AGO 1980 No. 7 - Mar 5 1980
SHOPLIFTING ‑- COURTS ‑- CIVIL ACTION FOR DAMAGES UNDER RCW 4.24.230 ‑- APPLICABILITY TO THEFT OF MEAL FROM RESTAURANT
Although he or she would potentially be subject to criminal sanctions under the provisions of RCW 9.45.040, RCW 19.48.110 and chapter 9A.56 RCW, a customer who orders a meal in a restaurant, receives at least a portion thereof and then leaves without paying is not thereby subject to civil liability under RCW 4.24.230 even if it can be proved that he or she intended to obtain such meal without paying the purchase price therefore.
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March 5, 1980
Honorable Georgette Valle
State Rep., 31st District
414 House Office Building
Olympia, Washington 98504
Cite as: AGO 1980 No. 7
Dear Representative Valle:
This is written in response to your request, previously acknowledged, for our opinion on a question which we paraphrase as follows:
If a customer orders a meal in a restaurant, receives at least a portion thereof and then leaves without paying, is that customer subject to civil liability under RCW 4.24.230 if it can be proved that he or she intended to obtain such meal without paying the purchase price therefor?
We answer your question in the negative for the reasons set forth in our analysis.
[[Orig. Op. Page 2]]
1.The Pertinent Statutory Language:
The first subsection of RCW 4.24.2301/ (also referred to herein as the civil penalty statute) permits a merchant to bring an action for conversion against an adult or emancipated minor who steals merchandise and also allows the merchant to recover his actual damages plus certain specific penalty damages. This segment of the statute reads as follows:
"(1) An adult or emancipated minor who takes possession of anygoods, wares or merchandise displayed or offered for sale by any wholesale or retail store or other mercantile establishment without the consent of the owner or seller, and with the intention of converting such goods, wares or merchandise to his own use without having paid the purchase price thereof shall be liable in addition to actual damages, for a penalty to the owner or seller in the amount of the retail value thereof not to exceed one thousand dollars, plus an additional penalty of not less than one hundred dollars nor more than two hundred dollars.
". . ." (Emphasis supplied)
Subsection (2) of the statute then allows a merchant to bring a similar action for conversion (though grounded in strict or absolute liability) against the custodial parent(s) or guardian(s) of an unemancipated minor who steals merchandise and to recover certain specified penalty damages in that action. This subsection reads as follows:
". . .
"(2) The parent or legal guardian having the custody of an unemancipated minor who takes possession of anygoods, wares or merchandise displayed or offered for sale by any wholesale or retail store or other mercantile establishment without the consent of the owner or seller and with the intention of converting [[Orig. Op. Page 3]] such goods, wares or merchandise to his own use without having paid the purchase price thereof, shall be liable as a penalty to the owner or seller for the retail value of such goods, wares or merchandise not to exceed five hundred dollars plus an additional penalty of not less than one hundred dollars nor more than two hundred dollars: PROVIDED, That for the purposes of this subsection, liability shall not be imposed upon any governmental entity or private agency which has been assigned responsibility for the minor child pursuant to court order or action of the department of social and health services.
". . ." (Emphasis supplied)
Recently, in AGO 1979 No. 11 (copy enclosed), we answered in the affirmative a question regarding possible civil liability under these subsections of RCW 4.24.230 for the taking of gasoline in the pumps where the pumps are so marked as to indicate that gasoline is offered for sale by a business. In that opinion, we focused on the terms of statutory coverage underscored in the above‑quoted excerpts, and those terms are the operative and relevant terms here as well. We also noted in that opinion that because the terms were not specially defined, the legislature apparently intended that they be given their common, ordinary meanings.2/ Garrison v. State Nursing Board, 87 Wn.2d 195, 550 P.2d 7 (1976). It has been suggested, however, that in the context of analysis of a restaurant transaction, it is not appropriate to answer your question simply by looking to the ordinary meaning of those terms (or to attempt to define the scope of their respective meanings as "terms of legal art," see, Rasor v. Retail Credit Co., 87 Wn.2d 516, 554 P.2d 1041 (1976)). Rather, the suggestion is that under Washington law, one who defrauds a restauranteur in the manner you have described should [[Orig. Op. Page 4]] be deemed to have made a theft only of that restaurant's "services" and not to have made a theft of its "goods, wares or merchandise." With some qualifications, we agree that this view is controlling here.
With our focus on this "goods"/"services" dichotomy, we believe that the question of statutory interpretation now before us can be resolved by first looking at the history of the relevant statutes, Ropo, Inc. v. Seattle, 67 Wn.2d 574, 409 P.2d 148 (1965), and by then applying certain established rules of statutory construction;i.e., the in pari materia rule, see, In Re St. Peter v. Rhay, 56 Wn.2d 297, 352 P.2d 806 (1960), and the rule of negative implications known as inclusio unius est exclusio alterius (the inclusion of one thing in legislation implies the exclusion of the other),Knowles v. Holly, 82 Wn.2d 694, 513 P.2d 18 (1973).
2.History of Special Shoplifting Legislation:
Section 1, chapter 229, Laws of 1959, codified in former chapter 9.78 RCW, provided as follows:
"A person who willfully takes possession of any goods, wares or merchandise of the value of less than seventy-five dollarsoffered for sale by any wholesale or retail store or othermercantile establishment without the consent of the seller,with the intention of converting such goods, wares or merchandise to his own use without having paid the purchase price thereof, is guilty of a gross misdemeanor of shoplifting." (Emphasis supplied)
This 1959 statute was subsequently amended in 19673/ and then was repealed with the 1975 enactment of the revised Washington Criminal Code,4/ but its pertinent operative language was retained and transported almost verbatim to the new civil penalty statute (RCW 4.24.230,supra) enacted in the same legislative session.5/
[[Orig. Op. Page 5]]
This brief history tells us two things: First, it tells us that the present civil penalty statute, although now arguably a "remedial" statute, has origins which are strictly "penal." As such, the statute most probably should be given a "strict" reading which restricts the ambit of its coverage.6/ And secondly, it tells us that the various salient terms and phrases of the civil penalty law most probably should be read closely for consistency with the other criminal code provisions with which chapter 9.78 RCW coexisted for sixteen years‑-including, of course, the statutes relating to "defrauding an innkeeper" discussedinfra. In Re St. Peter v. Rhay, supra.
3.History of Restaurant Walkaway Legislation:
In 1899, sixty years before our 1959 state legislature first passed special legislation7/ to deal with the shoplifting problem, the legislature addressed what is sometimes referred to in law enforcement as the "walkaway"8/ offense. See, chapter 27, Laws of 1899 which was generally aimed at those who, inter alia, would walk away from a "hotel," "inn" or "boarding house" after using the accommodations or eating the food. Those who did so without paying and with intent to defraud were guilty of a misdemeanor.
Subsequently, the legislature enacted two overlapping criminal statutes, one now codified in Title 9 RCW,9/ and the other in Title 19 RCW,10/ both dealing with, inter alia, the "restaurant walkaway."11/ In noting that the first of these [[Orig. Op. Page 6]] special statutes (RCW 9.45.040) fell within a particular category of crime designated as "theft of services," one commentator indicated that, as of 1972, the general theft statute did not cover "defrauding an innkeeper" ". . . because the word 'property' as defined for theft does not include 'services'".12/ See, Symposium‑-The Revised Washington Criminal Code, a Hornbook to the Code," 48 Wash.L.Rev. 149, 249, fn. 542 (1972). Thereafter, consistent with this characterization of the law, the legislature, when it adopted the Revised Criminal Code in 1975, explicitly included "theft of services" within the ambit of the general theft statutes in chapter 9A.56 RCW. And, in addition, it explicitly included "restaurant services" in its definition of "services." See, RCW 9A.56.010(10). But thereby, by negative implication under the rule of inclusio unius est exclusio alterius,13/ the legislature excluded the fraudulent taking of "restaurant services" from criminal treatment as a taking of property.
We believe that this history14/ reflects a legislative understanding that unless expressly categorized otherwise in either a civil or criminal context, the sale in a restaurant situation is a sale of services and not a sale of goods or property.15/ We find nothing in the history of the civil penalty statute to contradict this apparent legislative intent.
[[Orig. Op. Page 7]]
Accordingly, because RCW 4.24.230 does not explicitly provide for coverage of the fraudulent taking of "restaurant services," we are of the opinion that this civil penalty law does not apply in the situation you have described. We thus answer your question in the negative. Although he or she would potentially be subject to criminal sanctions under the provisions of RCW 9.45.040, RCW 19.48.110 and chapter 9A.56 RCW, a customer who orders a meal in a restaurant, receives at least a portion thereof and then leaves without paying is not thereby subject to civil liability under RCW 4.24.230,supra, even if it can be proved that he or she intended to obtain such meal without paying the purchase price therefore.16/
We trust that the foregoing will be of some assistance to you.
Very truly yours,
JOHN R. WASBERG
Assistant Attorney General
*** FOOTNOTES ***
1/Originally enacted as chapter 59, Laws of 1975, 1st Ex. Sess. and later amended by chapter 134, Laws of 1977, 1st Ex. Sess.
2/See AGO 1979 No. 11 for a discussion of the common (i.e., dictionary) meaning of the terms "goods," "wares" and "merchandise" and the phrase "displayed or offered for sale."
3/See, chapter 76, Laws of 1967.
4/Chapter 260, Laws of 1975, 1st Ex. Sess. (RCW 9A.92.010; RCW 9A.98.010 (200)-(202), repeal effective July 1, 1976).
5/RCW 4.24.230 was first enacted as § 1, chapter 59, Laws of 1975, 1st Ex. Sess. and subsequently amended by § 1, chapter 134, Laws of 1977, 1st Ex. Sess. The 1977 amendments did not, however, affect any of the language relating to basic coverage of the act.
6/See generally, Sands, C. Dallas, Statutes and Statutory Construction (A Revision of the Third Edition of Sutherland Statutory Construction), Vol. 3, §§ 59-61 (1974 Supp.).
7/Chapter 229, Laws of 1959, supra.
8/State v. Taylor, 22 Wn.App. 308, 321, 589 P.2d 1250 (Div. I, 1979) Pet. for Rev. den., 92 Wn.2d 1013 (1979).
9/Section 373, chapter 249, Laws of 1909, currently codified in unamended form at RCW 9.45.040 (misdemeanor offense).
10/Section 7, chapter 190, Laws of 1915, as amended by § 6, chapter 261, Laws of 1929 and § 1, chapter 21, Laws of 1974, 1st Ex. Sess., currently codified as RCW 19.48.110 (gross misdemeanor/felony offense).
11/For more discussion of the relationship of these two "defrauding" statutes to each other and to other criminal code provisions, see AGO 1967 No. 4; also, see State v. Walls, 81 Wn.2d 618, 503 P.2d 1068 (1972).
12/But cf.,State v. Walls, 81 Wn.2d 618, 503 P.2d 1068 (1972).
13/Knowles v. Holly, supra.
14/Similar legislative treatment reflective (again by negative implication) of this dichotomized view of goods and services in the restaurant context can be found in RCW 62A.2-314, a part of Washington's U.C.C. RCW 62A.2-314(1) explicitly provides that for purposes of an implied warranty of merchantibility in the "sale of goods," the "serving for value of food or drink to be consumed either on the premises or elsewhere is a sale."
15/Compare, however, one appeals court panel's avoidance of this goods/services dichotomy in State v. Taylor, 22 Wn.App. 308, 589 P.2d 1250 (Div. I, 1979), review denied, 92 Wn.2d 1013. In that case, the Defendant Taylor challenged police probable cause arrest power pursuant to RCW 10.31.100 under which police may arrest a suspected misdemeanant upon probable cause where the misdemeanor involves, inter alia, the taking of "property." Taylor was stopped for "defrauding an innkeeper" under RCW 9.45.040. His car was identified and he was stopped twenty minutes after the alleged "walkaway." He argued that this misdemeanor did not involve a taking of "property" but only of "services" and, hence, no power to arrest on probable cause existed. In turn, the prosecutor argued that there was a clear taking of property involved. Neither side, however, cited any cases in support of its views. The Court rather adroitly handled the question. It ruled that defendant was still "absconding" when he was stopped and, therefore, that the offense occurred in the officer's presence. Probable cause arrest powers were thus not required since police may arrest a suspected misdemeanant where the offense occurs in the officer's presence.
16/In so concluding, however, we would caution you that we have assumed throughout our analysis herein that your inquiry relates to "restaurant" in the ordinary sense of that word; i.e., as a place where meals can be both bought and eaten on the premises. SeeWebster's New World Dictionary, Second College Edition. If the range of good sales/purchase transactions is seen as a spectrum, then close to one end is the self-service grocery or supermarket (where food is bought for off-premises consumption). Thefts involving those transactions are clearly covered by RCW 4.24.230. At or near the other end of the food sales/purchase spectrum we find the restaurant transaction. It is thefts involving these latter transactions which are not covered by RCW 4.24.230, in our view.