Huffman v. State

• Decision Date: 07 December 1999
• Docket Number: No. 28,28
• Citation: 356 Md. 622,741 A.2d 1088
• Parties: James Ralph HUFFMAN v. STATE of Maryland.
• Court: Maryland Court of Appeals

741 A.2d 1088

356 Md. 622

James Ralph HUFFMAN v. STATE of Maryland.

No. 28, Sept. Term, 1999.

Court of Appeals of Maryland.

December 7, 1999.

George E. Burns, Jr., Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

J. Joseph Curran, Jr., Atty. Gen. of Maryland (Rachel Marblestone Kamins, Asst. Atty. Gen., on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and HARRELL, JJ.

HARRELL, Judge.

James Ralph Huffman, petitioner, was convicted at a bench trial in the Circuit Court for Harford County of seven violations of Maryland Code (1992, 1998 Repl.Vol.), Business Regulation Article (BR), § 8-601 (acting as [a] contractor or subcontractor or selling a home improvement without [a] license) and seven violations of Maryland Code (1992, 1998 Repl.Vol.), BR § 8-605 (abandonment of or failure to perform a contract). Petitioner appealed to the Court of Special Appeals contending that the circuit court erred in convicting him of seven violations of BR § 8-601.¹ That Court rejected petitioner's argument and affirmed the judgments of the circuit court. We granted certiorari to determine, under the particular facts of this case, what the appropriate unit of prosecution is under BR § 8-601. We shall affirm the judgment of the Court of Special Appeals.

Petitioner presents us with a single issue to consider, which we have rephrased non-substantively as follows:²

whether acting as a home improvement contractor without a license on seven different occasions during a fifteen month period constitutes one continuing violation of BR § 8-601 or a separate violation for each transaction entered into and partially performed during that time period.

I.

Petitioner's bench trial proceeded on the basis of a not guilty plea/agreed statement of facts. We shall reduce and restate the relevant facts for the sake of clarity. Between 11 September 1995 and 18 December 1996, petitioner entered into home improvement contracts with eight different homeowners in Harford County.³ During that period, petitioner was not licensed by the Maryland Home Improvement Commission (the "Commission") to perform home improvements, though required to be so. In each contract, petitioner agreed to build a deck or garage onto the customer's existing home. Each customer gave petitioner an advance deposit and agreed to pay an additional sum upon completion of the work. The deposits ranged from $1200 to $7050. Additional payments were solicited thereafter by petitioner, either as inducements for him to commence work or as a form of progress payments. Petitioner began work under each contract, but ultimately failed to complete each job. He also failed to return any of the payments made by the homeowners.

The homeowners filed complaints with the Maryland Home Improvement Commission. After an investigation, the Commission found, in each case, that petitioner failed to perform under the home improvement contracts and that he did not obtain a contractor license from the Commission before entering into any of the contracts. The Commission filed an Application For Statement of Charges with the District Court of Maryland sitting in Harford County.

Petitioner was charged ultimately in the District Court in eight separate cases of violating BR § 8-601. He prayed jury trials and the cases were transferred to the Circuit Court for Harford County. The State entered a nollo prosequi in the eighth case before trial commenced, leaving seven cases to be tried. Each case represented one of petitioner's seven transactions with the seven remaining customers. The circuit court consolidated the first six cases for trial. The seventh case was tried separately. The court found petitioner guilty of violating BR § 8-601 in all seven cases.

In each of the first six cases, the court sentenced petitioner to two years in prison, with four months suspended.⁴ The court ordered the sentences to be served consecutively. In addition, it ordered five years probation and restitution in the aggregate amount of $20,340. In the seventh case, the court sentenced petitioner to two years and six months incarceration, all suspended, and ordered him to pay an additional $5,350 in restitution. On direct appeal and in an unreported opinion, the Court of Special Appeals affirmed, holding that the plain language of BR § 8-601 established that each act or offer to act by an unlicensed contractor is a separate violation of the statute.

II.

Petitioner's sole contention is that he was improperly prosecuted and convicted of seven violations of BR § 8-601. He argues that the circuit court should have convicted him of a single violation of the statute because acting as a contractor without a license, the prohibited behavior under BR § 8-601, is a continuing offense. In support of his position, petitioner advances a perplexing argument. He begins by observing that the General Assembly enacted BR § 8-601 to protect the public. Harry Berenter, Inc. v. Berman, 258 Md. 290, 294, 265 A.2d 759, 762 (1970) ("the Maryland Home Improvement Law is a regulatory statute for the protection of the public"). Because the legislature enacted § 8-601 for the protection of the public at large, petitioner asserts that the trial court erred in using individual victims as the unit of prosecution for his misconduct. Petitioner urges us to hold that the proper unit of prosecution is the singular conduct of acting as a contractor without holding the required license to do so. Under petitioner's interpretation, he violated BR § 8-601 when he originally established his current business and that single violation continued during the fifteen month period until he came to the attention of the authorities. As petitioner's suggestion is, at best, a strained interpretation of the statute, we shall reject it. Potter v. Bethesda Fire Dep't., 309 Md. 347, 353, 524 A.2d 61, 64 (1987).

In determining the appropriate unit of punishment for violations of statutory provisions, the central question is one of legislative intent. Randall Book Corp. v. State, 316 Md. 315, 324, 558 A.2d 715, 720 (1989). We have explained that "whether a particular course of conduct constitutes one or more violations of a single statutory offense depends upon the appropriate unit of prosecution of the offense and this is ordinarily determined by reference to the legislative intent." Richmond v. State, 326 Md. 257, 261, 604 A.2d 483, 485 (1992); Brown v. State, 311 Md. 426, 432, 535 A.2d 485, 488 (1988). Every quest to discover and give effect to the objectives of the legislature begins with the text of the statute. In re Victor B., 336 Md. 85, 94, 646 A.2d 1012, 1016 (1994). If the intent of the legislature is clear from the words of the statute, our inquiry normally ends and we apply the plain meaning of the statute. State v. Montgomery, 334 Md. 20, 24, 637 A.2d 1193, 1195 (1994). In other words, we will approach our analysis from a common sense perspective, seeking to give the statutory language its ordinary meaning. See United States v. Universal Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 229, 97 L.Ed. 260, 264 (1952)

. In furthering the identified legislative objectives, we avoid giving the statute a strained interpretation or one that reaches an absurd result. Briggs v. State, 348 Md. 470, 477, 704 A.2d 904, 908 (1998).

With these time-honored principles in mind, we turn to the statute at issue to discern the unit of prosecution that the legislature intended. BR § 8-601, states, in pertinent part:

(a) Contractor—Except as otherwise provided in this title, a person may not act or offer to act as a contractor in the State unless the person has a contractor license.

It is evident from the language that a violation of BR § 8-601 requires two elements. An individual must act⁵ as a contractor at a time when the individual does not hold a contractor license.

Petitioner contracted to build a deck for the Owens family on 11 September 1995 and partially performed the undertaken construction before defaulting. More than five months later, on 13 February 1996, petitioner contracted to build a deck for Tillman Bach and partially performed that undertaking before quitting the job. Five additional contracts followed, each with a different customer. Five starts and stops ensued. We cannot accept petitioner's construction that these seven obviously separate and independent actions serve as one instance of acting as an unlicensed contractor.

Petitioner may be correct in his admission that he could have been prosecuted for one count of violating BR § 8-601 for the act of setting up his business without holding a license, but his acknowledgment does not go far enough. The State could have prosecuted, and did prosecute, petitioner for the seven transactions that he entered while he was an unlicensed contractor and it had the statutory authority to do so under BR § 8-601. Approaching customers, entering into home improvement contracts, and starting construction are all activities within the plain meaning of to "act ... as a contractor." We hold that when an unlicensed contractor enters into seven distinct home improvement agreements and partially performs each agreement, each transaction is a violation of BR § 8-601 and may be separately prosecuted.

The definition of "contractor" included in the Maryland Home Improvement Law supports using each customer transaction as a separate unit of prosecution. BR § 8-101(c) defines "contractor" as "a person who performs or offers or agrees to perform a home improvement for an owner." The General Assembly's use of the singular articles "a" and "an" before "home improvement" and "owner," respectively, clearly indicates the legislature envisioned each transaction with a separate owner to be an independent act by a contractor. When petitioner agreed to build "a" deck or garage for "an" owner, petitioner was acting as a "contractor." As petition...