State v. Guminga

YETKA, J.

On May 29, 1985, the state filed a criminal complaint in Hennepin County Municipal Court against George Joseph Guminga, defendant. Guminga moved to dismiss the charge on August 22, 1985. The court held a hearing on August 28 and subsequently denied the motion and certified the present question of law to the Minnesota Court of Appeals on October 29, 1985. The court of appeals then requested this court to take jurisdiction over the certification, which was granted on December 16, 1985.

On March 29, 1985, in the course of an undercover operation, two investigators for the City of Hopkins entered Lindee’s Restaurant, Hopkins, Minnesota, with a 17-year-old woman. All three ordered alcoholic beverages. The minor had never been in Lindee’s before, and the waitress did not ask the minor her age or request identification. When the waitress returned with their orders, the minor paid for all the drinks. After confirming that the drink contained alcohol, the officers arrested the waitress for serving intoxicating liquor to a minor in violation of Minn. Stat. § 340.73 (1984). The owner of Lindee’s, defendant George Joseph Guminga, was subsequently charged with violation of section 340.73 pursuant to Minn. Stat. § 340.941 (1984), which imposes vicarious criminal liability on an employer whose employee serves intoxicating liquor to a minor. The state does not contend that Guminga was aware of or ratified the waitress’s actions.

Guminga moved to dismiss the charges on the ground that section 340.941 violates the due process clauses of the federal and state constitutions. The state contended that the issue was not justiciable and that, even if justiciable, the statute was constitutional. After holding a hearing on August 28, 1985, the court denied the motion to dismiss.

The municipal court found that, while, under Minnesota case law, section 340.941 has apparently withstood constitutional scrutiny, the argument against its constitutionality is persuasive enough to merit certification of the issue. Finding State v. Young . . . controlling, the court acknowledged that language in Young is subject to the interpretation that the case was decided on justiciability grounds and did not reach the constitutional challenge. The court declined to adopt this interpretation, however, and found that the criminal sanctions imposed by section 340.941 were held constitutional in Young. However, the court found persuasive the argument against the constitutionality of such a statute adopted by the Georgia Supreme Court in Davis v. City of Peachtree City . . . and certified the question to the Minnesota Court of Appeals.

The court of appeals, pursuant to the June 4, 1985 order of this court regarding certified questions from trial courts, requested this court to take jurisdiction over the question, and the request was granted on December 16, 1985.

The certified question of law before this court is as follows:

Whether Minn. Stat. § 340.941, on its face, violates the defendant’s right to due process of law under the Fourteenth Amendment to the United States Constitution and analogous provisions of the Constitution of the State of Minnesota.

We find that the statute in question does violate the due process clauses of the Minnesota and the United States Constitutions and thus answer the question in the affirmative. . . .

Minn. Stat. § 340.73 (1984) provides criminal penalties for any person selling intoxicating liquor to a minor:

It is unlawful for any person, except a licensed pharmacist to sell, give, barter, furnish, deliver, or dispose of, in any manner, either directly or indirectly, any intoxicating liquors or nonintoxicating malt liquors in any quantity, for any purpose, to any person under the age of 19 years, or to any obviously intoxicated person.

Whoever in any way procures intoxicating liquor or nonintoxicating malt liquor for the use of any person named in this section shall be deemed to have sold it to that person. Any person violating any of the provisions of this section is guilty of a gross misdemeanor.

Minn. Stat. § 340.941 (1984) imposes vicarious criminal liability on the employer for an employee’s violation of section 340.73:

Any sale of liquor in or from any public drinking place by any clerk, barkeep, or other employee authorized to sell liquor in such place is the act of the employer as well as that of the person actually making the sale; and every such employer is liable to all the penalties provided by law for such sale, equally with the person actually making the same. . . .

Since this is not an appeal from a conviction, we do not yet know whether, if found guilty, Guminga would be subjected to imprisonment, a suspended sentence, or a fine. Even if there is no prison sentence imposed, under the new sentencing guidelines, a gross misdemeanor conviction will affect his criminal history score were he to be convicted of a felony in the future. Young, on the other hand, was decided before the sentencing guidelines took effect. This case presents a direct challenge to the constitutionality of section 340.941.

We find that criminal penalties based on vicarious liability under Minn. Stat. § 340.941 are a violation of substantive due process and that only civil penalties would be constitutional. A due process analysis of a statute involves a balancing of the public interests protected against the intrusion on personal liberty while taking into account any alternative means by which to achieve the same end. See Communist Party v. Subversive Activities Control Board . . . ; Barton Contracting Co., Inc. v. City of Afton . . . (“The requirements of due process must be measured according to the nature of the government function involved and whether or not private interests are directly affected by the government action.”) . . . Section 340.941 serves the public interest by providing additional deterrence to violation of the liquor laws. The private interests affected, however, include liberty, damage to reputation and other future disabilities arising from criminal prosecution for an act which Guminga did not commit or ratify. Not only could Guminga be given a prison sentence or a suspended sentence, but, in the more likely event that he receives only a fine, his liberty could be affected by a longer presumptive sentence in a possible future felony conviction. Such an intrusion on personal liberty is not justified by the public interest protected, especially when there are alternative means by which to achieve the same end, such as civil fines or license suspension, which do not entail the legal and social ramifications of a criminal conviction. . . . [Footnote 3]

== Footnote 3 ==
We agree with the reasoning of the Georgia Supreme Court in Davis v. City of Peachtree City . . . Davis involved the criminal conviction of the president of a chain of convenience stores whose employee had sold liquor to a minor. The defendant was prosecuted under a city ordinance holding licensees responsible for the acts of their employees and received a $300 fine and a 60-day suspended sentence. The Georgia Supreme Court reversed the conviction, ruling that it was a violation of due process since the public interest did not justify criminal prosecution:

In balancing this burden against the public’s interests, we find that it cannot be justified under the due process clauses of the Georgia or United States Constitutions, regardless of Peachtree City’s admittedly legitimate interests of deterring employers from allowing their employees to break the law and of facilitating the enforcement of these laws. This is especially true, when, as here, there are other, less onerous alternatives which sufficiently promote these interests. The Model Penal Code recommends that civil violations providing civil penalties such as fines or revocation of licenses be used for offenses for which the individual was not morally blameworthy and does not deserve the social condemnation “implicit in the concept ‘crime’.” Model Penal Code § 1.04(s) . . . The availability of such sanctions renders the use of criminal sanctions in vicarious liability cases unjustifiable. . . .

Although some commentators and courts have found that vicarious criminal liability does not violate due process in misdemeanor cases which involve as punishment only a slight fine and not imprisonment, we decline to so hold. The damage done to an individual’s good name and the peril imposed on an individual’s future are sufficient reasons to shift the balance in favor of the individual. The imposition of such a burden on an employer “cannot rest on so frail a reed as whether his employee will commit a mistake in judgment,” but instead can be justified only by the appropriate prosecuting officials proving some sort of culpability or knowledge by the employer.
== End Footnote ==

• * *

The dissent argues that vicarious liability is necessary as a deterrent so that an owner will impress upon employees that they should not sell to minors. However, it does not distinguish between an employer who vigorously lectures his employees and one who does not. According to the dissent, each would be equally guilty. We believe it is a deterrent enough that the employee who sells to the minor can be charged under the statute and that the business is subject to fines or suspension or revocation of license. . . .

We specifically and exclusively decide the question under the provisions of the Minnesota Constitution herein cited. We find that, in Minnesota, no one can be convicted of a crime punishable by imprisonment for an act he did not commit, did not have knowledge of, or give expressed or implied consent to the commission thereof.

The certified question is thus answered in the affirmative that we hold section 340.941 unconstitutional under the provisions of the Minnesota Constitution cited.

KELLEY, J. dissenting.

I respectfully dissent. The strong public interest in prohibiting the sale of liquor to minors justifies the imposition of vicarious liability on the bar owner — employer for illegal sales to minors made by an employee. I respectfully suggest that in ruling Minn. Stat. § 340.941 (1984) unconstitutional, the majority has failed to give adequate weight to the clearly expressed, long-standing public policy of this state as reflected in Section 340.941. Imposition of vicarious liability and criminal punishment for sale of intoxicating liquor to minors has been the law in this state since 1905. . . .

of vicarious liability and the threat of a short jail, not prison, sentence is reasonably related to the legislative purpose: enforcement of laws prohibiting liquor sales to minors. Without the deterrent of possible personal criminal responsibility and a sentence, the legislature could have rationally concluded that liquor establishment owners will be less likely to impress upon employees the need to require identification of age before serving liquor. Limiting punishment to a fine allows bar owners to view their liability for violations as nothing more than an expense of doing business. The gravity of the problems associated with minors who consume alcoholic beverages justifies the importance by the legislature of harsher punishment on those who help contribute to those problems. The state has the right to impose limited criminal vicarious liability on bar proprietors as a reasonable exchange for the state-granted privilege of a liquor license. . . .

SCOTT, Justice (dissenting).

I join in the dissent of Justice Kelley.