Opinion
6D23-185
03-31-2023
Christine Marie Dubois, Appellant, v. State of Florida, Appellee.
Howard L. Rex Dimmig, II, Public Defender, and Clarke E. Green, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Sonia C. Lawson, Assistant Attorney General, Tampa, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED
Appeal from the County Court for Lee County. Tara P. Paluck, Judge Lower Tribunal No. 21-MM-000240.
Howard L. "Rex" Dimmig, II, Public Defender, and Clarke E. Green, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Sonia C. Lawson, Assistant Attorney General, Tampa, for Appellee.
MIZE, J.
Appellant, Christine Dubois ("Dubois"), appeals her conviction following a jury trial for contracting without a license in violation of section 489.127(1)(f), Florida Statutes (2013). She asserts that the trial court erred when it denied her motion for judgment of acquittal. We agree and reverse with instructions to the trial court to enter a judgment of acquittal.
This case was transferred from the Second District Court of Appeal to this Court on January 1, 2023.
Standard of Review
The standard of review for the denial of a motion for judgment of acquittal is de novo. Delgado v. State, 71 So.3d 54, 65 (Fla. 2011). "Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence." Id. (quoting Reynolds v. State, 934 So.2d 1128, 1145 (Fla. 2006)). "There is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt." Id. (quoting Johnston v. State, 863 So.2d 271, 283 (Fla. 2003)). "In moving for a judgment of acquittal, a defendant admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence." Id. (quoting Reynolds, 934 So.2d at 1145 (internal quotations omitted)). However, "[u]nder this standard, the State is required to prove each and every element of the offense charged beyond a reasonable doubt, and when the State fails to meet this burden, the case should not be submitted to the jury, and a judgment of acquittal should be granted." Id. (quoting Baugh v. State, 961 So.2d 198, 204 (Fla. 2007) (internal quotations, alterations omitted)).
Section 489.127(1)(f) - Contracting Without a License
Section 489.127(1)(f), Florida Statutes, provides that "[n]o person shall..,[e]ngage in the business or act in the capacity of a contractor... without being duly registered or certified." § 489.127(1)(f), Fla. Stat. (2013). A first-time violation of section 489.127(1)(f) is a first-degree misdemeanor. § 489.127(2)(a), Fla. Stat. (2013).
Section 489.105(3) defines a contractor as follows:
"Contractor" means the person who is qualified for, and is only responsible for, the project contracted for and means, except as exempted in this part, the person who, for compensation, undertakes to, submits a bid to, or does himself or herself or by others construct, repair, alter, remodel, add to, demolish, subtract from, or improve any building or structure, including related improvements to real estate, for others or for resale to others; and whose job scope is substantially similar to the job scope described in one of the paragraphs of this subsection.§ 489.105(3), Fla. Stat. (2018). The following paragraphs of section 489.105(3) then provide definitions and "job scopes" for certain specific types of contractors, including general contractor, mechanical contractor, underground utility and excavation contractor, and specialty contractor.
Thus, three requirements must be satisfied in order for a person to be a "contractor" for purposes of section 489.127(1)(f). First, the individual must "construct, repair, alter, remodel, add to, demolish, subtract from or improve" a building or structure for others or for resale to others, or undertake or submit a bid to do so. Second, the individual must engage in such conduct "for compensation." Third, the individual who engages in such conduct must have a job scope that is "substantially similar" to one of the job scopes described in the paragraphs of section 489.105(3). The job scopes that were included in the jury instructions in this case are the job scopes for a general contractor, mechanical contractor, underground utility and excavation contractor, and specialty contractor. § 489.105(3)(a), (i), (n), (q), Fla. Stat. (2018).
Section 489.105(3) includes definitions for additional types of contractors that were not included in the jury instructions below and, therefore, are not at issue in this case. Section 489.103(12) provides an exemption to section 489.127 for "[a]ny person who only furnishes materials or supplies without fabricating them into, or consuming them in the performance of, the work of the contractor." § 489.103(12), Fla. Stat. (2019). Dubois did not raise the exemption in the lower court or in this appeal, and thus it is not at issue in this appeal.
The Trial Below
At the trial of this matter, the State failed to introduce evidence from which a rational trier of fact could have found beyond a reasonable doubt that Dubois constructed, repaired, altered, remodeled, added to, demolished, subtracted from or improved a building or structure, or that she undertook or submitted a bid to do any of these things. Because the State failed to meet its burden, the trial court should have granted Dubois' motion for judgment of acquittal.
The State's allegation in this case was that Dubois engaged in contracting without a license by entering into a contract with Thomas Bohmer to install an electrical generator at Mr. Bohmer's home. Installing a generator at a person's home could constitute altering and/or adding to a building or structure, and therefore could satisfy the first element of section 489.127(1)(f), provided that the installation involved affixing the generator to the home or altering the home in some manner, as opposed to simply delivering the generator and plugging it into the home in a nonpermanent manner. However, the State did not introduce evidence that Dubois contracted to install the generator at Mr. Bohmer's home, and certainly did not introduce evidence that she contracted to install the generator in such a manner that it would have altered or added to the home.
Section 489.127(1)(f) requires that a party construct, repair, alter, remodel, add to, demolish, subtract from or improve a building or structure, or undertake or submit a bid to do so. Only "alter" or "add to" are relevant to this case. It is unclear whether installing a generator would fall within the language of the statute. Simply plugging a generator into a home, even if the generator itself requires substantial work or expertise to set up, may not constitute "adding to" or "altering" the home if the generator could simply be unplugged and removed from the home. On the other hand, affixing a generator permanently to the structure of a home would seem to clearly constitute "adding to" and "altering" the home. In this case, we need not decide what types of installation would satisfy the requirement that a defendant "alter" or "add to" a building or structure because the State did not introduce evidence that Dubois agreed to perform any type of installation with respect to the generator.
The State did not introduce the written contract between Dubois and Mr. Bohmer into evidence at the trial. The State did call Mr. Bohmer as a witness. Mr. Bohmer testified to the existence of a contract between himself and Dubois relating to a generator, but he did not testify to the terms of the contract and, specifically, he did not testify that the contract required Dubois to install the generator at his home. The relevant portion of Mr. Bohmer's testimony was as follows:
Q: Mr. Bohmer, let's focus on the day of the incident here, the offense. June 24, 2020, could you tell us what happened on that day?
A: I had a meeting with Christine Dubois. And I was looking for a new generator. And, uh, she contacted me a few days before that to set up an appointment. She was recommended by a neighbor. And we met and talked about the generator. I had a price in mind and gave it to her and she said that she could meet that price.
Q: The defendant contacted you? Okay. And how did she contact you? A: By phone. Q: Okay. And what, what happened after?
A: Well, I think it was like on a Saturday and then we met just one day the following week. And, um, as I said, I had this price. A neighbor had this generator, uh, done for him, and I showed her what the price was, and she said she could do that.
Q: Okay. And so when she told you that she could do that, what was your reaction at that point? A: I went ahead and we signed a contract.
The closest Mr. Bohmer came to stating the terms of the contract was his testimony that a neighbor had a generator "done for him" and that Dubois "said she could do that." However, Mr. Bohmer never stated what was "done" with respect to the generator. He did not testify that what was "done" was the installation of the generator. He did not testify that whatever was "done" with respect to the generator involved adding to or altering a building or structure. Without testimony or evidence from which a jury could conclude that Dubois agreed to install the generator in a manner that added to or altered a building or structure, the State did not meet its burden to introduce competent, substantial evidence that Dubois entered into a contract to add to or alter a building or structure.
Mr. Bohmer also testified that Dubois "was supposed to contact the Homeowners' Association to get approval from them." However, Mr. Bohmer did not testify to what approval Dubois was supposed to obtain from the Homeowners' Association. He did not testify that Dubois agreed to seek approval from the Homeowners' Association for the installation of a generator on his property as opposed to simply the presence of a generator on his property. Even if Dubois had agreed to contact the Homeowners' Association to get approval for the installation of a generator at Mr. Bohmer's property, that does not establish that Dubois also agreed to install the generator herself (as opposed to just seeking approval for Mr. Bohmer to install it). Such an agreement to contact the Homeowners' Association certainly would not establish that Dubois contracted to install the generator in a manner that would have added to or altered Mr. Bohmer's home.
The State also offered the testimony of Lee County Sheriff's Detective Joshua Mied ("Detective Mied"). Detective Mied testified that: (1) he determined that Dubois was contracting without a license; (2) he requested and received Certificates of Non-Licensure from the Department of Business and Professional Regulation for Dubois herself and for three different company names that were either written in a contract between Dubois and Mr. Bohmer or on the outside of a folder in which Dubois kept paperwork; (3) Dubois admitted to Detective Mied that she did not have a license in the State of Florida; and (4) Dubois told Detective Mied that she was working under the license of another person, Phil, of a company called Lee Air. Detective Mied found the fourth point to be irrelevant since Dubois admitted that she was not working as an employee of Phil and, therefore, she could not operate under Phil's license.
Absent from Detective Mied's testimony are the terms of the contract between Dubois and Mr. Bohmer. Detective Mied's conclusory statement that he determined Dubois was contracting without a license did not provide evidence of the terms of the contract between Dubois and Mr. Bohmer. Detective Mied testified that Dubois admitted that she did not have a license, but Dubois did not admit that she needed a license to perform her contract with Mr. Bohmer. Detective Mied did not testify that Dubois entered into a contract which required her to install the generator at Mr. Bohmer's home, much less that she contracted to install the generator in such a manner that would have "altered" or "added to" Mr. Bohmer's home.
Conclusion
In order to meet its burden at trial, the State was required to submit competent, substantial evidence that Dubois entered into a contract to construct, repair, alter, remodel, add to, demolish, subtract from or improve a building or structure. The State failed to introduce any evidence whatsoever that Dubois entered into a contract to construct, repair, alter, remodel, add to, demolish, subtract from or improve a building or structure. For this reason, no rational trier of fact could have found the existence of all of the elements of a violation of section 489.127(1)(f) beyond a reasonable doubt. We reverse the trial court's denial of Dubois' motion for judgment of acquittal and remand this case to the trial court with instructions to enter a judgment of acquittal.
Because we determine that the State failed to submit competent, substantial evidence that Dubois entered into a contract to construct, repair, alter, remodel, add to, demolish, subtract from or improve a building or structure, we need not decide whether there was sufficient evidence to establish the third prong of section 489.127(1)(f), i.e., whether Dubois' job scope was "substantially similar" to a job scope described in one of the paragraphs of section 489.105(3).
REVERSED and REMANDED.
SASSO, CJ, and COHEN, J., concur.