the commission of certain acts by licensed clubs. Pertinent is the provision that no "club" shall "knowingly or unknowingly permit" a minor to consume any alcoholic beverage on its premises. This proscription is directed towards "clubs," not towards the owner, manager or employees thereof. Knowledge of the infraction is not a prerequisite to holding a "club" liable for a transgression of this provision. A "club" cannot be punished criminally, but is subject only to revocation of its license to operate for a violation of the foregoing provision. This first part of the statute is thus regulatory, not penal, in nature. It can be enforced only against "clubs," not against persons.

5. The second full sentence of K.S.A. 41-2615 is directed towards persons, in particular any owner, officer or employee of a "club." This sentence makes it an unclassified misdemeanor for any such person to "permit" the consumption of any alcoholic beverage by a minor while on the premises of a club. For a penalty, it refers to K.S.A. 41-715, which prescribes as punishment a fine of not more than $200 or imprisonment for not more than 30 days, or both. Being operative against persons, and providing for criminal sanctions, this second sentence is thus clearly penal, not regulatory, in nature.

6. Conspicuously absent from the second sentence of K.S.A. 41-2615 is the qualifying phrase "knowingly or unknowingly"; the word "permit" stands alone. The omission of the phrase "knowingly or unknowingly" from the second sentence of the statute is a clear indication of a legislative intent to infuse that penal provision with a scienter requirement.

7. K.S.A. 41-904 imposes certain limitations upon the imputation of vicarious criminal liability. By its plain terms, 41-904 applies to all situations where any provision of the Kansas liquor control act has been violated. K.S.A. 41-904 just as plainly requires a showing of "authorization, knowledge or approval" on the part of the club owner in order for him to be criminally liable for the acts or omissions of his employees.

8. In a criminal appeal, the record is examined and it is held, that under the facts and circumstances detailed within the opinion, appellant was erroneously convicted of a criminal violation of K.S.A. 41-2615; appellant's conviction and sentence thereon are reversed and the case is remanded to the trial court with instructions to enter a judgment of acquittal.

Kenneth M. Carpenter, of Carpenter & Carpenter, Chtd., Topeka, for appellant.

Steven L. Opat, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before MEYER, P.J., and PARKS and SWINEHART, JJ.

MEYER, Presiding Judge:

On April 2, 1982, appellant Darlene E. Sleeth (defendant) was charged with sale of an alcoholic beverage to a minor, in violation of K.S.A. 41-2615. Defendant appeared before the court on July 22, 1982. For the purposes of the trial to the court, the facts were stipulated; that stipulation follows:

"1. That on January 15, 1982, at approximately 7:30 p.m. three customers entered the Tiger Island private club in Junction City, Kansas. All three customers presented I.D. and signed in on a guest book provided by management indicating that each was over 21 years of age. At that time no other customers were present in the club.

"2. On that date officers of the Junction City Police Department made a routine age check, in requesting I.D. from one of the three individuals in the club; that individual refused to produce same. The Military Police were called, a military I.D. was then presented. That I.D. indicated that that person was William H. Jensen and under age 21.

"3. On that evening, an employee, Hye Suk Iandola, prepared three alcoholic beverages and placed them on the corner of the bar. These drinks were paid for and each of the three persons had a drink when the officers of the Junction City Police Department entered. It is unknown whether a drink was purchased by this individual but one was apparently consumed by him.

"4. This person, who presented an I.D. indicating he was William Jensen, was arrested, booked in jail and subsequently plead guilty in Junction City Municipal Court to possession of an alcoholic beverage by a minor. The Court found him guilty and he was fined.

"5. The Tiger Island employee, Hye Suk Iandola, was charged in Junction City Municipal Court with sale of an alcoholic beverage to a minor. She was tried and acquitted.

"6. On the evening in question, Darlene Sleeth, owner and operator of the Tiger Island private club, was neither present nor consented to the sale or consumption of alcohol to a minor as alleged.

"7. That the drink which was in front of the person identified as William Jensen, was taken into custody by the arresting officers and tested at the K.B.I. laboratory indicating there was alcoholic liquor within the contents of the drink confiscated.

"8. That the person who entered the club, later identified as William Jensen, presented a driver's license, without a picture and with a different name than that on the military I.D. later produced, which indicated the person was over 21 years of age. This I.D. was presented to a Tiger Island employee prior to entry in the club."

On August 4, 1982, the trial court issued its memorandum decision and journal entry, finding defendant guilty as charged. On December 29, 1982, the court sentenced defendant to 15 days in jail and fined her $100; costs of $84 were also assessed to her. She now brings this appeal.

The single issue presented in this appeal is whether defendant's conviction of violating K.S.A. 41-2615 can be sustained under the facts as stipulated. 41-2615 provides:

"No club licensed hereunder shall knowingly or unknowingly permit the consumption of alcoholic liquor or cereal malt beverage on its premises by a minor and no minor shall consume or attempt to consume any alcoholic liquor or cereal malt beverage while in or upon the premises of a club licensed hereunder or as prohibited by K.S.A. 41-715 and any amendments thereto. The owner of any club, any officer or any employee thereof, who shall permit the consumption of alcoholic liquor or cereal malt beverage on the premises of the club by a minor shall be deemed guilty of a misdemeanor and upon conviction shall be subject to the same penalty as prescribed by K.S.A. 41-715 for violation of that section." (Emphasis added.)

At issue in this appeal is whether the penal provisions of the above statute may be invoked against a club owner who was not present at, had no knowledge of, and did not consent to or authorize the sale of alcoholic beverages to a minor by an employee of the club. This question is one requiring statutory construction and, thus, is a question of law.

"The fundamental rule of statutory construction, to which all others are subordinate is that the purpose and intent of the legislature governs when that intent can be ascertained from the statutes. Legislative intent is to be determined by a general consideration of the entire act. Effect should be given, if possible, to the entire statute and every part thereof. To this end it is the duty of the court, so far as practicable, to reconcile the different provisions so as to make them consistent, harmonious and sensible. Where a statute is plain and unambiguous, this court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Where various provisions of an act conflict, this court should attempt to reconcile such provisions in order to make them harmonious and sensible." Arduser v. Daniel International Corp., 7 Kan.App.2d 225, Syl. p 1, 640 P.2d 329, rev. denied 231 Kan. 799 (1982).

When a penal statute is involved, the rule of statutory construction is, for the most part, identical to that stated above; however, the construction preferred is a strict one, in favor of the accused.

"It is a fundamental rule that penal s...