Reisch v. State

• Decision Date: 01 September 1995
• Docket Number: No. 278,278
• Citation: 107 Md.App. 464,668 A.2d 970
• Parties: Edward Claire REISCH v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

Page 464

107 Md.App. 464

668 A.2d 970

Edward Claire REISCH v. STATE of Maryland.

No. 278 Sept. Term, 1995.

Court of Special Appeals of Maryland.

Dec. 28, 1995.

Edward Claire Reisch, Baltimore, for Appellant.

Rachel Marblestone Kamins, Assistant Attorney General, Baltimore (J. Joseph Curran, Jr., Attorney General, Baltimore, and Sandra A. O'Connor, State's Attorney for Baltimore County, Towson, on the brief.), for Appellee.

Submitted before FISCHER, CATHELL and HOLLANDER, JJ.

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 $18,830.00, a fine of $350.00, and court 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.

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.

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.

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.

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...