May 2012 by FIADA

SINCE 1940

May 2012

www.FIADA.com

A Publication of the Florida Independent Automobile Dealers Association

Information and Insight for Florida Used Car Dealers

Be recognized for the things you are doing right as a used car dealer. Quality Dealer nomination form on Page 20. FULTON, MO PERMIT NO. 38

PA I D PRST STD U.S. POSTAGE

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May 2012 — Independent Dealer — 1

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Dealer Independent

MAILING ADDRESS TELEPHONE FAX WEBSITE EXECUTIVE COMMITTEE

1840 Fiddler Court Tallahassee, FL 32308 (850) 385-2712 (800) 237-0448 (850) 385-3251 www.FIADA.com Brandi Noegel President Christopher Leedom Senior Vice President Jim Kagiliery Chairman of the Board Dino Mercurio Secretary John Cousins Treasurer David Cox, CMD Regional Vice President Frank Fuzy Regional Vice President George Hickey Regional Vice President Steve Marbais, CMD Regional Vice President Paul Matton Regional Vice President

FIADA STAFF

Lisette Mariner Executive Director Terry Myers Educational Instructor Sarah Langley Administrative Director Alex Romans Education Director Leah Nash Membership Coordinator Christy Taylor Editorial/Advertising

Contents May 2012

For members of the Florida Independent Automobile Dealers Association

C O L U M N S & F E AT U R E S 4

President’s Message Brandi Noegel

Executive Director’s Message Lisette Mariner

What’s In It For You? Leah Nash

Your FIADA Membership Saves Who You Gonna Call?

Member News New, Renewing and Rejoining Members

Legal Round-Up A look at current legal issues compiled by Thomas B. Hudson and Nicole Frush Munro of Hudson Cook, LLC.

Ring of Honor The highest designation a Florida independent dealer can earn is the title of Quality Dealer. We’re uncovering the traits quality dealers possess and giving you the chance to be recognized as one.

Employee Privacy in the Age of Social Media HR rules about privacy are changing as quickly as technology. Understand what you can do to protect yourself from employee social media liabilities.

Breakout! NIADA’s Annual Convention and Expo is coming to Las Vegas. Get the details and registration information.

Industry News

FIADA 2012 Annual Convention & Expo Preview! Make your plans to attend the main event, coming in October.

POSTMASTER:

Send address changes to

FIADA • 1840 Fiddler Court Tallahassee, FL 32308 (850) 385-2712 • Toll Free: (800) 237-0448 Fax (850) 385-3251 • www.FIADA.com The Independent Dealer is a publication of: Florida Independent Automobile Dealers Association, 1840 Fiddler Court, Tallahassee, FL 32308 The magazine is published every month in Tallahassee and distributed to Florida new, used, wholesale and lease/retail car dealers. Advertising rates are available upon request. The statements and opinions expressed herein are those of the individual authors and do not necessarily represent the views of Independent Dealer or the Association. Likewise, the appearance of advertisers, or their identification as members of FIADA, does not constitute an endorsement of the products or services featured.

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May 2012 — Independent Dealer — 3

FROM THE PRESIDENT

Make Time for a “Working” Vacation BY BRANDI NOEGEL, FIADA PRESIDENT

hen you are a small business owner, you do not get many vacations. Sometimes it is hard to leave the office for just 15 minutes, let alone a week. It is especially true if you are a new dealer building your business. You are afraid that the moment you walk out the door the world you have been creating with the many long-hours and hardwork you have put in, will all come crumbling to the ground without you there to keep it together. It is easy to feel that way. Your day is spent answering questions, solving problems and picking up the slack. If you have recently had to downsize or you are not able to get your business fully-staffed right now then I know you are trying to do the work of three or four, on top of your own. It’s challenging and tiring, and if you are not careful, it could actually end up hurting your business more than helping it. If you are the type of person, like most of us are, who feels that no one else can do the job but you then you are not setting your business up for the future. I heard a mom one time talking about her parenting philosophy that included giving her children a lot of self-directed tasks at a very early age. “I’m trying to raise adults, not grow children,” she told me. It sounded harsh at first, but then I could see her point. The best thing we can do for our kids is to stop doing everything for them show them what to do then let them do it themselves. The same thing can be said for our employees and our businesses. We provide the tools and training to be successful, but we really need to step back and trust them to do the work. We hired them because we believed they were capable of doing the job, so let them do it. If you don’t, then you are paying them to watch you do their job for them. That is a waste of money!

4 — Independent Dealer — May 2012

Entrepreneurs generally have a take-charge personality, a high set of standards that not everyone can meet and a warped sense of work ethic that pushes us to do more than we should with less than we have. At the same time, leaders are born problem-solvers who have an amazing ability to inspire the people around them to “see” the solution and have the confidence to take care of it. Our goal as independent dealers, and small business owners, is to combine both of those elements into our management style. With a strong team that you can trust holding down the fort, you are freed up to do other things you need or want to do, like take a vacation. Okay, maybe a vacation is still asking a little too much and you would feel a little too guilty. Here’s the perfect compromise: a working vacation! And, you have two upcoming opportunities to do it. The first is happening in just a few more weeks as the National Independent Automobile Dealers Association heads to Caesars Palace in Las Vegas for their Annual Convention and Expo, a four day event with specialized trainings, motivational speakers, workshops and more. Get the details on page 24 for registration information. Of course, the other big event will be FIADA’s Annual Convention and Trade Show on October 11-13 in Boca Raton. The convention is the perfect blend of information, training, skill-building and fun. You will be having such a good time, you will not realize how hard you are working, plus you can bring your family! Check out the details on pages 30 and 31. Carol (Brandi) Noegel FIADA President www.fiada.com

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Contact Protective’s Florida representative, Chris Behrens at 866 452 7335 A “National Corporate Partner” has met stringent NIADA criteria demonstrating that it can provide valuable products and services to NIADA members. No legal partnership has been created by the granting of this status, but NIADA does receive compensation from Protective. Lifetime Engine Warranty, Limited Warranty, Vehicle Service Contracts (VSCs) and GAP are backed by Lyndon Property Insurance Company in all states except NY. In NY, VSCs are backed by Old Republic Insurance Company. GAP, Lifetime Engine Warranty and Limited Warranty are not available in NY. Credit Insurance is backed by Protective Life Insurance Company in all states except NY, where it is backed by Protective Life and Annuity Insurance Company.

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April 2012 — Independent Dealer — 5

EXECUTIVE DIREC TOR’S MESSAGE

FIADA: Your Dealer Resource BY LISET TE MARINER, EXECUTIVE DIREC TOR

f you missed it, the FIADA had a town hall meeting and board meeting in April. There was much information that was discussed, including new legislation that goes into effect January 1, 2013. Part of the transportation package that went to the governor to sign included the ELT program graduating from a voluntary program to mandatory. Not only did former Senator John Grant provide a brief behind the scenes look at the legislative session, Rob Sickles, FIADA general counsel discussed the latest rounds of audits to hit dealers in Florida. The program was rounded out with discussions from Asbel Perez Viciedo with National Auto Lenders, Michael Samaan with Auto Data Direct, and Wayne Reeves with Wayne Reeves Software. Each provided new tips to be successful and stay compliant. Auto Data Direct also offered participants a free activation offer to utilize the ELT system through their pre-paid account. Use the promo code FIADAELT when you sign up to receive the free account activation. You won’t want to miss the next town hall meeting July 13 in Orlando at Manheim Central Florida. We’ve got lots of exciting things happening in the upcoming months. The FIADA title and registration class is ready. Join us July 27 at the Manheim Central Florida

Auto Auction, 9800 Bachman Road, Orlando, Florida as we launch this new class offering. The FIADA board elected to help Florida Sheriffs Youth Ranches by promoting their program for cars. You can participate by donating a car for this wonderful cause, call 386-842-5501 for details. The board also renewed great partnerships, with Auto Data Direct and Williams and Stazzone as well as affirmed new partnerships with Triumph Consulting. Click on “Resources” at www.fiada. com and see what all our FIADA partners have to offer. Keep in mind the FIADA Annual Convention is October 11-13, 2012 at the Boca Resort in Boca Raton, FL. It’s going be a great event with many fun learning and networking opportunities. We will also announce this year’s FIADA Quality Dealer. Help us recognize the champions of the industry. See page 20 to nominate yourself or another Quality Dealer you know. The deadline to receive nominations is June 29. I am excited as we embark on the many new adventures. Don’t forget to visit www.fiada.com often. Update your profile, check out the resources and register to attend the next event. See you soon!

A SPECIAL THANKS TO OUR APRIL TOWN HALL SPONSORS: Auto Data Direct

National Auto Lenders

Dealers Insurance Services, LLC

Sterling Credit Corporation

Kurkin, Forehand, Brandes, LLP

Wayne Reaves Software & Websites

Manheim Tampa/St. Pete 6 — Independent Dealer — May 2012

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National Auto Lenders’ Asbel Perez Viciedo talks to the packed house.

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Town Hall sponsor Wayne Reaves of Wayne Reaves Software & Websites addresses the crowd.

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May 2012 — Independent Dealer — 7

BY LEAH NASH, MEMBERSHIP COORDINATOR

FIADA Offers Legal Protection

acing legal issues is not something that should be taken lightly. So, when selecting an attorney to provide advice, you probably want someone who has experience and expertise in your industry and someone who comes highly referred by a trustworthy source. Another issue when selecting legal advice may be cost – which becomes an issue – because attorneys often cost a lot... per hour. But if you need one, you need one. You don’t want to risk your livelihood in making the mistake of selecting the wrong attorney for advice. So what do you do?

FIADA solves this problem for you. One of the benefits of being a FIADA member is that FIADA covers the fees associated with its technical assistance line. Through this program, if you find yourself in a legal pickle and are not sure what to do, you have FIADA’s General Counsel Rob Sickles offers the option to consult legal advice for members by free phone with Robert consultation and at FIADA trainings. Sickles,

FIADA’s legal counsel for the past 5 years, who also has significant experience in the automotive industry. Robert Sickles has served as counsel for more than 100 licensed motor vehicle dealerships throughout Florida, ranging from large publicly traded corporations to small, closely held family dealerships. He also represents finance companies and lenders affiliated with the automotive industry. Don’t Need Legal Advice? Don’t be so sure. If you have questions about title work issues, sales tax, repossessions, liens and/or DMV issues, the technical assistance line is available to you free of charge. If I’m guessing correctly, these are some of your every day issues. In today’s litigious society, it’s best to protect yourself. Unfortunately, sometimes legal issues come up out of the blue, when you least expect it. Be sure to keep yourself covered by joining FIADA. Visit FIADA.com and click on “Join FIADA” to become a member or renew your membership. If you do so after reading this article, type Leah Nash in the Sponsor Name section of the online application. You may also contact Leah Nash at leah@fiada.com to join or if you need membership recruitment assistance. If you would like to receive FIADA Facebook updates, please like the FIADA page at facebook.com/ FLIndAutoDealersAssoc.

What’s In For You? is a new series of articles that focuses on what FIADA can provide to you as part of its valuable member benefits. Leah Nash is FIADA’s Membership Coordinator and will be traveling statewide to meet with potential members and current members to determine what member benefits are most appreciated. Look for Leah at your dealership or an auction near you. Be sure to say hello! 8 — Independent Dealer — May 2012

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Be on the look out for Membership Coordinator Leah Nash at an auction near you. If you see her, please stop by to say hello… she loves to meet FIADA members! Leah may also snap a photo of you that you may view on the FIADA Facebook page or in a future issue of Independent Dealer. Leah is on the road throughout Florida and may even stop by your dealership. Please feel free to email her at leah@fiada.com.

WHO YOU GONNA CALL? FIADA is your number one source for advice and information when it comes to technical questions, legal questions, new legislative requirements and regulatory concerns. Our network of industry veterans and consultants can help you find the answers you are looking for, at no cost to members. Legal Consultation: Hiring an attorney can be costly, and while it is a necessity in some circumstances it is a luxury in others. An FIADA member benefit is access to a legal opinion and advice from the smallest of issues to the largest. Whether it is understanding your right’s in a repossession or advice on an impending business decision, your complementary consultation with FIADA’s General Counsel can give you much needed guidance and help ease your fears. Technical Assistance Line: Dealers have to abide by many rules, both on the state level and federally. Not only is difficult to stay up-to-date on the requirements of each agency but it can be confusing to understand the legal speak and know exactly what it is expected. FIADA helps clarify compliance issues and get give you straight answers on what you need to do to stay compliant. Legislative Advocacy: FIADA has a full-time lobbyist in Tallahassee looking out for your best interest during, and out of, session. FIADA Lobbyists help to explain the issues and impact of proposed legislation from the dealer’s point of view to lawmakers. FIADA’s Lobbying Team and Exeuctive Staff help break down the requirements of new legislation, furnish timelines of what needs to happen and when, and provide resources and support for your business to always be in compliance. www.fiada.com

May 2012 — Independent Dealer — 9

MEMBERSHIP NEWS

New Members

APRIL 2012

66 STREET AUTO St. Peterburg, FL Mark Petersen Sponsor: Kevin Scott

CARMA MOTORS, LLC Pompano Beach, FL Anthony Patanella Sponsor: FIADA

KOOL KARZ, LLC Hollywood, FL Konstantine Penchev Sponsor: FIADA

PHONEIX EXTENDED CARE Miami, FL Mac Wachtler Sponsor: John Cousins

A.R.L. SOLUTIONS Orlando, FL Francisco Arrango Sponsor: Terry Myers

DIMENSION MOTORS, INC. Lauderhill, FL Subash Singh Sponsor: FIADA

SANMI AUTO EXPRESS Tampa, FL Joel Ilesanmi Sponsor: Auto Dealer Magazine

ALECTRICA MOTORS Riverview, FL William Matos Sponsor: Terry Myers

FLORIDA AUTO EXCHANGE & REMARKETING, LLC Tampa, FL Kevin Medeiros Sponsor: FIADA

LOSSE FUNDING, INC. DBA MIAMI PRESTIGE LUXURY SERVICES Miami, FL Kervans Losse Sponsor: Terry Myers

BEST DEALS ON WHEELS, LLC Blountstown FL Joel Edwards Sponsor: David Cox BUCKS DOWN RACING Oldsmar, FL Rose Shields Sponsor: Terry Myers

FORT MYERS AUTO MALL Fort Myers, FL Brian Thompson Sponsor: FIADA HAMMERHEAD RIDES, LLC Middleburg, FL Dewayne Wilemon Sponsor: Kevin Scott

Rejoining Members

LUXURY AUTOS OF TREASURE COAST, INC. Ocoee, FL Luis Reyes Sponsor: Leah Nash NORTH AMERICAN AUTO FINANCE Baton Rouge, LA Paul Russo Sponsor: FIADA

THE COVE TWO DBA MACLAY MOTORS Tallahassee, FL Donald Osterbye Sponsor: FIADA UNIVERSAL MOTORS PLUS, LLC Clearwater, FL Sedin Dedic Sponsor: FIADA WORK AUTO EQUIPMENT, LLC Orlando, FL Doug Snyder Sponsor: Terry Myers

APRIL 2012

CALHOUN CASH Gainesville, FL Lee Calhoun

BUD LAWRENCE USED CARS Deland, FL Bud Lawrence

CENTRAL FLORIDA MOTORS, INC. Orlando, FL Tom Beecher

MOTORCARS OF DISTINCTION Riviera Beach, FL Piero Navarro

BTK MOTORS, INC. Clearwater, FL Bill Dixon

C&D AUTO EXCHANGE Cape Coral, FL Carlisle Barker

MCPHAILS AUTO SALES Sebring, FL Daniel McPhail

RIGHT WAY AUTOMOTIVE Lake City, FL Jennifer Williamson

Renewing Members

APRIL 2012

30+ Year Members Don Scott Motors

The Villages, FL

20+ Year Members Hawley Motor Sales, Inc. K.K. Car Company, Inc. Mancini Automotive, Inc. Ray Whitts Used Cars

Sarasota, FL Lake Worth, FL Hudson, FL Holly Hill, FL

10+ Year Members 3445 Car Store, Inc. Dewitt Motors Donny Mills Auto Sales, Inc. Fleet Street Remarketing Sides Cars-Trucks Ted’s Auto Sales, Inc. Tom’s Cars, Inc. Under 10 Year Members Affordable Auto Sales AFS Acceptance LLC All Pro Trailers

10 — Independent Dealer — May 2012

St. Petersburg, FL Sarasota, FL Largo, FL Largo, FL New Smyrna Beach, FL St. Petersburg, FL Ocala, FL Sneads, FL Ft. Lauderdale, FL Jacksonville, FL

Anderson Motors, Inc. Brooksville, FL Auto Mart of Ocala Ocala, FL Auto Use Andover, MA Avalon Auto Sales At Exit 22 Mlton, FL Brown’s Auto Sales Leesburg, FL CrossLander of Central FL Winter Garden, FL Dealer Consulting Services Miami, FL eMotorcars of Florida Holly Hill, FL Enterprise Leasing Company Tampa, FL Everyone Drives Auto Sales, LLC Tampa, FL Greenfield USA Whoelsale LLC Hollywood, FL Happy Auto Mart Tampa, FL Highway Motors, Inc. Weeki Wachee, FL KPM Auto Exports, Inc. Lake Park, FL Kurkin Forehand Brandes LLP Aventura, FL LB Auto Trading Orlando, FL Motor Group Delray Beach, FL Southern Country Auto Sales Gainesville, FL Spanos Imports Daytona Beach, FL Tallahassee Auto Finance dba Gary Moulton Auto Center Tallahassee, FL The Auto Source, Inc. Maitland, FL

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May 2012 — Independent Dealer — 11

LEGAL ROUND-UP

A Look At Current Legal Issues BY THOMAS B. HUDSON AND NICOLE FRUSH MUNRO, HUDSON COOK, LLC Federal Law Most of the federal news this month deals with the Consumer Financial Protection Bureau: Liability of Service Providers. On April 13, the Bureau released Bulletin # 12-03, clarifying that supervised financial institutions may be held responsible for the actions of service providers with which they contract and recommending that supervised financial institutions take steps to ensure that business arrangements with service providers do not present unwarranted risks to consumers. These steps include: conducting thorough due diligence to verify that the service provider understands and is capable of complying with the law; requesting and reviewing the provider’s policies, procedures, internal controls, and training materials to ensure that the provider conducts appropriate training and oversight of certain employees; including in the contract with the provider clear expectations about compliance and consequences for violating compliance-related responsibilities; establishing internal controls and on-going monitoring to determine whether the provider is complying with the law; and taking prompt action to address fully any problems identified through the monitoring process.

Assistant Director for the Office of Fair Lending, repeated Cordray’s warning about the Bureau’s intention to pursue cases against creditors, using a disparate impact theory. She said the Bureau’s priorities would include auto finance. To Arbitrate or Not to Arbitrate. On April 24, the Bureau announced that it has launched a public inquiry into how

Calling discrimination “the market’s silent pickpocket,” CFPB Director Richard Cordray emphasized that his agency will pursue cases of overt discrimination and disparate treatment, but also disparate impact.

Bureau Targets Discrimination. On April 18, the Bureau announced that it will use “all available avenues” to pursue discrimination cases against creditors. Calling discrimination “the market’s silent pickpocket,” CFPB Director Richard Cordray emphasized that his agency will pursue cases not only based on evidence of overt discrimination and disparate treatment, but also based on the sometimes controversial legal theory of disparate impact. Cases based on disparate impact target a “facially neutral policy criterion” (like zip codes) that has a disproportionate adverse impact on one or more people on a prohibited basis, such as sex or race. Considering such factors can be illegal if the creditor lacks a legitimate business need for considering the factor or could achieve its legitimate goals as well by means that are less disparate in their impact. Patrice Ficklin, the CFPB’s 12 — Independent Dealer — May 2012

consumers and financial services companies are affected by arbitration and arbitration clauses. The CFPB’s authority to study arbitration agreements in consumer contracts derives from the Dodd-Frank Act and includes the authority to ban their use should it deem such a prohibition appropriate. The Bureau is requesting comments on: the prevalence of arbitration clauses in consumer financial products and services; what claims consumers bring in arbitration against financial services companies; if claims are brought by financial services companies against consumers in arbitration; how consumers and companies are affected by actual arbitrations; and how consumers and companies are affected by arbitration clauses outside of actual arbitrations. The comment period ends June 23, 2012. Litigation Separate Arbitration Agreement Unenforceable where Related RISC Contained Merger Clause and No Reference to Arbitration Agreement: A car buyer signed an arbitration agreement, a retail installment sales contract, and a security agreement in connection with her purchase. The arbitration agreement provided that all claims or disputes between the parties were to be resolved through arbitration. The retail installment contract contained a merger clause, Continued on Page 14. www.fiada.com

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Continued on Page 20. May 2012 — Independent Dealer — 13 February 2012 — Independent Dealer — 13 www.fiada.com

LEGAL ROUND-UP continued from Page 12.

stating that the contract sets forth the entire agreement between the parties. The buyer sued the dealership, alleging negligent misrepresentation, general negligence, and violations of state law. The dealership moved to compel arbitration, but the trial court denied the motion. The Court of Appeals of Missouri affirmed. Because the retail installment contract contained a merger clause and did not incorporate or reference the arbitration agreement, the retail installment contract superseded the arbitration agreement. As such, there was no effective agreement to arbitrate. Johnson v. JF Enterprises, LLC, 2012 Mo. App. LEXIS 420 (Mo. App. March 27, 2012). Perfected Security Interest Effective Against Defrauded Vehicle Purchasers: Individuals bought a motorcycle on Craigslist. At the time of the sale, a bank was listed as lienholder on the title on file with the Bureau of Motor Vehicles. Through a series of deceptive transactions, the seller possessed a title in his name that did not list the bank as lienholder. It was this title that he tendered to the buyers. When the buyers attempted to get a new title, they discovered the deception. They sued the bank to get clear title to the motorcycle, arguing that it was the bank’s action that allowed the seller to acquire the deceptive title, and they were, therefore, not in wrongful possession of the motorcycle. The trial court granted summary judgment for the bank, and the Indiana Court of Appeals affirmed, determining that the trial court did not err in concluding that the bank had a perfected security interest in the motorcycle. Dawson

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Car dealers, boat dealers, RV dealers–all businesses that sell personal property on credit–are subject to a bewildering thicket of federal and state laws and regulations. Responsibility for compliance usually falls on the general manager of the dealership or the manager of the “finance and insurance”, or “F&I” department. Sometimes the person responsible for sales and credit compliance has received some training dealing with these legal issues. But sometimes, the person shoved into the deep end of the pool as the compliance officer doesn’t have a clue what he or she is responsible for, and doesn’t know where to start.

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“Ignorance of the law is no excuse. And given the penalties for violating even one of the many legal obligations facing today’s auto dealer, including stiff fines and even imprisonment, a dealer must be well informed to make sound business decisions. There has never been a reference book for auto dealers and their professional advisors ... until now. This book is extremely well written and easy to read. It should be on the desk of every car dealer. It’s on mine.” Adam Goldfein, Host of the Nationally Syndicated Talk Show AutoScoop—The Inside to Car Buying “If a dealer had to decide between renting an inflatable gorilla for his dealership’s rooftop or purchasing this book for every single sales manager and office manager in the dealership, I hope the dealer would make the business decision that could save him or her thousands of dollars in unnecessary legal fees.... Put the gorilla on hold and insist that every manager read this book and keep it on their desks. I’m making it required reading for every Northwood University Automotive Marketing major.”

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and the Attorneys of Hudson Cook, LLP

Edited by Michael A. Benoit

CARLAW® F&I Legal Desk Book: 360 Things to Know About Auto Dealer Finance provides a compliance roadmap for “green pea” and seasoned compliance officers alike. Each chapter addresses a topic of crucial interest to dealerships. The topics cover the compliance waterfront, and include: ● The Truth in Lending Act and Regulation Z ● The Consumer Leasing Act and Regulation M ● The Equal Credit Opportunity Act and Regulation B ● The Fair Credit Reporting Act ● The Federal Trade Commission’s Used Car Rule ● Federal Advertising Rules ● The Magnuson-Moss Warranty Act ● Arbitration ● and more . . . Each chapter is authored by lawyers who deal with that chapter’s subject every day and in detail. The authors present their information in an easy-to-follow, Q&A format, with as little “legalese” and as much useful and practical information as possible. The goal each time is to give the reader a solid, basic working knowledge of the topic covered. For years, dealers have needed a source for comprehensive, no-nonsense information on the legal requirements they face. Now they have one that quickly will become their principal resource for credit compliance information:

Thomas B. Hudson

CARLAW ® F&I Legal Desk Book: 360 Things to Know About Auto Dealer Finance.

v. Fifth Third Bank, 2012 Ind. App. LEXIS 148 (Ind. App. March 30, 2012). Finance Company Had Permissible Purpose to Access Car Buyer’s Credit Report Even Though Dealer Applied for Credit Without Buyer’s Consent: A car buyer went to a dealership to buy a car and signed a purchase order. She never signed a credit application and, instead, told the dealership she would obtain financing from her credit union. Nevertheless, the dealership applied for credit on her behalf with several finance companies. One of those companies declined to extend credit to her after accessing her credit report. She sued the dealership, a credit reporting company, the finance company that denied her credit, and several other finance companies for violating the Fair Credit Reporting Act, among other laws. The trial court granted the finance company’s motion to dismiss, and the U.S. Court of Appeals for the Sixth Circuit affirmed. The car buyer alleged that the finance company violated the FCRA by accessing her credit report without her written authorization. The appellate court found that there were no facts in her complaint showing that the finance company had reason to believe that she did not wish the dealership to file an application on her behalf. Therefore, her allegations under the FCRA were insufficient. Wells v. Craig & Landreth Cars, Inc., 2012 U.S. App. LEXIS 6998 (6th Cir. (W.D. Ky.) April 4, 2012). Breach of Warranty Claim Fails Where Buyer’s Order Limited Warranties to Those Contained in Document and Plaintiff Relied on Representations Made Outside of Contract: An individual bought a used car from a dealership. When the car encountered mechanical problems that could not be permanently repaired, the buyer sued the dealership, alleging that it violated Texas’s Deceptive Trade Practices Act, breached the express and implied warranties in the buyer’s order, and committed fraud and negligent misrepresentation. The buyer’s order that the individual signed contained a provision limiting warranties to those expressly made in the buyer’s order and disclaiming all implied warranties and any prior written or oral representations. The buyer’s order did not contain any express warranties relevant to the individual’s claim. The U.S. District Court for the Southern District of Texas granted summary judgment for the dealership, holding that the buyer failed to show reliance on any representations contained in the buyer’s order and that she was barred, based on the disclaimer in the buyer’s order, from relying on any representations made outside of the contract. Pennington v. CarMax Auto Superstores, Inc., 2012 U.S. Dist. LEXIS 36383 (S.D. Tex. March 16, 2012). Tom (thudson@hudco.com) and Nikki (nmunro@hudco.com) are partners in the law firm of Hudson Cook, LLC. For information, call 410-865-5411 or visit online at www.counselorlibrary.com.

14 — Independent Dealer — May 2012

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Find out more about the FIADA’s top honor the Quality Dealer Award. Here’s your chance to be recognized and rewarded for your work as a top dealer.

hen someone asks you what you do for a living, are you proud to tell them you are a used car dealer? You should be, especially if you are one of the thousands of hard-working, fair-minded, ethically-focused independent dealers doing business in the state of Florida. Selling cars is an honest, noble profession that should be respected as any other professional industry. For the past three decades, dealers have been honored both statewide and nationally for their commitment to doing the right thing. Quality Dealers embody excellence, outstanding customer service and community involvement and are the standard by which independent dealers are judged. Every year, the FIADA Board nominates a select group of dealers who stand out from the rest and then choose one to be 18 — Independent Dealer — May 2012

named the Quality Dealer of the Year. That dealer then goes on to compete in the National Quality Dealer competition against nominees from other states. It is a highly-anticipated designation, coveted by many and given to only a few. Quality dealers are judged by their actions both on and off the dealership. Quality dealers are ones who can be found doing the right thing, even when it is not easy, taking care of their customers, learning more about and giving back to their industry and of course standing as role models for their communities. FIADA President Brandi Noegel’s husband Larry received the FIADA Quality Dealer award in 2001. Noegel’s Auto Sales has proven their excellence and staying power as a multi-generation, communityminded dealership in Starke, FL.

Brandi says Noegel’s repeat customers know what they stand for. “We provide a quality product and stick with the idea that safety comes first. We do the right thing for the customer and always try to give the customer what they need,” Brandi said. “We’ve sold cars to grandparents, then fathers, then sons and it continues down the road because we provide a good product.” Sometimes, Brandi said, Noegel’s is not just a store that sells cars to people but also a credit counselor and a financial advisor. It is not uncommon for customers to come in wanting to buy a vehicle they can’t afford which Brandi will talk them out of and suggest something more modest that will fit in their budget. It could be an easy sell, but it is not the right thing to do.

www.fiada.com

“We don’t want to set them up for failure,” Brandi said. For Noegel’s, taking care of the customer also means doing the right thing, which may not necessarily be the easy thing. Noegel’s stands behind the quality of cars they sell and if there is a problem they fix it. She remembers replacing a car for an older customer who was living off of Social Security income alone. He blew up the engine in his car and could not pay to have it fixed. Brandi agreed to put him in another car to make things right.

—STEVE MARBAIS, CMD, MARBAIS ENTERPRISES, INC.

customers to fix the problem and find a solution that everyone can feel good about. It could be a $1,200 fix on a car that could have been much less if the owner had taken care of the problem sooner or extending a payment time for a customer who is in a tough situation. It might cost money, but it is something that has to be done. “You have to ask yourself, what is a good customer worth to you? There is no value you can put on it,” Marbais said. Brandi and Steve also agree that quality dealers owe as much to their communities as they do to

their customers. Participating in civic organizations like the Rotary, sponsoring local sports teams and donating cars to encourage good grades and attendance for high school students are a few of the things they do to give back. As FIADA Board Members they are especially excited about adopting the Florida Sheriff ’s Youth Ranch as an Association service project, encouraging dealers to donate vehicles to the charity to help them raise money for their youth programs. In a day and age when news travels fast, and opinions even faster, keeping a good reputation is as important as ever. Though the used car industry Continued on Page 20.

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FIADA’s 2003 Quality Dealer and Past President Steve Marbais agrees choosing to do the right thing can be hard, but always the way to go. At his dealership, Marbais Enterprises in Ocoee, he has worked too hard on building a good reputation, and taking care of his existing customers to chance it. He works with his

“You have to ask yourself, what is a good customer worth to you? There is no value you can put on it.”

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RING OF HONOR continued from Page 19.

is still one that seems to bear the burden of the misdeeds of those who are less than honorable, great strides have been made by both the FIADA and dealers who are working hard to change the image of the industry. Striving to be a quality dealer is helping to change perceptions as well. “There are more quality dealers now than ever,” Brandi said, thanks to better trainings and partnerships with groups like the Tax Collector’s Office and the Department of Highway Safety and Motor Vehicles.” With that in mind, any FIADA member is welcome to nominate a dynamic dealer, or apply themselves, to be considered for the top honor. The finalists will be judged in the areas of business success, association involvement and charitable involvement. To be considered, go online to www. FIADA.com to fill out a nomination, or use this form. Nominations must be submitted to FIADA by June 29. The winner of the FIADA contest will be announced during the Annual Banquet at the Annual Convention and Trade Show, Oct. 11-13 in Boca Raton and presented with a special Quality Dealer plaque. In addition, they will move on to compete for the national title at the 2013 NIADA Annual Convention and expo.

2012‐2013 FIADA Quality Dealer Nomination Form

Please submit form to FIADA by June 29, 2012. Fax to 850‐385‐3251, Email to info@fiada.com or Mail to FIADA 1840 Fiddler Court Tallahassee, FL 32308

Nominee Information: (Self‐nominations are accepted)

Name:_______________________________________ Title:_____________________________

Name of Dealership: _____________________________________________________________ Address:_______________________________________________________________________ City, State, Zip:__________________________________________________________________ Phone:________________________________________________________________________ Email:_________________________________________________________________________

Why do you think this dealership is a quality dealer? If known, please include community involvement and dealership accomplishments.

_____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________

Nominator Information: Name: _______________________________________________________________________________ Phone:________________________________________________________________________ Email:_________________________________________________________________________

PAST FIADA QUALITY DEALERS: 1988 Ellis Warren 1989 Glenn Harris 1990 Gary Smith 1991 Bob Snider 1992 Deacon Jones 1993 Ed Tillman 1994 Terry Cramer 1995 Pete Mercurio 20 — Independent Dealer — May 2012

1996 George Hickey 1997 Tommy Kay 1998 Jim Wilson 1999 Glenn McNeill 2000 Jim Winterick 2001 Larry Noegel 2002 Don Scott 2003 Steve Marbais

2004 Dino Mercurio 2005 Ray Morrison 2006 Frank Fuzy 2007 Ed Fernandez 2008 George Baker 2009 John Cousins 2010 Jim Kagiliery 2011 Michelle Graudins www.fiada.com

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Similarly, as to Facebook, are employees posting negative comments about your company? Facebook currently has about 500 million users, Quirke said, so whatever is posted may be widely read. “It makes sense as we go forward, if we can keep business and personal separate,” he noted, and it’s a good idea to train employees to keep them separate as much as possible. In addition, it’s not a good idea for supervisors to friend subordinates, he advised. There is certain information “you just don’t want to know,” he said.

Employee Privacy In the Age of Social Media You might not be able to stop employees from logging on at work, but does that give you the right to monitor what they say? BY JOANNE DESCHENAUX

hen considering workplace privacy rights in the age of Facebook and Twitter, “we are not walking on paths of concrete, we are walking on paths of shifting sand,” John Quirke, an attorney with New Jersey-based Archer & Greiner recently told attendees during a session at a national human resources conference. The law impacting employee use of social media are not keeping pace with the technology, he said, and what we think are best practices today might change tomorrow. CONCERNS ABOUT EMPLOYEE USE Social media have generally been defined as web-base applications that allow people to broadcast information to an entire network. The network

22 — Independent Dealer — May 2012

can be user-defined, like Facebook, or open, like YouTube. Social media differ from e-mail and websites, and include LinkedIn, Facebook, Twitter, MySpace, YouTube, and various web logs or blogs. “Good luck prohibiting all use of social media at work,” Quirke said. With the availability of internet-ready smartphones employees can easily access social media sites at work. Employers should be concerned with what emplolyees are posting about their companies, Quirke stressed. For example, are their LinkedIn (a professional social networking site) postings professional? Are they consistent with the company website?

On Twitter, the release of information is instantaneous. And, due to the ability to forward messages, “you lose control of the message almost instantly.” Further, the short, quick nature of the medium invites people to send ‘venting” messages they might regret later, Quirke pointed out. At the opposite extreme, because of the length of blogs,” you can do significant damage,” with what you write, he added. PRIVACY LAWS CURRENTLY GOVERNING SOCIAL MEDIA The laws that may impact workplace use of social media include: • The Store Communications Act (SCA) • The Fair Credit Reporting Act (FCRA) • The Genetic Information Non discrimination Act (GINA) • Common law privacy principles If you use a third party to do background checks that include viewing employees’ social media posts, the FCRA requires that you first obtain the applicant’s consent. As to GINA, although the law is well-intentioned, Quirke said, the regulations prohibit any questions that can get at someone’s genetic information. GINA can be implicated, therefore, if on someone’s Facebook page, he or she begins talking about health information. Continued on Page 25. www.fiada.com

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PRIVACY AND SOCIAL MEDIA continued from Page 22.

The SCA protectd the privacy of electronic communications while they are being transmitted. So, for example, you cannot listen in on an employee’s phone calls or access unopened e-mail. However, the law allows interception of communications with the employee’s consent, either actual or implied. And, further, the SCA is not violated if someone intentionally accesses an electronic communication that is readily accessible to the general public. This means, Quirke said, if something comes up during a Google search, it is not protected by the SCA.

“It’s only a matter of time before a court says it is not private,” Quirke said because of how many people can access most images. “Common-law privacy is context-specific. Employees have as much privacy as you let them think they have.” Privacy is a contractual right, which an employee can bargain away. WHAT CAN AN EMPLOYER DO? First, Quirke suggests, the adoption of a strong “lack of privacy” policy. Make clear to employees that they have no expectation of privacy while at work. Next, clearly state to employees that the employer has the right to monitor all communications. When cell phones or computers are issued to employees, provide a “lack of privacy” policy, noting that “it is impossible

to guarantee that any information sent on work equipment can remain private. The privacy policy should be strict, with no expectations, and the policy should be specifically mentioned in any employee handbooks. Quirke also suggested the formulation of a speific policy regarding the use of social media. This policy should first define social media. Then it should state the employer’s position on the use of social media to discuss the company. Prohibited topics should be specifically identified. Employees should be encouraged not to mix business with personal postings. The “keep it job-related” mantra needs to come into play here. Excerpted from the Society for Human Resource Management (SHRM). Article reprinted courtesy of Landrum Professional. Read more HR articles on their website at landrumhr.com.

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At common law, “privacy” is the legal right to be left alone. There are various forms of this right, but the one most implicated by use of social media is the “intrusion upon seclusion.” One who intentionally intrudes physically or otherwise upon the solitude or seclusion of another or his private affairs or concerns is subject

to liability to the other for invasion of privacy if the intrusion would be highly offensive to a reasonable person.

www.fiada.com

April 2012 — Independent Dealer — 25

INDUSTRY NEWS Auction Genius Discounts for NIADA Members Auction Genius is software for auto dealers buying vehicles at auction. With a simple combined screen view dealers can quickly evaluate more vehicles in less time and participate in more auctions. The software synchronizes both local auction and vehicle specific information to help dealers make smarter buying decisions. The program integrates with industry partners CARFAX, AutoCheck, NADA Guide Book, Black Book, Kelley Blue Book, and Galves. Auction integration includes Manheim Simulcast, OVE.com, Manheim PowerSearch, ADESA LiveBlock and ADESA OPENLANE, with more in development. NIADA members receive a 10% discount by using coupon code NIADA when registering. Go online to www. auctiongenius.net/go/niada or call (888) 526-9346 to get started.

Important Information for Dealers Whose License Has Expired Dealers who have not renewed their license as of April 30, 2012 are officially considered delinquent by the Department of Highway Safety and Motor Vehicles and, due as the license is now considered expired. As per section 320.27(4) (a), Florida Statutes, “Any licensee who does not file his or her application and fees and any other requisite documents, as required by law with the department at least 30 days prior to the license expiration date shall cease to engage in business as a motor vehicle dealer on the license expiration date. A renewal filed with the department within 45 days after the expiration date shall be accompanied by a delinquent fee of $100. Thereafter, a new application is required, accompanied by the initial license fee.” Applications received after April 30, 2012, are considered delinquent. Delinquent renewal applications will be accepted with the delinquent fee only through June 14, 2012. For further information on this, or other dealer licensing procedures and requirements access the Department’s website at www.flhsmv.gov/html/titlinf. html and select “Dealer, Manufacturer, Distributor and Importer Information.”

Members Can Now Make FIADA PAC Contributions Online FIADA members now have the option to make contributions to the Political Action Committee online, as well as set up monthly contributions if desired. Check it out at www.FIADA. com and click on FIADA PAC. 26 — Independent Dealer — May 2012

Saluting Service Men and Women On Friday April 13th, Automotive Rentals Incorporated (ARI) and Charleston Auto Auction put on a promotion to honor those past and present that have served our great country in the military. The day began with free breakfast and was followed by a performance from the American Legion Color Guard playing “Salute To The Armed Forces” to honor each branch of the military. This was then followed by the National Anthem. This sale consisted of over 500 dealers and nearly 1000 vehicles. ARI offered over 90 of these vehicles. Every dealer that purchased an ARI unit received a “Support Our Troops” military style hat. Also, all veterans in attendance received a “Support Our Troops” hat and also a complementary lunch. “This promotion was a great success. Many of our dealers and auction team members have served proudly in the military. Everyone showing their respect and support was amazing. It was also a great scene with most in attendance wearing their red, white and blue. ” stated Laura Taylor, General Manager, Charleston Auto Auction. Charleston Auto Auction employees over 40 veterans from all military branches. Its corporate parent American Auto Auction Group, has also implemented a program to hire more veterans at all the auction locations. www.fiada.com

www.FIADA.com

NEW AND IMPROVED! Log in to the member’s only section to update your profile and connect with other members.

The new FIADA.com has more interactive features, including topical videos and forums.

Check out the handy Dealer Service Provider directory organized by category. Get a quick glance at breaking industry news and upcoming events from the FIADA calendar.

Log On to our newly enhanced website and access exclusive member’s only content. www.FIADA.com www.fiada.com

April 2012 — Independent Dealer — 27

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2011-2012 FIADA EXECUTIVE COMMITTEE:

BRANDI NOEGEL President Noegel’s Auto Sales Starke, FL (904) 964-6461

CHRISTOPHER LEEDOM Senior Vice President AutoMaxx Sarasota, FL (941) 309-1111

DAVID COX, CMD Regional Vice President Cox Motors, L.L.C. Lakeland, FL (863) 686-9300

FRANK FUZY Regional Vice President Century Motors of S. FL Pompano Beach, FL (954) 785-0369

JIM KAGILIERY Chairman of the Board J.D. Byrider Jacksonville, FL (904) 400-6190

DINO MERCURIO Secretary Independent Credit, Inc. West Palm Beach, FL (561) 686-8673

JOHN COUSINS Treasurer Southeast Car Agency Gainesville, FL (352) 377-7787

STEVE MARBAIS GEORGE HICKEY Regional Vice President Regional Vice President Marbais Enterprises, Inc. Bond Auto Sales Ocoee, FL Tampa, FL (407) 877-7422 (813) 238-7478

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