(dissenting).
I respectfully dissent from the opinion of the court. In my view, the supreme court’s caselaw requires the state to prove that Rohan possessed some form of mens rea at the time she committed the gross-misdemeanor offense with which she is charged.
The central question in this appeal is whether section 340A.503, subdivision 2(1), of the Minnesota Statutes creates a “public welfare offense” or, more specifically, the type of public-welfare offense for which proof of mens rea is not required. The supreme court recently provided the framework of our analysis in State v. Ndikum, 815 N.W.2d 816 (Minn.2012). Because “ ‘offenses that require no mens rea generally are disfavored,”’ the supreme court requires “some positive indication of legislative intent” that proof of mens rea is not required. Id. at 818-19 (quoting Staples v. United States, 511 U.S. 600, 606, 114 S.Ct. 1793, 1797, 128 L.Ed.2d 608 (1994)). Only “in limited circumstances,” *231specifically, prosecutions based on “statutes creating ‘public welfare’ offenses,” does the supreme court interpret a statute lacking an express mens rea requirement to be a statute that “ ‘impose[s] a form of strict criminal liability.’ ” Id. at 819 (quoting Staples, 511 U.S. at 606-07, 114 S.Ct. at 1797-98). In this case, the relevant statute is silent as to whether proof of mens rea is required. See Minn.Stat. § 340A.503, subd. 2(1) (2010).
In the vivid words of Justice Jackson, the offenses known as “public welfare offenses”
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 commonly 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.
Morissette v. United States, 342 U.S. 246, 255-56, 72 S.Ct. 240, 246, 96 L.Ed. 288 (1952), quoted in In re Welfare of C.R.M., 611 N.W.2d 802, 806 (Minn.2000), and State v. Morse, 281 Minn. 378, 383-84, 161 N.W.2d 699, 702-03 (1968). Justice Jackson also noted that no court had “undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not” and that “the law on the subject is neither settled nor static.” Morissette, 342 U.S. at 260, 72 S.Ct. at 248.
Despite the uncertainty as to when proof of mens rea is required, the Minnesota caselaw is clear about one aspect of the issue, which is implicated in this case. The state must prove the existence of mens rea because the statute with which Rohan is charged creates a gross-misdemeanor offense, which is punishable by as much as one year of incarceration. See Minn.Stat. §§ 340A.702(8) (2010); 609.02, subds. 2-4 (2010). This fact is pertinent because the supreme court has stated that the penalty associated with an offense “[historically” has been a “significant consideration” and an “important factor” in determining whether mens rea is an element of the offense. Ndikum, 815 N.W.2d at 822 (quotations omitted). The applicable penalty is significant because public-welfare offenses historically have given rise to only “ ‘small penalties’ like fines and short jail *232sentences.” Id. (quoting Staples, 511 U.S. at 616, 114 S.Ct. at 1803). The importance of the applicable penalty is corroborated by the easelaw. The supreme court has held that gross-misdemeanor and felony offenses require proof of mens rea. See Ndikum, 815 N.W.2d at 818-22 (gross-misdemeanor possession of firearm in public without permit); C.R.M., 611 N.W.2d at 805-10 (felony possession of dangerous weapon on school grounds). On the other hand, the supreme court has held that misdemeanor offenses may be proved without evidence of mens rea. See State v. Loge, 608 N.W.2d 152, 154-59 (Minn.2000) (open bottle). More specifically, the supreme court has stated that the penalties applicable to gross-misdemeanor offenses are “severe punishments incompatible with a public welfare offense.” Ndikum, 815 N.W.2d at 822; see also State v. Siirila, 292 Minn. 1, 10, 193 N.W.2d 467, 473 (1971) (holding that gross-misdemeanor offense of possession of small amount of marijuana requires proof of mens rea). It is notable that the supreme court never has applied the public-welfare doctrine and held that a gross-misdemeanor offense may be proved without regard for mens rea.
I would interpret the above-cited case-law to provide that if a criminal statute does not expressly require proof of mens rea, the statute may be interpreted literally only if, first, the statute creates an offense of the nature and quality of a public-welfare offense and, second, the statute prescribes the mild penalties that historically have been associated with public-welfare offenses. In this case, the offense with which Rohan is charged has the nature and quality of a public-welfare offense. See Morissette, 342 U.S. at 255-56, 72 S.Ct. at 246. But the charged offense is a gross misdemeanor. See Minn.Stat. § 340A.702(8). Rohan is subject to penalties of as much as one year of incarceration and a $3,000 fine. See Minn.Stat. § 609.02, subds. 2-4. These are not the “small penalties” that historically have been associated with public-welfare offenses. See Ndikum, 815 N.W.2d at 822 (quotation omitted). Thus, I would conclude that the state is required to prove that Rohan had the requisite form of mens rea at the time of her offense.
The majority opinion reaches a contrary conclusion based on two supreme court opinions interpreting earlier statutes governing unlawful service of alcoholic beverages. Those two opinions make this court’s interpretive task somewhat difficult, but they do not overcome the analysis and reasoning reflected in the supreme court’s 2012 opinion in Ndikum.
In State v. Heck, 23 Minn. 549 (1877), the supreme court held that the offense of serving alcoholic beverages to a habitual drunkard did not require proof that the defendant knew that the customer was a habitual drunkard. Id. at 550. The opinion is unhelpful for present purposes because the opinion does not discuss or apply the concepts that were articulated by the United States Supreme Court in Morissette and Staples and applied by our supreme court in Loge, C.R.M., and Ndikum. Furthermore, the statute at issue in Heck created only a misdemeanor offense, which was punishable by no more than 90 days of jail. Id. at 549 (citing Minn.Gen.Stat. ch. 16, § 11 (1866), amended by 1872 Minn. Laws ch. 61, § 3, at 127-28, and 1875 Minn. Laws ch. 112, § 2, at 144); 1872 Minn. Laws eh. 61, § 3, at 128. That penalty was limited in the same way that misdemeanor penalties presently are limited. See Minn.Stat. § 609.02, subd. 3 (2012) (providing that misdemeanor may be punished by incarceration of no more than 90 days and fine of no more than $1,000). Serving alcohol to an under-age person did not become a gross misdemean- *233or until 34 years after the Heck opinion was issued. See 1911 Minn. Laws ch. 290, § 1, at 407 (codified at Minn.Gen.Stat. § 3179 (1913)). Thus, the supreme court did not decide in Heck that the gross-misdemeanor offense with which Rohan is charged does not require proof of mem rea.
In State v. Neisen, 415 N.W.2d 326 (Minn.1987), the supreme court considered the question “whether the legislature intended ... to deprive an accused of the affirmative defense that he or she had determined the purchaser’s age by examining the purchaser’s driver’s license or identification card.” Id. at 327. The Neisen court also did not discuss or apply the caselaw concerning public-welfare offenses, even though the relevant concepts previously had been recognized. See, e.g., Morissette, 342 U.S. at 255-56, 72 S.Ct. at 246; State v. Strong, 294 N.W.2d 319, 320 (Minn.1980); Morse, 281 Minn. at 383-84, 161 N.W.2d at 702-03. Although the Neisen court stated in passing what the state must prove, its statement should be understood as merely a reflection of the language of the statute. Its statement should not be understood to be the result of a reasoned application of the public-welfare caselaw, which seeks to determine whether a statute should be interpreted to require proof of mens rea despite the absence of such a requirement in the language of the statute. The appellant apparently made no such argument, so the absence of a mens rea requirement was assumed to re-fleet the governing law. Nonetheless, the Neisen court did acknowledge “the public policy that if criminal liability, particularly gross misdemeanor or felony liability, is to be imposed for conduct unaccompanied by fault, the legislative intent to do so should be clear.” Neisen, 415 N.W.2d at 329 (emphasis added) (citing Wayne R. La-Fave & Austin W. Scott, Criminal Law 219-21 (1972)). This portion of the Neisen opinion actually supports the principle that gross misdemeanors should be treated in the same manner as felonies when determining whether the state must prove mens rea. The Neisen court elected to implement that principle by recognizing an affirmative defense, which is consistent with the way the parties framed the issue at trial and in the court of appeals. Id. at 327.
Thus, the supreme court has not squarely held that the gross-misdemeanor offense with which Rohan is charged is a public-welfare offense such that the state is relieved of its usual obligation to prove mens rea. Regardless of the precedential value that Heck and Neisen might have had when they were decided, they no longer can be read in the same way in light of the reasoning of the supreme court’s more recent cases. I have no reason to believe that the supreme court does not remain committed to its most recent statement that the penalties for a gross-misdemeanor offense are “incompatible with a public welfare offense.” See Ndikum, 815 N.W.2d at 822.1 Furthermore, we cannot *234assume that the legislature has acquiesced in Heck and Neisen because the supreme court’s caselaw requires “some positive indication of legislative intent” that proof of mens rea is not required. Ndikum, 815 N.W.2d at 818-19.
In sum, in light of the existing supreme court caselaw, I would conclude that the offense with which Rohan is charged is a public-welfare offense for which the state must prove that she had the requisite mens rea at the time she committed the offense. Accordingly, I would affirm the district court’s order.
. I am mindful of the possibility that Ndikum, despite its fulsome analysis, contains only a partial explication of Minnesota law concerning public-welfare offenses. One leading commentator has identified seven factors that have been applied by American courts in determining whether criminal liability may be imposed without proof of mens rea. Wayne R. LaFave, Criminal Law § 5.5(a), at 290-93 (5th ed.2010). Among them is the "severity of the punishment provided for the crime." Id. at 290-91. It does not appear that the supreme court has adopted any significant number of the other factors. But even if other factors are relevant under Minnesota law, there is reason to believe that severity of punishment would remain an important, nearly determinative factor. The United States Supreme Court took that approach in Staples for purposes of federal criminal law, *234see 511 U.S. at 616-19, 114 S.Ct. at 1802-04, and the Minnesota Supreme Court found that part of Staples to be persuasive, see Ndikum, 815 N.W.2d at 822; C.R.M., 611 N.W.2d at 806-07.