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UNnED STATES DEPARIMEN T OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

In the Matter of: HUSTED AND HUSTED AIR CHARTER. INC. 

FAA Order No. 2010-9 

DocketNo. CPO8CE0OOJ 

FDMS No, FAA-2007-036r 

Served; June 16,2010 

DECISION AND ORDERS 

After a two-day hearing,^ Administrativu Law Judge Richard C. Goodwin issued a 

wrincn initial decision," finding that Huslcd and Husted Air Charter, Inc. Ci-[ & H") 

operated an aircraft ihal was unairworlhy due to an improperly repaired radome and 

excessive oil leaks on five flights under 14 C.F.R, Part 135. He also found that required 

entries in this aircraft's maintenance logbooks had not been made. Based on these 

findings, the AIJ held that H & H violated the following Federal Aviation Regulations 

(PAR): 14 C.F.R. §§ 91.7(a), 91.405(b), 135.65(c), and 135.413(a)-* 

' Generally, materials filed in the FAA Hearing Docket (except for materials died in .seciirily 

cases) are also avnilable for viewing at hirp://www.re^ulat>ons:gov. See 14 C.F.R. 

§ 13.210(e)(1). 

Thu Administrator's civil penalty deci-sions, along with indexes of the decisions, the nile.s of 

pmcfice, and other information, are available on the Internet at the Tollowing address: 

irww./aa. gov/about/cfffice org/headquartersyj^ces/agc/poladJudicadoti/A GC400/ 

CivilJ'ertalTy. Seu 14 CI-.R. (j 13.2I0(eX2), In addition, Thomson Reutcrs/West Publishing 

publishes Federal Aviation Decisions. Finally, the decision.-? arc available through LtXIS (TRANS 

library) and WestLaw (FTRAN-PAA database). For additional information, sec the Web site, 

' The hearing was held on September 4 and 5, 2008. 

•* A copy of the ALJ's initial decision is attached. 

Section 91.7(a) provides; "No person may operate a civil aircrafl unless it is in an airworthy 

condition." 
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The ALJ held that while a substantial civil penally was necessary due to the 

seriousness of the violations, H & H proved that the Si 1,000 civil penalty sought by 

Complainant was too high due to the company's poor financial condition. The AIJ 

us.se3sed a $7,500 civil penally against H & H, 

H & H appealed from the initial decision, challenging the ALJ's finding thai il 

violated the regulations and arguing that it cannot afford to pay the assessed civil 

]>enalty.* The Al,.ra findings of violations arc affirmed to the extent explained in this 

decision. The $7,500 civil penalty asses.sed by the ALJ will not be disturbed. 

Section 9l.'105{b) provides: 

Rach owner or operator of an aircrafl!; 

(b) Shall ensure that maintenance personnel make appropriate entries in the aircraft 

maintenance records indicating the aircraft has been approved for return to service, 

Section !35.G5(c) provides: 

Each person who takes con^ctive action or defers action concerning a reported or 

observed failure or mulfunction of an airframe, powerplant, propeller, rotor, or appliance, 

.s-hall record the aciion taken in the aircraft maintenance log under the applicable 

maintenance nicjuirements of this chapter, 

Section 135.413(a) provides: 

Each certificate holder is primarily respon-sible for the airworthiness of its aircraft, 

including airframes, aircraft engines, propellers, rotors, appliances, and parts, and shall 

have its aircraft maintained under thi.s chapter, and shall have defects repaired between 

required maintenance under part 4.3 of this chapter. 

* H & II filed a motion requesting that the Administrator reject Complainant's reply brief 

Among other thing.s, H & II argued in the motion that Complainant served the reply brief late. 

H & 11 wrote in its motion that the agency attorney called H <fc H's president at 7:4,') l*M on 

June 29, the date on which the brief was due, and .said that .she would .send the brief to H & H by 

facsimile the next day. h appears that agency counsel provided a copy of her brief by facsimile 

as D courtesy, as she also submiLied a certificate of service stating that she served the reply brief 

by U.S, Mail on the due date. Phe Rules of Practice provide for sei"vicc by personal delivery or 

by mail only. 14 C.F.R. § 13,211(h), UndortheRulcKof Practice, the date of service by mail set 

forth in the ccrtificare of service is controlling. 14 C.F.R, § H.210(b). Consequently, H & H's 

motion to reject Complainant's reply brief is denied. 
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L The Facts 

H & H, a Kansas corporation, holds an air carrier eertificute, authorizing it to 

operate under Pait 135 and its operations specifications, (1 Tr. 7, 198.) H & H carries 

both cargo and passengers. Under its operations specifications, H & H is authorized to 

operate a Beechcraft aircraft, Model RF-58, rcgislralion number N6751C, in its Part 135 

operations. (1 I'r. 7-S.) II & H's president, John Husted, owns N6751C and leases it to 

H & H. (1 Tr. 206, 2 Tr. 271.) In 2007, when the incident giving rise to this case 

occurred, 11 & H employed one pilot, James H, Jupe. 

On January 31. 2007, Jupe served as pilot in command of N6751C on five flights 

conducted under Part 135 for H & H. The first flight originated at Charles D. Wheeler 

Downtown Airport in Kansas City, Missouri, and the fifth flight ended at thai airport. 

(I Tr. 8-9.) 

A few days before these flights, Jupe noticed some pinholes in the aircraft's nose 

cone. The nose cone in this aircraft is also the radome, which is the part of the airframe 

ihat protect? the weather radar antenna. (Tr. 182, Exhibit A'4,) "Electrically, a radome 

should permit the passuge of the radai's iransmiued signals and return echoes with 

minimum distortion and absorption." (Exhibit A-4 at 1.) 

Due to his concern that moisture would affect the avionics equipment behind the 

radome, Jupe obtained a couple of strips of tape from a mechanic and put the tape over 

part of nose cone to cover the pinholes, (1 Tr. 182-183,) Jupe does not hold a mechanic 

certificate. (1 Tr. 84.) The mechanic, .Tupe testified, was about 20 to 25 feet away from 

him when he was doing the work, (1 Tr. 182.) Jupe testified that at the time he did not 

consider the application of tape to constitute maintenance. (1 Tr. 194.) 
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FAA Airworthiness Inspector Thomas Bartels began a ramp inspection of the 

aircrafl after it returned to Downtown Airport in Kansas City about 4:30 PM on 

January 31, 2007. Hartels inspected N6751C because he had been told by another FAA 

inspector the previous day, on January 30, 2007, that the aircraft had significani oil leakii 

and tape on its nose cone, (1 Tr, 61.) 

As he walked around the aircraft, Bartels noticed sti^eaks of oil on the left engine 

nacelle Haps and that oil was dripping from the left engine nacelle itself (1 Tr. 64; see 

Exhibits A-l(A), A-l(C) - A-l(ll)). He also observed tape on the radome and ice on top 

of the tape. (1 Tr. 64-65.) Bartels took photographs of the nose cone and of the oil on 

the airframe. (Exhibit A-1,) Jupe informed Bartels that he had applied the tape to cover 

pinholes in the radome to prevent moisture from getting inside the radome and on the 

radar antenna. (1 Tr. 67, 68, 133,185-186.) 

Although Bartels had not yet completed his inspection, he prepared an aircraft 

condition notice (FAA Form 8620-1) and gave it to Jupe. Bartels wrote on the condition 

notice that the nose cone repair and the left: engine oil leak constituled discrepancies.' He 

indicated fiirther on the form that: 

• these discrepancies "are not" considered to present an imminent hazard to 

safety; 

• operation of the aircraft prior to correction "will not" be contrary to the FAR;' 

and 

• a Special Flight Permit* "will not" be required prior lo operation if the 

discrepancies are not corrected. 

^ Other discrepancies not pertinent lo this ease also were listed on the eondiiion notice. 

g 

Tlie inspector testified that he did not conclude that the aircraft was unoirwonhy until he 

completed the inspection the next day, (I Tr. 176.) 

'See 14 C.F.R, § 21.197(a)(1). 
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(Exhibit R-l; 1 Tr, 130-132.) 

The next day, Bartel.s returned to the airport and continued the ramp inspection. 

By this time, the ice liad melted. He took additional photographs, depicting the tape on 

the radome and what he called "significant erosion, even outside the boundaries of the 

tape." (1 Tr. 77, Exhibit A-2.) He noticed that the edges of the tape were wrinkled and 

lifting from the surface. (1 Tr. 77, 79,) He leslified that he did not observe any pinholes 

in tlie radome because he did not remove the tape. (1 Tr. 78.) The inspector testified that 

he should have re-marked the condition notice, after completing tlie inspection, to 

indicate that a ferry permit was necessary to fly N67S1 to another location for repairs. 

(1 Tr. 178.) 

Complainant introduced Exhibit A-4, which is Advisory Circular (AC) No. 43-14, 

pertaining lo the maintenance of weather radar rudomcs. The AC advi.ses that radomcs 

must have certain physical and electrical properties. 

Physically, a radome should be strong enough to withstand the airload that it will 

encounter and it should be contoured to minimize drag. ... Electrically, a radome 

should permit the passage of the radar's transmitted signals and return echoes 

with minimum distortion and ubsorption. In order to do this, it should have a 

certain electrical thickness. ... Radar efficiency, definition and accuracy of 

display depend upon a cleaj', nondistorted, reflection-free antenna view through 

the radome. Consequently, a radome should be precisely built for optimum 

performance, 

AC No. 43-14 ^ 3 (Exhibit 4 at 1), 

Paragraph 6a of this AC states that "[a]ll repairs to radomes, no matter how 

minor, should return the radome to its original or properly altered condition, both 

electrically and slnicturally." Further paragraph 6b provides; 
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These electrical properties [transmissivity, reflection and diffraction] when altered 

by improper repair, may cause loss of signal, distortion and displacement of 

targets, and can duller the display to obscure the target, Poor radome electrical 

performance can produce numerous problems which may appear to be symptoms 

of deficiencies in other units of the radar system. The following are examples of 

improper repair: 

+ * * 

(8) Tape (including electrical tape) over hole or crack and covered with 

resin. 

(Exhibit A-4 at 2-3) (Emphasis added.) 

Complainant also introduced Exhibit A-5, an excerpt from the Hawker Beechcraft 

Corporation Maintenance Manual for this aircraft pertaining to repair of fiberglass 

components and radome protective boot maintenance, removal and installation. The 

instruction.s provided in the manual did not include the use of abrasion tape. (1 Tr. 92.)'*' 

The inspector testified that placing the tape on the radome constituted 

maintenance because it was "an attempt to take a corrective action by applying materials 

to a portion of the airplane to overcome an unacceptable situation." (1 Tr, 85.) He 

testified on cross-examination that the use of tools is not necessary for a corrective action 

to con.stiU)te maintenance, (I Tr. 162.) 

Bartels testified that the use of tape had not returned the radome to its original or 

properly altered or repaired condition. (1 Tr. 89-90.) The tape repair, he testified, was 

inappropriate because it was not an approved or acceptable method. (1 Tr. 92, 94-95.) 

'" Bartels also testified about an excerpt from Advisory Circular (AC) No, 43,13-1B, entitled 

"Acceptable Methods, Techniques and Practices for Aircraft Inspection and Repair." This 

excerpt describes acceptable fiberglass laminate repairs, similar to those in Exhibit A-S. The 

repair techniques described in AC No, 43,13-1 B do not include repairs using tape. The in.spcctor 

concluded tl^at a.s a result, tape is not appropriate because il i.s not .specifically provided that lapc 

is approprialc for repair of fibcrglus.s laminates, fhe inspector pointed out, in addition, that this 

cKcerpt specifies that the included techniques for fiberglass repairs should not be used on 

radomes. (1 Tr. 94-95.) 
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Bartels explained that it was possible that moisture or rain would penetrate through the 

pinholes and tape, which was lifting and wrinkling, If that occurred, he explained, the 

weather radar would not operate reliably, (1 Tr, 139, 140-141,) 

According to Bartels, N6751C was unairworlhy on the flights in question because 

the application of tape was not an approved or acceptable method for repairing the 

radome and because Jupe was not authorized to perform tlie maintenance. (I Tr, 84, 

100.) The inspector explained that Jupe was not authorized to perform maintenance on 

N6751C because he did not hold a mechanic certificate. (1 Tr, 84, 97-100, 104,) 

Bartels also testified that the oil leak was excessive and a cause for concern due <o 

the potential for fire and because the leak indicates that "something is not quile right in 

Ihat engine compartment." (1 Tr. 65.) He explained that oil leaks can result in oil 

depletion, and if bad enough, ihe engine can run out of oil. (1 Tr. 71.) However, he 

noted on cross-examination that he had not stated during his direct testimony that the oil 

leak alone rendered N6751C unairworthy, (1 Tr, 160-161.) 

Battels testified that he had reviewed the maintenance records but did not find an 

entry regarding the application of lapc to the radome. (1 Ir. 101,) He testified that under 

the FAR, it is the responsibility of a properly certificated person, such as the mechanic 

who performed the repair, to make maintenance entries, and the operator is responsible 

for ensuring that the maintenance records arc accurate, (I Tr, 102.) 

Husted icsfificd at the hearing that he had not known that Jupe had applied the 

tape to the nose cone prior to these flights. (1 Tr. 198.) He testified that he knew that the 

aircraft was leaking oil. He explained that N6751C was dirty when the FAA inspectors 
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observed it because he had been using it to haul freight and had not bothered to clean it. 

(2 Tr. 320.) 

Regarding sanction, Husted testified that the corporation could not afford to pay 

the proposed civil penalty. He testified about the corporation's poor financial 

circumstances and stated that Ihere was a "good possibility" the corporation woiiJd go out 

of business. (2 Tr, 315-316.) H & H introduced documentary evidence, including its tax 

retiuns for 2003-2007, regiirding its financial situation. Ihe ALJ held the record open for 

H & H to submit additional financial information. Subsequently, H & H submitted its tax 

returns for 2000-2002, as well as additional financial information 

The FAA also initiated an enforcement action against Jupe for his actions related 

lo this incident. After a hearing before a National Transportation Safely Board (NISB) 

administrative law judge, the parties settled the case with Jupe agreeing to a 150-day 

suspension of his airman certificate, " The FAA issued an amended order of suspension 

of Jupe's airman certificate on July 24, 2008, for violations of 14 C.F.R. §§ 43.3(a), 

43.13(a), 43.13(b), 9I.7(u). 91.9(a). 91.13(a). 135,227(a), and 135.227(c)(1). (Exhibits 

A-10 and A-I2 at 168-169.)" 

If, The Initial Decision 

The ALJ found that H & ] 1 violated the regulations as alleged in the complaint. 

(Initial Decision at 4.) He rejected H & ITs arguments, as follows. 

" The AIJ aKso held the record open for the agency attorney to submit a complete copy of the 

transcript of the NTSB hearing in Jupe's suspension action, 

"• Agency counsel argued m ihe civil penalty hearing, that as Jupe's employer, M &• H was liable 

for Jupe's violftTions, She argued that .she should not have to "rcliligate" the case, although as 

explained above, the NTSB did nol i,ssue a decision in Jupe',s ease, Tlic ALJ rejected this 

argument and required the agency to put on a case lo demonstrate thai H & H violated rhc 

regulations alleged in the complaint. 
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1. fhe ALJ held that it was immaterial whether the application of the tape 

constituted preventive maintenance, rather than maintenance,''' because 14 C.F.R. 

§ 43.3(g) prohibits pilots from performing preventive maintenance on aircraft used in 

Pan 135 operations (except in circumstances not involved in this case.) (Initial Decision 

at 4-5.) 

2. The ALJ held that H «S: H failed to prove that Jupe had been supervised by a 

mechanic when he applied the tape, (Initial Decision at 5.) 

3. The ALJ rejected H & H's argument that it should not be held rcspon.sibic foi 

Jupe's actions. The ALJ based his decision on this issue on the legal principle that 

employers arc vicariously liable for the actions of their employees acting within the scope 

of their employment. The ALJ found that Jupe acted within the scope of his employment 

while piloting the aircraft on the flights in question because he was "operating in the 

capacity for which he was hired, and in furtherance of Respondent's business," (Initial 

Decision at 5.) 

4. The ALJ held Ihat the aircraft was imairworthy when Jupe operated the aircraft 

on the five flights on January 31, 2007. He found thai the aircraft was in an unsafe 

condition for flight because the "prospect of fire and possibility of oil depletion" were 

''too great to be consistent with minimum levels of aircraft safety." (Initial Decision at 

6.) In addition, he found, the aircraft was in an unsafe condition for flight because "the 

risk of moisture penetrating the nose cone and compromising the systems inside ... 

violated minimum safety standards," I le noted ihat "[tjaping tlie radome ... was an 

" "Maintenance" is defined as "inspection, overhaul, repair, preservation and the replaeemeni of 

parts, but excludes preventive maintenance. 14 C.F.R. § I.!. "Preventive maintenance" is 

defined as "simple or minor preservation operations and the replacement of small .'itandard parts 

not involving complex assembly operations." 14 CF.R. § 1.1. 
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unaccepted and unapproved solution." Consequently, he held, the aircraft was not in a 

condition for safe operation, and therefore, was unairworthy. (Initial Decision at 6.) 

5, The ALJ held that H & H violated the FAR, as alleged, because no record of 

the maintenance - the application of tape to the nose cone - had been made. (Initial 

Decision at 6.) 

6, The ALJ assessed a $7,500 civil penalty, finding that it "is commensurate with 

the nature and extent of the violations, while accounting in suitable measure for 

Respondent's financial circumstances," (Initial Decision at 9.) 

111. Appeal 

H & H argues on appeal that the AU's initial decision should be reversed or 

modified because: 

• the oil leak and the condition of the radome did not cause the aircraft to be in 

an unsafe condition during the five flights on January 31, 2007; 

• application of tape does not constitute maintenance; 

• Jupe acted outside his scope of employment as a pilot when he applied the 

tape to tlie radome, and as a result, H & H should not be held liable for his 

actions; 

• H&II cannot afford to pay the civil penalty assessed by the ALJ. 

By making these arguments, H &H, which is pro se in this matter, appeals the 

ALJ's findings that it violated Section 135,413(a), by failing to repair defects between 

required maintenance under Part 43 of the FAR, and Section 91.7(a), by operating an 

unairworthy aircraft. H&II has not challenged the ALJ's findings regarding the 

recordkeeping violations, 14 CF.R. §§ 91.405(b) and 135.65(c), and as a rcsuft, the 

recordkeeping violations are not reviewed in this decision. 

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A. 14 C.F.R § 135.413(a) 

The ALJ correctly held that H & H violated 14 CF.R, § 135.413(a), which 

provides: 

Each certificate holder is primarily responsible for the airworthiness of its aircraft, 

including airframes,... and shall have defects repaired between required 

maintenance under part 43 of this chapter. 

14 C.F.R, § 135.413(a). H & H did not properly repair the deteriorated radome in 

accordance with the regulations pertaining to maintenance (1 Tr. 108), and as a result, it 

violated Section 135.413(a), 

The application of tape to repair the radome was not a proper repair under 

14 C.F.R. § 43.13, which requires that each person who performs maintenance or 

preventive maintenance on an aircraft use "methods, techniques and practices prescribed 

in the current manufacturer's maintenance manual or Instructions for Continued 

Airworthiness prepared by its manufacturer, or other methods, techniques, and practices 

acceptable to the Administrator." 14 C,F,R. § 43.13(tt). As the inspector testified, the 

application of tape to defects in a radome is not prescribed in the manufacturer's 

maintenance manual or in AC No. 43-13. For that matter, the advisory circular 

pertaining to the maintenance of weather radar radomes, AC No. 43-14, specifically 

states that the use of lape is an improper repair. Jupe did not testify that he relied upon 

any doctunent describing an approved or acceptable method for the maintenance of the 

radome. Instead, he testified that he did it on his own and did not consult anyone. (1 Tr. 

194,) Jupe also failed to comply with 14 CF.R, § 43,13(b)''' when he applied the tape to 

''' Section 43,13(b) provides: 

l^ach person maintaining or altering, or performing preventive mQlntenance shall do that 

work in such a manner and use mareriais of such a quality, that the condition of the 

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the deteriorated radome because, as the inspector testified, that work did nol reium the 

airframe to its original or properly altered condition. (1 Tr. 89-90.) H & H did not 

introduce any data lo support Jupe's use of tape to repair the radome. 

Further, as the holder of a pilot, but not a mechanic, certificate, Jupe was not 

qualified under Pari 43 to perform maintenance on N6751C, rendering the repair an 

improper repair. Even if the application of tape constituted "preventive maintenance," it 

nonetheless would have been improper because Jupe was not authorized under the FAR 

to perform preventive maintenance on this aircralt. Under 14 C.F.R. § '13.3(g), a pilot 

may perform preventive maintenance on any aircraft ovvned or operated by that pilot as 

long as that aircraft is not operated under 14 C.F.R. Parts 121, 129 or 135, In this case, 

the aircraft was operated under Part 135. Consequently, as the ALJ found, Jupe was not 

qualified to perform this work, whether it was considered maintenance or preventive 

maintenance, 

H & I-I argues that il was error for the .\IJ to find it liable for a violation of 

Section 135.413 because it did not hire Jupe to act as a mechanic and, therefore, he acted 

outside of the scope of his employment when he attached the tape to the radome, 

H & H's argument misses the mark. The question in this case is nol whether Jupe was 

acting within the scope of his employment but whether IT & H was responsible under 

Section 135.413 for the failtu-c to repair its aircraft properly between required inspections. 

Section 135.413 makes the holder of the air carrier certificate primarily re.sponsJble for 

the airworthiness of the aircraft and requires the certificate holder to have defects 

aircraft, airframe, aircraft engine, propeller, or appliance worked on will be at least equal 

to its original or properly altered condition (with regard to aerodynamic function, 

structural strength, rcsislanco to vibration and deterioration, and other qualities affecting 

airworthiness). 

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repaired between required maintenance. As the certificate holder, H & H was responsible 

under Section 135.413 for the improper repair of its aircraft. 

B, 14 CF.R. §91.7(a) 

Tfic ALJ found that the aircraft was in an unsafe condition due to the oil leak and 

the improper repair of the radome, and consequentiy, that N6751C was unairworthy 

during the five flights on January 31, 2007. The Administrator has held that an aircraft is 

airworthy when it both (1) conforms to its type design approved under a type certificate 

or supplemental lype certificate and to applicable Airworthiness Directives; and (2) is in 

a condition for safe operation. E.g., Kilrain. FAA Order No. 1996-18 (May 3. 1996), 

petition for reconsideration denied, FAA Order No, 1996-23 (August 13, \99C>\ peiiiion 

for revie\M denied, Kilrain v, FAA. No. 96-3587 (3'"^ Cir. May 1,1997). Airworthiness is 

not synonymous with "flyability." USAir, FAA Order No. 96-25 at 13 (August 13, 

1996). If the aircraft does not meel its type design or .supplemental type design - and 

therefore does not meet the first prong of the test for unairworthiness - then the aircrafl is 

unairworthy. F.mcrv. FAA Order No. 1997-30 (October 8, 1997). 

The preponderance of the evidence demonstrated that Jupe operated the aircraft" 

when it did not meet its type design, and therefore, did not ."satisfy the first prong of the 

test for airworthiness, Jupe tried to repair the aircraft using a method that was neither 

approved nor accepted by the Admini.strator, Further, as Bartels testified, the tape did not 

return the radome to its original or properly altered or repaired condition, (I I r. 89-90,) 

He testified that the aircraft was not airworthy because the use of tape was not an 

approved or acceptable method of repair and because Jupe was riot a certificated 

Jupe, as the ALJ held, was acting within the scope of his employment when he flew the aircraft, 

and therefore, H & H wa.s vicariously liable for Jupe's actions in violation of Section 91.7(a), 

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mechanic. (1 Tr. 84, 100, 104.) llius, the aircraft did not conform to its type design, and 

consequently, was flown in an unairworthy condition on January 31, 2007. America 

West Airlines. FAA Order No. 1996-3 at 30-31 (February 13, 1996) (aircraft 

deUmination repaired with speed tape; aircraft did nol meet the first prong of the test for 

airworthiness because use of speed tape was not an approved or accepted method.) 

The aircraft wa,3 also unairworthy because it was not in a safe condition for flight, 

and therefore, did not meet the second prong of the test of airworthiness."^ Regarding the 

condition of the nose cone, Bartels testified that there was tape on the center of the nose 

cone and tliat paint, primer and base malerial had eroded in the area beyond the tape. 

(1 Tr. 77-78; Exhibit A-2.) When asked on cross-examination whether the two piece.s of 

tape could cause an adverse effect on N6751 C's operation, Bartels responded; 

The condition of tlie nose cone, the radome, and the application of the tape could 

adversely affect the operation of the radar and given that there is raised area<;, 

bows, and lifted areas, this airplane, flov^rj in moisture or rain, the potential for 

rain, moisture to migrate under the tape and into the dome or even possibly 

through the dome into where the radar is located could affect the proper operation 

of the radar. 

(I Tr. 139.) He explained fiirther that anomalie.s, such as holes, pinholes, improperly 

performed repairs on the radome, or moisture on the antenna could cause the radar lo 

present erroneous weather information lo the pilot. 

It may say something is out there that isn't there. It may cloak something that's 

out there and not tell you it's there and in the doing of that, when the pilot relies 

on the radar to avoid certain areas of weather, if the reliability of the radar is 

degraded by the things I've mentioned already, then he may - and he could find 

'* In light of the finding thai the aircraft did not meet its type design due to its improper repairs, 

the aircraft wa-s unairworthy and il was flov»'n in violation of 14 C.F.R, § 91.7(a) on that basis 

alone. The finding of a violation of Section 91,7('d) does not require a finding thai the aircraft 

al.50 was in an unsafe condition during its operation. However, for the sake of completeness, this 

decision also considers whether the aircrafl satisfied the second prong of the tcsl for 

airworthiness. 

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himself in a place flying into ... adverse weather, such as a thunderstorm, 

convective activity and such that could compromise the safely of the flight. 

(I Tr. 141.) 

H & H acknowledges in it.>; appeal brief that if there had been tiiundcrstorms in 

the area during the flights, moisture could have leaked into the nose cone and caused 

false radar readings, (Appeal Brief at 3,) H & M argues, however, that the flights were 

conducted in cold and icing conditions. When con.sidering the airworthiness of an 

aircraft, the Administrator will evaluate whether the aircraft is in a safe condition to fly m 

any of tiie types of weather for which the aircraft was certificated by ihe FAA, The focus 

is on whether there is the potential for harm to the aircraft or injury to the pilot and 

passengers due to the degraded condition of the radome that was improperly repaired. 

Warbelow's /Vir Ventures. Inc.. FAA Order No. 2000-3 at 8 (February 3, 2W0), petition 

for reconsideration denied, FAA Order No, 2000-14 (June 8, 2000), [second] petition for 

reconsideration dismissed, FAA Order No. 2000-16 (August 8, 2000). Such potential 

existed on January 31, 2007. 

Moreover, failure lo repair the damaged radome could have led to further, m<.)rc 

extensive damage. As explained in the FAA advisory circular pertaining lo maintenance 

of weather radomes: 

Any hole, regardless of si7£, can cause major damage 10 a radome since moisture 

can enter the radome wall and cause internal delamination. If the moisture 

freezes, more serious damage may occur. 

AC No. 43-14 at \ 5 (Exhibit A-4 at 2.) 

In light of ihe foregoing, the Administrator finds that due to the condition of the 

radome, tlie aircraft was unairworlhy under both prongs of the test for airworthiness, i.e., 

did not conform to its type design and was in lui unsafe condition for flight. Hence, 

15 
OG/23/201 0 10:3 5 FAX 2024935142 FAA * DMS 0016/02 7 

H & H violated 14 C.F.R, § 91.7 on January 31, 2007." 

C. Civil Penalty 

On appeal, H & H argues that il does not have the operating capital to pay the 

$7,500 civil penalty assessed by the ALJ. In support of this argument, H & H attached lo 

its appeal brief the following documents: (1) copies of its ledgers for 2008; (2) the 2008 

year-end statement that it submitted to its accountant; and (3) its Bank of America 

slalemcnt for the period ending April 6, 2009, showing its line of credit, H & H argues 

that if the ALJ had accepted the company's August 2008 ledgers, as well as the JanuaryJuly 2008 ledgers, the ALJ would have gotten a different impression of the company's 

finances because the lodger documents the expenses incuircd in July and paid in August. 

Preliminarily, the Administrator will not consider the documents attached to 

TI & H's appeal brief These documents were not authenticated or subject to crossexamination. 

Regarding financial hardship, the AT J wrote: 

Respondent showed that its financial condition is somewhat precarious. 

While generally healthy, it has suffered significant reverses. It did not show 

taxable income in three of the last five years for which full-year tax returns had 

been prepared (Exh, R-4.) Even in better years, the company's financial picture 

compelled its principal, Mr. Husted, to take out only modest amounts as salary, 

Due consideration of the effect of the civil penalty on a respondent's ability lo 

continue in business, while accounting for the extent and giavity of ihc violations, 

warrants a lesser levy than the amount proposed by Complainant. 

The assessment determined, $7,500. nonetheless, is .sub-stantial, as well as 

appropriate. It remains within the Sanction Guidance Table's "maximum" range 

of suggested penalty amounts.. 1 fmJ also that the penally has sufficient "bite," or 

" Having already found a violation of this section, resolution of this appeal does not require a 

review of the ALJ's finding that the oil leak rendered the aircraft unairworthy. Accordingly, the 

Administrator v^ill not decide that issue in this appeal. No adjustment of the sanction is 

necessary. 

16 
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deterrent effect (see Toyota Motor Sales, Inc., FAA Order No. 94-28 

(September 30, 1994), (p. 11). 

(Initial Decision at 9.) 

The ALJ's assessment of a $7,500 civil pena.lty is reasonable based upon the 

record in this matter. H & H has shown no rea.'jon to disturb the ALJ's assessment. 

IV. Conclusion 

In light of the foregoing, H & H's appeal is granted in part to the extent explained 

in this decision, A $7,500 civil penalty is assessed.'* 

^^«A>tec 

'RANDOLPH BABBllT" 

ADMINISTRATOR 

Federal Aviation Administration 

' This order shall be considered an order assessing civil penalty unless Respondent files a 

petition for review within 60 days of service of (his decision with the U.S, Court of Appeal.": for 

the District of Columbia Circuit or the U.-S, court of appeals for the circuit in which the 

respondent reside."! or has its principal place of business. 14 C.F.R. §§ 13.16(d)(4), 13.233(i)(2), 

13.235 (2009), See 71 Fed. Reg. 70460 (Dcecinbcr 5, 2006) (regarding petitions for review of 

final agency decisions in civil penally eases). 

17 
OG/23/2010 10:3 5 FAX 2024935142 FAA ^ DMS @l018/027 

RVED FEBRUARY 24,2ub. 

UNITED STATES DEPARTMENT OF TRANSPOR' 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

t^eCEIVED 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

v, 

HUSTED AND HUSTED AIR CHARTER, INC 

Respondent. 

FEB 25 

HEARING DOCKET 

FAA DOCKET NO. CP06CE0001 

(Civil Penalty Action) 

DMS No. FAA-2007-0361 

INITIAL DECISION 

OF ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN 

Found: 1) Respondent violated 14 CFR §§yj.7(a), 91.405(1)), ]35.<)5(c), and 13S.4i3(a) as 

charjircd; and 

2) Respondent is hereby assessed a civil penally of $7,500. 

I. Backgromid 

Respondent Husted and Husted Air Charter, Inc. ("Respondenf or 

"Husted"), is a corporation located in Olathe, KS. It holds an air carrier certificate 

permitting it to operate under Part 135 of the Federal Aviation Regulations 

("FARs"). It carries both cargo and passengers (2 Tr. 277). 

The parties agree that on January 31, 2007, a pilot In Respondent's 

employ, James H. Jupe, operated five Part 135 flights in a Beechcraft Baron 58 

aircraft, N6751C, between and among points in Kansas and neighboring states.' 

Following the last flight, an inspector of the Federal Aviation Administration 

("FAA," "agency," or "Complainant") conducted a ramp inspection over two days. 

The Inspection revealed oil deposits in several places on the left side of the left 

engine. Additionally, Jupe had placed tape on the nosecone, or radome (Exh. A11; 1 Tr. 10-11,27-29,40,48). 

The contested portion of the Complaint charges that Mr. Jupe, by applying 

the tape to the nosecone, had performed maintenance. Jupe is not qualified to 

accomplish thai task, the Complaint charges. Nor had he acted under the 

' Exh. A-J I; I Tr. K-9. The flight.^ in sequence, were between; 1) Kaasss City, MO and Wichita, K5; 2) 

Wichitii, KS find Oklahoawi City, OK; 3) OUalioma City, OK and Wichita, KS; 4) Wichita, KS and 

ItvJepcodence, KS; and 5) Indepeodeijcc, KS and Kansas City, MO. Ibid. 
06/23/2010 10:35 FAX 2024935142 FAA ' QMS 1^019/027 

supervision of an authorized mechanic. The taping was not a permissible repair 

or alteration and, as such, rendered the aircraft unalnworthy. Additionally, no 

record of the action could be located (Exh. A-11; 1 Tr. 27-28). 

Thus, Complainant charges. Respondent violated the following FARs (all 

in 14 CFR); section 136.66(c), which requires each person who takes a 

maintenance action to record it; section 91,405(b), which obligates aircraft 

operators to ensure that maintenance personnel make appropriate entries in 

maintenance records following maintenance; section 135.413(a), stating that 

each certificate holder is "primarily responsible" for the airworthiness of Its 

aircraft, and must have defects repaired between required maintenance actions; 

and section 91.7(a), which prohibits the operation of a civil aircraft unless It is 

ainvorthy. The agency seeks a civil penalty of $11,000 (Exh. A-11). 

Respondent, which appeared through its President, John Husted ("Mr, 

Husted"), denied liability (1 Tr. 17, 27-29, 206; 2 Tr. 319-320). 

A hearing was held on September 4 and 5, 2008, In Kansas City, MO. I 

determined that a written decision was reasonable and appropriate under the 

circumstances (2 Tr. 326). The parties filed post-hearing exhibits and briefs and 

the matter now is ready for decision. 

I hold that the facts and circumstances of this case justify findings of 

violations on all counts and, allowing for mitigating factors, warrant an 

assessment against Respondent of $7,500, 

n. Findings and Conclusions 

A. The Agency's Testimonv 

Inspector Thomas Bartels of FAA's Kansas City (MO) Flight Standards 

District Office was one of the agency officials conducting the inspection. He 

testified that, having learned of possible problems with the aircraft, he met It as it 

landed at the Charles B. Wheeler Downtown Airport in Kansas City on January 

31, 2007 (1 Tr. 60-63; see also Exh. A-15). Mr. Jupe, an employee of 

Respondent, was the pilot, Inspectors Bartels performed a ramp inspection. He 

observed, among other things, engine oil leakage and tape on the nosecone. He 

then issued a document known as an Aircraft Condition Notice, in which he noted 

that his "limited inspection" did not suggest that continued operation of the 

aircraft would be contrary to pertinent FARs, or that a ferry permit, known as a 

Special Flight Permit, would be needed to enable the aircraft to be flown to a site 

for repairs (Exh, R-1; 1 Tr. 131-32, 145,185, 193-94; Exh. A-15). He had not 

found FAR violations lo that point. Inspector Bartels told Mr. Jupe that he would 

return the next day to conduct additional examination (1 Tr, 75,175; Exh. A-15). 
OG/23/2010 10:3 5 FAX 2024935142 FAA * DMS @l020/027 

The next day,, February 1, 2007, inspector Bartels returned as promised. 

He brought a second inspector, Greg Shutteriee, and together they performed a 

more detailgd inspection. Bartels testified that the inspectors found oil on the 

left-hand engine nacelle flaps In significant amounts. They observed dark 

streaks on the nacelle, cowling, and the main gear door. The amount of oil 

showing and the form of its presence - streaking and running down ~ Indicated 

to them oil leaks which were excessive. The circumstances were a concern, 

Inspector Bartels said, for two reasons. The first was that they presented a fire 

hazard. Material oil leaks can result in engine compartment fires. The second 

reason was that the circumstances suggested an abnormality in the engine 

compartment. Oil leaks can lead to depletion substantial enough to cause the 

engine to run out of oll.^ 

Inspector Bartels also scrutinized the placement of tape on the aircraft's 

nosecone (1 Tr. 64-65, 75-79, 128, 160; Exhs. A-1 (A), and A-1(C) through A1 (H); Exhs. A-2(B) and (C)). Jupe, the pilot, told Bartels that the taping, 

performed with a material known as abrasion tape, was an attempt to prevent 

moisture from getting through pinholes in the aircraft skin. Moisture penetration 

could damage the radar inside (1 Tr. 66-68, 182). 

Inspector Bartels testified that the taping constituted maintenance. Such 

maintenance was not an authorized method of repair, he continued. The agency 

neither approves nor accepts it (1 Tr. 94-97). The pertinent Advisory Circular in 

fact states that the use of tape Is an improper method of repair (1 Tr. 87-89, 92: 

Exh. A-4). This aircraft in any case had been operating under Part 135, and Mr. 

Jupe was not authorized to pertonn a Part 135 aircraft repair. He lacked the 

certification required (1 Tr. 66, 74-75, 83-85, 98-99). The character of the 

maintenance itself constituted a further problem. Bartels observed that the tape 

was wrinkling and coming undone. The repair, such as it was, would not have 

prevented moisture from getting into the radome, he said. And once inside, 

Bartels added, moisture could adversely affect flight safety. It potentially would 

compromise the function of the radar equipment and avionics within. Inspector 

Bartels concluded that, on account of an unauthorized and improper repair which 

did not cure a potentially unsafe condition, the aircraft during the five named 

flights had been unalnworthy.^ 

^ I Tr. 65, 70-74. Inspector Bartels testified that cogine leaks occasionally occur. Thty sometimes are 

minor and do not neces.<:arily render an aircraft unairworthy. He stresstd, however, dial in flii.'i case the 

streaking and other evidence of leaking that the inspectors observed ."lugge.'iieil leaks which were "excessive 

and a cause for conceni." 1 Tr. 160-61, 

^ 1 Tr. 79. 99-UK), 104, 128, 139-41. 160, 175-76, 182; Hxh.-;. A-2(B) and (C). While inspector Bartel.-: 

never retracted the Aircraft CondiUou Noricc .statement that a fciiy permit would not be needed to move rhc 

aircraft for repair.^, he stiittd that he regretted his inaction. I Tr. 178. Bartel-i' failure to retract docs nol in 

any way undermine the fundings the in.speccors jointly made following the second day of inspection, 

;-i 
06/23/201 0 10:3 6 FAX 2024335142 FAA ^ QMS @l021/027 

B. Husted's Response 

Respondent raised several objections to Complainant's evidence and 

conclusions. 

Husted's pilot, Jupe, was a witness for Respondent. He contended that 

the tape application was not maintenance, but preventive maintenance (see 1 Tr. 

133). The FARs define "maintenance" and "preventive maintenance" in a 

mutually exclusive fashion; "maintenance" excludes "preventive maintenance" 

(14 CFR §1.1). Pilots operating aircraft are permitted to perform preventive 

maintenance, which Is defined in pertinent part as "simple or minor presen/ation 

operations," General Aviation, Inc., FAA Order No. 98-18 (October 9.1998). 

Respondent seemed to take the position that Jupe's action was that type of 

preventive maintenance. It referred to the taping as "putting a piece of tape that 

weighed 1 gram on the aircraft" (Resp. Post Hearings Br,, p. 3). 

Respondent also asserted that, even if Mr. Jupe's actions were in fact 

"maintenance" as defined, he had been supervised by a property certificated 

mechanic, thus legitimating the repair under the FARs (1 Tr. 133; Resp. Post 

Hearings Br., p. 2). In support of this contention, Jupe testified that he had 

performed the repair on the recommendation of and instructions from a 

certificated mechanic. This mechanic had been standing nearby when Jupe 

applied the tape (1 Tr. 182-83.194-95). 

Mr. Husted also contended that Respondent should not be liable for any 

violation because Jupe had performed the taping without Mr. Husted's 

knowledge (1 Tr. 195), Mr. Husted added that he had no knowledge of any of 

the violations with which his company was charged (1 Tr. 198). He contended 

that Jupe had been acting outside the scope of his employment when he 

performed the acts complained of (Resp, Post Hearings Br., p. 2). 

Mr. Husted also suggested that the oil leak was not a cause for concern. 

He knew about it, stressed that the aircraft was being operated for freight only, 

and stated that the "dirty" aircraft needed only to be "cleaned up" (2 Tr. 320). 

Rnally, Mr. Husted objected to Complainant's assertion that the aircraft 

was unainvorthy (1 Tr. 17, 206). 

C. Conclusions 

Complainant's contentions essentially are adopted. Respondent's 

arguments uniformly are rejected. I find each of the violations alleged. 

Firstly, Respondent's contention that Mr, Jupe had performed simple, 

lightweight "preventive maintenance" Is rejected as irrelevant. The argument 

assumes that the pilot was permitted to perform such a task. He was not. The 
06/23/201 0 10:3G FAX 2024335142 FAA + DMS 0022/02 7 

FARs did not allow Mr. Jupe to perform preventive maintenance. The regulations 

state that (other than in situations inapplicable here) pilots may not perform 

preventive maintenance on Part 135 aircraft (14 CFR §43(g); Exh. A-7; 1 Tr. 96-

99). Since the aircraft at issue was flown under Part 135, Jupe was not permitted 

to perform preventive maintenance because he lacked the requisite pilot status. 

So whether the type of task Mr. Jupe performed can property be considered as 

falling within the definition of "preventive maintenance" is beside the point. 

Respondent's conclusion that Mr, Jupe's repair was sufficiently supervised 

to immunize il from violation also does not withstand examination. Jupe's 

unsupported statements, even if taken as true, fail to demonstrate supervision. 

That the mechanic initiated Instmctions and was in the immediate area fails to 

demonstrate either active guidance or control of the outcome ~ both crificai 

components of supervision. Jupe, moreover, himself undermined Respondent's 

contention. He testified, "I didn't consult anybody else before I did it, I did it on 

my own' (l Tr. 194). Respondent simply failed to show supervision. 

Respondent's additional contention that it cannot, or should not, be held 

liable for actions of its pilot because it had no knowledge of them also is rejected. 

Respondent is legally obligated to answer for the conduct of its pilot. Mr. Jupe 

was an employee of Husted and Husted Air Charter. Employers are vicariously 

liable for the actions of their employees acting within the scope of their 

employment (See, e.g., Warbelow's Air Ventures, Inc., FAA Order No, 2000-3 

(Febmary 3, 2000), p. 5, reconsid. den., FAA Order No. 2000-14, June 8, 2000, 

pet den. 19 Fed.Appx. 606 (unpublished opn., September 20, 2001)). In piloting 

the aircraft, Jupe, a company pilot, plainly was acting within the scope of his 

employment. He was operating in the capacity for which he was hired, and in 

furtherance of Respondent's business. Respondent thus is responsible for 

Jupe's actions.* 

The principle of vicarious liability is integral to aviation law and policy. Air 

carriers owe the flying public a duty of performance at the highest standard of 

care [WestAir Commuter Airlines, FAA Order No. 1996-16 (May 13,1996), pp. 6-

7). Holding air carriers responsible for employee violations assures the public 

that the carriers will attempt to conform to this standard. Who better to pressure 

their employees to perform at the highest level than the air carriers themselves? 

See Warbelow's, pp. 5-6. 

Respondent's contention that the aircraft was ainworthy during the flights 

In question also must be rejected. To be ainworthy, an aircraft must: (1) conform 

to a type design approved under a type certificate or supplemental type 

certificate and to applicable A\n^forthiness Directives, and (2) be in a condition for 

^ Mr. .lupe, an a result of this incident, was the subject of a disciplinary proceeding brought by the PAA 

before the National Transportation Safety Board (NTSB). The parties seuled die matter by Jupe's 

agreement to a suspension of his airman cerilficale for a period of l.'Kiday.s beginning July 17, 2008. lixh. 

JN-l;E3th, A-13,pp.4-5. 
06/23/201 0 10:36 FAX 2024935142 FAA . DMS @023/02 7 

safe operation. Delaware Skyways LLC, FAA Order No. 2005-6 (March 8, 2005), 

p. 2; California Helitech, FAA Order No. 2000-18 (August 11, 2000), p. 3 n. 7. 

Inspector Bartels concluded that the aircraft was not ainworthy because the 

maintenance shortfalls he discovered compelled him to find that the aircraft had 

not been In a condition for safe operation, 1 agree. Inspector Bartels' testimony 

demonstrated that the oil leaks were more than evidence of a "dirty" aircraft (as 

Respondent would have it); they were significant enough to compromise safe 

operation to an unacceptable degree. The prospect of fire and the possibility of 

oil depletion were too great to be consistent with minimum levels of aircraft 

safety. Additionally, the risk of moisture penetrating the nosecone and 

compromising the systems inside also violated minimum safety standards. 

Taping the radome, while well-intentioned, was an unaccepted and unapproved 

solution. In sum, the matters uncovered by the inspectors - the oil leakage and 

the prospect of moisture penetrating interior systems - each demonstrated an 

impermissible level of potential for hazard. Each independently showed that the 

aircraft had not been in a condition for safe operation.^ Each situation, then, 

violated the second prong of the airworthiness test. These matters require a 

finding that the aircraft was not airworthy when operated on the five flights listed 

in the Complaint.* 

Finally, inspector Bartels testified that the maintenance performed had not 

been recorded In any aircraft record (1 Tr. 101,107). This contention was not 

met by Respondent. I find the testimony credible. The regulations require that 

maintenance actions be set down in writing. Entries are the responsibility of a 

properly certificated person (§135.65(c)) as well as of the certificate holder 

(§91.405(b); 1 Tr. 102,106-07). Failure to make a record of the maintenance 

accomplished, then, violated the stated FARs. 

Against this background, I find and conclude that Respondent violated 

FAR §§ 91.7(a), 91.405(b), 135.65(c), and 135.413(a), as set out in the 

Complaint. 

i n . PenaltT 

The agency has asked for a total civil penalty of $11,000 (Agency's PostHearing Brief, p. 9). Mr. Husted takes exception, calling that amount "excessive" 

(Resp. Post Hearings Br., p. 4). He believes that, in view of Respondent's 

financial condition, it could not bear a civil penalty without a severe adverse 

effect on its business. Mr. Husted has submitted financial documents in support 

of his contention, Financial fiardship, when proven, may constitute grounds for 

^ Complainimt was not required to show that the deijcribcd condiiiom were unsafe in fact. It was enough to 

demonstrate that each carried the polcntiid for harm. Polynesian Airways, FAA Order No, 1994-40 

pccciuber 9, 199-1); David H. Mayer, P/WV Order No, 1997-12 (February 20, 1997). 

Se-K aho Delaware Skyways JJ,C, FAA (irdcr No. 2005-6 (March IH, 2005), n. 7 ("When an aircrafl has 

unresolved discrepancies, it is »ot airworthy."), 

I hflvc considered all other arguments advanced by Respondent and reject them without comment. 
06/23/2010 10:36 FAX 2024835142 FAA + DMS 1024/02 7 

reduction of an othenvise appropriate civil penalty. See, e.g., Blue Hidge 

Airlines, FAA Order No. 1999-15 (December 22, 1999). p. 10. 

Complainant bears the burden of justifying the amount of the civil penally 

it seeks. Phyllis Jones Luxemburg, FAA Order No. 1994-18 (June 22,1994), p. 6. 

However, it Is Respondent's burden to plead and prove financial hardship 

sufficient to warrant mitigation of the civil penalty amount. Conquest Helicopters, 

FAA Order No. 1994-20 (June 20,1994), p. 3; Salvatore Giuffrida, FAA Order 

No, 92-72 (December 21,1992), p. 2, 

I conclude that a civil penalty in the amount of $7,500 is warranted and is 

appropriate to the circumstances. 

Complainant is obligated to consider the following factors when 

determining the civil penalty amount (1) the nature and circumstances of the 

violation; (2) the extent and gravity of Ihe violation; (3) the respondent's degree of 

culpability; (4) the respondent's history of prior violations, if any; (5) the 

respondents ability to pay the civil penalty; (6) the effect on the entity's ability lo 

stay in business; and (7) other matters as justice may require. See, e.g., 

Folsom's Air Service, Inc., FAA Order No. 2008-11 (November 6, 2008), p. 11. 

The determination weighs whether the violation was inadvertent or deliberate, the 

private or public character of the violation, and the attitude of the violator. The 

agency also considers the respondent's size, particularly In determining the 

offender's ability to absoriD the sanction. An appropriate civil penalty must reflect 

the totality of the circumstances surrounding the violations (Tr. 110-11, 117; 

Folsom's Air Service, Inc., FAA Order No. 2008-11 (November 6. 2008). p, 12; 

Eastern Air Center, Inc., FAA Order No. 2008-3 (January 28, 2008). Finally, the 

civil penalty should provide sufficient Incentive to deter the respondent and 

similariy-sltuated entities from future violations. Folsom's Air Service, Inc., Id., p. 

20. 

The agency has issued enforcement guidelines, FAA Order No. 2160.3A 

(judicially noticed as Exhibit A-8, and also found at www.airweb,faa.qov). for its 

employees to respect in determining appropriate sanctions. The guidelines also 

advise the public of the sanction policy that the Administrator intends to follow 

through the adjudication of individual cases. Folsom's Air Service, Inc., FAA 

Onjer No. 2008-11 (November 6,2008), p. 13. The Sanction Guidance Table, 

contained in Appendix 4 of Order No, 2160.3A, and as amended by Compliance/ 

Enforcement Bulletin No. 92-1 (included in Appendix 1), sets out penally 

recommendations within three ranges of amounts - designated minimum, 

moderate, and maximum - to best reflect the nature and circumstances of each 

violation. Mitigating and/or aggravating factors are part of the calculus. For air 

carriers, the Sanction Guidance Table sets but the civil penalty ranges per 
06/23/201 0 10:3 6 FAX 202433514 2 FAA * DMS 0025/027 

violation as follows: minimum, $1,000 to $3,999; moderate, $4,000 to $7,499; 

and maximum, $7,500 to $11,000.^ 

Complainant states that it followed the guidelines in Its civil penalty 

detemnination (1 Tr. 117). A Part 135 air carrier's unauthorized maintenance, 

and improper maintenance, eadi are violations warranting a civil penalty in the 

maximum range (Exh. A-8, pp. 7, 9; 1 Tr. 113-16). For failure to make a required 

entry in an aircraft log, the guidelines advise a civil penalty in the moderate to 

maximum range. An unalnworthy aircraft having an actual or potential adverse 

effect on safe operation warrants a civil penalty in the maximum range (Exh. A-8, 

p. 8; 1 Tr. 116-17). Complainant concluded that, in view of the tables and all the 

pertinent factors in this case, an appropriate civil penalty was $11,000, It points 

out that, had it followed the guidelines strictly, it could have requested a civil 

penalty in an amount as high as $83,000 (1 Tr. 117-18; Compl. Post-Hearing Br., 

pp. 8-9). 

The record shows that Respondent operated aircraft in derogation of 

safety. The Beechcraft was flown both with clear signs of an oil leak significant 

enough to require further investigation and the prospect of moisture penetration 

of vital aircraft systems. The latter situation continued following a slapdash repair 

performed by an individual lacking the qualifications to accomplish it. The aircraft 

was operated in this condition five times, The maintenance, moreover, went 

unrecorded. These circumstances warrant a substantial penalty. 

Respondent in its case for mitigation submitted tax returns for the years 

2003-2007, supplemented by revenue and expense account ledgers for the 

period January-July 2008.' The documents indicate that the company has 

suffered some financial reverses recently. Mr, Husled emphasized that the 

company's gross sales for the four months immediately preceding the hearing, 

May-August 2008, were just one-third of its gross sales for the next preceding 

four-month period, the first four months of 2008 (2 Tr. 275-76, 292-93). Mr. 

Husted takes only a small salary. In 2007, that amount was $4,200. In 2008. he 

tesffied, it was just $800 (to the point of the September hearing), on account of 

the company's straitened circumstances (Exh. R-4, p. 1. line 12; Exh. A-16(c); 2 

Tr. 280-83, 316-17), Mr. Husted claimed that Respondent "can't pay the bills" (2 

' The guidelines' tables show the maximum ranfee as $7,.^00 to $10,000. See Exh. A-8, p. 5. The upper 

limit, however, was adjusted lo Sll.OOO by regulation effective January 21. 1997. See H CFR §305(d); 62 

Fed.Reg, 4134 (Janijaiy29, 1997); ExJi, A-8, p. 9; 1 Tr. 113-14, 

FAA OrderMo. 2150.3B updated the guidelines effective October l; 2007 for violations occurring on or 

after that dttc. .Since the instant violations occurred no later than January 31, 2007, Order No. 21 .'50,3B 

does not apply. See 72 Fed.Reg. 55853 (October I, 2007); Foliom'i Air Service, Ibid. p. 12, n. 26. 

' Exhs. R-4 (tax returns) and A-16(a) through (I) (ledgers), The PosllHearing Order of September 10, 2008, 

as amended by the Amended Post jfearing Order of September 25, 2008, had held the record open until 

October 10, 2008, for the purpose of enabling Respondent lo supply financial records up to July 31, 2008, 

The ledgers v/cre among tlic documents submined in rMponse. Respondent also filed tax returns for the 

years 2000 through 2002 (Exhs. A-J7 through A-19) and supplements to its 2003-07 tax returns (Exhs. A20 through A-24). The post-hearing exhibits, A-16 through A-24, arc all hereby admitted into evidence. 
OG/23/2010 10:37 FAX 2024935142 FAA * DMS 21026/027 

Tr. 315) and "[t]here's a good possibility that I'll have to shut the door." (2 Tr. 

316). 

Complainant countered that Respondent failed to prove financial hardship. 

In support, it noted thai Husted and Husted Air Charter, as Mr. Husted himself 

testified, has always been able to meet its financial obligations (see 2 Tr. 309). 

The company's tax returns also demonstrate that. In spite of a zero or negative 

taxable income for three of the five years submitted, Respondent was able to 

recover and continue as a viable, healthy concern (Exh. R-4; Compl. Post 

Hearing Br., p. 10). Additionally, the 2008 ledgers show that the company has a 

more positive financial picture than Mr. Husted suggested in his testimony, 

having a net revenue of over $17,000 during the first seven months of that year 

(Exh, A-16; Compl. Post Hearing Br., p. 10). 

In weighing all the facts and circumstances, I find and conclude that a civil 

penalty assessment of $7,500 is appropriate. It is commensurate with the nature 

and extent of the violations, while accounting in suitable measure for 

Respondent's financial circumstances. 

Respondent showed that its financial condition is somewhat precarious. 

While generally healthy, it has suffered significant reverses. It did not show 

taxable income in ttiree of the last five years for which full-year tax returns had 

been prepared (Exh. R-4). Even in better years, the company's financial picture 

compelled its principal, Mr. Husted, to take out only modest amounts as salary. 

Due consideration of the effect of the civil penalty on a respondent's ability to 

continue in business, while accounting for the extent and gravity of the violations, 

warrants a lesser levy than the amount proposed by Complainant. 

The assessmentdetenmlned, $7,500, nonetheless is substantial, as well 

as appropriate. It remains within the Sanction Guidance Tables' "maximum" 

range of suggested penalty amounts. I find also that the penalty has sufficient 

"bite," or deterrent effect {see Toyota Motor Sales, Inc., FAA Order No. 94-26 

(September 30,1994), p. 11). 

In sum,! find and conclude that a sanction amount of $7,500 suitably 

accounts for the totality of the circumstances of this case.* 

' Respondent'.'! brief, filed .Tanuary 11, 2009, adds that "(he last few months of business has been a disaster" 

(Post Hearings Br., pp. 3-4). This statement is insofficieat evidence of mabilUy to pay, however, AS 

unsworn and unsubstantiated. Conquest Airlines, PAA Order No. 1994-20 (June 22, 1994), p. 3. 

All other arguments Respondent has offered respecting penalty have been considered and rejected. In 

particular, it.": plea in mitigatioa to coiisiJer its "lost revenue" resulting from engine repairs undertaken at 

tho behest of flic FAA {see, e.g., Exh. R-5; 2 Tr. 311-14) is discounted as irrelevant. 
06/23/2010 10:37 FAX 2024935142 FAA * DMS @|027/027 

10 

Husted and Husted Air Charter, Inc. is hereby assessed a civil penalty of 

$7,500 for violations of FAR §§91.7(a), 91.405(b), 135.65(c), and 135.413(a).'° 

ichard C. Cioodwin 

Administrative I^w Judge 

Attachment - Service List 

y 

H 

I: 

'"Any appeal fiom the Initial Decision to tho Administrator must be in accordance with section 13.233 of 

the Rules of Practice, which requires i) that a notice of appeal be filed no Iftter than ] 0 days (plus Hn 

addirional 5 for mailine) from the date of this order and 2) that the appeal be perfected with a written brief 

or memorandum not later than 50 days (plus 5 for mailing) from the date of this order. IJacb is to be sent to 

the Appellate Docket Cleric, Room 924-A. Federal Aviation Administration, 800 Independence Avenue, 

S.W., Washmglon, DC 20591, and to agency counsel. Service upon tl\e presiding judge is optional.