On Appeal from Superior Court, Chittenden Unit, Criminal Division
Michael S. Kupersmith (motion to dismiss); James R. Crucitti, J. (final judgment)
William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.
James M. LaMonda of Law Office of James M. LaMonda, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. This appeal raises a narrow, but novel, issue: whether offenders previously convicted of home improvement fraud can be found guilty under the same statute if they subsequently perform home improvement activities but claim lack of knowledge of the statutory obligation to notify the Attorney General and file a surety. Defendant argued that the statute's notice and surety section necessarily includes a scienter element. The State asserted that the section should be read without a fault element. The trial court held that the notice and surety section delineates a strict liability offense. We affirm.
¶ 2. On October 12, 2005, defendant pled guilty to one count of home improvement fraud in violation of 13 V.S.A. § 2029(b)(1). The plea agreement imposed a four to twelve month sentence, all suspended but for ten days on the work crew, and required defendant to perform restitution, to pay a fine, and to be on probation. Apparently, defendant was aware that he was to be placed on the home improvement fraud registry as a result of his conviction. Defendant satisfactorily completed the sentence imposed and had no contact with law enforcement until the circumstances underlying this appeal.
¶ 3. In 2014, a report was made to the Colchester Police Department that defendant was performing home improvement work without the proper notice to the Attorney General and without filing the necessary surety bond or letter of credit. At that time, defendant sought legal advice and claims that only then did he learn that he was obligated, pursuant to 13 V.S.A. § 2029(f)(2), to notify the Attorney General and post a bond or letter of security. The police conducted an investigation and concluded that the improper home improvement activities occurred at three separate locations during October 2012, June 2013, and July 2013. In November 2014, the State charged defendant with three counts of violating the notice and surety requirements of § 2029(f)(2).
¶ 4. Under § 2029(f)(2),  a person previously convicted of home improvement fraud "may engage in home improvement activities for compensation" only if:
[T]he person notifies the Office of the Attorney General of the intent to engage in home improvement activities, and . . . the person has filed a surety bond or an irrevocable letter of credit with the Office in an amount of not less than $50, 000.00, and pays on a regular basis all fees associated with maintaining such bond or letter of credit.
Id. Further, § 2029(e)(5) provides that a person who violates § 2029(f)(2) "shall be imprisoned for not more than two years or fined not more than $1, 000.00, or both." Id. § 2029(e)(5).
¶ 5. Defendant moved to dismiss the counts pursuant to Vermont Rule of Criminal Procedure 12(d) because the charging information did not allege that he knew about the requirements of § 2029(f)(2). The State opposed the motion, asserting that § 2029(f)(2) should be read without a fault element. On April 24, 2015, the trial court issued a written order denying defendant's motion and holding that § 2029(f), in combination with § 2029(e)(5), does not contain a scienter element.
¶ 6. To reach its conclusion, the trial court focused on the five factors this Court described in State v. Roy, 151 Vt. 17, 25, 557 A.2d 884, 889 (1989), partially overruled on other grounds by State v. Brillon, 2008 VT 35, 183 Vt. 475, 955 A.2d 1108. The trial court noted that the first factor-the severity of the punishment-favored strict liability because violating § 2029(f) is a misdemeanor without a significant incarceration period. Similarly, the second factor-the potential harm to the public-supported a finding of no mens rea because the statute protects the public from contractors previously determined to be untrustworthy. The trial court next found that contractors as a group should be expected to know the statutory and regulatory requirements that govern their trade; therefore, the third factor-knowledge of the relevant information-suggested that § 2029(f) did not contain a scienter element. The fourth factor- the difficulty of prosecution if proof of intent is required-likewise reinforced the trial court's determination because proving defendant's subjective knowledge of the law would be virtually impossible. Finally, the trial court found that the last ...