STEINMETZ, J.
The principal issue in this case is whether the state must prove intentional conduct by a defendant in all charged circumstances of a violation of [263]*263sec. 10.0.26(3), Stats. 1977,1 for a conviction. This issue involves a statutory construction and constitutional requirements of due process. The trial court, the Honorable Ted E. Wedemeyer, Jr., in a trial to the court held that intent is not a requisite to be shown for all charged circumstances and that due process was not violated. The court of appeals agreed, and we affirm.
The defendant, Edward Malee, also challenges the sufficiency of the evidence for his conviction for violating sees. 289.02(5) and 943.20 (1) (b), Stats. 1977.2
[264]*264The test on appeal for sufficiency of evidence to support a conviction is whether the evidence adduced, believed and rationally considered by the trier of fact was sufficient to prove the defendants’ guilt beyond a reasonable doubt. State v. Blaisdell, 85 Wis. 2d 172, 180, 270 N.W.2d 69 (1978).
In 1978 and 1979, the defendants, Edward Malee and Richard Stepniewski, were engaged in home improvement sales solicitations in Milwaukee county through a firm named Energy Control Systems, Inc. Mr. Malee was the president and principal stockholder in the company, while Mr. Stepniewski was a salesman-employee of the firm. Mr. Malee kept the company’s books, had the power of final approval for all the company’s contracts, coordinated work on its projects and often worked personally on homes. Mr. Stepniewski solicited contracts for the company, which included drafting contracts on behalf of the firm, and handled complaints and questions pressed by its customers.
[265]*265Evidence produced at the trial showed that Mrs. Stella Richlen and her daughter, Terri, contracted for home improvement work with Energy Control Systems, Inc., through Stepniewski. The Richlens paid a down payment of $4,000 for the work and this money was transferred to Malee for deposit in the Energy Control Systems, Inc., account. No work was ever done under this contract. Mr. Malee told the Richlens that he had given some of their money to the Boy Scouts as a contribution, but didn’t know how much of it was theirs. He also admitted at trial that he gave some of the Richlens’ money to the Boy Scouts. This usage of those funds was not a term of the contract, nor was it approved by the Rich-lens. In addition, the trial court held the defendants’ cash receipts journal clearly reflected the use of Richlens’ money in Malec’s gift to the Boy Scouts. The above admission of Malee was sufficient for conviction.
As this court stated in State v. Blaisdell, supra, at 178:
_ “Under the statutes here in question, the state’s position is the correct one. In the case of Bastian v. LeRoy, 20 Wis. 2d 470, 483, 122 N.W.2d 386 (1963), we held that the trust fund created by sec. 289.02(4), Stats, (now renumbered 289.02(5), Stats.) arises ‘when the money has been paid by the owner or mortgagee to the contractor for improving the owner’s property.’ We must look to the money paid by the owner to do the particular job and trace the use of those proceeds. Until all claims for labor and materials are paid, the contract- or’s interest in the money paid to him by the owner to the extent of the amount of all claims due and to become due for that project is merely as a trustee.”
Once the contractor (Malee) used the money of another (Richlen), given him for a particular building project, for another purpose or project before all the claims due or to become due were paid for the project that generated the payment, he violated the trust and [266]*266committed a theft. The evidence in this case demonstrated Malee violated the trust and the trial court's finding of his guilt of theft as a contractor is sustained.
The defendants, Malee and Stepniewski, were each convicted of trade practice violations, Malee of six violations and Stepniewski of 12 counts. The evidence showed that the two defendants violated ch. AG 110 Wis. Adm. Code,3 promulgated under sec. 100.20(2), Stats.4 In particular, the defendants on several occasions failed to state in writing projects’ starting and completion [267]*267dates. On other occasions, while the defendants did enter such dates in writing, they then failed to complete the projects. In two cases where work was left undone, severe damage occurred to the homes when winter arrived. Many of the homeowners victimized by the defendants were elderly and retired citizens.
The trial court sentenced Stepniewski to one and one-half years imprisonment and six consecutive years of probation. At the time of sentencing, he was on probation for an earlier conviction under the theft by contractor statute.
The court sentenced Malee to 13 months incarceration for theft by contractor, plus six consecutive years in prison. The latter sentences for home improvement violations were stayed, and Malee was placed on probation for six years.
In addition, as terms of probation, the defendants were held jointly and severally liable for full restitution.
The defendants did not raise the issue of statutory construction in the court of appeals; however, the issue is raised here.
The defendants interpret the focused language of sec. 100.26(3), Stats. 1977, “or who intentionally refuses, neglects or fails to obey any regulation made under s. 100.19 or 100.20, shall, . . .” as meaning that “intentionally" modifies all the words following it.
In State v. Balestrieri, 87 Wis. 2d 1, 7, 274 N.W.2d 269 (Ct. App. 1978), that court held: “We therefore hold that the term ‘intentional’ in sec. 100.26(3), Stats., only modifies the term ‘refuses.’ It does not modify the terms ‘neglect’ or ‘fails.’ ” This court affirmed the decision of the court of appeals in Balestrieri by an evenly divided court. State v. Balestrieri, 96 Wis. 2d 361, 362, 291 N.W. 2d 579 (1980). The issue is again before this court.
[268]*268The statute is “capable of being understood by reasonably well-informed persons in two or more different senses” and consequently is ambiguous. Wirth v. Ehly, 93 Wis. 2d 433, 441, 287 N.W.2d 140 (1980); accord, State ex rel. Warrington v. Shawano Cty. Cir. Ct., 100 Wis. 2d 726, 303 N.W.2d 590, n. 1 (1981). When ambiguity exists, “this court may resort to extrinsic aids in determining legislative intent.” Wirth v. Ehly, supra, at 441-42; accord, Milwaukee County v. Proegler, 95 Wis. 2d 614, 625, 291 N.W.2d 608 (Ct. App. 1980).
The words following “intentionally” are “refuses,” “neglects” or “fails.” (Emphasis added.) The Random House Dictionary of the English Language, Unabridged Edition, relevant definitions of those words as verbs are:
“refuse— ... to express a determination not to (do something) ... to decline to submit to ... to decline acceptance, consent, or compliance. . .”
“neglect — to pay no attention ... to omit, through indifference or carelessness ... to fail to carry out or perform (order, duties, etc.) . . .”
“fail — to fall short of success or achievement in something expected, attempted, desired, or approved ...
Free access — add to your briefcase to read the full text and ask questions with AI
STEINMETZ, J.
The principal issue in this case is whether the state must prove intentional conduct by a defendant in all charged circumstances of a violation of [263]*263sec. 10.0.26(3), Stats. 1977,1 for a conviction. This issue involves a statutory construction and constitutional requirements of due process. The trial court, the Honorable Ted E. Wedemeyer, Jr., in a trial to the court held that intent is not a requisite to be shown for all charged circumstances and that due process was not violated. The court of appeals agreed, and we affirm.
The defendant, Edward Malee, also challenges the sufficiency of the evidence for his conviction for violating sees. 289.02(5) and 943.20 (1) (b), Stats. 1977.2
[264]*264The test on appeal for sufficiency of evidence to support a conviction is whether the evidence adduced, believed and rationally considered by the trier of fact was sufficient to prove the defendants’ guilt beyond a reasonable doubt. State v. Blaisdell, 85 Wis. 2d 172, 180, 270 N.W.2d 69 (1978).
In 1978 and 1979, the defendants, Edward Malee and Richard Stepniewski, were engaged in home improvement sales solicitations in Milwaukee county through a firm named Energy Control Systems, Inc. Mr. Malee was the president and principal stockholder in the company, while Mr. Stepniewski was a salesman-employee of the firm. Mr. Malee kept the company’s books, had the power of final approval for all the company’s contracts, coordinated work on its projects and often worked personally on homes. Mr. Stepniewski solicited contracts for the company, which included drafting contracts on behalf of the firm, and handled complaints and questions pressed by its customers.
[265]*265Evidence produced at the trial showed that Mrs. Stella Richlen and her daughter, Terri, contracted for home improvement work with Energy Control Systems, Inc., through Stepniewski. The Richlens paid a down payment of $4,000 for the work and this money was transferred to Malee for deposit in the Energy Control Systems, Inc., account. No work was ever done under this contract. Mr. Malee told the Richlens that he had given some of their money to the Boy Scouts as a contribution, but didn’t know how much of it was theirs. He also admitted at trial that he gave some of the Richlens’ money to the Boy Scouts. This usage of those funds was not a term of the contract, nor was it approved by the Rich-lens. In addition, the trial court held the defendants’ cash receipts journal clearly reflected the use of Richlens’ money in Malec’s gift to the Boy Scouts. The above admission of Malee was sufficient for conviction.
As this court stated in State v. Blaisdell, supra, at 178:
_ “Under the statutes here in question, the state’s position is the correct one. In the case of Bastian v. LeRoy, 20 Wis. 2d 470, 483, 122 N.W.2d 386 (1963), we held that the trust fund created by sec. 289.02(4), Stats, (now renumbered 289.02(5), Stats.) arises ‘when the money has been paid by the owner or mortgagee to the contractor for improving the owner’s property.’ We must look to the money paid by the owner to do the particular job and trace the use of those proceeds. Until all claims for labor and materials are paid, the contract- or’s interest in the money paid to him by the owner to the extent of the amount of all claims due and to become due for that project is merely as a trustee.”
Once the contractor (Malee) used the money of another (Richlen), given him for a particular building project, for another purpose or project before all the claims due or to become due were paid for the project that generated the payment, he violated the trust and [266]*266committed a theft. The evidence in this case demonstrated Malee violated the trust and the trial court's finding of his guilt of theft as a contractor is sustained.
The defendants, Malee and Stepniewski, were each convicted of trade practice violations, Malee of six violations and Stepniewski of 12 counts. The evidence showed that the two defendants violated ch. AG 110 Wis. Adm. Code,3 promulgated under sec. 100.20(2), Stats.4 In particular, the defendants on several occasions failed to state in writing projects’ starting and completion [267]*267dates. On other occasions, while the defendants did enter such dates in writing, they then failed to complete the projects. In two cases where work was left undone, severe damage occurred to the homes when winter arrived. Many of the homeowners victimized by the defendants were elderly and retired citizens.
The trial court sentenced Stepniewski to one and one-half years imprisonment and six consecutive years of probation. At the time of sentencing, he was on probation for an earlier conviction under the theft by contractor statute.
The court sentenced Malee to 13 months incarceration for theft by contractor, plus six consecutive years in prison. The latter sentences for home improvement violations were stayed, and Malee was placed on probation for six years.
In addition, as terms of probation, the defendants were held jointly and severally liable for full restitution.
The defendants did not raise the issue of statutory construction in the court of appeals; however, the issue is raised here.
The defendants interpret the focused language of sec. 100.26(3), Stats. 1977, “or who intentionally refuses, neglects or fails to obey any regulation made under s. 100.19 or 100.20, shall, . . .” as meaning that “intentionally" modifies all the words following it.
In State v. Balestrieri, 87 Wis. 2d 1, 7, 274 N.W.2d 269 (Ct. App. 1978), that court held: “We therefore hold that the term ‘intentional’ in sec. 100.26(3), Stats., only modifies the term ‘refuses.’ It does not modify the terms ‘neglect’ or ‘fails.’ ” This court affirmed the decision of the court of appeals in Balestrieri by an evenly divided court. State v. Balestrieri, 96 Wis. 2d 361, 362, 291 N.W. 2d 579 (1980). The issue is again before this court.
[268]*268The statute is “capable of being understood by reasonably well-informed persons in two or more different senses” and consequently is ambiguous. Wirth v. Ehly, 93 Wis. 2d 433, 441, 287 N.W.2d 140 (1980); accord, State ex rel. Warrington v. Shawano Cty. Cir. Ct., 100 Wis. 2d 726, 303 N.W.2d 590, n. 1 (1981). When ambiguity exists, “this court may resort to extrinsic aids in determining legislative intent.” Wirth v. Ehly, supra, at 441-42; accord, Milwaukee County v. Proegler, 95 Wis. 2d 614, 625, 291 N.W.2d 608 (Ct. App. 1980).
The words following “intentionally” are “refuses,” “neglects” or “fails.” (Emphasis added.) The Random House Dictionary of the English Language, Unabridged Edition, relevant definitions of those words as verbs are:
“refuse— ... to express a determination not to (do something) ... to decline to submit to ... to decline acceptance, consent, or compliance. . .”
“neglect — to pay no attention ... to omit, through indifference or carelessness ... to fail to carry out or perform (order, duties, etc.) . . .”
“fail — to fall short of success or achievement in something expected, attempted, desired, or approved ... to be or become deficient or lacking. . .”
Since “refuses” has usages ranging from an expression of determination to not do something to a more passive declination of compliance, it is apparent the legislature preceded the word “refuses” with “intentionally” to make it understood that the refusal intended was the determination to not do something. This was done so mere declination to comply would be understood to be the same as a failure to carry out or perform an order or duties, which is the meaning of neglect. Neglect was, therefore, not modified by “intentionally,” since the conduct described was something less than determination to not act.
[269]*269The word “fails” was intended to mean a failure to obey a regulation by a lack of success or achievement, where the performance in compliance was deficient or lacking.
The legislature intended to provide for as wide a range of conduct to be included as an offense of sec. 100.26(3), Stats. 1977, as penalties provided: “shall for each offense, be fined not less than $25 nor more than $5,000, or imprisoned in the county jail for not more than one year or both.”
The legislature has shown its awareness of the use of intentional in respect to neglect and other words in other statutes, i.e.:
“52.05 Abandonment; uniform act. (1) PENALTY. Any person who, without just cause, deserts or wilfully [intentionally] neglects or refuses to provide for the support and maintenance of his or her spouse or child under 18 years . . . .” (Emphasis added.)
“947.15 Contributing to the delinquency of children; neglect; neglect contributing to death. (1) The following persons. . .
“(a) Any person . . . who intentionally encourages or contributes to the delinquency ... or the neglect of any child. . . .” (Emphasis added.)
When the legislature intended in those statutes that the modifying word “intentionally” apply to other words 'and also “neglect,” it used the conjunctive word “or.” It did not do so in sec. 100.26(3), Stats. 1977, until after the word neglect and before the word “fails.” Intentionally cannot modify “fails,” since one who has intentionally failed to obey is one who has a mental purpose of refusal to obey and such use would be duplicitous.
The defendant argues that sec. 100.26(3), Stats. 1977, was meant to include only intentional conduct or, alternatively, that it violates due process to convict a person of a crime with no mens rea. This idea was rejected by the [270]*270U.S. Supreme Court and this court in several instances over the years. The first rejection in Wisconsin was in State v. Hartfiel, 24 Wis. 60 (1869), which involved the prosecution of a saloon keeper for serving a minor an intoxicating liquor when the statute did not include the words “knowingly” or “wilfully.” The jurors were instructed that ignorance or mistake on the part of the accused as to the fact that the six-foot-one-inch person who was served was a minor was no defense. The court held:
“The act in question is a police regulation, and we have no doubt that the legislature intended to inflict the penalty, irrespective of the knowledge or motives of the person who has violated its provisions. Indeed, if this were not so, it is plain that the statute might be violated times without number, with no possibility of convicting offenders, and so it would become a dead letter on the statute book, and the evil aimed at by the legislature remain almost wholly untouched. To guard against such results, the legislature has, in effect, provided that the saloon keeper, or other vendor of intoxicating liquors or drinks, must know the facts — must know that the person to whom he sells is a qualified drinker, within the meaning of the statute; and, if not, he acts at his peril in disobeying the requirements of the law.” Id. at 62.
The U.S. Supreme Court stated the history of crime without intent in Morissette v. United States, 342 U.S. 246 (1952) and declared:
“Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil. . . .
“The industrial revolution multiplied the number of workmen exposed to injury from increasingly powerful and complex mechanisms, driven by freshly discovered sources of energy, requiring higher precautions by employers. Traffic of velocities, volumes and varieties unheard of came to subject the wayfarer to intolerable casualty risks if owners and drivers were not to observe new cares and uniformities of conduct. Congestion of cities [271]*271and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when those who dispersed food, drink, drugs, and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care. Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare.
“While many of these duties are sanctioned by a more strict civil liability, lawmakers, whether wisely or not, have sought to make such regulations more effective by invoking criminal sanctions to be applied by the familiar technique of criminal prosecutions and convictions. This has confronted the courts with a multitude of prosecutions, based on statutes or administrative regulations, for what have been aptly called ‘public welfare offenses.’ These cases do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties [272]*272commonly are relatively small, and conviction does no grave damage to an offender’s reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime. This has not, however, been without expressions of misgiving.
“It was not until recently that the court took occasion more explicitly to relate abandonment of the ingredient of intent, not merely with considerations of expediency in obtaining convictions, nor with the malum pro-kibitum classification of the crime, but with the peculiar nature and quality of the offense. We referred to ‘. . . a now familiar type of legislation whereby penalties serve as effective means of regulation,’ and continued, ‘such legislation dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.’ But we warned: ‘Hardship there doubtless may be under a statute which thus penalizes the transaction though consciousness of wrongdoing be totally wanting.’ United States v. Dotterweich, 320 U.S. 277, 280-81, 284.” Id. at 251-56, 259-60.
In State v. Dried Milk Products Co-operative, 16 Wis. 2d 357, 114 N.W.2d 412 (1962), in considering sec. 348.-15(2) (c), Stats., which required certain weight limitations for vehicles operated on the highways, we held:
“This section is part of a welfare statute which generally creates a crime malum prohibitum for the doing of an act without requirement of intent. . . .
“Keeping in mind that welfare statutes are mala prohib-ita and an exception to the general common-law rule that an intent of some blameworthiness is required, we must construe the statute in the light of the legislative history when the legislative intent is appropriately expressed in statutory language and such construction can be giv[273]*273en without violence to the rule that criminal laws are to be strictly construed against the government.
“Statutes of this nature, imposing criminal penalty irrespective of any intent to violate them, have for their purpose the requirement of a degree of diligence for the protection of the public which shall render a violation thereof impossible. People v. Roby (1884), 52 Mich. 577, 18 N.W. 365; Reismier v. State (1912), 148 Wis. 593, 135 N.W. 153; Scott v. State (1920), 171 Wis. 487, 177 N.W. 615; Knecht v. Kenyon (1923), 179 Wis. 523, 192 N.W. 82; Commonwealth v. Ober (1934), 286 Mass. 25, 189 N.E. 601. . . .
“Where legislative action is within the scope of the police power, fairly debatable questions as to reasonableness, wisdom, and propriety of action, are not for the determination of the court but for the legislative body. State v. Ross (1951), 259 Wis. 379, 48 N.W.2d 460; State v. United Parking Stations (1951), 235 Minn. 147, 50 N.W.2d 50; Commonwealth v. Flickinger (1949), 165 Pa. Super. 95, 67 Atl. 2d 779; Jones v. Chicago (1952), 348 Ill. App. 310, 108 N.E.2d 802; People v. Breen (1950), 326 Mich. 720, 40 N.W.2d 778.” Id. at 359, 361, 362-63.
In West Allis v. Megna, 26 Wis. 2d 545, 133 N.W.2d 252 (1965), the court dealt with a statute prohibiting minors to be on tavern premises and held it imposed strict liability on tavern keepers. In upholding the law, the court held: “The purpose of the statute is simply ‘to keep minors as patrons or customers out of taverns.’ ” This was held to be a proper application of the state’s police power for the general welfare of its citizens.
The statement of purpose for creating sec. 100.26(3), Stats. 1977, is reflected in sec. 100.20(1) and (2):
“100.20 Methods of competition and trade practices.. (1) Methods of competition in business and trade practices in business shall be fair. Unfair methods of competition in business and unfair trade practices in business are hereby prohibited.
“(2) The department, after public hearing, may issue general orders forbidding methods of competition in bus[274]*274iness or trade practices in business which are determined by the department to be unfair. The department, after public hearing, may issue general orders prescribing methods of competition in business or trade practices in business which are determined by the department to be fair.”
The statement of purpose as appears in subsecs. (1) and (2) reflect a concern of the legislature with protection of the public, and it has chosen a proper means of exercising its police power to protect the public welfare. The literal reading of the statute urged by the defendants would interfere with the substantive purpose of the legislature.
The legislative history of the present sec. 100.26(3), Stats. 1977, leads to the conclusion recited previously as to the word “intentionally” modifying only the word “refuses.”
In 1921, the statute first appears in ch. 571, Laws of 1921.5 At that time, neither the word “wilfully” nor “intentionally” were in the statute. However, the range of punishment then was substantially the same as now, i.e., “be punished by a fine of not more than five thousand dollars or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment.”
The Laws of 1923, ch. 366,6 added responsibility for the acts of agents, as well as a principal and added the [275]*275word “wilfully.” However, “wilfully” modified only “violates” and separated “violates” from “refuses, neglects or fails to obey” with the conjunctive or. Significantly, the penalty remained constant.
Then, in a revisor’s bill in 1935, Laws of 1935, ch. 550, sec. 366, the statute took its present form and “wilfully violates” was eliminated and the word “intentionally” appears before the word “refuses.” “Refuses” is followed by a comma, not the conjunctive word or, and, therefore, for reasons already stated in this opinion, intentionally was meant to modify “refuses.”
In State v. Morales, 51 Wis. 2d 650, 656, 187 N.W.2d 841 (1971), we held:
“The United States Supreme Court has never enunciated a constitutional mandate requiring proof of mens rea in all cases before an accused can be held accountable for his acts. Powell v. Texas (1968), 392 U.S. 514, 535, 88 Sup. Ct. 2145, 20 L. Ed. 2d 1254. The states are free to create crimes which do not require proof of mens rea. Roberts v. State (1969), 41 Wis. 2d 537, 545, 164 N.W. 2d 525.”
This remains the law today. In Powell v. Texas, supra, at 545, Justice Black, in a concurring opinion, gave as the basis for his determination, the following, which still holds true: “The criminal law is a social tool that is employed in seeking a wide variety of goals.”
[276]*276This court expressed the same thought as Justice Black in Pauly v. Keebler, 175 Wis. 428, 439, 185 N.W. 554 (1921):
“It is not the province of the courts to set aside statutes merely because they may be deemed unwise or because it may be feared that they will work inconvenience or hardship. Subject to the limitations imposed by the constitution the legislature has very broad powers in order to promote the public welfare, to create criminal offenses and impose punishment therefor. These are rules so elementary and long established that it is unnecessary to cite the many adjudicated cases on which they are based.”
In State v. Collova, 79 Wis. 2d 473, 255 N.W.2d 581 (1977), the court recognized that liability-without-fault punitive statutes in Wisconsin were not violative of constitutional due process standards; however, the court also concluded that the legislature had intended a mandatory, though unstated, fourth element of proof. The fourth element was that the defendant had cause to believe his driver’s license [privilege] might be revoked or suspended. It is apparent the reason for the fourth unstated requirement was that a conviction carried a mandatory jail sentence and an administrative revocation of the defendant’s operating privileges for a period of one year. Sec. 343.31(1) (f) and (3), Stats. The court was obviously concerned with a statute with mandatory punishment for a violation, and no allowance for judicial discretion as a protection for a violation that did not include any intentional or negligent wrongdoing. This was reflected in the Collova language at 486:
“Absent some unmistakable indication in the words of the statute, we are unwilling to conclude that the legislature intended to subject a defendant who is innocent of any negligent or intentional wrongdoing to the harsh consequences a conviction under sec. 343.44 entails. To inflict substantial punishment on a person who is inno[277]*277cent of any intentional or negligent wrongdoing offends the sense of justice and is ineffective.”
What concerned the Collova court is not applicable to the present statute, sec. 100.26(3), Stats. 1977, since the wrongdoing punished is either an “intentional refusal” or “neglect” or “failure,” all of which suggest in varying degrees, direct or implied knowledge of a wrongdoing. The statute is obviously intended to implement a high standard of care to protect the public; to accomplish this, it allowed a convicted wrongdoer to be punished pursuant to judicial discretion, in order to accomplish the public welfare concern that underlies the statute.
The defendants held themselves out to the public as persons having an expertise in home improvement. They sought out, by advertising and referrals, those persons in society who were in need of help and for the most part uninformed as to the law and construction practices. It is reasonable and necessary for the legislative body to protect the innocent who need services by placing a burden of regularity, evenhandedness and legal guidelines on the purveyors of the services. It is as much a part of competition to be honest, forthright and fulfilling as it is to work for a lower bid. The public does not always recognize this. Good, honest entrepreneurs recognize it and are not hurt by the law holding them strictly liable in a punitive statute which requires minimum standards of behavior. It is not offensive to require starting dates and completion dates to be stated in a contract. It would appear offensive only to persons not wishing to be held to any semblance of accountability.
Under sec. 100.26(3), Stats. 1977, there could be a problem of notice to a defendant as to what charge he had to defend against; i.e., one of intentional refusal, one of neglect to obey a requirement of the administrative [278]*278rules, or one of failure to obey an order. Any of these forms of conduct violates sec. 100.26(3) if proven and, therefore, the defendant is entitled to notice in order to prepare a defense. They are separate and can be distinct ways of committing a violation of the same statute.
The district attorney in this case charged each of the defendants specifically according to the evidence he believed available, and subsequently proved their guilt. In all the multiple counts, the defendants were charged with a failure to obey a regulation. These were additional charges under the home improvement rules and were separate from the charges of theft by contractor.
Since each of the three proscribed courses of conduct may be distinct, the alleged method of the crime must be specifically charged to avoid multiplicitous charges for the same conduct or acts. Care was correctly taken in this case in the specificity of charges brought; the conduct of the defendants to be proven was clearly set forth. Therefore, the notice problems to defendants discussed in Manson v. State, 101 Wis. 2d 413, 304 N.W.2d 729 (1981), never arise in regard to this case.
The original information filed in this case charged each defendant with intentionally engaging in an unfair home improvement trade practice which was followed by a “to wit” allegation of the unlawful practice. An amended information was filed with the trial court’s consent. The amended information did not charge intentional acts for the home improvement practices. They were instead referred to as an “unfair home improvement trade practice, to wit.” After this statement in each count, the specifics of the alleged unlawful practice were set forth, i.e., either failed to state in the contract the dates or time periods on or within which the work was to begin or be completed, or the defendants failed to be[279]*279gin or complete the work on the dates or within the time period represented by the defendant or defendants.
The defendants argue that the district attorney will never allege intentional refusal since that is the only conduct requiring a showing of mens rea,. The claim is that the district attorney will choose neglect or failure as a charge more easily satisfied as to the state’s burden. This ignores the integrity of district attorneys in bringing the proper charge, and also ignores the potential notice problem. In addition, bringing a lesser, more easily provable charge may not fit the evidence available of defendants’ conduct, and a relevancy problem may be created for the state during the trial. Finally, the argument fails to recognize that the district attorney may choose to charge “intentional refusal” if he believes that evidence is present to prove defendants’ guilt, and then ask the trial court for high limits of the wide-range of penalty available.
By specific charging based upon the evidence available, no problem of submission of the verdict to a jury arises in order to have a unanimous verdict consistent with the defendant’s proven conduct. The entire problem raised by United States v. Gipson, 553 F.2d 453 (5th Cir. 1977) as discussed in the Manson case, supra, will therefore be avoided.
By the Court. — The decision of the court of appeals is affirmed.