May 2013 — Independent Dealer — 1 www.fiada.com

Information and Insight for Florida Used Car Dealers

SINCE 1940

A Publication of theFlorida IndependentAutomobile DealersAssociation

May 2013

PRST STDU.S. POSTAGE

PAIDFULTON, MO

PERMIT NO. 38

www.FIADA.com

www.fiada.com2 — Independent Dealer — February 2013

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May 2013 — Independent Dealer — 3 www.fiada.com

DealerIndependent

MAILING ADDRESS 1840 Fiddler Court Tallahassee, FL 32308 TELEPHONE (850) 385-2712 (800) 237-0448 FAX (850) 385-3251 WEBSITE www.FIADA.com

EXECUTIVE COMMITTEE Christopher Leedom President

Dino Mercurio Senior Vice President

Brandi Noegel Chairman of the Board

David Cox, CMD Secretary

Paul Matton Treasurer

Frank Fuzy Regional Vice President

George Hickey Regional Vice President

Steve Marbais, CMD Regional Vice President

Jim Winterick, Sr. Regional Vice President

Jim Winterick, Jr. Regional Vice President

FIADA STAFF Lisette Mariner Executive Director

Terry Myers Educational Instructor

Sarah Langley Administrative Director

Nicole Lee Development Administrator

Amelia Tillman Administrative Assistant

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 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.

ContentsMay 2013

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 Message Christopher Leedom

6 Executive Director’s Message Lisette Mariner

8 Membership News New, Renewing and Rejoining Members

10 Now Accepting FIADA Quality Dealer Nominations Nominate yourself or someone you know for the Association’s top honor.

12 Back to Basics Dealer Training School Instructor Terry Myers

14 A Second Look at the Notice for Public vs. Private Sales Clarification to last month’s article by Attorney Steven Hyatt.

16 Your Advertising Can Get You in Trouble! FIADA’s General Counsel Rob Sickles warns about the mistakes dealers make in print and online advertising that could cost them.

18 A Persuasive Presentation Trainer and Speaker Ed Rigsbee advises brushing up on the basics of effective sales presentations.

20 FIADA Legislative Wrap-Up FIADA Lobbyist Sandra Mortham presents an overview of what happened in the 2013 legislative session.

22 Legal Round-Up Thomas B. Hudson and Nicole Frush Munro take a look at current legal issues facing dealers around the country.

24 Can I Tell Staff About an Employee Health Condition What are the rules about privacy and health issues in the workplace? Jim Guttmann of Landrum HR explains.

26 Workin’ Away Again at the FIADA Annual Convention Make plans now to attend the premier event for Florida’s independent dealers. Get a head start by sending in your registration now.

30 Industry News

4 — Independent Dealer — May 2013 www.fiada.com

Vehicle Service Contracts I GAP Coverage I Credit Insurance I Lifetime Engine WarrantyLimited Warranty I Dealer Participation Programs I F&I Training I Advanced F&I Technology

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.

Protect Tomorrow. Embrace Today.™

When you work with Protective you offer customers more than

products; you offer solutions – solutions that allow people to

embrace all today has to offer by protecting their tomorrow.

Protective provides F&I solutions that simplify the selling process

with easy to understand products, advanced training and reliable

customer care and claims service. We are committed to your

profitability by serving the increasing number of car buyers that are

unprotected from the costs of future mechanical expenses.

Like you, we believe in doing the right thing for the customer. Help

your customers protect tomorrow and embrace today with F&I

solutions from Protective Asset Protection.

Learn more at protectiveassetprotection.com/brand

We offer more than products. We offer solutions.

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

I Am Just SayingBY CHRISTOPHER LEEDOM, FIADA PRESIDENT

As I was preparing to write this month’s message it struck me that I am half-way through my term as FIADA President. I thought I would share some

observations with you, my fellow members.

First, let me say that while I have served as President/CEO for several companies over the past three decades, this is my first tenure as the President of a non-profit organization. I have learned a lot and it is a pleasure to serve you, the members of FIADA.

I have had the privilege of interacting with many members and non-members over the past few months. I wanted to share a recent interaction with a non-member that applies to all of us as dealer owner/operators. This individual was bemoaning certain regulatory issues, criticizing the efforts of our organization for not accomplishing more (in his eyes), and generally telling me why the glass is half empty. I generally do not do half-empty folks really well but as President you really have to listen. So I asked him how long he had been in business. Answer: over 15 years. Was the business good to him: “yes, I would not be a millionaire otherwise”. Great, I said. I asked him if he had ever been involved or tried to influence the direction of our industry. Answer: “no, just a waste of time”.

That is when I took pause. A waste of time? An industry where if we are good business people we can make hundreds of thousands if not millions across a lifetime. An industry where we can wake up, be our own boss, and enjoy cars, people and a great lifestyle. I was dumbfounded. Then it dawned on me. He was a whiner.

Yes, a whiner. I am just saying, if you do not want to get involved, yet everything is wrong, if no one can do something right or to your liking, yet you offer no assistance then I think it is time to stop whining. Why

is this important? As dealer owners we face a myriad of issues from federal regulatory compliance to affordable health care to who knows what is next. All we can do is stay united, speak up and try to make sure everyone plays by the same rules. That is what FIADA is for – to make our voice be heard and try to make sure we are treated fairly. For any of us to sit back, kick and scream while offering no assistance, well, that sounds childish.

So the next question some people ask is “how do I participate?” First, be a member of the only state industry association that represents us. If you have this magazine and you are not a member join today. If you can’t afford it or if you are new, I will sponsor your membership – that is how strongly I feel about it. Secondly, get involved. At our recent town hall meeting we covered a host of topics from the impact of the Affordable Health Care Act to recent court rulings that impact leasing in Florida. The only way to stay current is to be involved.

For starters one of the best things you can do after joining is attend the Annual FIADA Convention. This year we are in Orlando and there is registration information in this magazine on page 26. There are continuing education classes, workshops and an array of workshops that should help you be a better dealer. But again, you have to get involved, I am just saying . . .

I hope to see you at one of these events. FIADA is stronger when each and every one of us as dealers participates in the process and are active members. My goal is to have a record attendance year at our convention so I sure hope to see you there. Orlando is always a good draw and lots of fun. Don’t miss our Margaritaville Party this year (yeh, that was my idea!).

Have a great month and see you at an FIADA event soon!

May 2013 — Independent Dealer — 5 www.fiada.com

Vehicle Service Contracts I GAP Coverage I Credit Insurance I Lifetime Engine WarrantyLimited Warranty I Dealer Participation Programs I F&I Training I Advanced F&I Technology

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.

Protect Tomorrow. Embrace Today.™

When you work with Protective you offer customers more than

products; you offer solutions – solutions that allow people to

embrace all today has to offer by protecting their tomorrow.

Protective provides F&I solutions that simplify the selling process

with easy to understand products, advanced training and reliable

customer care and claims service. We are committed to your

profitability by serving the increasing number of car buyers that are

unprotected from the costs of future mechanical expenses.

Like you, we believe in doing the right thing for the customer. Help

your customers protect tomorrow and embrace today with F&I

solutions from Protective Asset Protection.

Learn more at protectiveassetprotection.com/brand

We offer more than products. We offer solutions.

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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

This is Your AssociationBY LISETTE MARINER, EXECUTIVE DIRECTOR

April was a busy month for FIADA, I hope it was prosperous for you. I heard from a few dealers that the delay in tax refunds caused a shift in sales, but

overall things are getting better. Last month FIADA was in Palm Beach and had a wonderful turnout of dealers that participated in the town hall meeting and board meeting. If you didn’t attend you missed an opportunity to learn about a recent Supreme Court ruling that aides in the lease here, pay here business and the latest in the ever changing Affordable Healthcare Act. You’ll have another opportunity to attend a town hall on July 27 at the Sawgrass Marriott in Ponte Vedra, FL. Visit www.FIADA.com for complete details and to register.

The 2013 Legislative Session ended, May 3, 2013. Though we didn’t see the reinstatement of the surrender stop legislation nor were the registration fees reduced, the legislature did pass legislation to create a demand letter for Unfair and Deceptive Trade Practices lawsuits and an option for dealers to renew their license for a two year period. Our lobbyist, Sandra Mortham, along with the Legislative Committee worked diligently this session. We read and filtered through numerous pages of legislation. Only 286 bills were passed by both chambers of the 1,848 bills that were introduced this year; compared to 292 bills that were passed last year of the 2,052 bills that were introduced. See the details of the legislative session on page 20. In an effort to get a head start on next year’s session, we will also be visiting legislators this summer and ask that you do the same. Be sure to visit www.FIADA.com for updates on what happened this session and how you can make an impact.

www.fiada.com6 — Independent Dealer — May 2013

We are currently finalizing plans for the Annual Convention and it promises to be a wonderful experience and educational too! Don’t forget the deadline to nominate a quality dealer is fast approaching. Let us know who the quality dealer is in your area by completing the nomination form on page 10 and returning it by June 30. Self-nominations are accepted so if you feel that your dealership deserves some recognition, please take the time to nominate yourself. The quality dealer will be announced Saturday, October 19 during the evening event.

It’s not too early to register for convention. For our associate members, we have amazing sponsorship opportunities available. Like last year, we expect our exhibit hall to sell out quickly. Please encourage the vendors you do business with to register and sponsor early. We don’t want them to miss out.

I hope that you will continue to take advantage of all the opportunities your membership provides. Your board continually looks to improve the benefits we offer. You are

who we serve. It is through your feedback that we succeed. Remember to take advantage of all the benefits you have at your fingertips from education

and advocacy to technical assistance and coupons. Keep in mind you also have benefits through NIADA too. Visit www.NIADA.com for a complete list of services. As a member you should have received NIADA’s magazine this month that includes the Convention details for Las Vegas in June and a great pullout with all your benefits categorized. This is your association! Be an active participant.

You are who we serve. It is through your feedback that we succeed.

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

New Members A P R I L 2 0 1 3

3lM MotorsPorts IncLakeland, FLElieser LumpuySponsor: Sarah Langley

AP MotorsAles llcAnthony, FLRich PrattSponsor: Kevin Scott

cAr solutIons llcWest Palm Beach, FLMalaquias CedenoSponsor: Dino Mercurio

cyberseArch Auto brokers Inc.Celebration, FLLilburn BlackSponsor: Terry Myers

DoMInIcks Auto IncHolly Hill, FLLaurie CampagnuoloSponsor: FIADA

FrAnklIn Motor sAles, Inc.Franklin, MAChris HunchardSponsor: Kevin Scott

kustoM kArzHaines City, FLPaul HutchinsSponsor: Kevin Scott

lAke trActor sAles, llcMinneola, FLJeff BoykinSponsor: FIADA

MAx roDrIguezMiami, FLMax RodriguezSponsor: FIADA

olgA AlvArezHialeah, FLAnna AlvarezSponsor: FIADA

rDk truck sAlesTampa, FLRichard KemnerSponsor: FIADA

Renewing Members

20+ year MembersBob Oliva Motors, Inc. Pompano Beach, FLHawley Motor Sales, Inc. Sarasota, FLK.K. Car Company, Inc. Lake Worth, FLMancini Automotive, Inc. Hudson, FLO’Donnell Automotive Orlando, FLOrange County Motors, Inc. Orlando, FLRay Whitts Used Cars Holly Hill, FL

10+ year Members3445 Car Store, Inc. Saint Petersburg, FLAutoshopper.com Magazine Lakeland, FLCross Lander of Central FL Winter Garden, FLDewitt Motors Sarasota, FLDick Moye Auto Sales, Inc. Pensacola, FLFleet Street Remarketing Largo, FLRichard’s Car Company, Inc. Jacksonville, FLSides Cars-Trucks New Smyrna Beach, FLVerde Classics, LLC Boynton Beach, FL

under 10 year MembersAdvanced Vehicle Modifications, Inc Ocala, FLAFS Acceptance LLC Ft Lauderdale, FLAuto Use Andover, MACentral Florida Auto Wholesale, Inc. Leesburg, FLChicago Motors Inc Miami, FLEmerald Coast Cars L.L.C. Pensacola, FLEnterprise Leasing Company Tampa, FLEveryone Drives Auto Sales, LLC Tampa, FLFranchise Auto Sales Inc. Longwood, FLGalaxy Auto Services, Inc. Orlando, FLHighway Motors Inc Weeki Wachee, FLKurkin Brandes LLP Miami, FLManheim Fort Myers Fort Myers, FLMcphails Auto Sales Sebring, FLMelbourne Auto Mart, Inc. Melbourne, FLMotor Group Delray Beach, FLParadise Auto Brokers, Inc. Fort Lauderdale, FLPFS Financial Services of Florida Tampa, FLRight Way Automotive Lake City, FLRouteOne, LLC Tampa, FLRouth’s Equipco dba Gravely of Bradenton Bradenton, FLThe Auto Source, Inc. Maitland, FLThe Surety Group Atlanta, GAVallejo Auto Sales Clewiston, FL

Rejoining Members A P R I L 2 0 1 3

A1 Auto & truck sAlesPanama City, ALJeffrey MartinSponsor: FIADA

Autos onlIne llc DbA Autos onlIneFort Walton Beach, FLChris CrosbySponsor: Nicole Lee

cAllsourceWestlake Village, CAKelly BryanSponsor: Amelia Tillman

chAney’s useD cArs, Inc.Avon Park, FLGerald ChaneySponsor: Amelia Tillman

hAnDIcAPPeD DrIver servIcesJacksonville, FLJack ColnaghiSponsor: FIADA

JAx exPorts IncJacksonville, FLBehrus KeshavarziSponsor: FIADA

MArkhAM Auto sAlesPensacola, FLAshley MarkhamSponsor: FIADA

ron AnD bob AutoMotIve sAles, Inc.Pompano Beach, FLRonald BuckholzSponsor: FIADA

sPeeDwAy Auto sAlesWinter Haven, FLRex GuySponsor: Terry Myers

tesco equIPMent llcCoral Springs, FLKenneth OsbornSponsor: FIADA

unIteD Auto usA corPDollard des Ormeaux, QCEloisa VenegasSponsor: DMV

vAc-con, Inc.Green Cove Springs, FLLisa YorkSponsor: fIADA

nAPles MotorsPortsNaples, FLNicki PurvisSponsor: FIADA

northsIDe Motors, Inc.Lake City, FLPatty RegisterSponsor: FIADA

sAnFer sPorts cArs, Inc.Miami, FLCarlos SantistebanSponsor: FIADA

A P R I L 2 0 1 3

GIVE ThE GIFT OF MEMBERShIP!Sponsor the membership for a fellow dealer by paying for their first year of dues. Call the office at (800) 237-0448 and find out how you can give the gift of membership.

May 2013 — Independent Dealer — 9 www.fiada.com

Renewing Members

9 — Independent Dealer — March 2013

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The rules are easy: when a new member signs up with your name as sponsor on their application, you will receive $50.00. In addition, you are eligible for membership recruitment awards and recognition from both the FIADA and NIADA.

This is a valuable opportunity to reach dealers who may not have heard of FIADA before. By meeting dealers who are nearby, at the auction or you cross paths with in your daily routine, you have an opportunity to share FIADA benefits with these prospective FIADA members as well as relay your personal experience with the Association.

FIADA is ready to coach you to victory. To get your playbook and sign up to participate so you can receive your $50 bonus, please go online and sign up so we know you are an official member of our team. Become an MVP today!

Please submit form to FIADA by June 30, 2013. Fax nominations to 850-385-3251, Email to info@fiada.com orMail to FIADA, 1840 Fiddler Court, Tallahassee, FL 32308

Nominate yourself or someone you think deserves this top honor for Florida’s used car dealers.

10 — Independent Dealer — May 2013 www.fiada.com

You’re good to GO!®

At MarkOne Financial there is more to approving a deal than just a number. In fact, credit scores aren’t even used in our programs. Our team of experts evaluate each deal on its own merit because every person has a unique life story. We work with our dealers and don’t lose sight of the value of an individual customer. Just one of many examples of how MarkOne does non- and sub-prime a little differently.

Instead of rigid computer systems and credit scores, experience the full impact of our People Buying People® philosophy. At MarkOne Financial, our only goal is to say, “If the deal makes sense, You’re Good to Go!®”

MarkOne Financial is the Eastern United States subsidiary of MarkOne Holdings. © 2013 All Rights Reserved.

PEOPLE ARE NOT SCORES. Expe r i en ce t h e Mar kOne F i nanc i a l d i f f e r en ce .

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www.fiada.com12 — Independent Dealer —May 2013

A Letter To All My Heroes

Theodore Roosevelt wrote, “It’s not the critic who counts. The credit belongs to the man (or

woman) who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes up short again and again, who knows the great enthusiasms, the great devotions, and spends himself in a worthy cause, who at best knows achievement and at worst, if he fails, at least fails while daring greatly so that his place shall never be with those cold and timid souls who know neither victory nor defeat.”

This letter is to all my heroes out there. That would be you the little guy who just got started in the business and are still striving toward that first sale. That would be you the guy and/or gal who have been at it one year now and are just starting to figure it out and are breaking even. That would be you, the dealership who has passed the break even mark and are starting to see decent returns for your efforts. That would be you the dealership that works in the black more often than in the red because you have stayed the course. That is you, the FIADA member who welcomes and mentors others, as others did for you.

Anyone who thinks this business is easy has never been in business before.

The used car industry can be tough. Here’s to all of you superheroes who have found success, honor and pride in your career. Keep doing what you do best!

BY TERRY MYERS

B A C K T O T H E B A S I C S

It is with great pride I acknowledge your wave as you enter the auction arena while I am instructing the next group of dealer hopefuls. It brings me joy to learn that this is your first, second or third continuing education class or convention. Membership in the FIADA tells me you are doing something right and are on your way to long term success.

How proud I am to be part of your association, the FIADA, filled with dealers and sponsors that go the extra mile to help the next generation seek success for them and their families.

It is an honor to work side-by-side with the various governing agency professionals. Many could be making infinitely more income in a different profession, yet choose to make themselves available to the dealer professionals and steer them down the correct legal paths that help them keep the money they make. Not enough credit is given to these professionals who give more than the minimum.

For the past fifteen years I have met dealers with 5, 10, 15, and up to 50+ years experience in the business. What a statement that is about them and for the level of professionalism needed to sustain that kind of time in this or any business... These dealers truly care about their customer base.

When you take care of your customer you also take care of your family, employees, vendors, the local, state and federal agencies that oversee your business and yourself. You provide a needed and vital service.

You who take time away from your dealership business to give back are my heroes or hero-ets. You contribute your expertise to the various committees and/or accept leadership roles within the FIADA. You are one of the main reasons dealers like doing business in Florida.

Be proud of what you do; as I, too am proud of you and how you

serve your customers, your communities, your family and yourself. Remember to wave as you pass by. See you in the lanes!

Terry Myers is an instructor for the FIADA

Dealer Training School and owner of Florida

Auto Dealer School. If

you have technical questions or

concerns about

compliance issues for your

dealership, please call the

FIADA office at (800) 237-0448.

May 2013 — Independent Dealer — 13 www.fiada.com

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The important point is not that a private sale is prohibited in selling a repossessed automobile but that you must inform the customer that either a public or private sale is going to occur and then track the language contained in Florida Statute Section 679.614(3).

www.fiada.com

L E G A L U P D AT E

This supplement to last month’s Public Sale vs. Private Sale article is intended to correct

and clarify information that was provided in that article. The article stated that repossessed automobiles cannot be sold at a private sale following repossession. That statement is incorrect. The statute is intended to maximize the amount of money obtained from the sale of the collateral.

My point should have been that a public sale of a repossessed automobile gives the secured party the best opportunity to collect a deficiency after the sale because in order to collect a deficiency the collateral (repossessed automobile) must be sold in a commercially reasonable manner.

The important aspect about the notice to customers discussed in Florida Statute Section 679.614 is that it contains all of the elements outlined in that statute. Florida Statute Section 679.614 states the following information must be included in the notification to the customer before the repossessed automobile is sold.

The first part of the notification tracks the requirements stated in Florida Statute Section 679.613(1). Those

requirements are: (1) describing the debtor and the secured party; (2) describes the collateral that is being sold (must include vehicle identification number); (3) states whether the repossessed automobile will be sold at a public or private sale; (4) states that debtor is entitled to an accounting of the unpaid indebtedness and the charge, if any, for that accounting; and (5) states the time and place of a public disposition or the time after which any other disposition (private sale) is to be made.

The remaining requirements are then found in Florida Statute Section 614.614(1)(a-d). Subsection (a) requires the elements described above. Subsection (b) requires the liability for a deficiency of the customer to whom the notification is sent. Subsection (c) requires a telephone number from which

the amount that must be paid to the secured party to redeem the automobile. Subsection (d) requires a telephone number or mailing address from which additional information concerning the disposition and the obligation secured is available.

As mentioned in the main article, Florida Statute Section 679.614(3) provides form language that provides sufficient information to comply with the statute. If you choose a private sale, the language will read as follows: We will sell (describe collateral) at a private sale sometime after (date). If you choose a public sale, the language will read as follows: We will sell (describe collateral) at public sale. A sale could include a lease or license. The sale will be held as follows: Date:Time:Place: You may attend the sale and bring bidders if you want.

The important point is not that a private sale is prohibited in selling a repossessed automobile. The point is that you must inform the customer

that either a public or private sale is going to occur and then track the language contained in Florida Statute Section 679.614(3).

Steven Hyatt, PA with the Law Offices of Steven W. Hyatt, PA can be reached at (954) 463-3779 or stevenwhyattpa@gmail.com

14 — Independent Dealer — May 2013

A Second Look at the Notice for Public vs. Private SalesRepossessed automobiles may be sold at public or private sales, as long as the customer has been properly notified about the details before the car is sold.

BY STEVEN HYAT T, PA

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Processing title paperwork correctly translates into faster processing by the tax collector’s office, helping dealers complete deals quickly and efficiently.

In FIADA’s new Title & Registration Training seminar students will use a manual, examples and case studies to help clarify ownership transfer starting with the MCO, ‘new’ title through the ‘used’ title. Training is hands on and students will get the opportunity to complete their own sample title paperwork. Special $79 rate for FIADA members if you register now.

What is acceptable proof of ownership in Florida, other states and/or countries?

When is notarization acceptable/required?

When and how does a lien get added/removed?

Where do I find proof of present and past ownership, odometer readings and brands?

To register, call (800) 237-0448 or go to www.FIADA.com

Upcoming Seminars:West Palm Beach, June 3, 2013│ Orlando, July 26, 2013│ Jacksonville, August 5, 2013 │ Tallahassee, September 27, 2013 │Sarasota, October 7, 2013 │Tampa, November 4, 2013

May 2013 — Independent Dealer — 15 www.fiada.com

Legal claims alleging

false advertising are increasing substantially. Based upon changes to Florida’s Deceptive and Unfair Trade Practices Act, which will be discussed later, false advertising claims could become an even more common claim for plaintiffs’ attorneys to bring against dealers in an effort to have a basis to recover attorneys’ fees.

Florida has several statutes that deal with advertising and of which dealers must be aware. First, there is a provision within Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”) that contains certain requirements for dealer advertising. Particularly, Section 501.976(16) contains a laundry list of items that must be included in an advertisement. Among these requirements are that if the price of the vehicle is advertised, the vehicle must be identified by year, make, model and a commonly accepted trade, brand, or style name. Further, the advertised price must

include all fees or charges that the customer must pay, including freight or destination charges, dealer preparation charges and charges for undercoating or rust-proofing. State and local taxes, tags, registration fees and title fees, unless required by local law or standard, do not need to be disclosed in the advertisement.

The most common issue that has been asserted against dealers is the alleged failure to disclose dealer fees in the advertised price. A close second is a dealer’s failure to disclose electronic titling or registration fees in the advertised price. The statute is clear that dealer fees must be included in the advertised price and I would advise my clients, to the extent that they are charging any electronic registration fee, that such fees also be included in the advertised price because they are generally not considered official fees paid to the state.

Florida also has two (2) statutes that

broadly pertain to false advertising of any goods or services. Florida Statute Section 817.40 and Section 817.41 both deal with false, misleading and deceptive advertising and sales. Section 817.41 expressly prohibits any misleading advertising.

While the statute contains some examples,

there is a broad prohibition on “misleading advertising.” The statute also indicates that a prevailing party is entitled to recover reasonable attorneys’ fees and potentially punitive damages in addition to actual damages proven.

General misleading advertising claims can take many forms. The most common are misrepresentations in an advertisement regarding the prior

condition of a vehicle, the mileage on a vehicle and in some instances, the price to be charged to the customer for a vehicle. Moreover, many dealers are surprised to learn that their advertising is retained by companies such as eBay or AutoTrader for substantial periods of time. These businesses are able to recover the previous content of a dealer’s advertising in the event that a subpoena is issued or a request is made from a purchaser.

The FTC has also weighed in with its own set of advertising rules, including recently released rules pertaining to internet advertising. Generally speaking, the FTC’s advertising guidelines for the internet are very similar to its standard advertising guidelines. The rules prohibit unfair or misleading advertisements. Where practical, the FTC likes to see any relevant limitations or qualifying information within the advertisement as opposed to having a separate disclosure that limits or qualifies

www.fiada.com16 — Independent Dealer — May 2013

L E G A L U P D AT E

EXTRA, EXTRA: ChANGES TO FLORIDA’S DECEPTIVE AND UNFAIR TRADE PRACTICES ACT!

other portions of the advertisement. If there are required disclosures, these disclosures must be clear and conspicuous. One of the important considerations that the FTC examines in reviewing advertising is whether the disclosures are located in close proximity to the relevant claims. The closer that you are able to put the disclosure to the claim or statement that it is applicable to, the better off you are.

In expanding these basic rules for the internet, the FTC has indicated that advertisers must consider things such as the various devices and platforms that consumers may use to view the advertising and whether any corresponding disclosures will be viewable on the same screen on these

devices. The FTC’s position is that if an ad is viewable on a particular type of device or platform, then all disclaimers or disclosures must also be viewable on the screen of that device or platform in order to prevent the ad from being misleading.

The FTC has also said that under certain circumstances, a hyperlink may be permissible to lead to disclosures or disclaimers, however, in order to be permissible, the link must be obvious, the hyperlink must be labeled appropriately to convey the importance, nature and relevance of the information that it leads to, the hyperlink must style consistently so that consumers know when a link is available and the hyperlink must be placed as close as possible to the

relevant information that it qualifies and it must be noticeable. The FTC has also put a burden on dealers utilizing this type of disclosure in that it says advertisers should assess the effectiveness of the hyperlink by monitoring click through rates and other information about consumer use and make changes accordingly. A complete summary of the FTC’s rules regarding advertising on the internet can be found at ftc.gov in a publication “.com Disclosures.”

Please consider these rules when advertising your vehicles through any medium, especially internet advertising, as it is currently one of the most prevalent sources for dealer liability.

Recently, the Florida Legislature passed important revisions to

Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”) which have been sent to Governor Rick Scott for his signature. While the Bill has not yet been signed into law at the time that this article is written, it appears likely that it will become law soon. If the Bill is signed by Governor Scott, it has a potential effective date of July 1, 2013. One of the key terms of this new law, is a provision which requires that a consumer that claims to have been injured as a result of an alleged violation of FDUTPA make a written demand to the dealer for the actual damages that the customer alleges to have suffered prior to instituting an action against the dealer and the dealer has thirty (30) days to

pay the consumer the damages claimed plus $500 or 10% of the damages claimed, whichever is less. There are several other important provisions as well and the full text of the new statute can be found under Senate Bill 292.

Most important for dealers is that the new law will require that consumers acknowledge, in writing, a statutorily required phrase that gives the consumer notice of the pre-suit written demand requirement. It is likely that forms providers will furnish a uniform acknowledgement to be signed by these consumers, but the language can be found in the text of the statute itself. The idea behind the notice requirement is to try to head off unfair and deceptive trade practice claims over small dollar amounts where attorneys’ fees become the driving force behind the claims by giving dealers a chance to resolve

them early on.

Please also keep in mind that the statutorily required acknowledgement should not be used prior to the effective date of the statute because until the statute becomes effective, giving a customer the acknowledgement could constitute an unfair and deceptive trade practice because there is no requirement that a consumer make a pre-suit demand prior to the effective date of the statute.

The advertising statutes contained in Chapter 817 and mentioned above could receive increased interest from plaintiffs’ lawyers because the false advertising statute does not offer these same pre-suit notice requirements and allows for an award of fees.

Robert E. Sickles is a partner in the Tampa office of Hinshaw & Culbertson LLP. He is the outside general counsel to the Florida Independent Automobile Dealers Association and can be reached at (800) 237-0448.

May 2013 — Independent Dealer — 17 www.fiada.com

18 — Independent Dealer — May 2013 www.fiada.com

A Persuasive Presentation

If you, and your sales team, desire increased sales… If you, and your sales team, want to do this without

increasing call frequency… You only have one choice—excel at persuasive presentations!

Recently I conducted a presentations training for a technology company. Their business is strong, and they have an experienced sales team. But, few truly understood the basic mechanics of persuasive presentations.

Selling is simply determining another’s problem and persuading them that you have the solution to their problem. Then asking them to accept your solution—the close—it’s quite simple. Unfortunately, not enough salespeople understand the basics.

There are three key elements in persuasive presentations:1. An arresting opening benefit statement.2. Explaining benefits with features.3. Asking for the business.

Right about now you might be thinking, “Thanks Ed, but tell me something new!” Force your sales team to practice their sales presentations in front of each other at your next gathering and you’ll most likely say, “Wow! They really do not know these basics!”

OPENING: The opening benefit statement is really a hook, one that catches the

Even the best salespeople need to brush up on the basics. Maybe it is time to review how effective your sales approach is.

BY ED RIGSBEE

prospect’s interest. In reality, a salesperson is saying, “Please give me a few minutes of your life.” If the prospect sees no potential value, why in the world would they want to needlessly give up minutes of their life? The first thing a salesperson says either catches the prospect’s interest or it doesn’t. Grab their interest instantly with a promising opening benefit statement.

BENEFITS: How sales people love to share features—about them, their company and about their product or service. Most prospects are thinking, “So what!” The prospect only cares about how the salesperson’s offer can make their life better—that’s it! For every feature, the logic, there also had better be a benefit, the emotion. Otherwise your salespeople are just visiting for a cup of coffee rather than solving problems and selling.

ASk FOR IT: These are the three great words that will change the lives of any salesperson that is confident enough to use them. I continually wonder why so many salespeople are afraid to ask for the business. Could it be because they have not yet sold themselves? Could it be they are afraid of being pushy? Could it be that they don’t want to deal with the rejection of a prospect saying no?The answer to the above three questions is a resounding, yes. Challenge your salespeople to a day of presenting in front of each other. Have them do at least two presentations in a day. And, if you want it to be really powerful—have all your salespeople complete feedback forms on each other.

Ed Rigsbee, CSP, CAE, is the author of PartnerShift, Developing Strategic Alliances and The Art of Partnering. He can be reached at (805)-498-5720, ed@rigsbee.com or visit online at www.rigsbee.com.

S M A R T S E L L I N G

May 2013 — Independent Dealer — 19 www.fiada.com

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Use this form to make your contribution, and mail to the FIADA office at 1840 Fiddler Court, Tallahassee, FL, 32808

Make your check payable to FIADA-PAC and mail your contribution to:FIADA • 1840 Fidler Court • Tallahassee, FL 32808

After 60 days of wrangling over everything from tax cuts for vehicle registration to health

care reform to a $74.493 billion dollar budget, the Florida Legislature adjourned sine die at 7:15pm Friday, May 3, 2013.

There were several issues that we followed for FIADA and several could have a direct impact on your businesses:

The Department of Highway Safety and Motor Vehicles omnibus bill contained multiple provisions to include removing repossession certificates; allowing dealers to renew licenses for two years with the initial license costing $375 for two years with two year renewals to follow at $150; a pilot project in Miami-Dade as well as Hillsborough counties for rebuilt vehicle inspections; removal of the carbon copy certificate of title; addition of the National Motor Vehicle Title Information System definition and reporting; an finally, restrictions for swiping driver’s licenses and penalties for texting while driving.

There were a number of meetings held to re-enact the surrender stop provisions within the Department of Highway Safety & Motor Vehicles (DHSMV). FIADA Executive Director Lisette Mariner attended every committee hearing in the House of Representatives and was ready to testify if needed. I am happy to report

thing next year. We have spoken with him and his staff and they are aware of the issue and have committed to work with us in the interim to try and craft a solution for next legislative session. I would also like to take this opportunity to thank Senator Stargel for sponsoring the bill and trying to get the proper hearings. She worked very hard on behalf of FIADA and if you get the opportunity to thank her, she really deserves it.

Tort reform was passed and sent to the Governor that was sponsored by various business entities. It was called “Daubert” and it empowers judges to act as gatekeepers to ensure admissible expert witness testimony is based on sound science. This should help decrease the flow of certain lawsuits into our court system and could positively affect your business.

The Florida Senate proposed a reduction in the vehicle registration fee and replaced the revenue in the budget by taking a tax incentive away from insurance companies. Needless to say, the insurance industry was

BY SANDRA MORTHAM, FIADA LOBBYIST

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

FIADA Legislative Wrap-Up

that the FIADA bill passed every committee without a single negative vote in the House. In fact, there were no questions about the bill at all. Representative Rooney did a great job to move the bill through the House. Unfortunately, the Senate did not reciprocate. After several meetings with Senator Brandes, his staff and Senate Transportation staff, we were poised to get the language into the DHSMV bill but ran into a procedural roadblock at the last minute and could not get it included. We will work hard over the summer to make sure the Senate Transportation Chairman, Senator Jeff Brandes understands the importance of passing this first

www.fiada.com May 2013 — Independent Dealer — 21

rabid in defeating the measure. Everyone recognizes that the fees are too high and we expect the legislature will re-address this issue next year.

HB55 by Rep. Gaetz and SB 292 by Senator Richter passed the legislature and was advanced by FADA. This bill relates to deceptive and unfair trade practices. The bill requires that customers give demand letters to auto dealers at least 30 days before filing lawsuits. Dealers could avoid litigation if, within the 30 day period, they pay the amounts sought in demand letters, along with surcharges of $500 or 10% of the amounts of damages claimed.

Sometimes the best course of action is to kill bills or just make sure that unnecessary bills do not become law. Several instances this session that could have become law but didn’t include:

A bill relating to employment discrimination against the unemployed; a bill relating to consumer protection and unsafe tires; a bill defining independent motor vehicle sales agents as well as requirements for licensure and fees all of which failed to pass.

I want to take this opportunity to thank FIADA and its members for making phone calls during session when help was needed with legislators. We plan to do more of this in preparation for next year’s legislative agenda. If you have not yet joined the PAC, please do so today. Joining the PAC is another avenue to get your voice heard. Most of the legislators will be running again in 2014. Campaign contributions are still one of the most effective ways to gain access to the system and a strong, healthy PAC will ensure that FIADA’s issues and concerns will be addressed in the future.

The FIADA Executive Committee is always a unique mix of dealers with different

backgrounds, business models, leadership styles and experience. Even though their demographics may differ, they all have at least one thing in common: bringing value to FIADA members. Get to know this group better with a few questions and answers into their philosophies, outlooks and vision for the future.What is your history with the auto business?I got into the car business in 2000 in Tampa with a buy-here, pay-here business. In 2011, I opened Cox Motors here in Lakeland as a buy-here, pay here and lease-here, pay-here business. I have been able to serve FIADA in different offices on the Executive Committee including past president, regional vice president and now secretary. I have enjoyed

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Here is a monthly collection of selected legislative and enforcement highlights, and a recap of some of the many auto sale and financing lawsuits

Hudson Cook, LLC follows each month. (Note that this column does not offer legal advice. You should consult your dealership lawyer with any legal questions.)

FEDERAL LAwF&I Income in Peril? On March 21, the Consumer Financial Protection Bureau issued its long-awaited guidance about compliance with the fair lending requirements of the Equal Credit Opportunity Act and Regulation B for “indirect auto lenders” (that’s the CFPB’s inaccurate term used to describe companies that buy retail installment contracts from dealers). The guidance, for the most part, applies to companies that permit dealers to increase consumer interest rates above the companies’ “buy rates” and that compensate dealers with a share of the increased interest revenues. The guidance, CFPB Bulletin 2013-02, applies to all “indirect auto lenders” within the jurisdiction of the CFPB, including both depository and nonbank institutions. The CFPB notes that a lender’s dealer markup and compensation policies may increase the risk of pricing disparities among consumers based on race, national origin, and other prohibited bases. In order to ensure that indirect auto lenders are operating in compliance with fair lending laws, the CFPB recommends that these “lenders,” among other things, impose controls on dealer markup or otherwise revise dealer markup policies, monitor and address the effects of markup policies as part of a robust fair lending compliance program, or eliminate dealer discretion to mark up buy rates and instead fairly compensate dealers using a different mechanism that does not result in discrimination, such as a flat fee per transaction. If you are involved in a rate participation program, you can expect that you’ll be hearing from your finance sources on this topic soon.

Advertising on mobile devices? On March 12, the Federal Trade Commission released new guidance for mobile and other online advertisers that explains how to make advertising disclosures clear and conspicuous to avoid deception. The new FTC staff guidance, “.com Disclosures: How to Make Effective Disclosures in Digital Advertising,” updates prior guidance known as “Dot Com Disclosures,”

released in 2000, in order to address the expanding use of smartphones with small screens and the rise of social media marketing. The new guidance provides information on how to make clear and conspicuous online advertising disclosures in order to prevent an online advertising claim from being deceptive or unfair. If your dealership or your salespeople are conducting business in a manner that is affected by this guidance, make sure you know what it requires. Perhaps it’s time to see your lawyer (again)?

LITIGATIONPublicly Advertised Auction that Requires $1,000 Refundable Fee to Enter and Observe Auction is Private Sale under Maryland Law: Under Maryland law, a creditor’s obligations after repossessing a vehicle depend on whether the vehicle is sold at a private sale or a public auction. Two individuals bought cars under retail installment contracts governed by the Maryland Credit Grantor Closed End Credit Act (“CECA”). When they defaulted on their contracts, the creditors repossessed the cars and sent them notices that their cars would be sold at public auction. Neither of the notices mentioned that any member of the public attending the sale was required to bring $1,000 to enter. The entrance fee would be refunded later or credited toward the price of any car bought at the auction. One of the individuals tried to attend the auction but was turned away because she did not have the entrance fee. After the sale of the cars, the creditors sent the individuals notices of their deficiency balances. In response, the individuals sued, alleging violation of the Maryland CECA for attempting to collect a deficiency after a private sale. The trial court granted summary judgment for the creditors. The appellate court determined that the deciding issue in the case was whether an auction that is publicly advertised, but requires a $1,000 refundable fee for a person to enter and observe the auction, regardless of whether the person intends to bid, is a private sale or a public auction under the Maryland CECA and certified the question of law to the Maryland Court of Appeals. That court held that the sale was a private sale because anyone wishing to attend the auction would have to accumulate and part with, at least temporarily, $1,000. As a result, the $1,000 admission fee “shielded” the sale from the public view. See Gardner v. Ally Financial Incorporated, 2013 Md. LEXIS 138 (Md. March 1, 2013).

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

May 2013 — Independent Dealer — 23 www.fiada.com

$49.95

Thomas B. Hudson and the Attorneys of Hudson Cook, LLP

Desk BookThe Answer Book forFinance and Insurance Professionals

360 things to know about auto dealer finance

360 things to know about auto dealer finance

The Answer Book forFinance and Insurance

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

● 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:

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

er Book for Finance and Insurance Professionals

F&I Legal D

esk Book

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 thudson@hudco.com.

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 mbenoit@hudco.com.

F&I Legal

Third Edition

3rd Edition

Edited byMichael A. Benoit

Odometer Law Exemption for Cars More than 10 Years Old at Time of Sale Not Applicable to Tampering Provisions: An individual bought a car from a dealer based on an ad on the dealer’s website stating that the car’s mileage was 56,537. After leaving the dealership, the individual discovered that the odometer was stuck at that mileage and tried to return the car for a refund. When the dealership refused, the individual sued, alleging that the dealership violated the federal Odometer Law. First, the individual claimed that the dealership’s false disclosure of the mileage of the car violated the Odometer Law. In its defense, the dealership argued that since the car was more than 10 years old at the time of sale, it was exempt from the disclosure provisions of the Odometer Law. The court agreed and dismissed the claim, citing an express exemption in the federal regulations. Second, the individual claimed the dealership had tampered with the odometer of the car with the intent to defraud him, in violation of the Odometer Law. The court held that the exemption for cars more than 10 years old at the time of sale applied only to the disclosure provisions of the Odometer Law and not to the tampering provisions, and denied the motion to dismiss the tampering claims. See Beam v. Domani Motor Cars, Inc., 2013 U.S. Dist. LEXIS 18085 (S.D. Fla. February 11, 2013).

Revocation of Acceptance Claim Failed Where Contract Limited Buyer’s Remedy: After individuals discovered defects with their new motor coach, they complained to the seller and the coach’s manufacturer. After many repair attempts, the defects still existed. The individuals sued for, among other things, revocation of acceptance. The seller moved to dismiss, arguing that a limitation of

damages clause in the sale agreement barred the revocation of acceptance claim. That clause provided that once the buyer accepted the coach, the buyer could not return it for a refund, even if the manufacturer’s warranty does not accomplish its purpose. The clause also limited the buyer’s damages to the lesser of either the cost of needed repairs or a reduction in the market value of the coach caused by the lack of repairs. The court dismissed the revocation of acceptance claim against the seller. The individuals argued that, under the Uniform Commercial Code, revocation of acceptance may be an available remedy even if the seller has attempted to limit the buyer’s remedies, if the ‘“exclusion or limitation of remedy fails of its essential purpose.’” Because the individuals did not allege that the remedy offered by the seller failed of its essential purpose, the court found that the individuals were limited to the contractual remedy as against the seller. See Watkins v. Camping World, Inc., 2013 U.S. Dist. LEXIS 15974 (N.D. Ga. February 5, 2013).

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, 410-865-5430, or visit www.counselorlibrary.com. Copyright CounselorLibrary.com 2012, all rights reserved. Single publication rights only, to the Association. (10/12) HC# 4849-1314-9969.

An employee approaches the owner of a large retail store to inform her that he has Post

Traumatic Stress Disorder (PTSD) which will require time away from work for counseling. During the meeting, the owner doesn’t ask the employee if she can tell other staff members about this health condition nor does the employee specifically grant permission. Under these circumstances, can the owner share this information with others at work?

First of all, would disclosure of this information to staff violate the employee’s privacy rights under the Health Insurance Portability and Accountability Act (HIPAA) regulations? The answer in this instance is actually “No.” HIPAA does not cover employers, per se. HIPAA only applies to the covered entities of health care providers, health plans and health clearing houses. The only way HIPAA would apply is if an employer is one of these three covered entities.

Does this mean that the information can be freely shared? Well, it depends on what information is being shared and to whom. According to the Equal Employment Opportunity Commission (EEOC), the individualized assessment of virtually all people with PTSD will result in a determination of disability under

the Americans with Disabilities Act (ADA). The ADA requires employers to keep medical information confidential, subject to certain narrow exceptions. Under the ADA the owner may disclose such information only to:1. Supervisors and Managers if it

relates to “necessary restrictions on the work or duties of the employee and necessary accommodation;”

2. First Aid and Safety Personnel “when appropriate, if the disability might require emergency treatment;”

3. Government Officials investigating compliance with the ADA, upon request;

4. State workers’ compensation offices, state second injury funds or workers’ compensation insurance carriers in accordance with state workers’ compensation laws, if there is an injury on the job; and

5. Agents for insurance purposes.

Considerable guidance on this subject from EEOC (who enforces the ADA) can be found here, including what information may be shared. For instance, the guidance differentiates between a mere notice that an employee has taken sick leave or had a doctor’s appointment, which is not considered to be covered medical information, and documentation which contains information

regarding the employee’s diagnosis or symptoms.

The overall theme of EEOC’s guidance is that medical information should be shared with others only on a “need to know basis” and only to the extent that the information shared is vital to them. Of course, the employee with the medical condition may choose to share his/her own personal health information at any time. Once disclosed openly, it’s no longer protected information.

Now let’s go back to the example where the employee confided with the retail store owner. What about the employee’s co-workers? Wouldn’t they have a legitimate need to know? Would it not be okay for the supervisor to share information with co-workers who may have to pick up the slack in the employee’s absence? In this instance, we would strongly recommend getting the employee’s written permission as to what can be shared, if anything. If the employee does not want the medical condition shared with others, the supervisor should honor that request.

So, let’s say that the employee does not want anything shared. What could the supervisor say to the co-workers who feel that the employee is receiving different or special treatment? In response, the supervisor could emphasize that she tries to assist any employee who experiences difficulties in the workplace. She may add that many of the workplace issues encountered by employees are personal and, that in these circumstances; it is the company’s policy to respect employee privacy. Finally, she could reassure a co-worker that his privacy would be similarly respected if he ever had to ask the company for some kind

Can I Tell Staff About an Employee’s Health Condition?The privacy rules surrounding sharing of medical information are strict but do not necessarily extend to the workplace.

BY JIM GUT TMANN, SPHR

H U M A N R E S O U R C E S

www.fiada.com24 — Independent Dealer — May 2013

May 2013 — Independent Dealer — 25 www.fiada.com

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of workplace change for personal reasons.

If the co-worker persists with questions about the employee’s disability or accommodations, it is recommended that the supervisor avoid discussion of that subject. Instead, the supervisor could say that the company is acting in compliance with federal law or for a legitimate business reason. Or, the supervisor can simply say that she is not at liberty to discuss any information about the other employee.

The bottom line is that employers who obtain medical information should first “pause” before necessarily sharing information with others. Based on the circumstances, improper sharing of information could violate the ADA, The Family and Medical Leave Act (FMLA), Fair Credit Reporting Act (FCRA), HIPAA or state law. For that

reason, we highly encourage you to work closely with a Human Resources Professional or Employment Law Attorney if you are concerned about how medical information is being shared in your organization.

25 — Independent Dealer — February 2013 www.fiada.com

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Jim Guttmann is a certified as a Senior Professional in Human Resources (SPHR) and is a Landrum Professional Human Resources Manager. Read more about HR topics, at www.landrumhr.com/blog.

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REGISTRATION IS NOW OPEN FOR THE 2013 EVENT!Use this registration form or go online to WWW.FIADA.COM and click on Events.

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Thursday, October 17, 2013 6:30-9:30pm Welcome Reception

Friday, October 18, 2013 9-10am Opening Keynote 10-10:30am Member Meeting/Elections 10:45-11:45am General Workshop 12-1:15pm Networking Lunch 1:15-2:15pm General Workshop 2:30-3:30pm General Workshop 3:45-5pm Legal Workshop 6-9pm Exhibit Hall Opening/Family Fun Night

Saturday, October 19, 2013 8-9:30am Breakfast with Exhibitors 9:30-10:30am General Workshop 10:45-11:45am Legislative Keynote 12-2:30pm Lunch with Exhibitors 2:30-3:30pm General Workshop 3:45-5pm DMV Keynote 6:30-9pm Awards Banquet

www.fiada.com26 — Independent Dealer — May 2013

COMPANY INFORMATION Company: ____________________________________________________________________________________________________

Address: _________________________________________________ City, State, Zip: ______________________________________

Phone: ___________________________________________________ Fax: ______________________________________________

E-mail: __________________________________________________ Website: ___________________________________________

REGISTRATION INFORMATION

FIADA MEMBER DISCOUNTED REGISTRATION RATES

FULL ACCESS PASS Badge Name: _________________________________________________________ [ ] $249 [ ] $299 [ ] $349

ADDITIONAL FULL ACCESS PASS Badge Name: _________________________________________________________ [ ] $195 [ ] $195 [ ] $195

Badge Name: _________________________________________________________ [ ] $195 [ ] $195 [ ] $195

SPOUSE FULL ACCESS PASS Badge Name: _________________________________________________________ [ ] $100 [ ] $100 [ ] $100

EDUCATION PASS Badge Name: _________________________________________________________ [ ] $99 [ ] $124 [ ] $149

NON-MEMBER REGISTRATION RATES

FULL ACCESS PASS Badge Name: _________________________________________________________ [ ] $299 [ ] $349 [ ] $399

ADDITIONAL FULL ACCESS PASS Badge Name: _________________________________________________________ [ ] $195 [ ] $195 [ ] $195

Badge Name: _________________________________________________________ [ ] $195 [ ] $195 [ ] $195

SPOUSE FULL ACCESS PASS Badge Name: _________________________________________________________ [ ] $100 [ ] $100 [ ] $100

EDUCATION PASS Badge Name: _________________________________________________________ [ ] $124 [ ] $149 [ ] $175

FULL ACCESS AND SPOUSE FULL ACCESS PASSES includes all meal functions, seminars and exhibit hall access and is eligible for continuing education credit. Additional Full Access passes and Spouse pass are only available with a Full Access registration. Valid FIADA membership required for FIADA member registration rates.

PAYMENT METHOD

[ ] I have enclosed a check made payable to FIADA [ ] I will be using a credit card

Name (as it appears on card): ______________________________________ Company: ______________________________________

Credit Card Billing Address: _______________________________________________________________________________________

Credit Card Number: ____________________________________________ Exp Date: ______________________________________

Authorized Signature: ________________________________________________________________ CC Security Code: ____________CANCELLATION POLICY: If cancellations are received in writing before 5pm on Tuesday, September 17, 2013, we will refund your registration fee. If cancellation is received between 9/18/13 and 9/30/13, we will refund your registration fee less a $25 processing fee. Fees cannot be refunded for registrations cancelled after 10/1/13 or for no-shows. PhOTO/VIdEO RELEASE: By registering for the 2013 FIAdA An-nual Convention, I hereby grant permission to use any and all photographic imagery and video footage taken of me at this event and activities pertaining to this event, without payment or any other consideration. I understand that such materials may be published electronically or in print, or used in presentations or exhibitions.

HOTEL INFORMATION: Disney’s Coronado Springs Resort. Hotel stay is separate from convention registration. Reservations must be

made BEFORE SEPTEMBER 17, 2013 to qualify for group discount of $139 per night (plus tax) For reservations call (407) 939-4686.

MAIL/FAx/ONLINE REGISTRATION: FIADA, 1840 Fiddler Court, Tallahassee, FL 32308 FAX 850.385.3251 www.FIADA.com

TOTAL: $

2013 FIADA ANNUAL CONVENTION REGISTRATION FORM

EARLY BIRD(2/1 - 8/31)

REGULAR(9/1 - 10/11)

MEMBER

NON-MEMBER

ON-SITE(10/12 - 10/20)

Car rental Program SPeCialiStSDiscover what our 200 plus independent dealer locations already know

· Training at our facility, or Online

· Comprehensive Daily Rental Operations Manual

· Competitive Insurance for your Rental Cars, SUV’s, Mini Vans, and Trucks

· Up to date State Compliant Rental Agreements

· Risk Management (Every Incident Reviewed)

· Support from people who have been in the trenches

· Qualified Renters Make Qualified Buyers

GARAGE LIABILITY & CAR RENTAL SPECIALISTS

www.wsins.com1-800-868-1235

Contact us for a FREE QUOTE:

garage liaBilitY SPeCialiStS

FIADA Agent of RecordExclusive MarketsPackage Policies

Competitive RatesFast, Easy Quotes

One Stop Insurance ShopLease Here / Pay Here Program

22 YEARS IN BUSINESS22 YEARS IN BUSINESS

GARAGE LIABILITY & CAR RENTAL SPECIALISTS

Car rental Program SPeCialiStSDiscover what our 200 plus independent dealer locations already know

· Training at our facility, or Online

· Comprehensive Daily Rental Operations Manual

· Competitive Insurance for your Rental Cars, SUV’s, Mini Vans, and Trucks

· Up to date State Compliant Rental Agreements

· Risk Management (Every Incident Reviewed)

· Support from people who have been in the trenches

· Qualified Renters Make Qualified Buyers

GARAGE LIABILITY & CAR RENTAL SPECIALISTS

www.wsins.com1-800-868-1235

Contact us for a FREE QUOTE:

garage liaBilitY SPeCialiStS

FIADA Agent of RecordExclusive MarketsPackage Policies

Competitive RatesFast, Easy Quotes

One Stop Insurance ShopLease Here / Pay Here Program

22 YEARS IN BUSINESS22 YEARS IN BUSINESS

GARAGE LIABILITY & CAR RENTAL SPECIALISTS

Another opportunity for first-class education specific to independent dealers is coming your way this summer. Make plans now to join FIADA in Ponte Verde Beach, FL and attend the Dealer Training & Town Hall Meeting.

Attendees from the April Dealer Training & Town Hall Meeting learn about the Affordable Care Act, online buying opportunities and the latest legal news.

Reserve a room at the Sawgrass Marriott before July 12 and get the FIADA rate of $149 per night. For reservations call (800) 457-4653 or go to FIADA.com

www.fiada.com30 — Independent Dealer — May 2013

INDUSTRY NEWS

Florida Design Insurance has partnered with the FIADA to provide members with an employee benefits program specifically designed for the independent auto dealer. This program is a complete benefits package and is insured and serviced by a variety of select carriers that are willing to offer exclusive products, higher service or lower premiums to FIADA Members. To find out more, contact Florida Design Insurance at (813) 412-4812 or visit online at www.fiadabenefits.com.

FIADA Offers New Employee Benefits Program

On Friday May 3rd Charleston Auto Auction presented a check to the Ronald McDonald House of Charleston, SC. For three straight weeks Charleston Auto Auction held a 50/50 drawing to raise funds for this foundation that helps seriously ill children and their families. At the end of the promotion, Charleston Auto Auction matched all contributions collected to come to a grand total of $5000. “Some of the kindest and generous dealers in the country attend our auction. This is confirmed anytime we raise money for the sick or less fortunate.” –Laura Taylor, General Manager, Charleston Auto Auction

CAA and Dealers Help Support the Ronald McDonald House

More seniors are on the road than ever before in the USA, especially here in Florida. If current trends continue, older drivers will also be staying behind the wheel longer. This is particularly true for Florida, which claims five of the nation’s top 10 cities with the highest median age, including Fort Lauderdale and Hialeah. Statewide, more than 17% of the population is 65 and older, and those older residents make up nearly 20% of all drivers. As the baby boomer generation ages, demographers predict that by 2030, Florida’s 65+ group will make up almost 30% of the population, which is 1 in 4 drivers. The number of elderly drivers keeping their licenses has grown at a faster clip than the number of young drivers applying for them. A University of Michigan study published last year in the journal Traffic Injury Prevention found that older licensed drivers now make up a greater percentage of total drivers than they used to. More of them are also continuing to drive well into their 80s and 90s. At the same time, the number of drivers under age 40 has dropped by 10 percent. Florida will be especially affected by this significant increase in older drivers. Though many transportation experts across the nation are pushing for more alternatives to car travel, most senior drivers insist that they don’t necessarily want alternative transportation. They want to drive their own vehicles for as long as they possibly can. Seniors want to keep their independence, and are reluctant to turn in the keys even if they are no longer able to drive safely. Florida has created a special statewide coalition—the first of its kind in the nation—with members from 26 different agencies and organizations. The Safe Mobility for Life Coalition is taking the lead by bringing all the important partners together to develop a master plan that addresses aging road users and their transportation needs in Florida. The Coalition has developed a new resource publication for senior drivers, Florida’s Guide for Aging Drivers, which is made available free of charge upon request. Postcards to request the guide will soon be available at all Driver License and Tax Collector’s offices statewide.

Source: Florida’s Department of Highway Safety and Motor Vehicles.

More Seniors Driving in Florida; Growing Older Behind the Wheel

The following recalls have been posted by the NHTSA. Log on to www.safercar.gov to find more information and additional recalls.

Manufacturer : Honda (American Honda Motor Co.)Make / Model Years : ACURA / 2013, HONDA / 2012-2013Subject: Brake Shift Interlock/FMVSS 114

Manufacturer : Southeast Toyota Distributors, LLCMake / Model Years : SCION / 2011-2013, TOYOTA / 2008,2010-2013Subject : Inaccurate Load Carrying Capacity Labels

Latest Recall Notices

May 2013 — Independent Dealer — 31 www.fiada.com

CHRISTOPHER LEEDOMPresidentAutoMaxx

Sarasota, FL(941) 309-1111

DINO MERCURIOSenior Vice President

Independent Credit, Inc.West Palm Beach, FL

(561) 686-8673

BRANDI NOEGELChairman of the Board

Noegel’s Auto SalesStarke, FL

(904) 964-6461

DAVID COX, CMDSecretary

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

(863) 686-9300

PAUL MATTONTreasurer

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

GEORGE HICKEYRegional Vice President

Bond Auto SalesTampa, FL

(813) 238-7478

FRANK FUZYRegional Vice PresidentCentury Motors of S. FL

Pompano Beach, FL(954) 785-0369

JIM WINTERICK, SR.Regional Vice PresidentGulfstream Motor Credit

Miami, FL(305) 253-2335

STEVE MARBAISRegional Vice PresidentMarbais Enterprises, Inc.

Ocoee, FL(407) 877-7422

JIM WINTERICK, JR.Regional Vice PresidentGulfstream Motor Credit

Miami, FL(305) 253-2335

2012-2013 FIADA EXECUTIVE COMMITTEE:

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32 — Independent Dealer — May 2013 www.fiada.com

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