Download - December 2011 FIADA Independent Dealer Magazine

December 2011 — Independent Dealer — 1 www.fiada.com

SINCE 1940

A Publication of theFlorida IndependentAutomobile DealersAssociation

December 2011 www.FIADA.com Information and Insight for Florida Used Car Dealers

PRST STDU.S. POSTAGE

PAIDFULTON, MO

PERMIT NO. 38

The 2012 Legislative Session will soon begin. Join your fellow dealers and prepare for what’s ahead. 8.

2 — Independent Dealer — December 2011 www.fiada.com

DECEMBER 2011

Dec. 1-2 Orlando/Winter Garden

Dec. 3-4 Tampa

Dec. 5-6 Ocala

Dec. 7-8 Miami/Opa Locka

Dec. 10-11 Orlando

Dec. 12-13 Clearwater

Dec. 14-15 Lakeland

Dec. 17-18 Ft. Lauderdale

Dec. 19-20 Jacksonville

Dec. 21-22 Tallahassee

JANUARY 2012

Jan. 5-6 Orlando/Winter Garden

Jan. 7-8 Tampa

Jan. 9-10 Ocala

Jan. 11-12 Miami/Opa Locka

Jan. 14-15 Orlando

Jan. 16-17 Clearwater

Jan. 19-20 Lakeland

Jan. 21-22 Ft. Lauderdale

Jan. 23-24 Jacksonville

Jan. 25-26 Tallahassee

FEBRUARY 2012

Feb. 2-3 Orlando/Winter Garden

Feb. 4-5 Tampa

Feb. 6-7 Ocala

Feb. 8-9 Miami/Opa Locka

Feb. 11-12 Orlando

Feb. 13-14 Clearwater

Feb. 16-17 Lakeland

Feb. 18-19 Ft. Lauderdale

Feb. 20-21 Jacksonville

Feb. 22-23 Tallahassee

http://fiada.com/Members_Education_New-Dealer-Education.cfm


DealerIndependent

MAILING ADDRESS 1840 Fiddler CourtTallahassee, FL 32308

TELEPHONE (850) 385-2712(800) 237-0448

FAX (850) 385-3251WEBSITE www.FIADA.com

EXECUTIVE COMMITTEE 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

Christy Taylor Editorial/Advertising

POSTMASTER:Send address changes to

FIADA • 1840 Fiddler CourtTallahassee, FL 32308

(850) 385-2712 • Toll Free: (800) 237-0448Fax (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 inTallahassee and distributed to Florida new,used, wholesale and lease/retail car dealers.Advertising rates are available upon request.

The statements and opinions expressedherein are those of the individual authors

and do not necessarily represent the viewsof Independent Dealer or the Association.

Likewise, the appearance of advertisers, or theiridentification as members of FIADA, does

not constitute an endorsement of theproducts or services featured.

ContentsDecember 2011

For members of the Florida Independent Automobile Dealers Association

C O LU M N S & F E AT U R E S

4 President’s MessageBrandi Noegel

6 Executive Director’s MessageLisette Mariner

8 Member NewsNew, Renewing and Rejoining Members

10 Zombie CasesHow some legal cases refuse to die and are wreaking havoc on dealer’s arbitration agreements.

14 Open For BusinessFIADA Member and Past President David Cox has set up shop in Lakeland, FL.

18 2012: A New Legislative Session DawnsTips and suggestions you can use to prepare for the upcoming legislative session.

21 An Invitation to the FIADA Board Meeting and Dealer Training

22 Legislative Update:The Honorable John Grant and Jennifer Lux

24 PAC Contribution Form

26 A Look at Current Legal IssuesAttorney Tom Hudson’s update on legal activity from within the industry.

30 Industry News


F R O M T H E P R E S I D E N T

Goodbye 2011,Hello 2012BY BRANDI NOEGEL

The year 2011 is just about over and what a year it has been. The convention in October was a great success. Thank you to all who attended: the

dealers, all of our speakers, exhibitors, and especially our sponsors. We certainly could not have done this convention without all the support from our sponsors and exhibitors. We had three Town Hall meetings throughout the state and all were a great success.

In 2012, there will probably be a few bumps in the road along the way but, we can hope that we’ll have a great

tax season to help us make it through part of the year. Reliable transportation is something that most of our customers must have and that is what we are good at, providing “reliable transportation.” We must think new, positive thoughts for 2012.

It is time to mark your calendar for the next Town Hall Meeting. We will be the guests of Manheim’s Daytona Auto Auction. Mark the date, Friday January 20, 2012 from 9am to 3pm. Last year it was a great success, so be sure to sign up early because there is limited seating. The meeting is free and the education that you take

back to your dealership will more than pay for your time. Learn what is new and talk to some of your fellow dealers. The FIADA Board meeting will follow the next day on Saturday, January 21 in Daytona Beach at The Shores Resort.

The FIADA Board members are working very hard for you. The Executive Committee, Legislative, Budget and Audit, and Member Benefits have met and are working to achieve new ideas that will better serve you in the future. I believe that during these turbulent economic

times we need more skills and knowledge to operate more successfully. Everyone needs new ideas and products to use in the future just to stay in business. Remember to do your CE training soon for your license, it is free to all FIADA members. You can register now at FIADA.

com and get started in real-time.

Visualizing a new goal allows you to try something new and prepare for what steps are ahead. It allows your brain to start thinking of new ideas, bring forth inspiration and look for the resources necessary to meet your goal. I hope to see you at the next Town Hall Meeting.

Carol (Brandi) NoegelFIADA President

I believe that during these turbulent economic times we need more skills and knowledge to operate more successfully. Everyone needs new ideas and products to use in the future just to stay in business.


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E X E C U T I V E D I R E C T O R ’ S M E S S A G E

Building Relationships with Your LegislatorsBY LISETTE MARINER

My how time flies! The holidays are upon us as is the legislative session. Though session does not officially begin until January 10,

legislators are in full swing with committee meetings throughout the last two months. The FIADA is fight-ing to ensure that this session legislators balance the budget but not at the expense of small business and the automotive industry. You can help. Talk to your legisla-tor! Here are a few helpful tips to get your point across in the most effective manner.

Make your contact early. If you don’t know your legisla-tor it’s not too late to visit with them when they return to their home districts during the holiday break. Don’t be discouraged if you can only speak to legislative staff. They are very important when it comes to bill drafting and can be a wonderful resource.

Think of contact with your legislator as establishing a long-term relationship with an important customer. Don’t just talk to them when there is an important bill up for a vote; maintain a presence during the year. Invite them to tour your dealership. Familiarize them with your business and employees. Tell them your concerns.

Create a positive and cordial atmosphere. Your tone can make the difference. Never ask for the impossible or threaten to vote for someone else next election. Al-ways saying “thanks” and “well done” makes a legisla-tor feel appreciated and more receptive to your input. Positive praise creates goodwill and builds on future

meetings. Don’t forget after a face-to-face meeting to send a thank you note. A note extends the conversation and furthers goodwill and relationship building.

Be sure your legislator knows who you are by identify-ing yourself in all correspondences whether verbal or written. Be sure to include your address and telephone number in all written communications. Your legisla-tor may want to get back in touch with you. Better yet, request a reply. Ask your legislator how they feel about the issue, but without being demanding. Ask for their feedback to ensure a replay and open dialogue.

Throughout session, FIADA may contact you to reach out and educate your legislator regarding a particular bill. Be specific and mention the bill number. Provide a brief synopsis of the bill; don’t assume they know the bill details. Clearly identify if you support, oppose or feel it should be amended. Be logical and specific. Provide facts to support your position. Bring it home if you can with personal examples of how this impacts your business and the community. Remember it’s okay to ask for your legislator’s position on the issue. Be very specific and ask your legislator if they will vote “yes” or “no”.

Finally, report back. We would love to know what feed-back you’ve gotten from your legislator. Let us know who’s on our team and who we need to turn around. Together we can have a positive impact for the indus-try.


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Rejoining MembersN O V E M B E R 2 0 1 1Hermanos Auto Wholesale DBA The Car ShackHialeah, FLMaria LeonardoSponsor: FIADA Office

M E M B E R S H I P N E W S

New MembersN O V E M B E R 2 0 1 1

A.R.A. GPS Systems, Inc.Newnan, GA Larry Carter

A & J Mobility Inc. dba Mobility Express Ruskin, FLNouha Daoud Sponsor: Terry Myers/Kevin Scott

Alxio Land Services dba Coqui Auto Sales Tampa, FL Al Giordano Sponsor: Terry Myers

Best Buy Auto of Tampa Bay Inc. dba St. Pete Auto Sales St Petersburg, FL Geovana Riva Sponsor: FIADA Office

CD Cycle, Inc Panama City Beach, FL Rebecca Stanford Sponsor: Terry Myers

Charlie Rogers Belleair, FL Sponsor: Terry Myers

Edward Hickey Cape Coral, FL Sponsor: Terry Myers

Excel Vision Auto Sales Longwood, FL Benjamin Roberts Sponsor: FIADA Office

Florida Fine Cars, Inc. Miami, FL Ramin Farahmand Sponsor: FIADA Office

GSA Auctions, LLC Davie, FL George Grabovenko Sponsor: FIADA Office

Dealers Holdings of South Florida, Inc. Fort Lauderdale, FL John Romberg Sponsor: Kevin Scott

Jeff Boykin Minneola, FL Sponsor: Terry Myers

John FersaWindermere, FL Sponsor: Terry Myers

Judy Caldwell Jacksonville, FL Sponsor: Terry Myers

Six Sigma Enterprises, Inc dba Patriot Auto Sales Sarasota, FLJustin Barnhill Sponsor: Terry Myers

Tampa Auto Sales Tampa, FL Carmelo Cortez Sponsor: FIADA Office

Z Automotive GroupBoca Raton, FL Barry Zackon Sponsor: Terry Myers

Renewing MembersN O V E M B E R 2 0 1 1

40+ Year MembersCentral Truck Sales, Inc. Miami, FLJohn Rogers Used Cars Orlando, FLManheim’s Lakeland Auto Auction Lakeland, FLNoegel’s Auto Sales Starke, FLSouthside Autos, Inc. Orlando, FL

30+ Year MembersJim Lash Blue Book Cars Sanford, FLWood Motor Company Ft. Myers, FL

20+ Year MembersChase Automotive Financie Corp. Tampa, FLFrontier Motors Pensacola, FLUnited Acceptance, Inc. Smyrna, GA

Under 10 Year MembersA & A Auto Sales, Inc. Ft. Pierce, FLABA Auto Sales Orlando, FLAuto Plan, Inc. Tampa, FLBaggett Auto Sales DeLand, FLBobby’s Plumbing Inc. dba A & B Retro’s Vero Beach, FLCharlotte County RV Center, LLC Port Charlotte, FLFinancial Insurance Brokers International Coral Gables, FLGasparilla Motors, LLC Port Charlotte, FLGibson Truck World Sanford, FLInsurance Services of Central FL. Orlando, FLLandrum Professional Pensacola, FLLighthouse Children Home, Inc. Tallahassee, FLMartins Used Cars, Inc. Ocala, FLMichael Gallinaro Weston, FLMITS at CMI, LLC Largo, FLMobility Freedom, Inc. Clermont, FLMorgan’s Car Sales, Inc. Leesburg, FLNeal’s Wheels Fanning Springs, FLNorth Central Florida Auto Auction Ocala, FLPro-Power Auto Sales Company Port Charlotte, FLRiker’s Auto Financial Kissimmee, FLThe Motorcoach Store Bradenton, FLWaterfront Auto Sales, Inc. Port St. Joe, FL

The Wholesale Club, IncSarasota, FLSean MillerSponsor: FIADA Office

Ultimate Motorcars of Florida, Inc.Tampa, FLHoward DwoskinSponsor: FIADA Office


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Growing up in Pittsburgh, George Romero, was somewhat of a local legend

after he attended college there and filmed some of his best known movies including the “Night of the Living Dead” franchise and its various sequels, affectionately known to Pittsburghers as “The Dead Films.”

By this point you are probably asking yourself, what do these old horror movies have to do with a legal article? I will get to that in a second. The main premise throughout Romero’s “Dead Films” was that people who were thought to be long dead suddenly become reanimated as zombies and begin wreaking havoc on the main characters of each of the films.

As a result of a recent Appellate Court decision, “zombie cases” could be coming soon to wreak havoc on those who have used arbitration agreements. In what has been perceived by some as yet another attack on parties that utilize arbitration, Florida’s Second District Court of Appeals ruled that

statutes of limitation do not apply in arbitration proceedings unless the arbitration agreement expressly incorporates statutes of limitation into the arbitration. The case Raymond James Financial Services, Inc. v. Barbara J. Phillips, concluded expressly that because Raymond James, the party that created the arbitration agreement, did not expressly include Florida’s statutes of limitations in its agreement and because the agreement is construed against the drafter and, because Florida’s statutes of limitation do not state that they applied to arbitrations, Florida’s statutes of limitations do not apply in arbitrations where the arbitration agreement does not expressly provide further application. It is this ruling that has created the potential for “zombie cases” concerning dealers who have used arbitration agreements in the past.

First, let us look at what a statute of limitations is. Statutes of limitations are contained within Chapter 95 of the Florida Statutes. Florida’s

www.fiada.com10 — Independent Dealer — December 2011

statutes of limitations speak in terms of applying only to actions or proceedings. Section 95.011 states “a civil action or proceeding, called “action” in this chapter, including one brought by the state, a public officer, a political subdivision of the state, a municipality, a public corporation or body corporate, or any agency or officer of any of them, or any other governmental authority shall be barred unless begun within the time prescribed in this chapter or, if a different time is prescribed elsewhere in the statutes, within the time prescribed elsewhere.”

Thus, the statute of limitations chapter creates an express lifetime for any civil action or proceeding to be initiated. Usually, if an action is not initiated within that timeframe, then the action is barred. There are a few exceptions, but for the most part, claims had a definite life span. One of the purposes of statutes of limitation are to bring finality to issues and to allow businesses or persons to proceed

L E G A L C O R N E R

Recent Appellate Court decisions have brought dead cases back to life, bringing with them an opportunity to terrorize dealers who use arbitration agreements. BY ROB SICKLES

Continued on Page 12.


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ZOMBIE CASES continued from Page 10.

with their affairs without the threat of something that happened many years ago coming back and resulting in a lawsuit.

Generally speaking, most actions against an automotive dealer cap out at a five year statute of limitations, with some consumer statutes, including Florida’s Deceptive and Unfair Trade Practices Act, having a four year statute of limitations and Florida’s Consumer Collection Practices Act having an even smaller statute of limitations of two years. Thus, prior to the Raymond James decision, most dealers could feel comfortable that the maximum liability that they had under any dealings with any client would have been five years under a breach of contract theory, four years under an deceptive or unfair trade practice theory and less time under other consumer statutes.

Following the Raymond James decision, dealers that are utilizing most form arbitration agreements do not now have the comfort of knowing that statutes of limitation protect them. In fact, there may now be instances where consumers are trying to compel arbitration of claims against dealers in order to avoid statute of limitation bars while dealers are arguing that the arbitration agreements should not be enforced in order to be able to enforce statutes of limitation.

This is true because most arbitration agreements utilized by dealers apply to claims by both dealers and consumers and either party can initiate arbitration. Thus, a consumer with an issue that conceivably happened eight or even 10 years ago could bring an arbitration against the dealer where the dealer’s arbitration agreement does not expressly incorporate the statute of limitations.

From a practical standpoint, defending such an action would be problematic. Employees at dealerships often times move, documents are only required to be maintained for a finite period and the condition of vehicles deteriorates over time. That is why these claims remind me of the zombies from “The Dead Films.” Most dealers will have believed that these claims were long since dead and your ability to kill these claims, i.e., defend them, is severely limited due largely to the passage of time.

In order to cut off the potential for these claims in the future, all dealers should include a statement within their arbitration agreement that the arbitrator is required to apply Chapter 95 of the Florida Statutes pertaining to statutes of limitation in any arbitration. Such language should prevent zombie claims in the future.

For those of you who have arbitration agreements with your customers from

prior deals that did not have language referencing statutes of limitations, there is nothing that can be done to change your existing arbitration agreements, however, there are still ways to argue that the statutes of limitations should still apply.

First, if a plaintiff files a civil action to enforce an arbitration agreement with out starting directly in the arbitration forum, the ability to enforce arbitration agreements in court may be barred after the statute of limitations

for the enforcement of contracts, five years, has past. Florida law authorizes the parties to an arbitration agreement to seek a court order requiring arbitration, if one of the parties refuses. You could argue that a plaintiff has to bring such an action within five years or it is barred because an arbitration agreement is really just a contract.

Second, many arbitration agreements indicate that the substantive law of the state of Florida should be applied. An argument could be made that the statute of limitations are substantive laws of the state of Florida, although there are also arguments to be made that the statutes of limitation are in fact procedural and not substantive. A potential problem with this argument is that the arbitration agreement at issue in the Raymond James case expressly stated that it did not “limit or waive the applicable or any relevant state or federal statute of limitations.” The appellate court found that this language was insufficient to trigger

the application of the statutes of limitation because it did not expressly incorporate statutes of limitation into the arbitration proceeding. Regardless of this distinction in the Raymond James case, it would still be a good idea to argue that the statutes of limitations are substantive laws of the state of Florida and as such should be applied where an arbitration agreement references the substantive law of the state of Florida.

Most dealers will have believed that these claims were long since dead and your ability to kill these claims, i.e., defend them, is severely limited due largely to the passage of time.



There have also been some discussions about an effort to amend Florida’s statutes of limitations to indicate that they shall be applied in arbitration proceedings. Previously, courts have ruled that the provisions within Chapter 768 relating to punitive damages were inapplicable in arbitration because the statutory framework that discusses the applicability of the punitive damages statute stated that it only applied to actions for damages. Utilizing the same analysis, a court had concluded that the punitive damages prerequisites did not apply in arbitration. In 1999, the Legislature adopted Florida Statute Section 768.737 which expressly stated that when punitive damages were available as a remedy in arbitration, the substantive sections regarding punitive damages applied. Thus, in at least one prior instance where the courts had attempted to carve out different rules for arbitration, the Legislature stepped in and evened the playing field.

If you are currently using an arbitration agreement, I would not wait to see what the Legislature does on a going forward basis. You should talk to your counsel or your forms provider about amending your arbitration agreement to include at a minimum, a statement that Florida’s statutes of limitations apply to any claims brought in arbitration. This way you can try to keep the zombies where they belong, in old horror movies.

Robert E. Sickles is a partner in the Tampa office of Hinshaw & Culbertson LLP. He is the outside general

counsel to the Florida Independent Auto Dealers Association and can be reached at (800) 237-0448.

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With one small snip from a pair of oversized, silver scissors David W. Cox

cut the ceremonial red ribbon and declared Cox Motors, LLC open for

business.

Among those at the event, that was organized

by the Lakeland Area Chamber of Commerce, was Lakeland City Commissioner Phillip Walker, who assisted Cox with the official cut, as well as FIADA Past President Steve Marbais. Cox said he appreciated the support of everyone who attended the event, especially Marbais.

“Steve is a good friend and an advocate for the FIADA,” Cox said. “I was honored that he was able to come.”

Friendship and business networking are just some of the perks of membership in the Florida Independent Automobile Dealers Association, Cox said. He originally became a member even before he had his official dealer’s license because he believes in giving back to the industry that supports him, but over the past decade of membership he has discovered additional benefits that have helped his business.

“I feel like the FIADA is on the leading edge to protect independent dealers in the State of Florida and look out for their best interest. When issues come up that are important to us as dealers, FIADA is always there trying to address them,” Cox said. He explained that attending the annual conventions and board meetings have helped him

David Cox (center) holds the scissors with local Councilman Phillip Walker during Cox Motors’ official ribbon-cutting ceremony.

OpenBusinessfor

D E A L E R F E AT U R E

FIADA member David Cox opened a new store in Lakeland and is ready forbusiness.

BY CHRISTY TAYLOR


December 2011 — Independent Dealer — 15 www.fiada.com December 2011 — Independent Dealer — 15 www.fiada.com

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learn new things and bounce ideas off of the true “industry experts.”

“When you join the Association, if you need help you have someone to call upon. You can meet leaders in the industry and learn from them on their specialties like internet sales or buy-here, pay-here. You have the chance to sit next to these guys and ask them the questions you are curious about. There is a wealth of networking opportunities available through FIADA,” Cox said.

Cox joined the Lakeland Area Chamber of Commerce with a similar intent, wanting to support a group who has helped to create a friendly environment for his business. Cox has been an independent dealer in the Tampa area for eleven years and when he relocated to Lakeland this past March, he immediately joined the Chamber. Cox Motors, LLC located on Memorial Blvd. in Lakeland will continue to supply credit-challenged people with reliable transportation but with a different twist. Instead of buy-here, pay-here, this time Cox will be focusing on a new business model that is starting to gain traction with other independents: lease-here, pay-here. Very similar to BHPH, the LHPH approach allows customers to lease a vehicle with the opportunity to own it at the end of the term with a small residual. Cox relies on his reputation, experience and community involvement to drum up business and says the challenge to lease-here, pay-here is not going to be finding customers, but being able to help them overcome Florida’s current insurance requirements that are placed on drivers who lease vehicles.

In Florida, liability insurance requirements are higher for customers that lease vehicles and the mandatory premium stands in the way of potential sales. There is anticipated to be a flurry of activity surrounding the PIP issue in the 2012 Legislative session and Cox hopes FIADA will be on the front lines

of the fight to even-out the increased premiums for at-risk customers who lease. To ensure a victory in this, and any other legislative interest that may come up, Cox says all dealers need to unite and join the cause.

“FIADA’s biggest need right now is to grow membership so we can have a louder voice on the issues that concern us. Even if they don’t want to be active members, we need dealers to join and be counted. We have a bigger stick to carry in Tallahassee when we have more members,” Cox said.

As a current FIADA Regional Vice President, and past FIADA President, Cox hopes to help the Association navigate the insurance issues in the upcoming legislative session. He also maintains hope of one day getting the tag and title fees rolled-back to pre-2009 levels.

In the meantime, Cox will be working on refining his current business vision: helping good people who have had bad things happen to them. Through word-of-mouth and community involvement, Cox is confident that he will be able to develop a solid book of business in Polk County.

Away from the dealership, he will be spending time with his family including his wife of 22 years, Dawn, and his two daughters, Courteney (16) and Rachel (14). Cox jokes that the girls have their eyes set on attending Baylor University in a few years, “just like their dad,” though he is not sure if they will one day want to follow his footsteps into the car business. For now, though, they love to go with him to the FIADA and NIADA events where they make new friends and renew old friendships.

The Cox family at the Annual Banquet duringFIADA’s 2011 AnnualConvention in Orlando.

COX MOTORS continued from Page 14.

December 2011 — Independent Dealer — 17 www.fiada.comPAID

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By this time next year, the political climate in both Florida and the nation, will have survived a season of instability and evolution. Florida will emerge with new district lines and voting patterns. State programs, agencies and departments

will be healing their wounds from another intense budget battle. Americans will have survived a scourging election cycle, shell-shocked from a barrage of confusing commercials, annoying automated phone calls and deliberated debates that helped choose the next President of the United States.

While Political Action Committees and concerned citizens all around the country gear-up for what’s coming, the Florida Independent Automobile Dealers Association is preparing as well. FIADA is already on top of the issues concerning independent dealers, already monitoring the Legislature’s committee meetings and agendas, members’ pre-session opinions and the collective vibe of the capital way before the official January 10 start date. Members can feel protected, knowing that the Association’s staff, lobbyists and Legislative Committee will be vigilant from now until the final gavel pounds on March 9.

In the meantime, FIADA members can do a little legislative basic training on their own, to prepare for the upcoming session and be ready to jump in when asked. To make it easy, we have assembled a list of tips, suggestions and templates for communicating with your legislators all designed to help your voice be heard. Read it, review it and retain it so when you get the call, you will be prepared.

As the 2012

Legislative Session

approaches, it is time

for FIADA members

to get prepared and

be ready for action.

Find out the best way

to communicate with

your legislator and

get your voice heard.

BY CHRISTY TAYLOR


One of the most effective ways to communicate with your elected officials is through a face-to-face meeting, but very few citizens take advantage of this opportunity. While many citizens feel they are insignificant in the eyes of a legislator, nothing could be less true. Politicians want to meet their constituents and should be relying on your input to make the decisions, and votes, they have been elected to fulfill.

When you are able to meet with a legislator in person, there are some general tips to follow to make the best use of everyone’s time and to ensure your message has been heard:

1 Know your legislator: Do your homework by knowing who the legislators in your area and

district are. A simple online search at flsenate.gov or myfloridahouse.gov can not only confirm that, but also give you extra information such as which committees they serve on and their legislative history.

2Make an appointment: Call the direct number to the local office and/or the Capitol office

to ask for a meeting. Explain that you are a constituent in the legislator’s area and would like to set up a brief appointment to meet with them.

3Be prepared: If you are meeting with the legislator about a specific issue or topic, do your

homework and know what you are talking about. FIADA has talking points, background information and research already prepared on a variety of topics and can supply them to you prior to your meeting. If it helps, bring a short list of points you want to remember to communicate. If you are asked a question you do not know the answer to, don’t guess. Be honest and tell them you will find out the information and get back to them.

4Get personal: It is important to explain your connection to the legislator, such as a constituent

living in their district or a person working in their district. If talking about a specific issue, give personal examples of how the outcome will affect your family or your business.

THE FACE-TO-FACE MEETING

5Be concise: A legislator’s schedule is jammed with meetings, so be sure to respect

their time. It is realistic to expect to spend only five to ten minutes with your legislator, so practice what you plan to stay ahead of time to make sure you know exactly what you want to say.

6Say Thank You: After your meeting, send the legislator a note thanking them for their

time and reiterating your position on the issues you discussed. If there is a particular bill that you would like the legislator to remember, include it in the letter. Whether you agree with the legislator’s stand or not, make sure your correspondence is in a courteous tone.

LETTER WRITINGLetter writing is an important, effective tool in the legislative advocate’s kit. Even after you meet with your legislator in person, it is always appropriate to follow up with a letter. Letters give legislators something concrete in hand to know where their constituents stand on the issues and, based on the volume they receive, helps gauge public opinion and sentiment.

Follow these guidelines for letter writing:

1Include your name, address, phone number and your email address on the letter.

2Use business stationary if you own the company or have permission to use it. If not, use upgraded, professional stationary.

3 Start your letter with the date, to give the staff a reference point of when they received it.

4 Use the proper form of address and salutation:

a. Senators and Representatives: To the Honorable (First Name Last Name) Dear Senator/Representative (Last Name)

b. The Governor His/Her Excellency (First Name Last Name) Dear Governor (Last Name)

c. Members of the House/Senate leadership: Dear Mr./Ms. Title (example, “Dear Mr. Speaker:)




5Begin your letter by identifying yourself as their constituient and identifying your issue. Example,

“As a resident in your district, I am writing to tell you about my feelings on Senate Bill 1082 and why I would like you to vote for this bill.”

6 Identify the legislation you support or oppose specifically by including the bill number.

7Give reasons for your position on the issue you are writing about. Add impact

by personalizing how your family or business will be affected by the outcome.

8Close your letter by offering to provide additional information and asking for a response of

what actions the legislator took on the issue (i.e., how they voted). Don’t forget to sign your letter by hand.

Occasionally when a bill has made it to a vote in a committee, or even on the floor, FIADA will contact members through a Legislative Alert and ask them to take action. One way to do this is by calling the Legislators and ask for their support. More often than not, an assistant or other staff member will be the one fielding the calls. Whenever possible, be sure to get the name of who you speak with for future reference. When placing the call, make sure you:

Introduce yourself with your full name

Make your concerns known by citing the specific legislation and what support you want the legislator to have. Be sincere and speak slowly so the staffer has enough time to make notes on your conversation.

Once you have told the staffer your story, give them your name and address and request they follow up with you by a written response. You may explain that you will be calling back after the vote to find out what steps they have taken to address your concerns.

PHONE CALLS

Email is an instant and convenient way to share your message and get your comments directly in a legislator’s hands. The same rules for letter writings apply to emails, except for the personal signature. Watch your inbox for important Legislative Alerts this session from FIADA and how you can help.

EMAIL

LEGISLATIVE TIPS continued from Page 18.

http://fiada.com/Members_Education_Online-Continuing-Education.cfm

All dealers invited to attend the first quarterlyboard meeting of 2012.

The Shores Resort & Spa2637 South Atlantic AvenueDaytona Beach Shores, FL 32118

Group Rate: $120/night plus taxFor reservations,please call thehotel at (866) 934-7467 and mention you arewith the FIADA, orregister online fromwww.FIADA.com.

This training session will guide you through the lifecycle of a vehicle in your dealership. You will learn essential dealership operations including researching and acquiring inventory, marketing your inventory, and the steps to complete the sale. This seminar will teach you the secrets to leveraging technology to assist you from inventory selection to sales and how to stay in compliance. You will also have the chance to get your legal questions answered in a Q & A session with FIADA’s General Counsel.

Go to www.FIADA.com to RSVP now for this seminar.



L E G I S L AT I V E U P D AT E

ON THE EDGE OF AN ECONOMIC CLIFFBY HONORABLE JOHN GRANT and JENNIFER LUX,FIADA LEGISLATIVE ADVOCATES

A famous quote from a learned judge said that “Neither life nor limb are safe when the legis-lature is in session.” That statement emanated

from the bench many years ago, but it is as true today as it ever was.

Just a week after we toast in the arrival of 2012 regular session of the Florida Legislature convenes in Tallahas-see. As is the case every ten years, reapportionment and the redrawing of the boundaries of legislative and congressional seats will be the item with the most focus on the agenda, but writing the budget will be right behind it.

For the fourth consecutive year Florida faces a budget deficit in excess of a billion or more dollars. Each of the past three years, nearly eight billion has been trimmed from state spending and for the coming year the state faces another cut of up to two billion.

State revenue forecasting continues downward as do projections of available cash during the coming fiscal year. More proof that Florida’s economy continues in a downward spiral.

One bright light appeared with the October unemploy-ment figures. For the first time since 2010 less Florid-ians are unemployed than in the prior month. October saw the creation of 103,000 new jobs in the state, but Florida’s unemployment is still nearly two percentage points higher than the national average. We all will wait to see if this decrease in unemployment will con-tinue through the remainder of the year and whether the next revenue forecasting will show a brighter rev-enue forecast.

The session promises to be difficult and it is important that legislators hear from their constituents before leav-ing their districts for the two month session in Talla-hassee. We encourage you to take the time to call and speak with the legislators in your district before they

leave. They are much more reachable in the district.

When you talk to legislators always be polite and sup-portive. Theirs is not an easy job nor is it in most cases their full-time job. They are serving the public. Their time is valuable so don’t keep them in unduly extended discussions.

Encourage them to meet the budget deficit by cutting state spending and not by raising taxes or fees and also suggest they roll back the gigantic fee increases imposed at the last hour of the session several years ago. Remind legislators that as automobile dealers you are interested in transportation and motor vehicle issues, but also that you are the poster child of small business in Florida. Our dealers are what small busi-ness is all about. We not only employ nearly a quarter of a million people in our 8,000 dealerships, but we also are often the only source of vehicles for thousands of people who need to have transportation in order to have a job and are not otherwise creditworthy. Without our BHPH/LHPH dealers many Floridians would have neither a car nor a job.

We encourage legislators to reduce the bureaucratic impact from the backs of all small business men and women by decreasing rules, regulations and report-ing. Not only does that help small business, but it is an excellent way to cut government spending, because for every regulation there is one or more regulators overseeing it.

If every FIADA member will take the time to call just their one senator and one representative, it will have a big impact. Take time to know them and let them get to know you. Invite them to your dealership to meet your employees and to better understand your busi-ness. Who knows, you might even sell them a car!

Enjoy the holidays and for you and yours, may 2012 be your greatest and most joyous year ever.


ON THE EDGE OF AN ECONOMIC CLIFF

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FIADA is your number one source for advice and information. Technical questions, legal questions, regulatory questions...bring them on!

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Here’s our monthly collection of selected legislative and enforcement highlights, and a recap of some of the many auto sale and financing lawsuits we

follow each month. Remember - what we report here is not every recent development. We just review the ones we think should be important to car dealers. Note that this column does not offer legal advice. You should consult your dealership lawyer with any legal questions.

FEDERAL LAWThe Consumer Financial Protection Bureau has had an active month or so. The Bureau has issued a number of invitations for public comment on proposed actions. These proposed actions have not specifically dealt with auto financing, but rather have been “housekeeping” proposals dealing with matters that the Bureau has been directed by the Dodd-Frank Act to address. The topics have included how the Bureau will collect information, the process by which state officials will notify the CFPB of actions or proceedings they have undertaken pursuant to their new Dodd-Frank authority, how the assets of institutions subject to the Bureau’s supervision will be measured, and what the Bureau’s process will be for providing advance notice to individuals and firms of Bureau investigations. The Bureau also continues to hire staff, and has announced the hiring of eight people for senior leadership positions: Chief of Staff, Chief Financial Officer, Chief Information Officer, Principal Deputy General Counsel, Private Education Loan Ombudsman, and Assistant Directors for Legislative Affairs, Intergovernmental and International Affairs, and Consumer Response. You might think all this administrative stuff is dull and boring, but think of it as if the Bureau is a warship clearing the decks for action. Maybe next month we’ll hear a little cannon fire.

Although without an appointed leader, the cannon fire may be nothing more than a few pops of a pellet gun. On December 8, Senate Republicans blocked the Senate from voting on the nomination of Richard Cordray to be the first director of the Consumer Financial Protection Bureau, prompting a tongue-lashing of the Senate from President Obama and calls by consumer advocates for the President to make a recess appointment, bypassing confirmation altogether.

LITIGATIONLessor Entitled to Demand Timely Payments Despite Previously Accepting Late Payments: A dealership employee leased a vehicle. Although he made late payments for two years, each time, he contacted the lessor and worked out an alternative timeline for the payment. Eventually, the lessor told the lessee that it was not going to make any other accommodations for his late payments and that he had to bring the payments current or it would repossess the vehicle. He did not bring the payments current, and the lessor repossessed the vehicle, sold it, and demanded that the lessee pay the deficiency. The lessee sued, claiming that because the lessor’s course of dealing allowing him to pay late had modified his obligation to make timely payments, the lessor did not have the right to repossess the vehicle. The trial court ruled for the lessor, and the Appellate Court of Illinois affirmed. The appellate court found that each time the lessee was unable to make a payment, he talked with the lessor, and the parties agreed to an alternate payment date or payment plan. As a result, the appellate court found that there was no pattern or course of dealing that suggested that the lessor waived the payment terms in the lease agreement. See Batozech v. Ford Motor Credit Company, LLC, 2011 Ill. App. Unpub. LEXIS 2485 (Ill. App. October 11, 2011).

Connecticut Repossession Notice Must Provide Unaccelerated Amount Due and Actual Expenses Incurred in Repossessing and Storing Vehicle: Prior to repossessing a vehicle, the creditor sent a repossession notice to the owner that provided her with an opportunity to cure the default by paying the entire accelerated balance and the expenses listed in the purchase agreement. The car owner sued, alleging a violation of the Connecticut repossession statute for failing to provide her the opportunity to pay the unaccelerated amount due, for requiring her to pay a fee that was not an actual expense, and for failing to itemize all of the expenses to redeem the vehicle. She also alleged a violation of the Connecticut Unfair Trade Practices Act due to the violation of the repossession statute. The Connecticut Superior Court granted summary judgment to the car owner on the repossession statute claim and denied summary judgment on the CUTPA claim. The court determined that the creditor violated the repossession statute because the repossession notice did not provide the car owner with the

L E G A L R O U N D - U P

A Look At Current Legal IssuesBY THOMAS B. HUDSON AND NICOLE FRUSH MUNRO, HUDSON COOK, LLC


unaccelerated amount due, did not list the actual expenses incurred to repossess and store the vehicle, and listed a fee that was not an actual expense. The court denied summary judgment on the CUTPA claim, finding that a violation of the repossession statute was not a per se violation of the CUTPA. See Benson v. Mackeyboy Auto, LLC, 2011 Conn. Super. LEXIS 2629 (Conn. Super. October 17, 2011).

Potential Assignees of Retail Installment Sales Contract Had Permissible Purpose to Obtain Car Buyer’s Credit Report: An individual bought a car on credit from a dealership. The dealership contacted multiple parties in an attempt to assign the finance contract. Each of the parties obtained the buyer’s credit report in order to make a decision on whether to buy her contract. She sued all of the potential assignees for violations of the Fair Credit Reporting Act, claiming that they lacked a permissible purpose to obtain her credit report and, by doing so, they caused her credit score to decline. The defendants moved to dismiss the complaint, and the U.S. District Court for the Southern District of Alabama granted the motion. The buyer argued that the commercial transaction between the dealership and the defendants did not involve an extension of credit to her, as credit had already been extended to her. As a result, she claimed that the defendants did not have a permissible purpose under the FCRA. The court disagreed. The court found that the car buyer applied for credit in connection with her vehicle purchase and that, accordingly, there was a credit transaction involving her. Further, the court concluded that the dealership was attempting to procure third-party financing, even if the buyer was unaware of that fact, and, therefore, the defendants had a permissible purpose to obtain her credit report under the FCRA. See Shepherd-Salgado v. Tyndall Federal Credit Union, 2011 U.S. Dist. LEXIS 129128 (S.D. Ala. November 7, 2011).

Car Salesman’s Oral Statements Actionable Despite Disclaimer of Warranties: A used car salesman sold a car “as is” with no warranty. During the negotiations, the salesman told the buyer that the car had been inspected and had been found free of mechanical problems or deficiencies. After the car broke down, the car was repaired and inspected by another repair shop that identified several deficiencies that should have been identified by the dealer inspection. After those deficiencies were not repaired by the dealer, the buyer sued the dealership and the finance company, alleging fraud, breach of warranty, violation of the Michigan Consumer Protection Act, and violation of the Magnuson-Moss Warranty Act. The dealership moved for summary judgment, and the trial court granted the motion with respect to all claims because the dealership had disclaimed any warranty. The Court of Appeals of Michigan determined that the trial court erred on the fraud

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360 things to know about auto dealer finance

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ProfessionalsCar 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. 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

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● 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:

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

F&I Legal Desk Book “This new book may be called a ‘guide’ but it’s more likely a ‘bible’ for every dealer, F & I manager, and trainer in the country. A timely and invaluable reference that covers all legal and regulatory touch-points in a dealership’s purchase transaction by a consumer. AFIP’s endorsement confirms that the stable of authors know the ‘rights’ to follow and the ‘wrongs’ to avoid. It is on the recommended list by F&I Magazine.”

Ed Bobit, PublisherBobit Business Media

“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 ShowAutoScoop—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.”

Joseph J. Lescota, ChairmanAutomotive Marketing DepartmentNorthwood University

“The F&I Legal Desk Book is the official course text for the AFIP Certification Program. Hudson Cook, LLP, is now the course authority for the applicable state and federal regulations. I can count on one hand the law firms in the United States who could have met our curriculum requirements. The F&I Legal Desk Book will dramatically reduce the time required for candidates to prepare for the 200-question final exam. Hudson Cook, LLP, has made a major contribution to AFIP’s efforts to raise the bar for regulatory compliance and ethical conduct within the F&I trade.”

David N. RobertsonExecutive DirectorAssociation of Finance and Insurance Professionals

“A unique exploration of the Do’s and Don’ts for dealers without the legal maze.”

Charles F. ArrambideAssistant Vice-PresidentUniversal Underwriters Group

Thomas B. Hudson

The Answ

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Thomas B. Hudson has practiced consumer vehicle sales, finance and leasing law since 1973. Mr. Hudson chairs the law firm of Hudson Cook, LLP. He is President of CounselorLibrary.com, LLC, and is the Founder and Editor-in-Chief of CARLAW ®, an Internet service that reports auto finance and lease legal developments. He has served as President of the American College of Consumer Financial Services Lawyers, and Chair of the American Bar Association Consumer Financial Services Committee’s Personal Property Finance Subcommittee. He represents the National Automotive Finance Association, Reynolds & Reynolds, auto finance companies, major banks and independent finance companies and many companies who supply services to the auto finance and lease industry. He is a frequent writer and speaker on topics relating to vehicle finance and leasing. He is also author of the book: CARLAW ® ~ A Southern Attorney Delivers Humorous Practical Legal Advice on Car Sales and Financing! Mr. Hudson can be reached at [email protected].

Michael A. Benoit is a partner with Hudson Cook, LLP and the author of “A Dealer’s Guide to Red Flags Compliance,” a comprehensive resource tool to help auto dealers create and maintain their internal Identity Theft Prevention Programs. His practice focuses on the practical application of a wide range of consumer financial services and dealer laws and regulations to the operational realities of auto dealers, finance companies, technology providers and financial services vendors. Mr. Benoit is a member of the DealerTrack Compliance Council, the National Association of Dealer Counsel, and is a regular speaker at industry events, including the NADA Annual Conference, National Vehicle Leasing Association Annual Conference, and numerous other national programs and private client-funded engagements. He is frequent contributor to a number of trade publications and journals, including Auto Finance News and F&I Management and Technology magazine, and was the principal author of the NADA’s Management Guide to Information Safeguarding. Mr. Benoit can be reached at [email protected].

F&I Legal

Third Edition

3rd Edition

Edited byMichael A. Benoit

and MCPA claims, which were based on the salesman’s representations, finding that the false oral statements made by the salesman did not contradict the written contract disclaiming any warranty and, therefore, it was not necessarily unreasonable for the buyer to rely on those statements. See Williams v. General Motors Acceptance Corporation, 2011 Mich. App. LEXIS 1896 (Mich. App. October 25, 2011).

Consumer Cannot Nullify Contract for Defective Vehicle Where He Made Material Alterations to Vehicle that Caused Defects: Two years after buying a truck that was covered by a manufacturer’s warranty, the buyer sued the manufacturer to void the contract due to an inherent defect in the truck and for accompanying damages. The trial court entered judgment for the manufacturer, and the Court of Appeal of Louisiana affirmed. The appellate court found that the engine defect that the buyer complained of was caused by his installation of a performance-enhancing device on the truck. Because the buyer’s alterations caused the defect, the appellate court concluded that the buyer could not nullify the sale due to the defect. See Rodriguez v. Chrysler Group, LLC, 2011 La. App. LEXIS 1304 (La. App. November 2, 2011).

Tom ([email protected]) and Nikki ([email protected]) are partners in the law firm of Hudson Cook, LLC. For information, call 410-865-5411 or visit online atwww.counselorlibrary.com.


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BRANDI NOEGELPresident

Noegel’s Auto SalesStarke, FL

(904) 964-6461

CHRISTOPHER LEEDOMSenior Vice President

AutoMaxxSarasota, FL

(941) 309-1111

JIM KAGILIERYChairman of the Board

J.D. ByriderJacksonville, FL(904) 400-6190

DINO MERCURIOSecretary

Independent Credit, Inc.West Palm Beach, FL

(561) 686-8673

JOHN COUSINSTreasurer

Southeast Car AgencyGainesville, FL(352) 377-7787

DAVID COX, CMDRegional Vice President

Cox Motors, L.L.C.Lakeland, FL

(863) 686-9300

FRANK FUZYRegional Vice PresidentCentury Motors of S. FL

Pompano Beach, FL(954) 785-0369

GEORGE HICKEYRegional Vice President

Bond Auto SalesTampa, FL

(813) 238-7478

STEVE MARBAISRegional Vice PresidentMarbais Enterprises, Inc.

Ocoee, FL(407) 877-7422

PAUL MATTONRegional Vice President

Park Auto MallPinellas Park, FL(727) 639-1112

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INDUSTRY NEWS

Four regional scholarships worth $3,500 are awarded annually at the National NIADA Convention in June to high school seniors from around the country. To be eligible, potential applicants must:

• Beclassifiedasahighschoolseniorduringthecurrent2011-2012schoolyear and legally residing in one of the 4 NIADA Regions.

• Havemaintainedanoutstandingacademicachievementrecordasreflectedby an official high school transcript; and

• DemonstrateanaptitudeforcollegeworkasmeasuredbySATorACTscore.

To download an application, go to www.NIADAFoundation.org. Applications must be postmarked no later than March 1, 2012 and received by March 10, 2012 .

NIADA Scholarship Registrations Are Open

On Dec. 2, 2011, Keith Whann stepped down as the General Counsel to the National Independent Automobile Dealers Association (NIADA). Whann had served as General Counsel to NIADA since 1995, and in 2002 received the Ring of Honor award, the association’s highest non-dealer commendation. Keith fulfilled members’ needs for legislative and regulatory education and training throughout his involvement with the association. For years, he presented dealer compliance seminars across the country, which later evolved into pioneering on-demand and live webcasts through NIADA.TV. More recently, Whann’s “Car Counselor’s TARP” (Together Automotive Retailing Prospers) program brought lenders and dealers together at a time when funding was difficult to find. His “Dealer Tech 2.0” series stresses the importance of social media interaction for dealers. Keith has been instrumental in representing the interests of car dealers in Washington, DC. He has participated as an industry expert in all recent FTC roundtable sessions, as well as meeting with various members of Congress, White House staff, the Department of Defense, Small Business Administration, and the Consumer Financial Protection Bureau. “I have thoroughly enjoyed working with Keith for over thirteen years, and I truly appreciate the contributions he has made to NIADA and the industry as a whole,” stated Michael Linn, NIADA CEO. “Keith and I have created some ground-breaking innovations, such as the NIADA.TV network. I personally look forward to working with him on industry related projects in the future.” “On behalf of the Board of Directors and our dealer members,” continued Linn, “I would like to express my deep appreciation for his dedication and loyalty to NIADA and we wish him continued success in his ongoing ventures.”

Keith Whann Steps Down as NIADA General Counsel

Pawn shops, repo men, parking enforcement—they have all played their part in the reality show game. Car dealers have been noticeably left off the list, until now. Sometime in 2012, Spike TV plans to unveil a new reality show slated to be called “Car Lot Cowboy” and featuring auto sales consultant Tom Stuker as he works to turn failing dealerships into profitable businesses in just five days. Stuker, whose expertise is primarily in sales, will bring along a team of experts in various aspects of the business to assist with the transformations. Stuker has worked with over 1,500 auto dealerships in his career as a dealership consultant. “His blunt talk may rub some of the salespeople the wrong way, but his tough-love approach and keen sense of the business ultimately delivers unmatchable success,” the network said in an announcement. The episodes shot to date feature both new and used dealerships in New Jersey, Florida, New Orleans, South Carolina and California. There has been no official release date announced yet but “Car Lot Cowboy” should air early next year.

The Car Lot Cowboy Puts Struggling Car Dealerships in the Reality Spotlight

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Download - December 2011 FIADA Independent Dealer Magazine

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