I must respectfully dissent on one point. I would hold that the trial court did not abuse its discretion when it considered the opportunity costs as a factor to be included in any restitution order. I refer to the losses a retail merchant sustains when deprived by a thief of the opportunity to sell that merchant’s goods at retail.
The calculation of such amounts is straightforward. For example, if a merchant, such as the victim here, was selling beer and a thief stole 100 cases of beer, the thief took not only the beer but also deprived the merchant of ever selling those 100 cases. Whatever the profit was that could have been obtained from their sale is obliterated by the thief. While it is true the 100 cases can be replaced — usually at wholesale prices — the ability to sell those first 100 cases is now gone. Under such circumstances, a retail merchant suffers a loss that is greater than the replacement costs.
The majority relies upon State v. Hall, 45 Kan. App. 2d 290, 247 P.3d 1050 (2011) aff'd 297 Kan. 709, 304 P.3d 677 (2013), as persuasive authority for holding the trial court here abused its discretion by setting a restitution figure that included lost profits. I believe Hall is not persuasive. The Hall panel relied upon Illinois Cent. R. Co. v. Crail, 281 U.S. 57, 50 S. Ct. 180, 74 L. Ed. 699 (1930), a 1930 United States Supreme Court case that dealt with a shipment of coal that was 2 or 3 tons short of what the railroad ordered. The railroad would add the coal to its stockpile and either use it (steam locomotives used coal) or sell it. Those facts are similar to the facts in Hall where veterinarian supplies stored for use at the veterinary clinic or for sale over the counter were stolen. But those facts are not similar to the facts here where the merchant buys beer at one price and sells it to its customers at a different price.
The Hall panel decided the clinic would receive a windfall if it received profits as well as the replacement of its stolen supplies as restitution. The Hall panel thus limits the thief s responsibility for restitution to wholesale costs. Such a view is too restrictive, for it ignores other costs that a retail merchant has when maintaining stock in a warehouse. Those costs include labor, electricity, taxes, *407and all the other costs associated with maintaining a warehouse. None of those expenses are included in the replacement cost of the beer, yet they are losses sustained by the merchant when the merchant is denied the opportunity to sell its wares on the retail market.
The more modem view takes into account lost profits as part of a fair restitution order. This is reflected by appellate court holdings in Florida, Idaho, and Georgia in which the courts directed that the retail value should be assigned to retail goods when determining restitution. See J. C. v. State, 3 So. 3d 346 (Fla. Dist. App. 2008); Garrett v. State, 175 Ga. App. 400, 333 S.E.2d 432 (1985); State v. Smith, 144 Idaho 687, 169 P.3d 275 (2007).
When analyzing this issue of determining restitution, the 10th Circuit Court of Appeals, in a case cited by the majority, said it best: “Thus where the victim is a retail merchant, the market value is the retail sales price [citation omitted], and where the victim is a wholesale merchant, the market value is the wholesale price.” U.S. v. Cummings, 798 F.2d 413, 416 (10th Cir. 1986).
K.S.A. 21-4610(d)(l) clearly allows our trial courts to order restitution “to the aggrieved party for the damage or loss caused by the defendant’s crime . ...” I would not limit a trial court’s discretion as the Hall panel did and as the majority does here.
In this case, City Beverage will never again be able to sell the stolen beer to its customers because Behrendt deprived them of that opportunity. I would hold the trial court did not abuse its discretion when it ordered restitution.