NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5686-17T1

JODI SHAW and THOMAS SHAW,

Plaintiffs-Appellants,

v.

BRIAN SHAND and ALL POINTS

HOME INSPECTION AND

SERVICES,

Respondents-Defendants.

_______________________________

Argued January 14, 2019 – Decided August 15, 2019

Before Judges Sabatino, Haas and Mitterhoff

(Judge Sabatino, concurring).

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Sussex County, 

Docket No. L-0408-16.

Linda A. Peoples argued the cause for appellants 

(Horlacher & Peoples, LLP, attorneys; Linda A. 

Peoples, of counsel and on the briefs).

Wendy B. Shepps argued the cause for respondents 

(Mound, Cotton, Wollan & Greengrass LLP, 

attorneys; Wendy B. Shepps, on the briefs).

Jeffrey A. Koziar, Deputy Attorney General, argued 

the cause for amicus curiae Office of the Attorney 

General (Gurbir S. Grewal, Attorney General, 

APPROVED FOR PUBLICATION

August 15, 2019

APPELLATE DIVISION
A-5686-17T1 2

attorney; Jason W. Rockwell, Assistant Attorney 

General, of counsel; Jeffrey A. Koziar, on the brief).

The opinion of the court was delivered by

MITTERHOFF, J.S.C. (temporarily assigned).

This interlocutory appeal arises from the trial court's June 11, 2018 order 

entering partial summary judgment dismissing plaintiffs Jodi and Thomas 

Shaw's claims under the Consumer Fraud Act ("CFA"), N.J.S.A. 56:8-1 to -

210. Plaintiffs challenge the court's finding that home inspectors are "learned 

professionals" and therefore excluded from CFA liability. 

The narrow issue before us is whether semi-professionals such as home 

inspectors should be deemed to be learned professionals. Because this case 

necessarily required us to interpret the scope of the "learned professional" 

exception to the CFA, which is a statute that is enforced by the Attorney 

General's office, and also because home inspectors are regulated by the 

Attorney General's Division of Consumer Affairs, we invited that office to 

participate as amicus curiae. We issued that invitation in order to discern both 

on a narrow basis the agency's view whether home inspectors should be 

deemed "learned professionals," and on a broader basis how and when the 

"learned professional" exception should be applied by courts to exempt 

individuals from CFA liability.
A-5686-17T1 3

Considering the CFA's remedial purpose and applying well-established 

canons of statutory construction, we conclude that the judicially created 

learned professional exception must be narrowly construed to exempt CFA 

liability only as to those professionals who have historically been recognized 

as "learned" based on the requirement of extensive learning or erudition. To 

the extent our prior decisions, including Plemmons v. Blue Chip Insurance 

Services, Inc., 387 N.J. Super. 551 (App. Div. 2006), have applied the learned 

professional exception to "semi-professionals" who are regulated by a separate 

regulatory scheme, we are constrained, upon further review, to depart from 

that reasoning as inconsistent with the Supreme Court's decision in Lemelledo 

v. Beneficial Management Corp. of America, 150 N.J. 255 (1997). As the 

Court explicitly held in Lemelledo, the existence of a separate regulatory 

scheme will "overcome the presumption that the CFA applies to a covered 

activity" only when "a direct and unavoidable conflict exists between 

application of the CFA and application of the other regulatory scheme or 

schemes." 150 N.J. at 270. 

Our decision comports with the Attorney General's persuasive

interpretation of the CFA and addresses the Attorney General's policy concern 

that an expansive interpretation of the learned professional exception unduly 

curtails the authority of the Attorney General and the Division of Consumer 
A-5686-17T1 4

Affairs to protect New Jersey consumers and limits the redress available to 

private litigants. 

Accordingly, because home inspectors are not historically recognized 

learned professionals and because no direct and unavoidable conflict exists 

between the CFA and the regulations governing home inspectors, we conclude 

that the CFA applies to the activities of licensed home inspectors. Therefore, 

we reverse the trial court's summary judgment dismissal of the CFA claim 

against defendants and remand for further proceedings. 

I.

A.

In April or May of 2015, plaintiff Thomas Shaw contracted to purchase a 

property located on Overlook Court in Hampton Township. Prior to 

purchasing the home, plaintiffs hired defendant1to conduct an inspection of 

the property. Karen Kleinman, plaintiffs' real estate broker, contacted 

defendant and requested he conduct a home inspection of plaintiffs' property. 

In response, defendant had Thomas Shaw sign a one-page pre-inspection 

agreement setting forth the terms of the inspection. That same day, defendant 

 

1 Defendant Brian Shand is the sole owner of co-defendant All Points Home 

Inspection and Services. We refer to Shand and All Points as "defendant."
A-5686-17T1 5

inspected the property, and on May 13, 2015, he emailed his report to Jodi 

Shaw. Plaintiffs paid defendant $350 for the inspection.

Defendant's report concluded that "[t]his structure appears to be very 

well built utilizing quality materials and professional workmanship. It is in 

need of only typical maintenance and upgrading." In June 2015, plaintiffs 

proceeded with the purchase of the property, allegedly in reliance upon 

defendant's report, for the sum of $318,000. Plaintiffs allege that "[u]pon 

occupying the [p]roperty in June 2015, the Shaws quickly learned that the 

house was in fact in poor condition, requiring a great deal of major repairs." 

These allegedly required repairs include: "replacement of the roof that leaked 

and was at the end of its useful life, the repair of their front deck/porch which 

collapsed when they moved in, the replacement of the driveway and 

replacement of windows and sliding glass doors to address leaks, drafts and rot 

from the leaks." Plaintiffs allege they have "been forced to expend tens of 

thousands of dollars" on repairs and "must still, at a minimum," spend an 

estimated tens of thousands of dollars on a mold issue in the home.

At his deposition, defendant acknowledged that he had observed some 

problems with the home that he did not include in his report. 

Defendant testified at his deposition that he became licensed as a home 

inspector in January 2015. In order to become licensed, defendant had to 
A-5686-17T1 6

attend "hours of schooling," though he did not recall how many offhand. 

Defendant also did not recall the name of the school he attended. In addition, 

defendant had to serve forty hours of apprenticeship with a licensed home 

inspector. Finally, in order to become licensed, defendant had to take a Statemandated test. After successfully completing the schooling and apprenticeship 

and passing the test, defendant became a licensed home inspector. Defendant's 

inspection of plaintiffs' home was his first assignment as a licensed inspector. 

Defendant allowed his home-inspector license to expire in April 2017; he now 

works as a painter, which does not require a license.2 

In their July 2016 complaint against defendant, plaintiffs alleged claims 

sounding in negligence, violations of the CFA, common law fraud, and breach 

of contract. After the parties filed cross-motions for summary judgment, the 

trial court issued two orders supported by a written statement of reasons. The 

first order, which granted, in part, defendant's motion for summary judgment 

 

2

 Defendant also holds a license issued by the Department of Labor in 1982 as 

a carpenter. In order to receive his carpenter's license, he underwent an 

apprenticeship and on-the-job training. That license, unlike the home 

inspector's license, does not need to be renewed.
A-5686-17T1 7

by dismissing with prejudice plaintiffs' CFA claims, is the only order at issue 

in this appeal.3

In dismissing the CFA claims against defendant, the trial court noted 

that "[t]here is no binding authority specifically addressing whether home 

inspectors should be considered semi-professionals exempt from the CFA." 

The court observed that two unreported Law Division decisions 4reasoned that 

"they should be [considered learned professionals] because they are regulated 

under N.J.A.C. 13:40[-1] et seq." The court found that our decision in Herner 

v. Housemaster of America, Inc., 349 N.J. Super. 89 (App. Div. 2002), which 

held that a home inspector was liable under the CFA, did not compel a 

conclusion in this case that the "learned professionals" exclusion does not 

apply. First, the court found Herner was factually distinguishable because in 

that case the inspector's reports were deliberately skewed in order to please the 

 

3 The order under review also dismissed plaintiffs' common law negligence 

claims. That finding is not at issue in this interlocutory appeal. Nor are the 

issues addressed in the second order before us.

4

 We do not cite and will not discuss those non-precedential opinions. See R.

1:36-3.
A-5686-17T1 8

realtor, avoid "killing deals," and have real estate agents continue to 

recommend the home inspector.5

Second, the trial court found that Herner did not address the semiprofessional exception issue. The court reasoned,

Although the Home Inspection Licensing Act 

(N.J.S.A. 45:8-61 through 76), became effective July 

8, 1998, the regulations implementing N.J.S.A. 45:8-

61 et seq. were not implemented until 2006, after the 

decision in Herner. See 33 N.J.R. 1318(a) N.J.A.C. 

13:40 et seq. These code sections highly regulate the 

home inspection profession, such as further specifying 

the requirements for initial licensure as a home 

inspector, including an approved course of study of 

180 hours, as prescribed by the Board, 40 hours of 

unpaid field-based inspections in the presence of and 

under the direct supervision of a licensed home 

inspector, maintaining an errors and omissions policy 

in the minimum amount of $500,000 per occurrence, 

passing the Home Inspector Examination, and an 

application fee. N.J.A.C. 13:40-15.6. These are the 

regulations that [the unpublished opinions] cite to 

show that home inspectors are semi-professionals. 

Unlike Herner, which was decided before the 2006 

regulations, both of the unpublished cases were 

decided after the 2006 regulations implementing 

N.J.S.A. 45:8-61 et seq. Although the unpublished 

cases are not binding on the court and are not cited as 

authority by the court, because home inspectors have 

 

5 We do not find this factual distinction, which speaks only to the degree of 

the CFA violation in Herner as compared to this case, relevant to the issue 

whether home inspectors are learned professionals. Presumably learned 

professionals are exempt from CFA liability irrespective of the relative 

egregiousness of their alleged conduct.
A-5686-17T1 9

become regulated since the Herner decision, they 

should be treated as semi-professionals exempt from 

the Consumer Fraud Act.[6]

Citing our decision in Plemmons, the court concluded that defendant's 

status as a semi-professional exempts him from liability under the CFA. 

Accordingly, the court granted defendant's motion for summary judgment 

dismissing plaintiffs' CFA claims with prejudice.

Thereafter, we granted plaintiffs' motion for interlocutory review, 

limited to the issue whether home inspectors are "learned professionals" 

exempt from CFA liability. As we have noted, the Attorney General accepted 

our invitation to participate in this appeal as amicus curiae.

B.

On appeal, plaintiffs contend the trial court erred in finding that home 

inspectors are learned professionals. In that regard, plaintiffs primarily rely on 

Herner, which they assert is directly on point. Alternatively, plaintiffs urge us 

to find that because a home inspection is a service that is rendered in 

connection with the sale of real estate, defendant's liability is supported by the 

1976 amendment to the CFA adding 'the sale or advertisement of . . . real 

 

6 We agree with the Attorney General that the trial court's reliance on the fact 

that the home inspector regulations were promulgated after Herner is 

unpersuasive, as the Home Inspection Professional Licensing Act became 

effective in 1998, four years before the Herner decision.
A-5686-17T1 10

estate" to the provision of N.J.S.A. 56:8-2. See Papergraphics Intern., Inc. v. 

Correa, 389 N.J. Super. 8, 12 n.1 (App. Div. 2006) ("The holding in Neveroski

was abrogated by the 1976 statutory amendment adding 'the sale or 

advertisement of . . . real estate' to the provision of N.J.S.A. 56:8-2." 

(alteration in original)); Arroyo v. Arnold-Baker & Assocs., Inc., 206 N.J. 

Super. 294, 296-97 (Law Div. 1985) (holding that the amendment to add the 

sale or advertisement of real estate to the CFA made real estate brokers, agents 

and salespersons subject to the CFA). 

Defendant argues that the trial court correctly analyzed and applied our 

decision in Plemmons and correctly concluded that home inspectors are 

"learned professionals" exempt from CFA liability because they are subject to 

regulation by the Home Inspector Advisory Committee.7

The Attorney General urges us to reject the extension of the so-called 

"learned professional" exception to encompass "semi-professionals" such as 

home inspectors. The Attorney General notes that the unwarranted expansion 

of the "learned professional" exception to semi-professionals lacks any support 

in the plain text or purpose of the CFA. To adopt the trial court's reasoning, 

the Attorney General argues, would unduly limit the CFA, which the 

 

7 Defendant also raises a number of alleged procedural deficiencies and 

substantive arguments that are not pertinent to the issue before us and 

therefore will not be addressed.
A-5686-17T1 11

Legislature intended to be one of the nation's strongest consumer protection 

laws. The trial court's broad interpretation of the exception, the Attorney 

General argues, significantly curtails the authority of the Attorney General and 

the Division of Consumer Affairs ("Division") to protect New Jersey 

consumers and limits the redress available to private litigants. 

Contrary to the decision below, the Attorney General argues that the fact 

that home inspectors are subject to other statutory and regulatory requirements, 

which are enforced by a professional board located within the Division, does 

not excuse them from compliance with the CFA. In that regard, the Attorney 

General notes that the Legislature made clear that the rights, remedies and 

prohibitions of the CFA are "cumulative of any other statutory right, remedy or 

prohibition." N.J.S.A. 56:8-2.13. The Attorney General argues that as the 

Supreme Court held in Lemelledo, another statutory scheme will displace the 

CFA only when "a direct and unavoidable conflict exists between the 

application of the CFA and application of the other regulatory scheme or 

schemes." 150 N.J. at 270. In this case, the Attorney General avers that 

because there is no "direct and unavoidable conflict" between the CFA and the 

statutes and regulations specific to home inspectors, the trial court erred in 

concluding that the home inspector regulations preclude the application of the 

CFA to home inspectors.
A-5686-17T1 12

The trial court reached its result, the Attorney General asserts, by 

expanding the judicially created "learned professional" exception to the CFA 

well beyond the narrow parameters in Macedo v. Dello Russo, 178 N.J. 340 

(2004). The expansion of the "learned professional" exception to home 

inspectors – who are not even required to have a college degree – stretches the 

exception far beyond its limited origin.8 The Attorney General argues that the 

exception (which itself lacks a basis in the statutory text) should be limited to 

the narrow class of professionals identified in Macedo as exempt from the 

CFA for historical reasons: physicians, attorneys, and similar learned 

professionals who were not permitted to advertise at all when the Legislature 

enacted the 1960 precursor to the CFA, creating liability for fraud in 

advertising. Nothing in Macedo, the Attorney General argues, requires or even 

supports a CFA exemption for home inspectors on the ground that a licensure 

regime for home inspectors was established decades later.

II.

A.

Whether licensed semi-professionals such as home inspectors are 

entitled to the judicially created "learned professional" immunity turns on the 

 

8 With respect to educational requirements, an individual need have only a 

high school degree or its equivalent to become a licensed home inspector.

N.J.S.A. 45:8-68(b).
A-5686-17T1 13

statutory interpretation of two statutes: the CFA and the Home Inspection

Professional Licensing Act ("HIPLA"), N.J.S.A. 45:8-61 to -81. We review 

these issues of statutory construction de novo. Cashin v. Bello, 223 N.J. 328, 

335 (2015). In considering whether the Legislature intended to exempt home 

inspectors and other "semi-professionals" from liability under the CFA, we 

adhere to well-established principles of statutory interpretation.

"The Legislature's intent is the paramount goal when interpreting a 

statute and, generally, the best indicator of that intent is the statutory 

language." DiProspero v. Penn, 183 N.J. 477, 492 (2005). In considering the 

statutory language, "an appellate court must read words 'with[in] their context' 

and give them 'their generally accepted meaning.'" Cashin, 223 N.J. at 335 

(alteration in original) (quoting N.J.S.A. 1:1-1); see also DiProspero, 183 N.J. 

at 492 ("We ascribe to the statutory words their ordinary meaning and 

significance, and read them in context with related provisions so as to give 

sense to the legislation as a whole." (citations omitted)). 

When a statute's plain language lends to only one interpretation, a court 

should not consider "extrinsic interpretative aids." DiProspero, 183 N.J. at 492 

(quoting Lozano v. Frank DeLuca Const., 178 N.J. 513, 522 (2004)). "On the 

other hand, if there is ambiguity in the statutory language that leads to more 

than one plausible interpretation, we may turn to extrinsic evidence, 'including 
A-5686-17T1 14

legislative history, committee reports, and contemporaneous construction.'" 

Id. at 492-93 (quoting Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 75 

(2004)). 

B.

The Attorney General argues that there is nothing in the text or the 

purpose of the CFA that would support a blanket exception for semiprofessionals based solely on the existence of a separate regulatory scheme 

that also regulates the subject industry. We agree. 

At the outset, the CFA does not explicitly provide an exception for or 

even mention learned professionals. Moreover, the CFA is designed to 

prohibit unlawful conduct or practices, defined as:

The act, use or employment by any person of any 

unconscionable commercial practice, deception, fraud, 

false pretense, false promise, misrepresentation, or the 

knowing, concealment, suppression, or omission of 

any material fact with intent that others rely upon such 

concealment, suppression or omission, in connection 

with the sale or advertisement of any merchandise or 

real estate, or with the subsequent performance of 

such person as aforesaid, whether or not any person 

has in fact been misled, deceived or damaged thereby 

. . . .

[N.J.S.A. 56:8-2.]

The stated purpose of the act is "to prevent deception, fraud, or falsity, 

whether by acts of commission or omission, in connection with the sale or 
A-5686-17T1 15

advertisement of merchandise and real estate." Fenwick v. Kay American 

Jeep, Inc., 72 N.J. 372, 376-77 (1977). The CFA defines "merchandise" as 

"any objects, wares, goods, commodities, services or anything offered, directly 

or indirectly to the public for sale." N.J.S.A. 56:8-1(c) (emphasis added). The 

services of a home inspector fall squarely within the definition of merchandise 

under the act. 

The CFA 

has three main purposes: to compensate the victim for 

his or her actual loss; to punish the wrongdoer through 

the award of treble damages; and by way of the 

counsel fee provision, to attract competent counsel to 

counteract the community scourge of fraud by 

providing an incentive for an attorney to take a case 

involving a minor loss to the individual.

[Real v. Radir Wheels Inc., 198 N.J. 511, 520-21 

(2009) (quoting Lettenmaier v. Lake Constr., Inc., 162 

N.J. 134, 139 (1999)).]

"Although initially designed to combat 'sharp practices and dealings' that 

lured customers into purchases through fraudulent or deceptive means, the 

CFA is no longer aimed solely at 'shifty, fast-talking and deceptive 

merchant[s].'" Suarez v. Eastern Int'l Coll., 428 N.J. Super. 10, 31 (App. Div. 

2012) (alteration in original) (quoting Cox v. Sears Roebuck & Co., 138 N.J. 

2, 16 (1994)). The CFA's remedial goal "is to establish 'a broad business 

ethic,' promoting a standard of conduct that contemplates 'good faith, honesty 
A-5686-17T1 16

in fact and observance of fair dealing.'" Ibid. (quoting Mechinsky v. Nichols 

Yacht Sales, Inc. 110 N.J. 464, 472 (1988)). Accordingly, liability under the 

act will lie even if the prohibited conduct is committed in good faith. Ibid.

As originally enacted, the Attorney General had exclusive authority to 

enforce the CFA. Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 

245 (2005). In 1971, however, the Legislature amended the CFA to provide 

for a private cause of action to "[a]ny person who suffers any ascertainable 

loss of moneys or property, real or personal," as a result of a deceptive 

practice. N.J.S.A. 56:8-19. If successful, the private litigant can recover 

treble damages, attorney's fees, and costs. Ibid. The Legislature has expressly 

provided that the "rights, remedies and prohibitions" created by the CFA are 

"in addition to and cumulative of any other right, remedy or prohibition 

accorded by the common law or statutes of this State." N.J.S.A. 56:8-2.13. 

The CFA "evinces a clear legislative intent that its provisions be applied 

broadly in order to accomplish its remedial purpose, namely, to root out 

consumer fraud." Lemelledo, 150 N.J. at 264; see also Czar, Inc. v. Heath, 198 

N.J. 195, 208-09 (2009) (rejecting "crabbed" approach to the CFA in favor of a 

faithful adherence to the CFA's broad remedial purposes); Cox, 138 N.J. at 15 

(holding that the CFA must be construed liberally in favor of consumers).
A-5686-17T1 17

Furthermore, it is well-established that "where the purpose of legislation 

is remedial and humanitarian, any exemption must be narrowly construed, 

giving due regard to the plain meaning of the language and the legislative 

intent." Serv. Armament Co. v. Hyland, 70 N.J. 550, 559 (1976) (citing 

Phillips v. Walling, 324 U.S. 490, 493 (1945)); see also Nini v. Mercer Cty. 

Cmty. Coll., 202 N.J. 98, 112 (2010) ("[A]n interpretation that throws contract 

employees into the over-seventy exception at once narrows what should be the 

expansive coverage of remedial legislation like the [New Jersey Law Against 

Discrimination], and expands an exception in contravention of applicable 

principles of statutory construction."); Young v. Schering Corp., 141 N.J. 16, 

29 (1995) ("As an exception to the general remedial scheme of [the New 

Jersey Conscientious Employee Protection Act], the waiver provision must be 

construed narrowly."); Marx v. Friendly Ice Cream Corp., 380 N.J. Super. 302, 

310 (App. Div. 2005) ("Based upon the Legislature's remedial purpose in 

enacting a minimum wage law, we have held that all exemptions to N.J.S.A. 

34:11-56a4 should be construed narrowly and that the employer has the 

obligation to prove that an employee meets the criteria for exemption."). As 

the United States Supreme Court has explained, "[t]o extend an exemption to 

other than those plainly and unmistakably within its terms and spirit is to abuse 
A-5686-17T1 18

the interpretative process and to frustrate the announced will of the people." 

Phillips, 324 U.S. at 493. 

Thus, broadly construing the reach of the CFA as a remedial statute, and 

narrowly construing any exceptions to the CFA, we agree with the Attorney 

General that there is nothing in the text or the purpose of the CFA that 

supports an exemption for fraudulent or unconscionable activities of semiprofessionals such as home inspectors. 

C. 

In 1997, the Supreme Court in Lemelledo specifically addressed the 

issue of whether a comprehensive statutory scheme regulating a class of 

individuals or entities would place that class beyond the reach of the CFA. 

150 N.J. at 266. Lemelledo was a class action brought against a commercial 

lender who engaged in the practice of "loan packing," which increases the 

principal amount of the loan with loan-related services, such as credit 

insurance, that the borrower does not want. Id. at 259-60. The trial court 

dismissed the complaint for failure to state a claim under which relief can be 

granted. Id. at 262. The Supreme Court disagreed and reinstated the plaintiff's 

CFA claims. Id. at 275. 

The Court observed that although the CFA "vests the Attorney General 

with jurisdiction to enforce its provisions through a variety of mechanisms, 
A-5686-17T1 19

N.J.S.A. 56:8-3 to -8, -11, -15 to -18 & -20," the Act also expressly "provides 

individual consumers with a private cause of action to recover refunds, 56:8-

2.11 to -2.12, and treble damages for violations, whether in good faith or 

otherwise, N.J.S.A. 56:8-19." Id. at 264. In that regard, the Court observed 

that the plain language of the CFA declares that "[t]he rights, remedies and 

prohibitions accorded by the provisions of this act are hereby declared to be in 

addition to and cumulative of any other right, remedy or prohibition accorded 

by the common law or statutes of this State." Ibid. (quoting N.J.S.A. 56:8-

2.13) 

The Court rejected the defendant's argument that no CFA liability could 

attach because neither the CFA nor its implementing regulations had 

specifically included sales of insurance, reasoning that "the CFA could not 

possibly enumerate all, or even most, of the areas and practices that it covers 

without severely retarding its broad remedial power to root out fraud in its 

myriad, nefarious manifestations." Id. at 265. The Court concluded that 

"[b]ecause the broad language of the CFA appears to include both lending and 

insurance-sales practices, . . . its terms also include the sale of insurance in 

conjunction with lending, that is, loan packing." Id. at 266. 

The Court also found, however, that its conclusion that the CFA's 

language encompassed loan packing did "not automatically resolve the issue of
A-5686-17T1 20

the CFA as a basis for remedial relief." Id. at 266. "Instead, a court must look 

to whether a 'real possibility’ of conflict would exist if the CFA were to apply 

to a particular practice, regardless of the number of agencies with regulatory 

jurisdiction over that practice." Id. at 268. The Court reasoned that in light of 

the "strong and sweeping legislative remedial purpose" of the CFA and the 

expectation that consumers will act as private attorneys general, there is a 

presumption that the CFA applies to the covered practice at issue. Ibid. To 

find that non-consumer statutes and regulations preempt the CFA, a court must 

determine that "a direct and unavoidable conflict exists between application of 

the CFA and application of the other regulatory scheme or schemes." Id. at 

270 (emphasis added). The court "must be convinced that the other source or 

sources of regulation deal specifically, concretely, and pervasively with the 

particular activity, implying a legislative intent not to subject parties to 

multiple regulations that, as applied, will work at cross-purposes." Ibid. The 

Court further "stress[ed] that the conflict must be patent and sharp, and must 

not simply constitute the mere possibility of incompatibility." Ibid. The Court 

explained,

If the hurdle for rebutting the basic assumption of 

applicability of the CFA to covered conduct is too

easily overcome, the statute's remedial measures may 

be rendered impotent as primary weapons in 

combatting clear forms of fraud simply because those 
A-5686-17T1 21

fraudulent practices happen also to be covered by 

some other statute or regulation.

[Ibid.]

III.

A.

With the foregoing statutory and common law background in mind, we 

now turn to a review of the origin and evolution of the "learned professional" 

exception to CFA liability.

Originally, and historically, the word "profession" was 

applied only to law, medicine and theology or 

divinity, and these were known as the three "learned 

professions," and it has frequently been said that 

formerly these were known as "the professions."

[Plaza Bottle Shop, Inc. v. Al Torstrick Insurance 

Agency, 712 S.W.2d 349, 351 (Ky. Ct. App. 1986) 

(quoting 72 C.J.S. Professions §§ 4-5 (1951)).]

See also Webster's Unabridged Dictionary of the English Language 1095

(2001) (defining "learned profession" as "any of the three professions, 

theology, law and medicine, commonly held to require highly advanced 

learning"). It is indisputable that a home inspector, who requires only a high 

school diploma or its equivalent, is not a learned professional in the historic 

sense.

As the Attorney General notes, the learned professional exemption to 

CFA liability is an atextual, judicially created doctrine. The seed of the 
A-5686-17T1 22

judicially created "learned professional" exception to CFA liability was first 

planted in Neveroski v. Blair, 141 N.J. Super. 365 (App. Div. 1976). The 

central issue in Neveroski was whether real estate sales fell within the CFA's 

definition of "merchandise." See id. at 375-76.

9

 In finding that the CFA's 

reference to "merchandise" did not encompass the sale of real estate, we noted 

that in 1967 a bill was introduced expanding the definition of "merchandise" to 

include "any objects, wares, goods, commodities, real estate, securities, 

services, or anything offered directly or indirectly to the public for sale." Id. at 

377 (quoting A. 715 (1967)). The bill as adopted, however, was amended to 

delete the words "real estate, securities." Ibid. We found the deletion of "real 

estate" and "securities" represented a meaningful act on the part of the 

Legislature "eliminating these two areas of commercial activity from the 

purview of the statute." Id. at 378.10

 

9

In Neveroski, there was substantial evidence that Blue Ribbon concealed 

from the plaintiffs the fact that the home they were purchasing had extensive 

termite damage. Id. at 375. Thus, we observed that "[o]ur review of the 

record satisfies us that if the act encompasses within its ambit deceptive, 

unconscionable or fraudulent acts in connection with the sale of real estate, 

there is sufficient credible evidence to sustain a violation thereof by Blue 

Ribbon." Id. at 376.

10 We recognized, however, that "a possible alternative construction to the 

effect that the deletion was made because of an assumption that the express 

words were unnecessary in view of the catch-all phrase 'or anything offered, 

directly or indirectly, to the public for sale.'" Ibid. That alternative 

(continued)
A-5686-17T1 23

[I]t is our considered opinion that the entire thrust of 

the Consumer Fraud Act is pointed to goods and 

services sold to consumers in the popular sense. Such 

consumers purchase products from retail sellers of 

merchandise consisting of personal property of all 

kinds or contracts for services of various types 

brought to their attention by advertising or other sales 

techniques. The legislative language throughout the 

statute and the evils sought to be eliminated point to 

an intent to protect the consumer in the context of the 

ordinary meaning of that term in the market place.

[Ibid.] 

In addition, under the doctrine of ejusdem generis,11 we found that real 

estate was "wholly foreign to any of the listed examples specifically referred to 

in the definition." Id. at 379. 

A real estate broker is in a far different category from 

the purveyors of products or services or other 

activities. He is in a semi-professional status subject 

to testing, licensing, regulations and penalties through 

other legislative provisions. Although not on the same 

plane as other professionals such as lawyers, 

physicians, dentists, accountants or engineers, the 

nature of his activity is recognized as something 

beyond the ordinary commercial seller of goods or 

services – an activity beyond the pale of the act under 

consideration.

 

(continued)

construction appears to be in line with the Attorney General's position that 

pursuant to Lemelledo the CFA presumptively applies. 

11 Of the same kind or class. See Black's Law Dictionary 654 (11th ed. 2019).
A-5686-17T1 24

Certainly no one would argue that a member of any of 

the learned professions is subject to the provisions of 

the Consumer Fraud Act despite the fact that he 

renders "services" to the public. And although the 

literal language may be construed to include 

professional services, it would be ludicrous to 

construe the legislation with that broad a sweep in 

view of the fact that the nature of the services does not 

fall into the category of consumerism.

Similarly, in the absence of clear and explicit 

language in the statute, a broker who negotiates the 

sale of real estate and thereby renders "services" is 

nevertheless outside the scope of persons sought to be 

covered by the Act.

[Id. at 379-80 (emphasis added) (citation omitted).]

Pertinent to the issues before us on this appeal, in Neveroski we 

recognized that semi-professionals are not on the same plane as other 

professions historically recognized as being "learned professions." Id. at 379. 

In addition, our focus in Neveroski was on the "nature of the services," not the 

extent to which a particular semi-professional was otherwise regulated. Ibid. 

Two months before the Neveroski decision was issued, the Legislature 

amended the CFA to include the use of any of the prohibited acts "in 

connection with the sale or advertisement of any merchandise or real estate." 

Id. at 377 n.3. Neveroski acknowledged the statutory amendment in footnote 3 

to the opinion. In that footnote, it notes that the Governor issued a statement 

in connection with the passage of the bill asserting that the amendment was not 
A-5686-17T1 25

meant to change the law because "real estate was included in the legislation as 

it existed prior to the amendment." Ibid. Despite the Legislature's abrogation

of Neveroski's holding, subsequent decisions of this court have seemingly 

accorded its semi-professional exemption precedential weight. 

In 2004, in Macedo, the New Jersey Supreme Court held in a short per 

curiam opinion that the CFA did not apply to a physician's advertisements. 

178 N.J. at 346. The Court concluded that the Legislature "obviously" did not 

intend the CFA "to encompass advertising by professionals when it enacted the 

CFA in 1960 because advertising by physicians because such advertising was 

not permitted for another two decades." Id. at 343. The Court explained that 

advertising by professionals did not begin in earnest until after 1977, when the 

United States Supreme Court ruled that a blanket ban on attorney advertising 

violated the First Amendment. Ibid. (citing Bates v. State Bar of Arizona, 433 

U.S. 350, 383 (1977)). The Court also noted that the Legislature has not 

amended the CFA to include advertising by learned professionals. Id. at 344.12 

The Supreme Court thus held that "advertisements by learned professionals in 

respect of the rendering of professional services are insulated from the CFA 

 

12

 The Court implicitly approved our holding in Vort v. Hollander, 257 N.J. 

Super. 56, 62 (App. Div. 1992), that attorney's services are beyond the reach of 

the CFA. 
A-5686-17T1 26

but subject to comprehensive regulation by the relevant regulatory bodies and 

to any common-law remedies that otherwise may apply." Id. at 346. 

Far from overruling Lemelledo, however, the Court in Macedo expressly 

reaffirmed its prior holding that, absent a direct and unavoidable conflict, a 

separate regulatory scheme does not render the CFA inapplicable: 

Nothing in Lemelledo suggests a contrary conclusion. 

There, in addressing loan-packing, we held that the 

mere existence of an alternative regulatory scheme by 

the Department of Banking and Insurance, did not 

automatically eliminate the applicability of the CFA. 

Instead, we held that a direct conflict between the 

schemes would be required in order to conclude that 

the Legislature did not intend the CFA to apply. 

Lemelledo would be dispositive here if the issue 

presented was whether the separate regulatory scheme 

governing physicians preempts the application of the 

CFA. It is entirely irrelevant to the threshold question 

of whether the CFA applies to learned professionals in 

the first instance.

[Id. at 345 (citation omitted) (emphasis added).]

Thus, the "learned professional" exception recognized in Macedo, like 

the "semi-professional" exception in Neveroksi, focused on the "nature of the 

services" provided to support its conclusion that learned professionals are not 
A-5686-17T1 27

subject to CFA liability.13 No Supreme Court decision has revisited the 

learned professional doctrine since the Court decided Macedo.

14

Thirty years after Neveroski, the issue whether the "learned 

professional" immunity recognized in Macedo should be extended to semiprofessionals resurfaced in Plemmons, 387 N.J. Super. at 556.15 In Plemmons, 

we "conclude[d] that an insurance broker is a semi-professional, who is subject 

to testing, licensing and regulation under other statutory provisions, and 

therefore is excluded from liability under the CFA for the performance of 

brokerage services." Ibid.

In so holding, we differentiated that case from Lemelledo, because 

Lemelledo "did not include a CFA claim against . . . [a] party who could be 

characterized as 'professional' or 'semi-professional.'" Id. at 563. In deciding 

insurance brokers were learned professionals, the court noted that they must be 

licensed, pass an examination, meet application requirements, comply with 

 

13 Macedo did not, however, extend the exception to semi-professionals or 

licensed professionals.

14

 The Court has twice commented, in dicta, on the learned professional 

exception, but resolved both of those cases on other grounds. See

Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 123-24 (2014); Lee v. First 

Union Nat. Bank, 199 N.J. 251, 263-64 (2009). 

15

 In Plemmons, we addressed a number of issues in addition to whether 

insurance brokers were learned professionals. Those separate rulings are not 

affected by our decision today. 
A-5686-17T1 28

standards of conduct that delineate "unfair trade practices" and other 

requirements, and overall are "subject to testing, licensing and regulation 

comparable to real estate brokers, and thus are exempt from liability under the 

CFA[.]" Id. at 564-65. 

Thus, in Plemmons, we did not apply the "nature of the services" 

analysis that formed the basis for the "semi-professional" exemption in 

Neveroski and the "learned professional" exemption in Macedo. Instead, the 

basis of the semi-professional exception in Plemmons rested on the existence 

of a separate regulatory scheme that could possibly conflict with allegations in 

a CFA action. See ibid. Plemmons thus paved the way for subsequent 

decisions, including the trial court's decision in this case, holding that the mere 

existence of a separate regulatory scheme would automatically preempt 

application of the CFA. See, e.g., Atlantic Ambulance Corp. v. Cullum, 451 

N.J. Super. 247, 257-58 (App. Div. 2017) (holding that ambulance service 

providers excluded from liability under the CFA for services rendered 

consistent with their professional license because they are regulated by the 

Department of Health). But see Manahawkin, 217 N.J. at 124 (in which the 

Supreme Court expressed "serious doubt" that the nursing home's billing and 

collection function, which was at issue in the case, "would qualify for the 

learned professionals exception to the CFA"). 
A-5686-17T1 29

As the Attorney General points out, however, the standard in Plemmons

cannot be squared, on further reflection, with the Supreme Court's holding in 

Lemelledo, a holding that was reaffirmed by the Supreme Court in Macedo. 

That Lemelledo did not involve services by a licensed professional is an empty 

distinction; once we define a "learned professional" as any licensed 

professional subject to a separate regulatory scheme, the mere existence of a 

separate regulatory scheme will automatically preempt the CFA without any 

showing of a direct and unavoidable conflict. Lemelledo is a Supreme Court 

decision that remains the applicable standard for preemption.

Significantly, the Attorney General takes the position that Lemelledo, 

and not Plemmons, sets forth the appropriate standard for evaluating whether a 

separate regulatory scheme preempts the CFA. The Attorney General notes 

that the Plemmons standard unduly hinders the State's effective enforcement of 

the CFA and unjustifiably immunizes large categories of the public from their 

commission of fraud and other unconscionable conduct. 

Although we are not ultimately bound by an agency's statutory 

interpretation, "[g]enerally, courts afford substantial deference to an agency's 

interpretation of a statute that it is charged with enforcing." Univ. Cottage 

Club of Princeton N.J. Corp. v. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007); 

see also Merin v. Maglaki, 126 N.J. 430, 436-37 (1992) ("We give substantial 
A-5686-17T1 30

deference to the interpretation of the agency charged with enforcing an act. 

The agency's interpretation will prevail provided it is not plainly 

unreasonable."). 

Accordingly, although we are not bound by the Attorney General's 

interpretation of the CFA, "it is nonetheless entitled to a degree of deference, 

in recognition of the Attorney General's special role as the sole legal adviser to 

most agencies of State Government," including the Division of Consumer 

Affairs. Quarto v. Adams, 395 N.J. Super. 502, 513 (App. Div. 2007) (citing 

N.J.S.A. 52:17A-4(e)); see also Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 

55, 70 (1978); Bd. of Educ. of W. Windsor-Plainsboro Reg'l Sch. Dist. v. Bd. 

of Educ. of Delran, 361 N.J. Super. 488, 493-94 (App. Div. 2003). 

The Division of Consumer Affairs is responsible not only for enforcing 

the CFA but, in addition, under the Uniform Enforcement Act ("UEA"), 

N.J.S.A. 45:1-14 to -27, the Attorney General and the Director of the Division 

of Consumer Affairs are also responsible for ensuring that the HIPLA and its 

implementing regulations are enforced in a manner consistent with applicable 

law. N.J.S.A. 45:1-17 and -18. Both the CFA and the UEA are remedial 

statutes intended to protect the public. See Cox, 138 N.J. at 15 (noting that the 

CFA is "remedial legislation"); N.J.S.A. 45:1-14 (providing that the UEA "is 

deemed remedial, and the provisions hereof should be afforded a liberal 
A-5686-17T1 31

construction"). Because the Attorney General is charged with enforcing both 

the CFA and the HIPLA, we find his opinion particularly persuasive in this 

case.

Moreover, unless plainly unreasonable, we defer to both the Attorney 

General's and the Division's persuasive interpretation of these laws. See, e.g., 

N.J. Tpk. Auth. v. AFSCME, Council 73, 150 N.J. 331, 351 (1997) ("We have 

consistently accorded substantial deference to the interpretation of the agency 

charged with enforcing an act." (internal quotation marks omitted)); Merin,126 

N.J. at 436-37 (giving "substantial deference" to the Insurance Commissioner's 

interpretation of an anti-fraud statute); In re Johnny Popper, Inc., 413 N.J. 

Super. 580, 589 (App. Div. 2010) (recognizing the expertise of the Division, 

which is charged with the responsibility of enforcing the CFA); Degnan v. 

Nordmark & Hood Presentations, Inc., 177 N.J. Super. 186, 192 (App. Div. 

1981) (giving "due deference" to the Division's interpretation of the Charitable 

Fund Razing Act of 1971 and its determination that the defendants were 

professional fund raisers within the meaning of the statute).

Finally, we defer to the Attorney General's and the Division's 

interpretation of the relevant authorities "[e]ven though this appeal does not 

arise from a final agency determination" and the agency's position is instead 
A-5686-17T1 32

set forth in an amicus brief. U.S. Bank, N.A. v. Hough, 210 N.J. 187, 200 

(2012).

We agree with the Attorney General that the learned professional 

doctrine, as interpreted, threatens to become the exception that swallows the 

rule, in contravention of the canon of statutory interpretation that requires that 

exceptions to a remedial statute are to be narrowly construed. We also agree 

with the Attorney General's argument that, to the extent the Supreme Court 

continues to recognize a "learned professional" doctrine, ideally that doctrine 

should be narrowly construed to include only those professions who have 

historically been recognized as "learned" based on the requirement of 

extensive learning or erudition. 

We are unpersuaded that the Legislature acquiesced in all semiprofessional CFA immunity. As the Supreme Court observed in Lemelledo, 

Defendant places great significance on the failure of 

the CFA and its implementing regulations specifically 

to include insurance. That omission, however, is far 

from determinative. Given that "[t]he fertility of 

human invention in devising new schemes of fraud is 

so great . . . . ," Kugler v. Roman 58 N.J. 522, 543 n.4 

(1971), the CFA could not possibly enumerate all, or 

even most, of the areas and practices that it covers 

without severely retarding its broad remedial power to 

root out fraud in its myriad, nefarious manifestations. 

See Federal Trade Comm'n v. Sperry & Hutchinson 

Co., 405 U.S. 233, 240 (1972) ("Even if all known 

unfair practices were specifically defined and 

prohibited, it would be at once necessary to begin over 
A-5686-17T1 33

again[, constituting] . . . an endless task.") (citation 

and quotations omitted).

[150 N.J. at 265-66 (alterations in original).]

Although Macedo relied in part on legislative acquiescence to the 

judicially created rule that "learned professionals [are] beyond the reach of the 

Act so long as they are operating in their professional capacities[,]" 178 N.J. at 

346-47, it did not disturb Lemelledo's directive that the CFA presumptively 

applies to a covered activity absent a direct and unavoidable conflict with 

other regulatory schemes. Lemelledo, 150 N.J. at 270. To require the 

Legislature to amend the CFA each time case law extends the learned 

professional exception to a class of regulated semi-professionals not only 

unduly expands Macedo's specific holding, but also unnecessarily frustrates 

the Legislature's express, remedial intention that the CFA provide cumulative 

remedies. As the Court noted in Lemelledo:

In the modern administrative state, regulation is 

frequently complementary, overlapping, and 

comprehensive. Absent a nearly irreconcilable 

conflict, to allow one remedial statute to preempt 

another or to co-opt a broad field of regulatory 

concern, simply because the two statutes regulate the 

same activity, would defeat the purposes giving rise to 

the need for regulation.

[Id. at 271.]
A-5686-17T1 34

Giving due deference to the Attorney General's concern that a wide-ranging

interpretation of the learned profession exception would unfairly restrict the 

ability of private litigants and the Division to seek redress for fraudulent 

commercial practices, we find no reason to depart from Lemelledo's distinct 

holdings in the context of licensed semi-professionals. 

For these reasons, we hold that home inspectors and other licensed semiprofessionals are not learned professionals simply because they are otherwise 

regulated, and that they remain subject to CFA liability absent a finding that "a 

direct and unavoidable conflict exists between application of the CFA and 

application of the other regulatory scheme or schemes." Id. at 270 (emphasis 

added). 

B.

Of course, pursuant to Lemelledo, any defendant may assert a 

preemption defense if the facts so warrant. Lemelledo itself recognized there 

may be situations where the allegations in a CFA complaint and compliance 

with a separate regulatory scheme may pose an irresolvable conflict. See id. at 

274. The issue of any such alleged unavoidable conflict must be determined 

on a case-by-case basis, comparing the plaintiff's factual allegations with the 

specific statutes and regulations that govern the defendant. In that vein, 

although defendant did not identify in this case any specific conflict between 
A-5686-17T1 35

plaintiffs' complaint and the HIPLA, for completeness we will now analyze

whether anything in plaintiffs' complaint gives rise to a direct and unavoidable 

conflict with the home inspector statute or regulations. 

In that regard, we "must be convinced that the other source or sources of 

regulation deal specifically, concretely, and pervasively with the particular 

activity, implying a legislative intent not to subject parties to multiple 

regulations that, as applied, will work at cross-purposes." Id. at 270. In order 

to find preemption, "the conflict must be patent and sharp, and must not simply 

constitute the mere possibility of incompatibility." Ibid. 

The Legislature passed the HIPLA, N.J.S.A. 45:8-61 to -81, in 1997. 

The HIPLA created a Home Inspection Advisory Committee ("Committee") 

within the Division, under the State Board of Professional Engineers and Land 

Surveyors. N.J.S.A. 45:8-63. The act sets forth, among other things: (1) the 

powers and duties of the Committee, N.J.S.A. 45:8-66; (2) the licensure 

requirements for home inspectors, N.J.S.A. 45:8-69; and (3) the grounds for 

denying, suspending, or revoking a home inspector license, N.J.S.A. 45:8-74. 

The act appears to provide a private right of action, N.J.S.A. 45:8-76.1, but 

does not specifically provide for civil penalties, consumer restitution, or 

reimbursement of attorneys' fees and costs.
A-5686-17T1 36

The HIPLA does not provide any enforcement provision, therefore the 

Attorney General rests upon the relevant provisions of the UEA, N.J.S.A. 

45:1-14 to -27, to provide its enforcement authority. These provisions 

empower the Division with uniform investigative and enforcement powers for 

home inspectors, N.J.S.A. 45:1-17 and -18, as the Committee is located within 

the Division, and provide for civil penalties up to $10,000 for the first 

violation and $20,000 for subsequent violations, N.J.S.A. 45:1-22(b) and -

25(a). N.J.S.A. 45:1-22(d) provides for consumer restitution up to the amount 

received by the licensee, and N.J.S.A. 45:1-25(d) provides for cost 

reimbursement for use of the State, including attorneys' fees. Under the UEA, 

the Attorney General retains authority to ensure that all such professional and 

occupational boards are acting in a manner consistent with applicable law. 

N.J.S.A. 45:1-17(c).

The Home Inspector Regulations, N.J.A.C. 13:40-15.1 to -15.23, were 

promulgated by the Division in 2006 pursuant to the HIPLA. The regulations 

set forth: (1) the requirements for initial licensure as a home inspector, 

N.J.A.C. 13:40-15.6; (2) the insurance requirements for home inspectors, 

N.J.A.C. 13:40-15.8; (3) continuing education requirements, N.J.A.C. 13:40-

15.14; (4) pre-inspection agreement requirements, N.J.A.C. 13:40-15.15; (5) 

detailed standards of practice for home inspectors including requirements for 
A-5686-17T1 37

the home inspection report, N.J.A.C. 13:40-15.16; (6) requirements of 

advertising by home inspectors, N.J.A.C. 13:40-15.18; (7) prohibited practices 

by home inspectors, N.J.A.C. 13:40-15.19; and (8) the grounds for suspending, 

revoking or refusing to renew a home inspector's license, N.J.A.C. 13:40-

15.20. 

Among the prohibited practices enumerated in N.J.A.C. 13:40-15.19(a) 

are:

13. Engage in the use of advertising which contains 

any statement, claim or format which is false, 

fraudulent, misleading or deceptive;

. . . .

20. Perform any act or omission involving 

dishonesty, fraud, or misrepresentation with the intent 

to benefit a licensee or other person or with the intent 

to substantially injure another person; 

21. Perform any act or omission involving 

dishonesty, fraud, or misrepresentation in the 

performance of a home inspection or the preparation 

of a home inspection report; 

. . . .

23. Fail or refuse, without good cause, to exercise 

due diligence in preparing a home inspection report, 

delivering a report to the client, or responding to an 

inquiry from the client.

Considering these provisions, we address the issue whether there is a

conflict as defined by Lemelledo. In that regard, the Supreme Court in 
A-5686-17T1 38

Lemelledo set forth a stringent standard that is akin to federal preemption of 

state laws. 

At the outset, there is no express preemption established by either the 

CFA or the HIPLA. Cf. Gordon v. United Continental Holding, Inc. 73 

F.Supp.3d 472, 479-80 (D.N.J. 2014) (finding that the Airline Deregulation 

Act of 1978 by its terms, 49 U.S.C. § 4171(b)(1), expressly preempted the 

plaintiffs' CFA claims). To the contrary, the CFA provides that the remedies 

under the act are "cumulative of any other statutory right, remedy or 

prohibition." N.J.S.A. 56:8-2.13. 

In an analogous context, in Union Ink Co. v. AT&T Corp., 352 N.J. 

Super. 617, 638-42 (App. Div. 2002), we held that the plain language of the 

Communications Act defeated the defendants' CFA preemption argument. The 

plaintiffs alleged that AT&T fraudulently misrepresented that it utilized "the 

largest digital network in America" and that the quality and reliability of its 

service would be as good as their conventional land line service. Id. at 625. In 

rejecting the defendants' claim of preemption, we noted that the 

Communications Act provided that

no state or local government shall have any authority 

to regulate the entry of the rates charged by any 

commercial mobile service or any private mobile 

service, except that this paragraph shall not prohibit a 

State from regulating other terms and conditions of 

commercial mobile services. 
A-5686-17T1 39

[Id. at 628 (emphasis added) (quoting 47 U.S.C. § 332 

(c)(3)(A)).]

We held that the plaintiffs' claims fell under the "other terms and 

conditions" rubric of the statute and were therefore not barred. See id. at 638, 

643. Similarly, the CFA contains an express reservation of litigants' rights 

under other statutory and common law provisions, N.J.SA. 56:8-2.13, and the 

HIPLA contains no provision evincing an intent to fully occupy the field of 

home inspector regulation. 

Having found no express preemption, we address whether the HIPLA 

and its implementing regulations would support implied preemption of 

plaintiffs' CFA claim. The question whether a statute is preempted is a factsensitive endeavor. R.F. v. Abbott Labs, 162 N.J. 596, 619 (1999). 

Preemption "is not to be lightly presumed." Ibid. (quoting Turner v. First 

Union Nat'l Bank, 162 N.J. 75, 87 (1999)). The party asserting preemption 

bears the burden of establishing its entitlement to the defense. Id. at 645 

(citing Franklin Tower One, L.L.C. v. N.M., 157 N.J. 602, 615-16 (1999)). 

There are three types of implied preemption: (1) field 

preemption, "where the scheme of federal law and 

regulation is 'so pervasive as to make reasonable the 

inference that Congress left no room for the states to 

supplement it;'" (2) conflict preemption, where there is 

a conflict between federal and state law, rendering 

"'compliance with both federal and state regulations 

. . . a physical impossibility;'" and (3) preemption 

where "state law impedes the achievement of a federal 
A-5686-17T1 40

objective;" in this case, even if federal and state law 

are "not mutually exclusive . . . preemption will be 

found if state law 'stands as an obstacle to the 

accomplishment and execution of the full purposes 

and objectives of Congress.'" As with the three 

general types of preemption, these categories are not 

perfectly distinct, and in practice often overlap.

[Id. at 620 (alterations in original) (citations omitted).]

Thus, the issues are: (1) whether the HIPLA's regulation of home 

inspectors is so pervasive as to render CFA liability inapplicable; (2) whether 

there is conflict between the CFA and the HIPLA that renders compliance with 

both a physical impossibility; and (3) whether the application of the CFA to 

home inspectors would impede the achievement of the HIPLA's objectives. 

Daaleman v. Elizabethtown Gas Co., 77 N.J. 267 (1978), is often cited 

as a case where the Supreme Court held that a regulatory scheme preempted a 

CFA claim. Daaleman was a class action against Elizabethtown Gas Co. 

("Elizabethtown"), a privately owned public utility corporation operating under 

the jurisdiction of the Board of Public Utility Commissioners of the State of 

New Jersey ("PUC") pursuant to the Public Utilities Act. 77 N.J. at 268-70. 

Although Elizabethtown's rates were fixed by PUC, an administrative order 

allowed utilities such as Elizabethtown to include in its tariff a Purchased Gas 

Adjustment Clause allowing it to make automatic adjustments in its customer 

billings to account for variations in the cost of purchasing and storing gas. Id.
A-5686-17T1 41

at 270 (citing N.J.A.C. 14:11-1.13). PUC required Elizabethtown to submit 

detailed statements of any cost figures and adjustments to its tariff pursuant to 

the order. Ibid. The Daaleman class action alleged Elizabethtown 

overcharged customers under the Purchased Gas Adjustment Cause. Ibid. 

Under those unique facts, the Supreme Court held that plaintiffs' CFA 

action was preempted by the PUC regulations. Id. at 271. In that regard, the 

Court reasoned that

a Purchased Gas Adjustment Clause is a tariff 

mechanism, permitted under PUC's administrative 

order. Application of the clause involves 

interpretation of the PUC administrative order and 

regulations. Its use is subject to PUC supervision and 

control. Misuse of this type of clause, whether 

intentional or otherwise, and the remedies therefor are 

matters as to which PUC has been vested with 

exclusive jurisdiction.

[Ibid. (emphasis added).]

The Court held that were Elizabethtown's use of the Purchased Gas 

Adjustment Clause be subject to challenge under the CFA, "separate state 

agencies would have the right to exercise concurrent jurisdiction and control

over Elizabethtown's billings, with a real possibility of conflicting 

determinations, rulings and regulations affecting the identical subject matter." 

Id. at 272.
A-5686-17T1 42

Significantly, Justice Pashman's concurring opinion in Daaleman notes 

that Elizabethtown's immunity is limited to matters involving rate setting. Id.

at 274 (Pashman, J., concurring). In that regard, Justice Pashman clarified that 

"a regulated utility may nevertheless be covered by [the CFA] when it engages 

in commercial activity not governed by the comprehensive scheme of PUC rate 

regulation." Ibid. 

There is no valid reason why a utility, simply by 

reason of the fact that it is subject to regulation of its 

rates in the public interest, should be exempt from the 

Act if it should commit fraud in connection with the 

marketing of merchandise. To take a currently 

obvious example, the telephone company's persistent 

efforts to convince consumers to purchase 

"personalized," custom-designed phones are no 

different from the attempts of any other manufacturer 

to effectively advertise and sell its products. 

Suppliers of fuel will often sell related equipment, 

such as oil burners, fuel tanks or gas and electric 

ranges in connection with their regulated activity. 

Conduct of this type should not be exempt from 

N.J.S.A. 56:8-2 merely because of the fortuitous 

circumstance that the vendor involved is a utility 

subject to PUC regulation on unrelated matters. If a 

utility engages in practices of the type proscribed by 

the Consumer Fraud Act, N.J.S.A. 56:8-2, it should be 

subject to the same penalties as any other vendor.

[Ibid.]

Thus, Daaleman did not accord blanket CFA immunity to Elizabethtown, but 

only immunity from claims related to rate-setting. 
A-5686-17T1 43

Turning to the facts in this case, plaintiffs allege defendant failed to 

disclose in his report significant problems of which he was aware, and that as a 

result plaintiffs have sustained substantial economic loss. Although the 

allegations essentially mirror the violation enumerated in N.J.A.C. 13:40-

15.19(a)(21), they cannot be said to conflict with the regulation; rather the 

CFA action is supplemental to and in furtherance of the remedies of the 

HIPLA, as the Legislature intended. In that regard, as in this case, a violation 

of the regulation may permissibly be presented as evidence (although not 

conclusive) that the home inspector also violated the CFA. See Reyes v. 

Egner, 404 N.J. Super. 433, 458 (App. Div. 2009) (discussing "established 

precedents treating statutory or regulatory violations as non-dispositive proof 

of negligence"), aff'd, 201 N.J. 417 (2010). 

Moreover, there is no provision in the statute and regulations that 

provides the committee with the comprehensive oversight of a home 

inspector's conduct, as was the case in public utility rate-setting cases such as 

Daaleman. In that regard, home inspectors do not submit documentation of 

their work, such as their reports, to the Committee for review. Nor does the 

agency inspect home inspectors' work on a routine basis or set their rates. 

Beyond this, as the Attorney General notes, the scope of the Home 

Inspector Regulations is not as broad as the CFA. For example, while the 
A-5686-17T1 44

Home Inspector Regulations address the advertising of home inspector 

services, N.J.A.C. 13:40-15.18 and -15.19(a)(13), they do not expressly cover 

the sale of such services. Thus, language in a home inspection contract 

requiring the consumer to waive his or her rights under federal or state law 

might be found to be unconscionable or deceptive under the CFA with no 

similar prohibition in the Home Inspector Regulations. 

In addition, as to a private litigant, the CFA provides for greater 

potential monetary recovery in the form of treble damages, N.J.S.A. 56:8-19, 

as compared with the UEA, which would appear to limit restitution to 

reimbursement of the $350 plaintiffs paid for the inspection, N.J.S.A. 45:1-

22(d). Thus, recovery under the CFA would not conflict, but be supplemental 

to and complementary to, the remedies afforded to the State under the HIPLA. 

In that regard, there is no mechanism under the HIPLA to make plaintiffs 

whole. In cases where damages are limited, this would create a disincentive 

for attorneys to pursue claims against unscrupulous home inspectors – which is 

the precise reason the Legislature amended the statute to create a private cause 

of action in the first place. 

In short, there is simply no evidence that the HIPLA's regulation of 

home inspectors is so pervasive as to render CFA liability inapplicable; no

evidence of a conflict between the CFA and the HIPLA that renders 
A-5686-17T1 45

compliance with both a physical impossibility; and no evidence that the 

application of the CFA to home inspectors would impede the achievement of 

the HIPLA's objectives. Thus, we discern no conflict, let alone a direct and 

unavoidable conflict, that would bar plaintiffs' claims.

C.

In summary, considering the CFA's remedial intent and that exceptions 

to remedial statutes must be narrowly construed, we decline to extend the 

learned professional exception to licensed home inspectors simply because 

they are regulated by the HIPLA. Giving due deference to the Attorney 

General's and Division's authority to enforce the CFA, we discern no reason to 

disagree with the Attorney General that the learned professional exception 

should be limited only to historically recognized learned professionals, such as 

doctors, as recognized in Macedo. 

We similarly agree with the Attorney General that Lemelledo sets forth 

the appropriate test by which to evaluate whether the existence of a separate 

regulatory scheme exempts a class of semi-professionals from the CFA's 

sweeping reach. Applying Lemelledo's test in this case, we have uncovered no 

direct and unavoidable conflict between the CFA and the HIPLA, and find that 

defendant has not overcome the presumption that the CFA applies to his 
A-5686-17T1 46

services as a licensed home inspector. We thus reverse the trial court's 

dismissal of plaintiffs' CFA claims. 

Reversed and remanded for further proceedings consistent with this 

opinion. We do not retain jurisdiction.
___________________________________

SABATINO, P.J.A.D., concurring.

For the reasons expressed in Judge Mitterhoff's well-crafted opinion, I 

join with my colleagues in reversing the trial court's determination that the 

defendant home inspector is exempt from liability under the Consumer Fraud 

Act ("CFA").

In doing so, I recognize that thirteen years ago I served on the appellate 

panel in Plemmons v. Blue Chip Insurance Services, Inc., 387 N.J. Super. 551 

(App. Div. 2006), which held that an insurance broker is a regulated "semiprofessional" who is excluded from liability under the CFA. 

Unlike in Plemmons, in the present case our court has the benefit of the 

advocacy of the Attorney General, who persuasively argues as amicus curiae 

why the semi-professional distinction is problematic and appears to clash with 

legislative intent and the limited Supreme Court precedent that exists on the 

subject. The Attorney General also raises substantial policy considerations 

from his unique perspective as both an enforcer of the CFA and as overseer of 

the Division that regulates home inspectors.

With all due respect, I've changed my mind.1

 

1 See, e.g., Olds v. Donnelly, 150 N.J. 424, 440-42 (1997) (in which Justice 

Pollock explained why the Court was departing from an approach of one of its 

(continued)
A-5686-17T1 2

Even if, hypothetically, the "semi-professional" distinction were 

doctrinally preserved (which we are not advocating), the licensure 

requirements for insurance brokers – and their associated fiduciary duties –

appear to me to be more stringent than those governing home inspectors. 

Comparatively, the grounds for a blanket occupational exemption from the 

CFA's anti-fraud provisions are weaker. I say that without intending to 

diminish the importance of the work done by qualified professional home 

inspectors, who certainly provide a valuable service to home buyers and 

sellers.

Of course, as the majority opinion points out, if there is a direct clash 

between the CFA and the regulatory scheme, limitations of preemption can 

pertain. But no such clash has been identified here.

That said, this case may well present a suitable opportunity for the Court 

to provide helpful updated guidance on the contours of the learned 

professional doctrine. In any event, nothing in this opinion prevents the 

Legislature from adopting amendments that clarify the statutory scheme.

 

(continued)

previous decisions "[o]n further consideration," because experience had shown 

the approach had not fulfilled expectations).