Reisch v. State

HOLLANDER, Judge. In 1992, Edward Claire Reisch, appellant, was charged with two home improvement offenses, in violation of Code, Art. 56, §§ 255 and 261 (1957, 1988 Repl.Vol.). After a bench trial in 1995 in the Circuit Court for Baltimore County, 1 appellant was convicted of operating without a home improvement license 2 and sentenced to six months in the Baltimore County Detention Center, pursuant to Art. 56, § 267. He was also ordered to pay restitution of $18,880.00, a fine of $350.00, and court ⁴⁶⁷ costs of $225.00.

Appellant’s sentence was to be served in home confinement, with all costs to be paid by appellant. Appellant filed a pro se appeal and, in his “Questions Presented,” he states: “1. The evidence adduced at trial was legally insufficient to sustain a conviction of not having a home improvement license. 2. Appellant was exempted from requirements for needing a home improvement license. 3.

No criminal intent. 4. If anything the issue is a Civil matter not Criminal.” Factual Summary On April 21, 1992, appellant, owner of a business called Unleading America, entered into a contract with George Stuart Lacher to remove lead paint from Lacher’s house. The house, which was built in 1880, was approximately 5000-6000 square feet in size. Lacher learned of appellant’s company through information furnished to him by the Maryland Department of the Environment (“DOE”).

The contract provided, inter alia, for removal of “all existing paint” from the exterior of the house through use of “a high-pressure waterwash” and chemical stripping. In addition, Reisch agreed to remove the paint from specified interior portions of the house. The contract further obligated appellant to contain loose lead paint particles and to remove lead dust by various methods. In addition, Reisch agreed to repaint the entire exterior of the house and remove “existing screens and replace with either aluminum or fiberglass screening.” The total contract price was $27,000.00, payable in three installments.

The contract also contained an option for “sash chain installation,” at additional expense. In May 1992, Reisch began the work. Testimony at trial from Lacher and appellant differs in terms of the quality of work that was done, when the work was done, and whether it was done in accordance with contract specifications. ⁴⁶⁸ According to Lacher, appellant began work on the exterior of the house by blasting it with water to remove the existing paint. But appellant lined only certain areas of the ground with plastic to contain lead contaminated paint removed by the blasting.

Lacher also contended that the plastic lining did not effectively contain paint chips, many of which were strewn around the property. Further, he claimed that no measures were taken to contain paint removed from the exterior of the Lacher garage. In his testimony, Lacher said that the paint was never completely removed from the exterior of the house, as required by the contract. He also maintained that appellant removed the screens from the porches, but the screens were never returned.

He added that appellant spray painted the storm windows, the stone foundation, and the roof. Regarding the interior of the house, Lacher stated that appellant’s work was limited to the windows in two bedrooms. Lacher further denied that he asked Reisch to do any additional work beyond the terms of the contract. Lacher also contended that, after he had paid appellant the second installment on or about May 15, 1992, the work basically ceased.

In an effort to effect contract completion, Lacher related that he called appellant at least once a day because no work was being done. When appellant failed to complete the work by early July, Lacher hired another painter to finish the job. In July 1992, Lacher barred appellant from returning to Lacher’s property. On July 13, 1992, Lacher filed a complaint against appellant with the Maryland Home Improvement Commission.

He alleged, inter alia, that appellant failed to abate safely the lead paint from the exterior of his house, and that Reisch had more than two thirds of his money but only completed one third of the work. Robert Earl Hoggard, an investigator for the Home Improvement Commission, testified that appellant was not a licensed home improvement contractor at the relevant time. ⁴⁶⁹ Appellant testified in his own defense. He said that the scope of work on the Lacher home included interior and exterior paint removal, including approximately 950 square feet of interior work. Although not particularized in the contract, he nonetheless claimed that the interior work included painting the walls, painting the woodwork, taking the doors down, rehanging cupboard doors, and painting the cupboard doors and all of the shelves. 3 Appellant further stated that he began with the interior work because Lacher wanted the inside lead abatement work completed before Lacher’s then-expectant wife delivered.

Reisch also testified that he properly contained lead chips removed from the exterior of the house. Appellant conceded, however, that his “crew” failed to adhere to prescribed containment procedures in removing paint from the garage. But, when the problem was discovered, he brought a crew to the property and it was entirely cleaned. Furthermore, appellant testified that what Lacher referred to as spray painting was actually an “overspray,” a procedure utilized “when you do any treatment with lead,” the purpose of which was to seal the exterior surface prior to painting to ensure a “good bond.” He also claimed that the “job got more involved” because there were so many problems with the condition of the house that only became apparent once the work began. 4 He asserted, too, that the porch screens were repaired and returned.

Although he claimed that inclement weather hampered the progress of the work, he said that he was always ready and able to finish the job. ⁴⁷⁰ Appellant acknowledged that he performed some additional work not specifically addressed in the contract. He stated that he repaired a concrete pad at the rear of the house, replaced two glass window panes, planed a door, and repaired windows that were not operating properly. Appellant explained that he repaired the concrete pad near the garage in an effort to seal the soil after its contamination from lead paint chips. Appellant further said that he performed additional work outside the contract because Lacher requested it.

Although appellant conceded that he did not have a home improvement license when he performed the work on the Lacher home, he insisted that he “was properly licensed for everything,” because he had complied with DOE requirements and was properly certified as a lead abatement contractor, in accordance with the Code of Maryland Regulations (COMAR). He offered in evidence two certificates reflecting successful completion of courses in lead abatement, in accordance with HUD and DOE guidelines. Appellant also submitted in evidence a May 1992 list of lead abatement contractors, prepared by the Lead Poisoning Prevention Division (“LPPD”) of DOE and circulated to “homeowners and others seeking qualified lead paint abatement contractors;” appellant’s business, Unleading America, was second on DOE’s list. Although the list specifies that DOE does not endorse any of the contractors, it also states that “all workers on a lead-abatement project must have successfully completed lead abatement training ... pursuant to COMAR 26.02.07.11B.” In addition, appellant introduced a letter dated October 19, 1992 to Unleading America from Pat McLaine, Chief of LLPD, that stated, in part: “The list is widely circulated among homeowners and others seeking qualified lead paint abatement contractors.

Your company is currently included on this list.” Finally, Reisch offered documents from the Home Improvement Commission. While expressly stating that the list is “not all inclusive,” the Commission referenced 90 categories of work for which a home improvement license was required, and lead abatement was not included on the list. ⁴⁷¹ The trial court found that appellant was not properly licensed on the date of contract formation, that “he should have been licensed,” and that “passing [COMAR and DOE] tests and regulations [just indicates] that he can do [lead abatement], but he definitely needs a [home-improvement] license.” The trial judge said that “when you engage in the home improvement business without benefit of a license, you take a big gamble.” Further, the court observed that, even if Reisch were licensed to perform lead abatement or was otherwise deemed qualified by a State agency to perform lead abatement, such agency “cannot issue any order that will abridge the Home Improvement Commission.” The court further noted, “Well, the State of Maryland could approve me as a licensed well digger, but I’d still have to have a home improvement license.” Discussion It is undisputed that the primary purpose for which appellant was hired was lead paint abatement and most of the work that he performed was related to lead abatement. Nevertheless, the State contends that because appellant also performed work encompassed by the home improvement laws and was not licensed, he is criminally liable. 5 In defense, appellant contends that he is exempt from the home improvement licensing requirement, because his “qualifications qualify him for an exception.” He also argues that he was lawfully entitled to engage in lead abatement without a home improvement license, because he had appropriate certification in lead abatement from the DOE, in accordance with COMAR 26.02.07.11. He contends, too, that the evidence was not sufficient to sustain his conviction, essentially because he did not know that he needed a home improvement license and he did not intend to violate the law.

We shall address the various issues together, because they are intertwined. ⁴⁷² I. Appellant was charged with violating Code, Art. 56, § 255, because he performed home improvement work without a license. 6 Section 249(c) defined “home improvement” as follows: “Home improvement” means the repair, replacement, remodeling, alteration, conversion, modernization, improvement, or addition to any land or building, or that portion thereof which is used or designed to be used as a residence or dwelling place for 1, 2, or 3 single family units; and shall include the construction, replacement, or improvement of driveways, swimming pools, porches, garages, landscaping, fences, fallout shelters and other improvements to structures or upon land which is adjacent to a dwelling house.... ” Further, Art. 56, § 255(a) provided, in part, that “no person shall act in the capacity of a contractor ... unless authorized to do so by ... license ... in accordance with the provisions of this subtitle.” 7 There is no dispute that appellant did not possess such a license. But, he argues that the work that he performed was “lead abatement;” because he was “required by State law to meet standards of competency or experience” to perform lead abatement, he did not know that he was also required to have a home improvement license. He also argues ⁴⁷³ that his DOE certification exempted him from the requirement to obtain, concurrently, a home improvement license. The trial court determined that the contract included work that constituted home improvement.

Accordingly, the trial court found that appellant violated the law. The court said: Well, the defendant is charged with, one, not having a home improvement license as of April of 1992. The contract was dated April 21, 1992. I find that he was not licensed as of that date by his own admission and that he should have been licensed, and that this window that is referred to that creates a, quote, doubt, is not sufficient to overcome the wording of this contract that included the work that was beyond the lead paint removal.

Mr. Reisch, the defendant, is relying upon the State of Maryland claiming or offering him as someone who can provide this service for lead paint removal, he’s the second one on the list, but that does not license him, that just states that he has passed those tests and regulations and that he can do it, but he definitely needs a license. Appellant claims exemption under Art. 56, § 256 of the Code, which provided: No contractor’s ... license may be required of any person when acting in the particular capacity or particular type of transaction set forth in this section: $ ^ ^ (2) A plumber, electrician, architect or any other such person who is required by State or local law to attain standards of competency or experience as a prerequisite to engaging in such craft or profession, and who is acting exclusively within the scope of the craft or profession for which he is currently licensed pursuant to such other law. (Emphasis added.) We conclude that, if appellant engaged in home improvement work, he is not entitled to protection or exemption under § 256(2). Even if appellant satisfied the statutory requirement of exclusivity, he was not licensed in any other profes ⁴⁷⁴ sion, pursuant to any other law.

A DOE certification does not constitute a license within the meaning of Art. 56, § 256(2).

II

Appellant also contends that he had “no criminal intent,” and that he did not “knowingly or wilfully” commit any crime. At trial, his counsel asserted that “part of the defense in this case is that this would not have been a wilful breach of the home improvement law.” Therefore, appellant argues that the evidence was insufficient to sustain his conviction, even if he was unlicensed. Notwithstanding appellant’s admitted failure to obtain a home improvement license, we agree that the evidence was insufficient to sustain appellant’s conviction. We rest our conclusion on the State’s failure to establish, beyond a reasonable doubt, that Reisch acted knowingly and wilfully.

Based on express statutory language, we reject any claim that the terms “knowingly and wilfully” are mere surplusage or that the home improvement provisions in issue impose strict criminal liability. We explain. The Legislature specifically predicated a criminal penalty for violation of Maryland’s home improvement laws on a knowing and mlful violation, referencing that language in several key places in the home improvement laws then in effect: No person may engage in or transact any home-improvement business, or hold himself out to the public as doing home-improvement business, or offer to transact any home-improvement business, in this State, except in compliance with the applicable provisions of this subtitle. No person, whether subject to licensing by any law or otherwise, may engage in this State in any trade practice or other act which is prohibited by any provisions of this subtitle; and every person who wilfully participates in a prohibited act or violation with knowledge of the. same is subject to the criminal penalty therefor.

The provisions of this subtitle may not be waived by agreement. ⁴⁷⁵ Md.Ann.Code art. 56, § 246 (1962, 1988 Repl.Vol.) (emphasis added). Any persons who shall knowingly and wilfully engage in the home-improvement business as a salesman, subcontractor, or contractor without obtaining a license as required by this subtitle and who is not otherwise exempted from the licensing requirement and any person who continues in business as a ... contractor, after revocation or during suspension shall be punished by a fine not exceeding $5,000 or imprisonment for not exceeding 2 years, or both. Md.Ann.Code Art. 56, § 267 (1978, 1988 RepLVol.) (emphasis added). Any person who knowingly and wilfully violates any provision of this subtitle, with respect to which a greater penalty is not otherwise provided ... is guilty of a misdemeanor, and upon conviction thereof ... shall be punished by a fine not exceeding $1,000 or imprisonment not to exceed 6 months or both.

Md.Ann.Code Art. 56, § 268 (1963, 1988 Repl.Vol.) (emphasis added). 8 We recognize that “[t]he general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system.” Cheek v. United States, 498 U.S. 192, 199 , 111 S.Ct. 604, 609 , 112 L.Ed.2d 617 (1991). Nor do we seek here to “dishonor the venerable principle that ignorance of the law generally is no defense to a criminal charge.” Ratzlaf v. United States, 510 U.S. -, -, 114 S.Ct. 655, 663 , 126 L.Ed.2d 615, 627 (1994). Nonetheless, at common law, a crime was deemed to ⁴⁷⁶ have occurred only when an individual committed an unlawful act with a guilty state of mind. Dawkins v. State, 313 Md. 638, 643 , 547 A.2d 1041 (1988). “[I]t is well understood that generally there are two components of every crime, the actus reus or guilty act and the mens rea or the guilty mind or mental state accompanying a forbidden act.

The requirement that an accused have acted with a culpable mental state is an axiom of criminal jurisprudence.” Garnett v. State, 332 Md. 571, 577-578 , 632 A.2d 797 (1993). See also, Morissette v. United States, 342 U.S. 246, 250-252 , 72 S.Ct. 240, 243-244 , 96 L.Ed. 288 (1952). In our view, two recent Supreme Court cases, not cited by the parties, elucidate the issue of wilfulness and convince us that the statutory terms cannot be disregarded. These cases support our conclusion that, in the absence of proof that Reisch acted wilfully, i.e., with the intent to violate a known legal duty, his conviction cannot be sustained.

In Ratzlaf v. United States, supra, 510 U.S, -, 114 S.Ct. 655 , 126 L.Ed.2d 615 , the defendant intended to circumvent the bank’s reporting requirement for cash transactions in excess of $10,-000.00, but he did not know that his conduct was unlawful. The Court held that, in a prosecution under 31 U.S.C. § 5322 (a), the Government was required to prove that the defendant knew that it was unlawful to structure cash transactions so as to evade the bank’s reporting requirement, because the statute provided that only “a person wilfully violating” the provision is subject to criminal penalties. Although the Court acknowledged that term ‘‘wilful” may have many meanings, the Court was of the view that the element of wilfulness was not satisfied in the absence of “knowledge of the reporting requirement” and a “specific intent to commit the crime, i.e., ‘a purpose to disobey the law.’ ” Id., 510 U.S. at-, 114 S.Ct. at 659 , 126 L.Ed.2d at 622 . Rejecting any suggestion that the term “wilfulness” was “surplusage,” Id., 510 U.S. at-, 114 S.Ct. at 659 , 126 L.Ed.2d at 622 , and “to give effect to the statutory ‘wilfulness’ specification,” Id., 510 U.S. at-, 114 S.Ct. at 658 , 126 L.Ed.2d at 620 , the, Court stated: “Judges should hesitate so to treat statutory terms in any setting, and ⁴⁷⁷ resistance should be heightened when the words describe an element of a criminal offense.” Id., 510 U.S. at-, 114 S.Ct. at 659 , 126 L.Ed.2d at 622 .

The case of Cheek v. United States, supra, 498 U.S. 192 , 111 S.Ct. 604 is also instructive. There, the defendant was federally prosecuted for failing to file federal income tax returns and for wilfully attempting to evade his income taxes. 26 U.S.C. § 7201 provides penalties for any person “who willfully attempts in any matter to evade or defeat any tax imposed ...and 26 U.S.C. § 7203 provides penalties for “[a]ny person ... who willfully fails to make such return.” (Emphasis added). While the defendant knew that he had not filed his returns, he claimed that he had not acted wilfully, within the meaning of the statute, because he believed that the federal tax laws were unconstitutionally enforced, that his actions were lawful, and that “wages” are not income within the meaning of the federal income tax What the Court said is pertinent here: The proliferation of statutes and regulations has sometimes made it difficult for the average citizen to know and comprehend the extent of the duties and obligations imposed by the tax laws. Congress has accordingly softened the impact of the common-law presumption [regarding ignorance of the law] by making specific intent to violate the law an element of certain federal criminal tax offenses.

Thus, the Court almost 60 years ago interpreted the statutory term “willfully” as used in the federal criminal tax statutes as carving out an exception to the traditional rule. This special treatment of criminal tax offenses is largely due to the complexity of the tax laws. 498 U.S. at 199-200 , 111 S.Ct. at 609 . After reviewing various interpretations of the term “wilfully,” the Court said that “the standard for the statutory willfulness requirement is the Voluntary, intentional violation of a known legal duty.’ ” Id., 498 U.S. at 201 , 111 S.Ct. at 610 . Thus, it held that the Government was required to prove