UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

) 

RECEIVED 

MAR 2 6.,2012 

HEARING DOCKET 

In the matter of ) 

) 

AIR Z FLYING SERVICE, INC. ) 

FAA Docket No. CP10SW0010 

Case No. 2009SW910051 

Judge Richard C. Goodwin 

) 

_______________________ ) 

COMPLAINANT'S POST-HEARING BRIEF 

In accordance with Ru1e 13.231(c) of the Rules of Practice in Federal Aviation 

Administration Civil Penalty Actions, 14 C.F .R. § 13.231 (c), and in accordance with the order of 

Administrative Law Judge Goodwin, Complainant hereby files his Post-Hearing Brief in the 

aboveccaptioned matter. 

STATEMENT OF THE CASE 

The Complaint in this matter alleges that Respondent, Air Z Flying Service, Inc. ("Air 

Z"), did not receive a verified negative resu1t on the pre-employment drug test for Ritch Kovacic 

before hiring him to perform a safety-sensitive function. (Compl. §II,~ 6d.) Specifically, the 

Complaint alleges that Respondent violated 14 C.P.R.§ 135.251(a) (now codified at 14 C.P.R. 

§ 120.35(a)) by failing to test each employee who performed a function listed in 14 C.P.R. part 

121, Appendix I (now codified at 14 C.P.R.§ 120.105) in accordance with§ V.A.1 of that 

appendix (now codified at 14 C.P.R.§ 120.109(a)). 1 (Compl. §III,~ 1.) The functions listed in 

14 C.P.R. § 120.105 are called safety-sensitive functions and include aircraft maintenance or 

1 Effective July 13, 2009, the FAA's drug and alcohol regulations in 14 C.P.R. part 121, appendices I and J were 

recodified with no substantive changes at 14 C.P.R. part 120, subparts E and F. See Final Rule, 74 Fed. Reg. 22,649 

(May 14, 2009). Although the violations alleged in the Complaint occurred before the effective date of the 

recodification, for purposes of clarity, subsequent references will be to 14 C.P.R. part 120. 
preventative maintenance. (Compl. §II,~ 3.) No employer subject to 14 C.P.R. part 120 may 

hire a person to perform a safety-sensitive function unless it first conducts a pre-employment 

drug test and receives a verified negative result for that person. (Compl. § II, ~ 4.) Mr. Kovacic 

performed aircraft maintenance or preventative maintenance on one of Respondent's aircraft on 

June 6, 2008. (Compl. §II,~ 6b.) However, Respondent did not receive the verified negative 

result for Mr. Kovacic's pre-employment drug test until July 17, 2008. (Compl. § II,~ 6c.) 

Respondent therefore violated the regulations listed in Section III of the Complaint. 

Respondent, in its Answer to the Complaint, admitted the entirety of Section I and the 

entirety of Section II, paragraph I. Respondent has therefore admitted it is the holder of Air 

Carrier Certificate No. ZFDA222T, issued under 14 C.P.R. part 119 and authorizing Respondent 

to conduct operations under part 135. At the hearing in this matter, Respondent made three 

additional relevant admissions. First, Respondent has admitted that it sent Mr. Kovacic for a preemployment drug test on May 28, 2008 because it sought to hire him to perform a safetysensitive function for Respondent. (Joint Ex. 1.) Second, Respondent admitted that Mr. Kovacic 

performed safety-sensitive work on one of its aircraft, N94EW, on June 6, 2008. (Id) That 

N94EW is Respondent's aircraft is certain from Respondent's third admission that N94EW was 

on its part 135 operations specifications in June 2008. (/d) 

ISSUES TO BE RESOLVED 

I. WHETHER RESPONDENT RECEIVED THE VERIFIED NEGATIVE 

RESULT OF THE PRE-EMPLOYMENT DRUG TEST FOR MR. KOVACIC 

BEFORE HIRING HIM TO PERFORM A SAFETY-SENSITIVE FUNCTION 

2 
ARGUMENT 

I. The Record, Together With Respondent's Admissions, Reduces the Issues to be 

Resolved In This Matter to One: Whether Respondent Received the Verified Negative 

Result of the Pre-Employment Drug Test for Mr. Kovacic Before Hiring Him to Perform a 

Safety-Sensitive Function 

Respondent's admissions, along with the hearing record, establish all but one of the 

elements of 14 C.F.R. § 120.109(a)(1)_2 That regulation states "No employer may hire any 

individual for a safety-sensitive function listed in § 120.105 unless the employer first conducts a 

pre-employment test and receives a verified negative drug test result for that individual." 

§ 120.1 09(a)(l ). An employee is defined, for purposes of 14 C.F.R. part 120, as "an individual 

who is hired, either directly or by contract, to perform a safety-sensitive function for an 

employer." 14 C.F.R. § 120.7(h). Furthermore, hire "means retaining an individual for a safetysensitive function as a paid employee, as a volunteer, or through barter or other form of 

compensation." 14 C.F.R. § 120.7G). Therefore, even though Mr. Rohl claimed that Respondent 

never employed Mr. Kovacic, this is not true under 14 C.F.R. part 120. (Tr. 204:21-205:5.) 

Respondent admitted Mr. Kovacic performed safety-sensitive work for it. (Joint Ex. 1.) 

Mr. Rohl further confirmed that Respondent wanted Mr. Kovacic to perform safety-sensitive 

work for Respondent and that Mr. Kovacic actually did so, including his affirmation of 

Mr. Kovacic's safety-sensitive work entry in Respondent's log. (Ex. D; Tr. 206:6-9; see 

Tr. 208:15-209:9.) It is therefore evident that Respondent retained Mr. Kovacic for a safetysensitive function, whether he was paid or not and whether he was directly employed or 

employed by contract. Put another way, Respondent hired Mr. Kovacic to perform a safetysensitive function, making him Respondent's employee under 14 C.F.R. part 120. 

2 Although the Complaint charges a violation of 14 C.F.R. § 120.35(a), it also states that Respondent violated this 

section precisely because it failed to conduct a pre-employment test and employee in accordance with 14 C.F.R. 

§ 120.109(a). Section 120.109(a)(l) is the source of the elements of the violation charged because it specifically 

describes the requirements for pre-employment drug testing. 

3 
Respondent's admissions, exhibits, and testimony therefore prove beyond contention that, 

under 14 C.P.R. part 120, Respondent is an employer and that it hired Mr. Kovacic to perform a 

safety-sensitive function. Mr. Rohl's testimony, Respondent's admissions, and the federal 

Custody and Control Form ("CCF") provided in Exhibit B confirm that Respondent sent Mr. 

Kovacic for a pre-employment test. (Tr. 206:6-16.) Therefore, the only element left in 

§ 120.109(a)(l) is whether the employer, here Respondent, "received a verified negative drug 

test result for the individual," here Mr. Kovacic, before hiring him. On this count, the 

Administrator has convincingly shown by a preponderance of the evidence that Respondent did 

not receive a verified negative result for Mr. Kovacic before hiring him. 

II. Respondent Did Not Receive a Verified Negative Result for Mr. Kovacic Before His 

Hire Date 

A. Respondent Hired Mr. Kovacic No Later Than June 6, 2008 

Respondent, though Mr. Rohl, has given three possible dates for when it hired 

Mr. Kovacic. One date, May 28, 2008, is the date given on Exhibit C-2, Mr. Rohl's note of July 

23, 2008. Mr. Rohl, however, testified that May 28, 2008, is not the hire date. (Tr. 217:14-

218:4.) Another possible hire date is on Mr. Kovacic's personnel folder, Exhibit C-9, which 

gives May 29,2008 as the hire date. The third possible hire date is the date of Mr. Kovacic's first 

performance of a safety-sensitive function for Respondent: June 6, 2008. As Ms. Frankel 

testified, when there is no explicit evidence of a hire date, the date of first performance serves as 

the hire date. (Tr. 31: 15-21.) Even if the third and latest date, June 6, 2008, the date most 

favorable to Respondent, is accepted as the date it hired Mr. Kovacic, the record firmly 

establishes by a preponderance of the evidence that Respondent did not have his verified 

negative result by that date. 

4 
B. Respondent Did Not Receive the Verified Negative Result Until After It Hired 

Mr. Kovacic 

A verified negative drug test result is a negative drug test result verified by a Medical 

Review Officer ("MR0") 3 (Tr. 32:5-12.) At the time of Complainant's inspection, Respondent 

produced a document signed by an MRO at ChoicePoint reporting the verified negative result for 

Mr. Kovacic's pre-employment drug test. (Ex. C-1; see Tr. 28:21-29:22.) That document gives a 

reported date of July 17, 2008, long after June 6, 2008, the latest possible hire date for 

Mr. Kovacic. (Ex. C-1; Tr. 31: 15-32:4.) Ms. Frankel testified that Complainant's investigation 

found no evidence that Respondent received Mr. Kovacic's verified negative result before July 

17, 2008. (Tr. 42: 14-18.) Although Mr. Rohl testified that he told Complainant's inspectors 

about supposedly receiving a verbal report of Mr. Kovacic's pre-employment drug test result, 

Respondent did not provide any evidence at the time of the inspection beyond Mr. Rohl's 

statements to show it received such a report. (Tr. 208:11-14.) Complainant relies on the entities it 

inspects to provide the records needed to demonstrate compliance. (See Tr. 70:3-6, 72:8-12 & 

78:16-18.) This makes sense, as it is in each entity's best interest to provide the best evidence in 

its favor available. If Respondent did not provide anything at the time of the investigation to 

prompt further inquiries by the inspectors, the fault lies with Respondent, not Complainant. 

Indeed, Mr. Rohl testified that the inspectors asked him to explain why there was no 

written evidence ofthe supposed verbal report. (Tr. 215:20-216:5.) He should have been able to 

produce written evidence to support his story for two reasons. First, 49 C.F .R. § 40.167( c) 

requires an MRO to transmit a written report of any verified drug test result to the employer's 

Designated Employee Representative ("DER") within two days of verification. This holds no 

3 The fact that two MROs verified Mr. Kovacic's test on two different dates is immaterial to the charged violations. 

(Exs. C-1 & A.) The material question is whether Respondent received a verified negative result of Mr. Kovacic's 

pre-employment drug test from any MRO before Respondent hired him. 

5 
matter how the MRO reports the result to the DER. See§ 40.167(c). Second, 49 C.P.R. 

§ 40.333(a)(4) requires Respondent to keep records of negative drug tests for one year. If 

Respondent received a verbal report of Mr. Kovacic's verified negative result on or before June 

6, 2008, the corresponding written report had to have been sent on or before June 8, 2008. The 

date of the inspection, July 23, 2008, is far less than a year after June 8, 2008, the latest date the 

written report could have come in if Respondent in fact received a verbal report before hiring 

Mr. Kovacic. Respondent thus should have had a written report to match its claimed verbal 

report on the date of its inspection. Additionally, Mr. Rohl has been the DER for Respondent for 

ten years, and therefore should know that the MRO must send and he must keep for a year the 

written report of Mr. Kovacic's verified negative result. (Tr. 33:2-5; see id. 204:2-9.) 

Respondent cannot lay the blame for having no written record to support its tale of a 

verbal report on either of the MROs who handled Mr. Kovacic's drug test. This is because 

neither of them made a verbal report of the verified negative result to Respondent before it hired 

Mr. Kovacic. In fact, the overwhelming weight of the reliable and credible evidence proves by a 

preponderance of the evidence that Mr. Rohl's claim of a verbal report is untrue and no one 

reported Mr. Kovacic's drug test result to Respondent before it hired him. 

C. No One Transmitted the Verified Negative Result of Mr. Kovacic's Test to 

Respondent On Or Before June 6. 2008 

The record shows that three entities handled Mr. Kovacic's pre-employment drug test in 

some way: Con centra, ChoicePoint, and ASTS. Of these three, only ASTS had the opportunity to 

transmit the verified negative result of that test to Respondent on or before June 6, 2008. 

Concentra could not and did not report it because, as Mrs. Joy testified, it is against federal 

regulations for collection sites to receive results and Concentra never received Mr. Kovacic's test 

result. (Tr. 105:7-21; see 49 C.P.R.§ 40.165.) Furthermore, Mr. Rohl stated in his note that when 

6 
he called Concentra, it told him it sent the test to the MRO. (Ex. C-2.) Nothing in that note or his 

testimony indicates that Mr. Rohl ever received the result from Concentra. (Ex. C-2.) Mrs. Joy's 

testimony is uncontroverted, and none of the evidence shows that Concentra told Respondent the 

result. Concentra can thus be safely eliminated as the source for the supposed verbal report. 

ChoicePoint, the source of the July 17, 2008 report and Respondent's usual MRO 

provider, also cannot be the source of the supposed verbal report. (Ex. C-1; see Tr. 186:13-16 & 

211: 18-21.) As Exhibit C-7 shows and Mrs. Newton testified, ChoicePoint first received the test 

result on July 16, 2008. (Tr. 184:6-12.) ChoicePoint always records when it receives the results 

of drug tests like Mr. Kovacic's, and is required to do so by regulation, as Mrs. Newton testified. 

(Tr. 185: 14-20.) The July 16, 2008 receipt date is well after June 6, 2008, the latest possible hire 

date for Mr. Kovacic. Respondent has not presented any evidence or testimony to challenge this, 

so ChoicePoint too can be eliminated as the source of the supposed verbal report. 

This leaves ASTS, Concentra's default MRO provider, as the only possible source for 

any supposed verbal report. (Tr. 108:3-14 & 124:5-7.) Though it did receive the test result before 

June 6, 2008, the record amply demonstrates by a preponderance of the reliable and credible 

evidence that it did not report the result to Respondent before it hired Mr. Kovacic. (Exs. C-6 & 

B.) In order for an MRO at ASTS to report a verified drug test result, he needs certain 

information. He must know who the DER is at the tested individual's employer, because that is 

the only person the result can be reported to, as Ms. Frankel, Mrs. Joy, and Mr. Jones testified 

and the regulations require. (49 C.P.R. § 40.165(a); Tr. 32:22-34:2, 105:7-106:10 & 125:18-21.) 

Mr. Jones, the president of ASTS, testified that ASTS did not receive the DER information for 

Respondent until July 15,2008. (Tr. 128:13-129:3; see also id 127:2-18 & 134:7-22.) He further 

7 
testified that ASTS did not have either the phone number or the name of Respondent's DER on 

June 6, 2008. (Tr. 161:16-162:11.) 

Although ASTS did have some information about Respondent from the federal Custody 

and Control Form, namely its phone number and address, it is against DOT regulations to report 

results to anyone except the DER and against ASTS policy to contact a company with test results 

unless they have the DER's name and contact information in writing. (Ex. C; Tr. 125:3-127:1.) 

ASTS also does not call employers like Respondent to get DER information, and did not do so in 

this case. (Tr. id & 146:6-14.) Furthermore, as the employer, it is Respondent's legal obligation 

to provide both the name and the telephone number of its DER to the collector. 49 C.F.R. 

§ 40.35. Mr. Jones testified that ASTS did not receive this information from the collector, 

Concentra, until July 15,2008, though it tried to get it from them repeatedly as soon as it saw 

that it did not have that information. (Ex. C; Tr. 124:15-125:2, 129:9-131:8; see also id 127:2-

18.) Besides testifying to these policies, Mr. Jones stated that the policies used in handling tests 

like Mr. Kovacic's are included in ASTS's employee training manuals. (See Tr. 165:21-166:17.) 

Mr. Jones's letter, Exhibit C, further confirms that ASTS did not report the verified 

negative result of Mr. Kovacic's test to Respondent on or before June 6, 2008. In that letter, 

Mr. Jones wrote, "At no point did ASTS report the result to Air Z, Concentra, or any other party, 

verbally or written, until the set-up sheet was received via Fax transmission on July 15, 2008." 

(Ex. C.) Similarly, he wrote, "When ASTS received company contact information, we verified 

the result and immediately contacted the DER from Air Z of [sic] the test result." (Ex. C.) 

Mr. Jones also stated that that Respondent did not contact ASTS between when ASTS received 

the test result and July 15, 2008. (Ex. C.) This makes sense in light of Mr. Rohl's testimony that 

he believed ChoicePoint was Respondent's MRO for Mr. Kovacic's test at the time he wrote his 

8 
July 23,2008 note. (Tr. 211:18-21.) Mr. Rohl would have no reason to contact ASTS if he 

believed ChoicePoint was Respondent's MRO. Indeed, Mr. Rohllikely never even heard of 

ASTS until sometime after July 15,2008, when ASTS received the information it needed to 

report the verified negative result. 

Respondent suggests that, contrary toASTS policy and Mr. Jones's statements, ASTS 

contacted it on June 6, 2008 with the verified negative result. It leans on two pieces of evidence 

to support this inference. First, it points to the fact that the verification date on the ASTS report 

of Mr. Kovacic's test, Exhibit A, and the date Mr. Kovacic first performed safety-sensitive work 

for Respondent are the same: June 6, 2008. Respondent asks the court to believe that because 

Mr. Rohl testified he had never authorized anyone to work without a verified negative preemployment drug test, this coincidence of dates means Mr. Rohl must have both received a 

verbal report and told Mr. Kovacic he was cleared to work on that same date. (Tr. 210: 16-19.) 

Yet the fact that Mr. Rohl also testified to having issues in prior inspections with paperwork and 

processes already strains confidence in the conclusion Respondent is leading to. (Tr. 211 :10-17.) 

Prior slip-ups, particularly related to the drug testing process, make it more likely that the present 

case is another, albeit more serious, slip-up. Mr. Rohl's overall lack of credibility, illustrated 

more fully infra, further undermines Respondent's already weak inference. 

Second, Respondent points to the following statement in Mr. Jones's letter, Exhibit C: 

"The verification process is not initiated until we have information that allows us to report the 

result." Respondent implies that if ASTS verified the test result on June 6, 2008, as Exhibit A 

indicates, ASTS must have had the contact information needed to make a verbal report to 

Respondent on that date as well. At best, however, Mr. Jones's statement only supports the mere 

supposition that ASTS could have reported Mr. Kovacic's verified negative result to Respondent. 

9 
The most serious injury to both inferences supporting Respondent's argument, however, 

comes from the irresistible weight of the reliable and credible evidence in the record showing 

that ASTS did not report the verified negative result of Mr. Kovacic's test to Respondent before 

it hired him. To begin with, Mr. Jones states more than once in Exhibit C that there was no 

communication of the result to Respondent until July 15,2008, as mentioned supra. Mr. Jones's 

multiple statements on the specific question of how ASTS handled Mr. Kovacic's test and his 

acknowledgement that his explanation of ASTS 's policy in Exhibit C was not as clear as it could 

have been clears up any speculation about what actually happened with Mr. Kovacic's test result. 

(Tr. 148:17-149:5.) Indeed, Mr. Jones gave a thorough explanation on how ASTS verified the 

result and put the file into "limbo," rather than reporting it, on June 6, 2008. (Tr. 132: 10-134:6.) 

ASTS places files in "limbo" when it does not have the information needed to report a test result. 

(Jd.) Additionally, the computer screen shot showing the file for Mr. Kovacic's test states that the 

result was verified on June 6, 2008 but not reported4 (Ex. C-6; Tr. 136:8-137:7.) Mr. Jones 

makes a statement consistent with the computer screen shot in his February 9, 2011 letter to 

Mr. Rohl accompanying it: "The second entry indicates that on June 6, 2008 ... the result, while 

verified by the MRO has not been reported." (Ex. B.) 

On top of all of Mr. Jones's statements, Dr. Weber, an MRO at ASTS, told Ms. Frankel 

that a verbal, telephonic report of a negative result would only be done if it were set up in the 

system that way. (Ex. C-3; Tr. 50:10-22.) However, there is no evidence that Respondent was set 

up this way in ASTS's system. In fact, Respondent was not a client of ASTS at the time 

Mr. Rohl supposedly received the verbal report. (See Tr. 123:1-4.) ASTS also did not have the 

necessary DER contact information for reporting drug test results to Mr. Rohl at any time before 

4 According to Mr. Jones's testimony, Exhibit C-6 reflects how the record looked on June 6, 2008, when the entry 

about the verification but no report was entered. (Tr. 139:3-8 & 140: 1-5.) 

10 
Respondent hired Mr. Kovacic. (Ex. C; Tr. 161:16-162:11.) Therefore, ASTS would not and 

could not, by policy and by regulation, have phoned Mr. Rohl and given him a verbal report of 

Mr. Kovacic's verified negative result using the information it had on or before June 6, 2008. 

Respondent also intimates that ASTS violated 49 C.F.R. § 40.167(b) by failing to report 

the result of Mr. Kovacic's drug test on the same day it verified the test. (Tr. 146:15-18.) This is 

a misinterpretation of§ 40.167(b ). That regulation requires the same-day transmission of "all 

verified positive test results, results requiring an immediate collection under direct observation 

adulterated or substituted specimen results, and other refusals to test."§ 40.167(b). Negative 

tests are not mentioned at all. Therefore, the requirements of§ 40.167(b) do not apply to 

Mr. Kovacic's verified negative test result. As a result, § 40.167(b) also does not support any 

inference that ASTS must have transmitted the verified negative result on June 6, 2008. The 

regulation that does apply here is 49 C.F.R. § 40.165(a), which requires that all drug test results 

must be reported to the DER. ASTS complied with the appropriate regulations governing the 

reporting of a verified negative result of a pre-employment drug test when it passed along the 

result to Respondent's DER. (See Ex. C.) It is Respondent who has failed to comply with the 

regulations by hiring Mr. Kovacic before receiving the verified negative result of his preemployment drug test. 14 C.F.R. § 120.109(a)(l). 

D. Mr. Rohl's Testimony Lacks Credibility 

Mr. Rohl's testimony that he received a verbal report of the verified negative result of 

Mr. Kovacic's test is the sole direct evidence of that claim. Yet the record in this case gives 

many reasons to doubt his testimony. First, Mr. Rohl's testimony at hearing was the first time 

throughout the entire process that Mr. Rohl put a date to his claim that he received a verbal 

report, and it just happened to be the day that Mr. Kovacic first performed for Respondent and a 

11 
possible date for his hiring: Jnne 6, 2008. (Tr. 206:20-207: 1.) By contrast, Mr. Rohl did not give 

a date for the verbal report in his July 23,2008 note, his May 10, 2011letter, or in his deposition 

(Exs. C-2 & C-10; Tr. 224:17-20.) Mr. Rohl stated during his deposition that he did not 

remember the date of the supposed verbal report offthe top of his head. (Tr. 224:19-20.) 

Likewise, in Mr. Rohl's note of July 23, 2008, he does not mention receiving a verbal negative 

or a call, though the note is likely his best recollection of events regarding the test because it is 

the document closest in time to the test. (Tr. 214:3-215:1.) During cross-examination, Mr. Rohl 

said that the note was only about the lack of a written report. (Tr. 215:7-9.) However, he also 

said that he was asked to write the note to explain why, when he had supposedly received a 

verbal report, there was no accompanying written report. (Tr. 215:20-216:5; see also 49 C.P.R. 

§ 40.167(c).) If the scope of the note is as Mr. Rohl testified, it is rather odd that he wrote at 

length on everything else related to the test, including when he sent Mr. Kovacic for the test, his 

call to Concentra seeking the result, his later request for a copy of the result, and Mr. Kovacic's 

hire date, without mentioning the clearly related verbal report. Indeed, Mr. Rohl' s note states that 

he "[d]o[es]n't remember what happened" after he called Concentra about the status of Mr. 

Kovacic's test, indicating he does not remember anything about the missing written report, the 

supposed verbal report, or both. (Ex. C-2.) When compared to the clear and consistent testimony 

of Mr. Jones, there is no basis whatsoever to give any credit to Mr. Rohl's convoluted and 

contradictory testimony. 

12 
III. The Sanction In This Case Is Consistent With Complainant's Sanction Guidance 

Turning from proving the violation to the sanction in this case, $7,700 is appropriate for 

the charged violation under the guidance in FAA Order 2150.3B.5 Figure B-5-c(2), p. B-32, 

recommends a civil penalty in the maximum range for failure to receive the verified negative 

result before hiring. Respondent is a Group IV commercial operator, as he has less than or equal 

to five aircraft and less than or equal to five pilots. Order 2150.3B, p. B-4. The maximum civil 

penalty range is therefore $4,400 to $11,000. Id Mr. Kovacic's actual performance of a safetysensitive function is an aggravating factor, as the regulatory requirement is to test before hire, not 

performance. Order 2150.3B, ~~ 4.a.(2) & 4.e, pp. 7-4 to 7-6. If one begins at the midpoint of 

the maximum range, $6,600, in accordance with Order 2150.3B, and increases the penalty based 

on the aggravating factor, $7,700 is an appropriate penalty under the circumstances of this case. 

Order 2150.3B, ~ 5.b, pp. 7-9 et seq. The FAA Decisiornnaker will uphold a requested sanction 

when it is reasonable under all the circumstances. In re Air Solutions, LLC & Air Solutions 

Group, Inc., FAA Order 2009-1,2009 WL 8502643, at *5 (Jan. 12, 2009). As the proposed 

sanction in this case is reasonable given the events at issue and the sanction guidance in Order 

2150.3B, it should be upheld. 

CONCLUSION 

The record in the case resoundingly supports Complainant's charge that Respondent 

failed to receive the verified negative result of Mr. Kovacic's pre-employment drug test before 

hiring him to perform a safety-sensitive function. Respondent had to, at the latest, receive the 

verified negative result on or before June 6, 2008. The undisputed evidence shows that only one 

5 Complainant has applied the Order as it existed at the time of the violation. It has since undergone changes, but as 

they do not favor Respondent they will not be applied. 

13 
entity who handled the verified negative result could have reported it in time: ASTS. The 

testimony and evidence from ASTS and its president, Mr. Jones, reliably and credibly show that 

ASTS did not report the verified negative result to Respondent on or before that date. 

Respondent suggests the possibility that ASTS reported the verified negative result to it on June 

6, 2008, but the clear and consistent statements from Mr. Jones as well as the lack of credibility 

and consistency in Mr. Rohl's testimony argue strongly in Complainant's favor. Finally, the 

sanction proposed by Complainant is clearly appropriate under the circumstances and in light of 

Complainant's sanction guidance. Complainant therefore requests that his Complaint be 

affirmed. 

Dated: March 26, 2012 

14 

Respectfully submitted, 

Nicholas 

~~ R. Milliard 

Attorney 

Enforcement Division, AGC-300 

Office of the Chief Counsel 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Telephone: (202) 267-3452 

Facsimile: (202) 267-5106 

cole.milliard@faa.gov 
CERTIFICATE OF SERVICE 

I hereby certify that I served by U.S. Certified Mail, return receipt requested, a copy of 

the preceding Complainant's Post-Hearing Brief in In the Matter of Air Z Flying Service, Inc, 

FAA Docket No. CP10SW0010, Case No. 2009SW910051, addressed to: 

Mr. Peter J. Comodeca, Esq. 

1405 East Sixth Street 

Cleveland, OH 44114-1607 

In addition, I hereby certify that I served by U.S. Certified Mail, return receipt requested, 

a copy of the same, addressed to: 

to: 

The Honorable Richard C. Goodwin 

U.S. Department of Transportation 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

Washington, D.C. 20590 

I also hereby certify that I served by hand delivery, the original and one copy of the same, 

ATTN: Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

600 Independence Ave., S.W. 

Wilbur Wright Building-Suite 2W1 000 

Washington, D.C. 20591 

Date: i\!\,~n l-. 2.C, ) ( l 2. 

_.;' 

15