LEGISLATIVE UPDATE: NYC Association Challenges Car Wash Accountability Law

LEGISLATIVE UPDATE

NYC Association Challenges Car Wash Accountability Law

By William Y. Crowell, III

New York City Local Law 62, “The Car Wash Accountability Law,” has been challenged in an action filed in the Southern District federal court by the Association of Car Wash Owners, Zoom Car Spa LLC, and Five Star Hand Wash LLC vs. City of New York. The plaintiffs are represented by Michael Cardozo, Esq., a former New York City Corporation Counsel.

This lawsuit focuses on the requirement in Local Law 62 that non-unionized carwashes post a surety bond five times higher than the amount required to be posted by unionized carwashes, $150,000 versus $30,000.

The complaint filed by the plaintiff sets forth the following grounds to invalidate Local Law 62:

  • The surety bond requirement interferes with the collective bargaining process in the carwash industry by placing an additional burden on non-union employers, which is alleged to be preempted by the National Labor Relations Act.
  • Local Law 62 regulates wages which are subject to comprehensive regulation by the New York State Labor Department under the Labor Law, and is alleged to result in state law preemption.
  • Union and non-union carwashes are similarly situated with no rational basis for a two-tiered bond requirement, creating an alleged violation of the equal protection clause of the 14th Amendment to the U.S. Constitution.
  • The amount of the surety bond for non-union carwashes is out of line with other surety bond licensing requirements of New York City and the purpose of the bond is to penalize non-union carwashes, resulting in an alleged violation of the due process clause of the 14th Amendment of the U.S. Constitution.
  • A deprivation of rights under color of law is also alleged.

 

The action brought by the plaintiffs has clearly delineated the legal issues that focus on the $150,000 bond requirement. It is argued that the additional bond amount provides unions with leverage to pressure carwashes to unionize. The question for the court is – does this bonding differential constitute a rational basis on which to differentiate between carwashes? The New York State Car Wash Association (NYSCWA) will follow this litigation and keep its members informed as it progresses through the courts.

 

Schiavone v. ARB Enterprises, Inc.

A recent decision by the Appellate Term of the Second Department – Schiavone v. ARB Enterprises, Inc. – merits discussion. ARB Enterprises, Inc. (“ARB”) is a carwash that appealed a determination by a justice court in a small claims action, which awarded $278.98 to the plaintiff based on damages to the driver’s side mirror by an employee of ARB while preparing the vehicle to enter the carwash. The Appellate Term upheld the judgment of the justice court, finding the judgment awarded provided substantial justice according to the rules and principles of substantive law. The court rejected the defendant carwash’s position that it had a sign stating that it was not responsible for damaged mirrors. The court found that the carwash did not establish that the sign was posted in a conspicuous manner so that the plaintiff had notice of its terms, or that the plaintiff had agreed to the disclaimer. The plaintiff was not found by the court to be bound to the terms of the disclaimer.

Worker Exploitation Task Force

Governor Cuomo appointed a statewide task force in July 2015 to combat worker exploitation to identify and stop illegal practices. The task force consists of 10 state agencies, including the Department of Labor and an advisory committee appointed by the Governor. The target industries included carwashes, with the focus on industries with the highest rates of employer non-compliance. Recently, the task force reportedly opened investigations into 30 employers, including carwashes, among other employers.

Any carwash operator who has not brought their business into compliance with all appropriate wage and other labor laws should seek assistance to make sure their business is in compliance with all applicable laws. If your Association can provide any assistance, please don’t hesitate to contact us. This enforcement effort underlines the continued scrutiny of pay and employment practices of carwashes. Please make sure that your carwash operation is in compliance – you will avoid significant problems by exercising additional caution.

William Y. Crowell, III, is a partner with the Albany-based law firm of Whitman Osterman & Hanna LLC. You can reach him at 518/487-7677.

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PRESIDENT’S COLUMN

I recently attended a seminar where the speaker emphasized the importance of keeping your audience engaged. He suggested “switching gears,” and rotating between related topics to keep people focused and their energy levels up.

With that idea fresh in my mind and my first cup of coffee in hand, I will start this column with congratulations to the Northeast Regional Carwash Convention (NRCC) board and especially to the Host Association, The Mid-Atlantic Carwash Association.

This year’s chairperson, Dave DuGoff, and his fellow board members Mike and Heather Ashley did an amazing job with the 26th Annual NRCC. The move to the Atlantic City Convention Center (ACCC) has allowed the NRCC to grow in size, and with more than 300 booths it was the largest show floor we have ever had.

The show continues to grow and initial feedback from exhibitors and attendees has been extremely positive. I would like to especially thank Paul Fazio, CEO of Sonny’s the Carwash Factory, for his unwavering support of the NRCC and other regional events. His presentation, “The Future of Carwashing” took market analysis of our industry to an entirely new level. Whether you are a single or multi-site operator or looking at our industry for the first time, there was valuable information about the growth and potential, as well as his insight alerting you to where competition may lie. Thanks to Paul, members of our regional associations are better prepared to face the challenges of operating their businesses.

Tour of West Point

In New York State Car Wash Association (NYSCWA) business, we recently held our fall membership meeting at the Hotel Thayer at the West Point Military Academy. It was great to see so many members of other associations attend the event. More than 50 were treated to a tour of the historic Military Academy on a picture perfect fall day.

I would encourage anyone who is in the area to take a tour of the nation’s oldest military academy; it truly is an amazing place producing some of the best and brightest leaders our nation has to offer.

After the tour of the Academy we spent the afternoon visiting a number of carwashes in the Hudson Valley. This is always my favorite part of the meeting — carwashers spending time — in one-on-one conversation or group discussions that help us all improve our operations.

No matter how long you have been in this industry, there is always something to learn. I would like to thank the operators who opened their doors to us and shared their successes and failures with the group. We all learned a ton!

The day concluded with our membership meeting during which time we voted in our slate of officers and added Gary Baright of Foam & Wash Car Washes to the board. Gary has been a long-time carwash operator and has a passion for the business. He wants to share his passion and grow the membership ranks of the NYSCWA to new levels. His fresh perspective and willingness and desire to want to give back will no doubt make him a valuable member of the NYSCWA board. Gary, welcome aboard!

I’d also like to welcome officially, Todd Mills of Car Wash Products in Scotchtown. He took over a vendor vacancy last year and is already adding a great deal to the board. Thanks for stepping in and stepping up, Todd!

My first coffee is almost empty which means it’s time to get to work. I would like to again thank the members of NYSCWA association, the NRCC board and all those who make this industry a great way to do more than make a living. It is truly an honor to serve as the President of this association.

Walter Hartl

NYSCWA President

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VENUS & MARS

Dear Venus and Mars,

We are headed into our busy season… what have you done differently this year to make sure you are ready to maximize your volume?

 

Venus Says

There are several things we are hoping to get done before winter really arrives in the valley. Some are outside touchups but others are those inside that will help us be more productive.

Outside we still hope to paint the bays and replace a vacuum island. However, it is already in the 30s here at night so those activities might be put on hold.

Inside we have plans to order new supplies and create a more organized parts system for quick winter repairs. Mike had a conversation at the NRCC that yielded a great idea; we hope to have a single area that identifies parts by number and has not more than about three per item. When you get down to one, you reorder and the part numbers are right there.

We have a very rural unattended self-serve wash that we have had freeze-up trouble with in the winter. There is a weep system but when the customers fail to put the brush back in position that water freezes, things pop, and we look like an ice tunnel. We actually have a propane torch that we gently use to thaw out such intense situations.

In the past two years we have done something very radical. When we get into sub-freezing weather, we rope off and close the wash. That typically has lasted not more than about 7 weeks.

This year is different. For that rural wash we have decided that we will remove the brushes and stay with wands only for the winter season. That way we remain open and as long as they continue to put the wand back in the right position.

So bring on the winter! We have a plan to weather the season better than ever before!

 

Mars Says

   Well, winter is upon us and hopefully from a maintenance standpoint you are prepared. From a business standpoint the winter can go either way. In my 25 years of washing cars, I’ve had winters that were my best season of the year and winters that were my worst. Obviously, the weather is the major factor which goes into determining a good season as opposed to a bad one. A cold winter with no snow and salt, a warm and wet season or too much snow all make for poor carwashing conditions. Conversely, small and frequent snowfalls with cold temperatures result in lots of salt on the roads and very dirty cars. The latter is what we saw the second half of last winter that resulted in record carwashing numbers.

   Preparing for the busy season is difficult because in this business it is very hard to predict. In a full-service wash, staffing is the biggest issue and it is hard to get extra staff in on those peak days that are few and far between. We often bulk up on staff at certain times when it should be busy, but clouds cover the sun or the future forecast keeps the volume down. When these unfortunate circumstances happen your cost per car rises dramatically because volume is not what you anticipated. After all of these years, I still do not have the solution to the labor issue other than automating as much as possible.

This year, however, we plan on educating our employees better on how the business operates and the inconsistent high- and low-volume patterns.

If we can get them to better understand the patterns and during the busy times when tips are better, we can hopefully get more employees to look for extra hours during their off time. This would speed up production and put more money in our employees’ pockets.

  After the record cold temperatures we had last winter we were forced to close down at times due to inadequate heating. This year we have installed all new heat that can handle the coldest of temperatures. This will keep my tunnel open during the most extreme conditions.

I look forward to Mother Nature cooperating with us and a busy carwash season. Good washing to everyone and stay warm.

 

 

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26th NRCC Celebrates Move to ACCC with Record-Breaking Numbers!

Walt Hartl is awarded the NRCC 2015 Hall of Fame Award by
Show Chairperson Dave Dugoff and 2014 recipient Mike Benmosche.

Atlantic City, NJ — The 26th Northeast Regional Carwash Convention (NRCC), October 5-7, moved its venue to the Atlantic City Convention Center (ACCC) and in doing so attracted 301 exhibits, up by 31 from the previous year, according to Show Chairman, David DuGoff, and an all-time record. “The move to the Convention Center was ideal,” said DuGoff. “There was space to walk around on the show floor, exhibits with more hardware, tables that you could use to get business done (or just take a break), and the entire environment was comfortable, bright and easy to use. We went out of our way to take care of our exhibitors and attendees,” said DuGoff. “That is the NRCC way of running a trade show.”

Moving the show to a true convention facility also meant breaking ties with the Trump Taj Mahal, the convention’s host facility for the last several years. “The Borgata, our new home, is a first-rate hotel that is clean, modern and the staff goes above and beyond to make your experience outstanding,” said DuGoff. “Shuttling back and forth to the ACCC was no big deal either, and with such a great hotel and exceptional dining options any small inconvenience was certainly outweighed. It’s first-class all the way at the Borgata!”

In addition to a packed show floor full of innovation and activity with 1629 attendees, the educational track was on target as well. “The best part of any show is the people,” said DuGoff. “There were lots of operators happy to be in the industry and they were eager to learn and grow through our educational seminars that began at 7am. The energy I felt on the floor and in the seminars was palpable.”

In case you missed the seminar lineup there was programming for tunnels and self-service operators on Monday, October 5, and the traditional Early Bird Panel on Tuesday morning, October 6. The topics of PCI & EMV compliance were covered on Tuesday, as was security at the wash and a Keynote by the Maryland Director of Development for the Chesapeake Bay Foundation (CBF), John Rodenhausen, who spoke on the bay’s impact from New York state to Virginia. He was also awarded this year’s Most Distinguished Person Award by DuGoff on behalf of the Mid-Atlantic Carwash Association, this year’s host. The MCA has been raising money for the CBF for several years and supports its efforts.

At the Tuesday Awards Luncheon DuGoff thanked the following sponsors: Platinum Sponsors Innovative Control Systems, Professional Carwashing & Detailing and Qual Chem; Gold Sponsors Ardex Labs, Inc. and Micrologic Associates; Silver Sponsors Blendco Systems, DRB Systems, Inc., Erie Brush & Mfg. Corp., Kleen-Rite, Car Wash Insurance Program by McNeil & Co. and Simoniz USA; and Bronze Sponsors Hydro-Spray Wash Systems Inc., PetroCal Associates and Sonny’s The CarWash Factory for their continued support of the NRCC. He then asked the New York State Car Wash Association’s Mike Benmosche, last year’s Hall of Fame recipient, to help him induct the 2015 recipient, Walt Hartl of Hoffman Car Wash in Albany, NY. Hartl, a long-time NRCC board member, current New York State Car Wash Association president and two-time NRCC Chairman, received the honor in a heart-felt tribute by Benmosche who has worked closely with him on the two shows they have co-chaired.

Wednesday’s programming featured Sonny’s Paul Fazio who gave a poignant state of the industry address and the final seminar included a lively discussion by Myrrh Consulting’s Chris Brown on how to balance great customer service. “For those who didn’t attend, you missed out on some really great educational sessions,” said Ron Bousquet, the 2016 Show Chairman. “But we will do everything we can to raise the bar a little higher in 2016. You can be sure of that!”

Another tradition of the show is its Welcome Reception, held on Tuesday night, sponsored by Innovative Control Systems (ICS), of Wind Gap, PA. This year’s celebration was at the Borgata’s 28 West and included heavy hors d’oeuvres and an open bar compliments of long-time sponsor ICS. “This event is a great opportunity to catch up with your fellow operators and review the events of the day,” said DuGoff. “I look forward to it annually, and thank ICS for their generous sponsorship and continued support.”

The 2016 NRCC is slated for September 19-21 at the Atlantic City Convention Center with the Borgata as the host hotel. The New England Carwash Association is the host and Ron Bousquet is the Chairman. For exhibitor information contact 800/868-8590 or visit nrccshow.com.

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Winter volume gear up....

Dear Venus and Mars,

When do you start gearing up for your winter volume and what specifically do you do?

 

Venus Says

We typically know when to expect extra wash volume and that is normally when the colder weather approaches. However, there have been late October snow falls that bring us some salty vehicles. With that in mind, we start to gear up about late September to early October.

First and foremost, we make sure that all our employees know we are coming up on a busy time. Our suppliers/distributors all know that we are headed into the busy season so we pray they are well stocked and prepared as well because as we all know, the bigger the wash load, the more problems we see with equipment. We try to be proactive and do maintenance prior to the busy times of year. Take advantage of the slow times to make repairs.

We also check in with other operators at this time to make sure we haven’t forgotten anything. Association meetings are great opportunities in which to do that as well.

Mike and I like to make sure that we have plenty of fresh vending inventory and try to have large shipments sent just weeks before expected volume. In addition, we like to check our soaps and have plenty on site to switch out quickly as needed.

We also clean up all the bill validators and make sure we have spares and spare parts for all coin-related equipment. In addition, we double check our surveillance and computer equipment and replace anything that is not working well and make sure the outdoor cameras are clean and mounted securely.

As hands-on owner/operators, we find ourselves at our locations on into the evening hours during high-volume times. But in the long run, the colder it is the busier we become.

 

Mars Says

It’s hard to believe we are talking about winter already. Thoughts of last winter with the bitter cold and huge snowdrifts are still fresh in my mind. But fall is here and it is inevitable that the cold winter months will be upon us sooner than later. Preparing for the season is very important and as the equipment and property take the most abuse in the cold months. My benchmark for having everything ready is right around Halloween. I want to be ready just in case we experience an early season or snowfall.

There are several things in which you should be prepared. It is best to make a checklist of everything that needs to get done or verified to be working properly. First and foremost, my conveyer needs to be in tip-top shape for the abuse it is going to take over the next four months or so.

I always inspect every inch of the chain for wear. Are there links that are worn out and need replacing, or is the whole chain in need of replacement? The conveyer links usually wear out first right in front of and right behind the rollers. This is where the most pressure is put on it. When it is very cold, the chain becomes more brittle and a weak link can break sooner than it would when it is warm out.

When checking the chain you want to inspect each and every roller as well. The rollers have links on them that tend to wear quicker than the rest of the chain. The plastic on the rollers should be in good shape with little signs of wear. Some rollers allow you to just replace the plastic without having to change the whole roller. But in some cases, the steel on the roller is worn out as well and it would be best to change the whole thing.

Of course you want to make sure that all the heat is working in the tunnel and fires up quickly and remains running. Thermostats should be checked for accuracy and proper functionality. Think back to last winter and try to remember if there were any areas in the tunnel that were freezing up or didn’t seem to receive as much heat as other areas. If so, you may need to reposition some of the heaters or add more. Also check the gas valves and igniters to ensure that they are operating properly.

The fall is also a good time to replace any worn out cloth or foam.  With the salt and sand that will hopefully be present most of the winter your equipment will need to be at maximum cleaning potential. Also, new cloth needs a little time to break in so replacing it in the fall gives it enough time to break in properly.

Many carwashes in the Northeast use wind doors to keep the warm air in the tunnel. In my carwash I don’t use the wind door during the warmer months so it is not in operation. I always run it for about a week in October to make sure all of the moving parts and air cylinders are working properly.

A wind door is a very good investment in that during operating hours it helps to keep the warm air in the tunnel. It also helps to keep heating costs down since the heaters will not have to work as hard as the heat is not escaping the tunnel so quickly. If you don’t currently have one, it may be a good idea to research it now.

Another important thing to put on your checklist is ice melt. The fall is a good time to shop out the best pricing on ice melt. Usually you can get a better price by pre-ordering in the fall rather than waiting until the temperature actually dips below the freezing mark. Once that happens the demand goes up and usually the prices follow suit.

If you provide your employees with uniforms you want to make sure you are prepared to supply them with jackets or sweat shirts. It never looks good when that first cold week arrives and half of your staff is out of uniform or wearing worn-out and dirty clothes from last winter.  Make sure you have a full supply of winter clothing for all employees.

Let’s hope it is a prosperous winter and one that is not too cold but provides many dirty cars. The Northeast Regional Carwash Convention (NRCC), which is October 5-7, at the Atlantic City Convention Center (nrccshow.com) is the perfect place to shop for all of the things I mentioned above. Usually, these items are on sale and the products are on display so you can see exactly what you are purchasing.

 

Venus and Mars, aka Heather Ashley and Paul Vallario, are carwash industry veterans. Heather Ashley is the President of the Mid- Atlantic Carwash Association. She is also co-owner of Virginia Car Wash Industries, Inc.and Shenandoah Valley Coin Laundries, and Ashley’s Shenandoah Valley Rental Properties in Toms Brook, VA. You can reach Heather at mhashley@gmail.com, as well as Linkedin and Twitter @hrashley. Paul Vallario operates Westbury Personal Touch Car Wash in Westbury, NY, and is the President of Urban Avenue Carwash Distributors and Consulting. He is a board member of the New York State Car Wash Association. You can reach Paul at iwashcars@optonline.net.

If you have a question for Venus & Mars please send it to: Media Solutions, 2214 Budd Terrace, Niskayuna, NY 12309 or email us.

 

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