A state statute provides “It shall be unlawful to sell alcoholic beverages to any person under twenty-one (21) years of age,” and imposes a fine of $1,000 for violation of the statute. The state courts have interpreted the statute as creating strict liability.
The regional manager of a retail package store chose a manager for the store. She delegated all decision making concerning operations to him.
The store manager hired a clerk to sell liquor during the afternoon shift. He told her to check the identification of all prospective purchasers and to refuse to sell to anyone under age 21. One afternoon a customer, who was 18-years old but looked older, purchased a bottle of scotch without showing any identification. An inspector from the state liquor commission was watching the store and, by checking the customer’s age, established a violation of the statute. The regional manager was convicted by the trial court of violating the statute and has appealed on the ground that her conviction would violate the U.S. Constitution.
The appellate court should:
A. Uphold the conviction, because regulatory offenses are not subject to due process limitations.
B. Uphold the conviction, because she was in a position to exercise control over the sale of liquor by store.
C. Reverse the conviction, because it is a violation of due process to punish without a voluntary act.
D. Reverse the conviction, because criminal liability is personal and the store is the seller, not the regional manager.
{ 6 comments… read them below or add one }
B. agent control
Answer B is correct. Statutes imposing vicarious liability on the innocent employer for the illegal acts of an employee in the scope of employment are generally upheld as constitutional. In evaluating the constitutionality of imposing vicarious liability, the issue of control over employees is the most important consideration. The statute in question deals with the kind of offense and imposes the type of penalty for which strict liability statutes are constitutional. Since this is a strict liability statute and thus no guilty intent is required, supervisors with authority over the persons who actually commit the offense can constitutionally be held vicariously liable. Note that the supervisor need not in fact exercise control over the sale; the power and responsibility to control sales is sufficient.
Answer A is incorrect. It is incorrect to say that the Due Process Clause does not apply to regulatory offenses. All of the due process safeguards due to a criminal accused must be accorded a person charged with a regulatory offense. Here, the strict liability offense and the ensuing vicarious liability of the employer survive due process scrutiny.
Answer C is incorrect. A crime that is defined in terms of an act, or an omission to act where there is a legal duty, is constitutional. It is not a violation of due process to punish without a voluntary act. A failure to act where there is a legal duty to act may be punished as well. All of the safeguards of the Due Process Clause due to a criminal accused must be accorded a person charged with a regulatory offense that creates vicarious liability for a failure to act. Here, however, the strict liability offense and the ensuing vicarious liability of the employer survive due process scrutiny.
Answer D is incorrect. The regional manager’s liability is based on a theory of vicarious liability. The criminal liability thus imposed is based on the power of the regional manager to control conduct and her responsible, supervisory relationship as employer with her employees. It is not based upon personal involvement in a sale. The regional manager can be held criminally liable, even though the store will likely be held liable to indemnify her for the fine. (Under this theory of vicarious liability, both the manager and the store could also be held liable.)
answer B. Under the responsible corporate officer doctrine, a
corporate officer who bears a responsible relationship to an illegal
activity may be considered to have participated in that illegal activity.
B is the best answer
I like B. The offense is part of a regulatory scheme and a public welfare offense. The penalty ($1,000 fine) is relatively low. Regional Manager was in a position of control. This is a “no intent” crime. It will be upheld.
The answer is B. This is a regulatory offense. The regional manager though not involved in the day to day operations of the store is in the position to make sure that the laws are followed.