A federal court has allowed claims of defamation and libel to proceed against a Boulder home inspector for his comments against a competitor inspection organization — a series of online posts the judge found at times to be “lewd, distasteful, immature, and ludicrous.”
“Using his position of a power as an industry leader, he disseminated this statement to members of the industry and implied that it was factual and that he had evidence to support it,” wrote U.S. District Court Judge R. Brooke Jackson in an order issued on Feb. 10.
However, five days after Jackson ruled in favor of the Examination Board of Professional Home Inspectors, the group asked to dismiss the lawsuit, saying it was satisfied with the judge's view of the case and felt the burdens of litigation outweighed the benefits.
The defendant felt differently.
"I'm gonna win in court and I'm gonna show everybody I was right," said Nick Gromicko, founder of the International Association of Certified Home Inspectors, based in Boulder.
The EBPHI owns the National Home Inspector Evaluation, which the majority of states employ for the licensure of home inspectors. Gromicko's InterNACHI is a competitor licensing exam organization, and describes itself as the largest property inspectors’ membership group in the world.
Gromicko, on InterNACHI’s Internet forum, reportedly made several disparaging statements about EBPHI, including that the competitor exam is a “joke” and “piece of crap and a scam.” He threatened to “find out everyone else who has ever failed the NHIE, and file a class action suit” so that the EBPHI would “be a joke in front of a federal judge.”
EBPHI filed a federal complaint against Gromicko for defamation, libel and deceptive trade practices under the Colorado Consumer Protection Act, among other claims. The organization asked for at least $2 million to be awarded in damages.
Also involved in the lawsuit was another membership and certification organization for home inspectors, the American Society of Home Inspectors. Gromicko is accused of posting InterNACHI’s forum in 2017 that ASHI “is a statistical mass murder[er] of children on a grand national scale” and was “taken over by NAMBLA.” The acronym was a reference to the National Man-Boy Love Association, which advocates for the removal of age-of-consent laws.
“Perhaps it goes without saying,” Jackson wrote in summarizing the case, “but ASHI does not engage in the mass murder of children.”
ASHI also sued Gromicko for defamation, libel and deceptive trade practices. Gromicko's attorneys argued that he intended the NAMBLA comment to be "a joke" made on an "internet forum, where loose and passionate speech is commonplace."
Although Jackson chided Gromicko for “bizarre arguments” that referenced Sasquatch, the Illuminati and the fictional city of Mordor — “unimpressive, meritless, and a waste of the Court’s time,” the judge added — he did not believe Gromicko’s online posts constituted defamation of ASHI, or damage to its reputation.
“I find that no reasonable person” could believe Gromicko’s comparison of ASHI to NAMBLA, Jackson concluded. Although Gromicko’s statements were “lewd, distasteful, immature, and ludicrous,” they were permissible under the First Amendment.
The judge did, however, agree to let Gromicko’s claim that the EBPHI’s exam was not “psychometrically valid” to proceed to trial, on the basis that Gromicko was potentially acting maliciously and with knowledge that his statement was false. EBPHI had submitted testimony in addition to records from Florida alleging the number of people taking its exam dropped after Gromicko’s post.
Jackson also allowed EBPHI’s claim of libel to continue, given the organization could be able to prove at trial that Gromicko made a false statement with malice that hurt its business.
Under the Colorado Consumer Protection Act, which prohibits knowingly false representations that disparage the goods, services, property or business of another, the judge determined the law’s intent of protecting consumers and the public was inappropriate for litigating a private business dispute.
“It is insufficient to argue that the public was impacted merely because they read or saw the comments. These comments must have some discernible, significant impact on the public,” Jackson wrote.
On Monday, EBPHI asked the court to dismiss the case. Because Jackson ruled the group would have to prove damages at trial, and all of EBPHI's witnesses will need to travel from out of state, the organization wrote to the court, the "cost/benefit analysis no longer supports continuing with this case."
Then on Wednesday, one day after his lawyers indicated they would prepare a detailed objection to EBPHI's request, Gromicko did not back down from his statements.
"What was going on was harming consumers, and if not for me being willing to spend $1 million of my own money over four years defending myself and being loudmouthed about it," he told Colorado Politics, "more consumers would have been harmed. ASHI sucks."
The case is Examination Board of Professional Home Inspectors v. International Association of Certified Home Inspectors et al.