State v. Beaudry

365 N.W.2d 593, 123 Wis. 2d 40
CourtWisconsin Supreme Court
DecidedNovember 27, 1985
Docket83-1783-CR
StatusPublished
Cited by10 cases

This text of 365 N.W.2d 593 (State v. Beaudry) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Beaudry, 365 N.W.2d 593, 123 Wis. 2d 40 (Wis. 1985).

Opinions

SHIRLEY S. ABRAHAMSON, J.

This is a review of a published decision of the court of appeals, State v. Beaudry, 119 Wis. 2d 96, 349 N.W.2d 106 (Ct. App. 1984), affirming a judgment of conviction by the Circuit Court for Sheboygan county, John Bolgert, Circuit Judge. The court of appeals affirmed the judgment, and we affirm the decision of the court of appeals.

The jury found the defendant, Janet Beaudry, the agent designated by the corporation pursuant to sec. 125.04(6) (a), Stats. 1981-82, of the alcoholic beverage [43]*43laws,1 guilty of the misdemeanor of unlawfully remaining open for business after 1:00 a.m. in violation of sec. 125.68(4) (c), which prohibits premises having a “Class B” license from remaining open between the hours of 1:00 a.m. and 8:00 a.m.2 The tavern manager, not the defendant personally, had kept the tavern open, giving drinks to friends, contrary to his instructions of employment. On the basis of the judgment the defendant was ordered to pay a fine in the amount of $200.00.3

[44]*44The defendant raises two issues on appeal: (1) whether the statutes impose vicarious criminal liability on the designated agent of a corporate licensee for the conduct of a corporate employee who violates sec. 125.-68(4) (c), Stats. 1981-82, and (2) whether there is sufficient evidence to support the verdict in the case. Before we discuss these two issues, we shall set forth the facts.

I.

The facts are undisputed. The defendant, Janet Beaudry, and her husband, Wallace Beaudry, are the sole shareholders of Sohn Manufacturing Company, a corporation which has a license to sell alcoholic beverages at the Village Green Tavern in the village of Elk-hart Lake, Sheboygan county. Janet Beaudry is the designated agent for the corporate licensee pursuant to sec. 125.04(6) (a), Stats. 1981-82.

Janet Beaudry’s conviction grew out of events occurring during the early morning hours of February 9, 1983. At approximately 3:45 a.m., a deputy sheriff for the Sheboygan County Sheriff’s Department drove past the Village Green Tavern. He stopped to investigate after noticing more lights than usual inside the building and also seeing two individuals seated inside. As he approached the tavern, he heard music, saw an individual standing behind the bar, and saw glasses on the bar. Upon finding the tavern door locked, the deputy sheriff knocked and was admitted by Mark Witkowski, the tavern manager. The tavern manager and two men were the only persons inside the bar. All three were drinking. The deputy sheriff reported the incident to the Sheboy-gan County district attorney’s office for a formal complaint.

[45]*45At about noon on February 9, the tavern manager reported to Wallace Beaudry about the deputy's stop earlier that morning. After further investigation Wallace Beaudry discharged the tavern manager on February 11.

On March 2, 1983, the Sheboygan County Sheriff’s Department served the defendant with a summons and a complaint charging her with the crime of keeping the tavern open after hours contrary to sec. 125.68(4) (c), Stats., and sec. 125.11(1), Stats. The tavern manager was not arrested or charged with an offense arising out of this incident.

The case was tried before a jury on May 20, 1983. At trial Janet Beaudry testified that she was not present at the tavern the morning of February 9. Wallace Beaudry testified that Janet Beaudry had delegated to him, as president of Sohn Manufacturing, the responsibilities of business administration associated with the Village Green Tavern; that he had hired Mark Witkow-ski as manager; that he had informed Witkowski that it was his duty to abide by the liquor laws; and that he never authorized Witkowski to remain open after 1:00 a.m., to throw a private party for his friends, or to give away liquor to friends.

Witkowski testified that he had served drinks after hours to two men. During cross-examination Witkow-ski confirmed that Wallace Beaudry had never authorized him to stay open after hours; that he had been instructed to close the tavern promptly at the legal closing time; that he knew it was illegal to serve liquor after 1:00 a.m. to anyone, including friends; that his two friends drank at the bar before 1:00 a.m. and had paid for those drinks; that he was having a good time with his friends before closing hours and wanted to continue partying and conversing with them after 1 a.m.; that after closing hours he was simply using the tavern to have a private party for two friends; that he [46]*46did not charge his friends for any of the liquor they drank after 1:00 a.m.; and that by staying open he was trying to benefit not Wallace Beaudry but himself.

At the close of evidence, the jury was instructed that the law required the premises to be closed for all purposes between 1:00 a.m. and 8:00 a.m. and that if the jury found that there were patrons or customers on the premises after 1:00 a.m., it must find the premises open contrary to statute.

The jury was also instructed regarding Janet Beaudry’s liability for the conduct of the tavern manager: As designated agent of the corporation, the defendant had full authority over the business and would be liable for the tavern manager’s violation of the closing hour statute if he was acting within the scope of his employment. The instructions, which are pattern instructions Wis. J.I. Cr. 440 (1966), describe what activities are within the scope of employment and what are outside the scope of employment. Specifically, the jury was instructed as follows regarding the defendant’s liability for the conduct of the tavern manager:

“It is also the law of the State of Wisconsin that violations of statutes regulating the sale of liquor do not require a showing of a willful or intentional act.
“It is a law that when a corporation is a licensee, the corporation vests in its agent, in this case Janet Beaudry, full control and authority over the premises and of the conduct of all business on the premises relative to alcohol beverages that the licensee could have exercised if it were a natural person.
“Under Wisconsin law if a person employs another to act for him [sic] in the conduct of his [sic] business, and such servant or agent violates the law, as in this case relating to open after hours, then the employer is guilty of that violation as if he [sic] had been present or had done the act himself [sic], if such act was within the scope of the employment of the servant or agent. It is no defense to prosecution under the statute that the employer was not upon the premises, did not know of the acts of his [sic] servant or agent, had not con[47]*47sented thereto, or even had expressly forbidden such act.
“A servant or agent is within the scope of his employment when he is performing work or rendering services he was hired to perform and render within the time and space limits of his authority and is actuated by a purpose in serving his employer in doing what he is doing.

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State v. Beaudry
365 N.W.2d 593 (Wisconsin Supreme Court, 1985)

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Bluebook (online)
365 N.W.2d 593, 123 Wis. 2d 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-beaudry-wis-1985.