SERVED FEBRUA:RY 2,2010 

-·3 D8 

UNITED STATES DEPARTMENT OF TRANSPORTATION 


OFFIC~ OF HEARINGS 


WASHINGTON, D.C. 


) 


FEDERAL AVIATION ADMINISTRATION, ) 


) 


Complainant, 	 ) FAA DOCKET NO. CP08WPOO1'3 

) 

v. 	 ) (Civil Penalty Action)' 

) 

JOHN HunON CORPORATION ) 

d/b/a TORA FLIGHT ADVENTURE CLUB, ) 

) 

Respondent. ) DMS No. FAA-2008-0780 

) 

) 

INITIAL DECISION 

OF ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN 

Found: 1) Respondent violated 14 C.F.R. §§119.5(g), 119.5(k), 135.21(a), 135.63(a)(4), 


135.95(b), 135.293(a), 135.293(b), 135.299(a), 135.341(a), and 135.343 as set out in 


the amended Complaint; 


2) Respondent is hereby assessed a civil penalty of $15,000. 

. I. The Complaint 

Respondent John Hutton Corporation d/b/a Tora Flight Adventure Club 


("Respondent" or "Tora Flight") conducts on-demand tours by air within the State 


of Hawaii. Its chief executive officeris Mr. John Weiser (2 Tr. 108; Exhs C-5 and 


C-11, p. 21). Tora Flight's operations led the Federal Aviation Administration 


("Complainant," "FAA," or "the agency") to file, on June 29,2008, the instant 


Complaint. 


The Complaint, as amended at the hearing (1 Tr. 23, 27, 29, 91-92), 


alleges that Respondent violated ten Federal Aviation Regulations ("FARs"), viz., 


14 C.F.R. §§119.5(g), 119.5(k),135.21(a), 135.63(a)(4), 135.95(b), 135.293(a), 


135.293(b), 135.299(a), 135.341(a), and 135.343. In sum, the charges assert 


that Respondent and one of its pilots operated aircraft without proper credentials 


(1 Tr. 11). The agency is requesting a total civil penalty of $15,000 (1 Tr.49-50). 

2 


Respondent denied the charges (3 Tr. 160-64). 

I held a bifurcated hearing in Honolulu, which began on March 2, 2009, 

reconvened on June 23, and ended on June 24,2009. 1 The parties made 

closing statements (2 Tr. 130-56; 3 Tr. 160-77). The case now is ready for 

decision.2 

II. Background 

The parties had several contacts prior to the filing of the Complaint 

concerning the issues in this case. It is useful to an understanding of the 

agency's claims and Respondent's defenses to summarize them. 

Complainant's witnesses were FAA aviation safety inspector ahd 

Respondent's principal operations inspector David Lusk and now-retired aviation 

inspector Gerald Parrott. They were straightforward and sincere. Their 

demeanor suggested trustworthiness. I found their testimony credible. 

Inspector Lusk testified that in March, 2005, he learned that Respondent 

was conducting revenue flights between a point on the island of Oahu and a 

point on the island of Molokai. More specifically, he found that Tora Flight was 

operating between Panda Ranch, a private club on Molokai, and Honolulu 

International Airport on Oahu. Such operations, inspector Lusk stated, require a 

certificate for operations under Part 135 of the FARs - a certificate that T ora 

Flight did not possess. Lusk concluded that Respondent was operating Part 135 

flights iIIegal/y( 1 Tr. 59-62, 81-82). 

When informed, Respondent countered that the FAA had investigated 

Tora Flight's identical operations less than two years earlier and had cleared it of 

any wrongdoing. An agency inspector had written to Respondent on October 15, 

2003, that "our investigation has not established a violation of the Federal 

Aviation Regulations and you may consider the matter closed" (1 Tr. 63-64, 72­

73; Exh. C-2). 

Inspector Lusk, however, did not agree with his fellow inspector's 

conclusion, and he told Respondent so (1 Tr. 63-64). He began an investigation. 

On March 31,2005, he sent Respondent by facsimile legal interpretations he 

I Respondent's counsel, David Turk, withdrew on the first day of hearing when he learned ofa possible 

conflict ofinterest. 1 Tr. 125-27, 130. The hearing was then adjourned. 1 Tr. 140. Mr. Weiser ofTora 

Flight, who is not an attorney, was advised to obtain substitute counsel. 1 Tr. 144. At the reconvened 

hearing Weiser represented Respondent 

2 Citations from the first day of the hearing will be "1 Tr.," from the first day ofthe reconvened hearing, "2 

Tr.," and from the second day ofthe reconvened hearing, "3 Tr." Complainant's exhibits will be 

designated as "Exh. C- " followed by the exhibit number. 
3 

believed to be consistent with his conclusion. 3 In early April of 2005, Respondent 

offered to begin the process of Part 135 certification. 

The agency's probe otTora Flight's alleged wrongdoing continued. On 

May 27,2005, inspector Lusk sent Respondent a Letter of Investigation ("LOI").4 

The LOI reiterated his view that Respondent's point-to-point revenue operations ~ 

required a Part 135 air carrier certificate. Respondent was operating contrary to 

the FARs, inspector Lusk wrote. The letter concluded (as LOis normally do) by 

inviting Tora Flight to submit within ten days of receipt "any evidence or 

statements" regarding the LOI's assertions (Exh. C-3), 

The Part 135 certification procedure also continued. The first step in the 

process is for the applicant to file a form known as a "preapplication statement of 

intent" ("PASI") (1 Tr. 70-72, 77-78). Respondent filed a PASI untierdate of June 

8,2005 (Exh. C-4). The next step is a preapplication meeting. This is an 

informal get-together at which FAA officials explain how to continue the process; 

they also answer any questions the applicant may have. This meeting was held 

on June 22,2005 (1 Tr. 96). 

The agency then convenes a formal application meeting. Normally this 

meeting takes place about 30 to 45 days after the preapplication meeting (1 Tr. 

93-95; Exh. C-6). Therewas some delay in Tora Flight's case, however. 

Inspector Lusk informed Mr. Weiser in a letter dated August 31, 2005, more than 

60 days after the pre-application meeting that the formal application meeting ­

which would include the candidate's presentation of all required manuals and 

documents - needed to be held no later than September 30,2005.5 The August 

31 letter, which contained language customarily used in letters of investigation, 

also addressed the ongoing probe in the context of certification. It stated that 

Respondent's counsel, Mr. Turk, had been told at a meeting of May 25 (the day 

before the date of the LOlletter) that if Tora Flight "was proactive" during the 

certification process, and was certificated in a "timely" manner, these 

circumstances would be considered mitigating in the event that the agency 

brought an enforcement action. The pre-application meeting of June 22 had 

"made clear [to Mr. Weiser] that the certification of Tora was critical to mitigating 

any future investigation and resulting enforcement" (Exh. C-6, p. 1; 1 Tr. 95). 

, The formal application meeting eventually was held on November 8,2005. 

No progress was made, however; Respondent's proposed manuals were 

deemed unsatisfactory. Respondent offered revisions into the early months of 

2006, but these were rejected as well (2 Tr. 18-25). On April 26, 2006, inspector 

3 Exh. C-I; 1 Tr.63-65. It is well-settled that the government has the power to change its interpretation of 


the law. See, e.g., Bisson v. Office o/Personnel Management, 908 F.2d 947,950 (Fed.Cir. 1990), 


41 Tr,73-74. The letter is dated May 26,2005, but the mailing documents indicate that it was mailed on 


May 27. See Exh, C-3, p. 3. . 


5 Exh. C-6, p. 2; 2 Tr. 12. Inspector Lusk stressed at the hearing that "time is ofthe essence in .. , 


continuing the certification process" (1 Tr.97). Mr. Weiser agreed that inspector Lusk "was very adamant 


about getting it done really quickly" (2 Tr. 90). 

4 

Lusk, having learned that Respondent was conducting more extensive air 

operations than he had originally thought, sent it two letters: a second LOI (Exh. 

C-15), and an order to Respondent to cease all flight operations contrary to Part 

135 (Exh. C-14; 2 Tr. 33-35). The letters were sent by facsimile to Respondent, 

through its counsel, on April 26, 2006 (2 Tr. 35-36). 

On April 30, 2006, four days later, one of Respondent's aircraft suffered 

an accident. The flight had departed from the Panda Ranch private airstrip on 

Molokai en route to Honolulu. It crashed shortly after takeoff. Inspector Parrott 

was assigned to investigate. The agency proved through his testimony and the 

testimony of inspector Lusk that this flight carried passengers and was operated 

forcompensation or hire (Exhs. C-10, C-17; 1 Tr. 88-91,114-15,117,119-22; 2 

Tr. 38-43,48-50, 105-06). 

III. Findings and Conclusions 

The FAA proved its case as to each alleged violation. 

A. Violation of 14 C.P.R. §119.5(g) 

FAR section 119.5(g) prohibits a person from operating as a direct air 

carrier or commercial operator without an appropriate certificate and operations 

specifications. The agency asserts that Respondent operated as a direct air 

carrier and commercial operator without the required certificate -- that is, a 

certificate issued under Part 135. Complainant proved this charge. 

The evidence showed that Respondent had offered to the public and had 

operated point-to-point air transportation operations for compensation in 2005 

and at least up to the aircraft accident on April 30, 2006. It had advertised to the 

general public since at least 2004 and as late as May 10, 2006, a tour package 

involving air transportation from Oahu to destinations in Molokai and back to 

Oahu (2 Tr. 110; Exh. C-13). Investigation of the accident showed that the 

transportation contemplated had been a· revenue flight that was to have been 

operated from the Panda Ranch airstrip on Molokai to the Honolulu International 

Airport on Oahu. The four passengers on the aborted flight had paid for air 

tran~portation as part of a tour package offered by Respondent (1 Tr. 114-23; 2 

Tr. 39-41, 48-50, 105-06, 110; Exhs. C-10, 17). 

Respondent asserts that its air operations were incidental to the tour 

package. As such, it argues, the operations constituted private carriage, and not 

common carriage subject to Part 135. It did not therefore violate §119.5(g), it 

asserts (3 Tr. 160-61; see 14 C.F.R. §61.118). 

Respondent's argument is rejected. The key determinant for common 

carriage is whether the service offered constitutes carriage offered to the public 

on a competitive commercial basis (Las Vegas Hacienda, Inc. V. Civil 
---------------------------

5 


Aeronautics Board, 298 F.2d 430, 434 (9 Cir. 1962)). Respondent's operations 

fell within this description. The tour packages were offered to the public for profit. 

The package included air transportation .. 

Any doubts as to whether Tora Flight's air operations were incidental to its .... tour package, moreover, was dispelled by its advertising. Respondent boasted 

that its aircraft "can safely penetrate forbidden coves, waterfalls and valleys" 

(Exh. C-13). The evidence also showed that the nighttime, or "deluxe," operation 

it offered - which cost more money than the daytime tour - was expressly 

designed in part to show participants the night lights of Honolulu below. The 

additional compensation that Respondent charged and received for the nighttime 

tour was directly tied to the promise of sights that only transportation by air could 

offer. The night flights were a selling point. As Mr. Weiser explained, 'We 

always said that the nighttime was the deluxe because you could'see'il'lecity 

lights when you come back." (2 Tr. 110; Exhs. C-12 and C-13 (advertising 

brochures touting "night tours to view the city lights"». Respondent's tours 

offered, in exchange for compensation, an experience. The full experience could 

only have been enjoyed with air transportation. The flights were not incidental to 

the tour. 

Operations held out to the public for compensation or hire constitute 

common carriage. Tora Flight's operations fell within that description. 

Respondent, I conclude, operated in common carriage. 6 

Air carriers engaging in common carriage are subject to the certification 

and operating rules of Part 135 of the FARs. Respondent acknowledged that it 

did not possess the required certificate. Tora Flight had held one at one time, but 

had surrendered it in 2001 (1 Tr. 63, 103). 

Respondent was obligated to secure a Part 135 certificate for another 

reason as well. Air tours carrying passengers which begin and end at the same 

airport, operate withina 25-statute mile radius ofthat airport, and stay airborne 

may be operated under Part 91 of the FARs. Respondent held Part 91 

certification. But Complainant showed that Respondent had operated tours for 

hire which extended approximately 45 statute miles from the point of departure. 

These tours also had landed. Such operations independently require a Part 135 

certificate and appropriate operations specifications (14 C.F.R §91.147(a); 1 Tr. 

99':'101; 2 Tr. 14-17). Respondent, as has been seen, lacked these credentials. 

For all these reasons I conclude that Respondent violated §119.5(g). 

6 Gorman v. National Transportation Safety Board, 558 F.3d 580,582 (D.C. Cir. 2009), cert. den. 130 

S.Ct. 374 (2009), reh. den. 2009 WL 4111126,78 USLW 3321 (2009); 14 C.F.R. §374.40(b); Las Vegas 

Hacienda, supra; Vance A. Motley, Order No. EA-450, 2 NTSB 178, 1973 WL 18367 (NTSB 1973); see 

also 2 Tr. 49. 
6 

B. Violation of 14 C.P.R. §119.5(k) 

FAR section 119.5(k) prohibits a personfrom advertising or otherwise 

offering to perform air transportation without proper authorization. Complainant 

proved this charge. 

The evidence showed that as far back as 2004 and at least until May 10, 

2006, Respondent offered brochures and sponsored a web site describing to the 

general public various tours it operated in Oahu and Molokai (2 Tr. 28-32,42-43; 

Compl. Exhs. 11, 12, and 13). These activities constituted advertising and offers 

to perform operations for which Respondent lacked the proper credentials (2 Tr. 

51). Mr. Weiser acknowledged that Respondent advertised (2 Tr. 103-04}. 

Complainant, for these reasons, demonstrated that Respondent violated 

§119.5(k}. . 

C. Violation of 14 C.P.R. §135.21(a) . 

FAR section 135.21(a} prohibits Part 135 entities using more than one 

pilot from operating without a current manual acceptable to the Administrator. 

Complainant proved this charge. 

The evidence showed that, during the relevant period, Respondent utilized 

more than one pilot. .It used as many as three in daily operations (2 Tr. 44, 111, 

113). The evidence also showed that the agency had yet to accept (or to 

approve) any manual submitted by Respondent (2 Tr. 51-52). As such, Tora 

Flight was operating pursuant to Part 135 without manuals. This charge, 

therefore, was proven. 

D. Violation of14 C.P.R. §135.63(a)(4) 

FAR section 135.63(a}(4} directs Part 135 certificate holders to keep an 

individual record of each pilot used in Part 135 operations. Complainant proved 

this charge. 

Respondent, as a non-certificated carrier, did not have such records. It 

did not offer its pilots the training needed to create such records (2 Tr. 53-56). 

As such, it stands in violation of this section. 

E. Violation of 14 C.P.R. §135.95(b) 

FAR section 135.95(b} prohibits certificate holders from using an airman 

who is unqualified for the operation for which that airman is to be used. 

Complainant proved this charge. . 

Respondent had failed to qualify its pilots for operating under Part 135. 

Pilots·of an illegal Part 135 operator such as Respondent operate illegally as 

well. Moreover, the agency showed that T ora Flight's pilots had passed none of 
7 

the tests or checks required in order to be qualified under Part 135 (2 Tr.55-59; 

see section F., G., and H. below). Complainant thus proved a violation of this 

section. 

F. Violation of 14 C.F.R. §135.293(a) 

Certificate holders may not use a pilot in Part 135 operations who has not 

passed the knowledge test specified in this section in the appropriate type of 

aircraft since the beginning of the 1ih calendar month before the flight. 

Complainant proved this charge. 

Respondent offered no documentation tending to show that any of its 

pilots passed the knowledge tests required by Part 135 (2 Tr. 55). As such, 

Complainant proved a violation of this section. 

G. Violation of 14 C.F.R. §135.293(h) 

Certificate holders may not use a pilot in Part 135 operations who has not 

passed a competency check specified in this section in the appropriate type of 

aircraft since the beginning of the 1ih calendar month before the flight. 

Complainant proved this charge. 

Respondent offered no documentation tending to show that any of its 

pilots passed the competency tests required by Part 135 (2 Tr. 55). As such, 

Complainant proved a violation of this section. 

H. Violation of.t4 C.F.R. §135.299(a) 

Certificate holders may not use a pilot in command in Part 135 operations 

who has not passed a flight check in one of the types of aircraft which the pilot is 

to fly since the beginning of the 12th calendar month before the flight. 

Complainant proved this charge. 

Respondent's pilots did not undergo flight checks for Part 135 operations 

(see, e.g., 2 Tr. 55-59). As such, the violation was proven. 

I. Violation of 14 C.F.R. §135.341(a) 

This section requires certificate holders using more than one pilot to 

establish and maintain an approved pilot training program. Complainant proved 

this charge. . 

Respondent lacked an approved training program manual. Without a 

manual, it was not possible to establish an approved pilottraining program. 

Respondent's pllots were unable to obtain approved training (whether initial or 

recurrent) in accordance with Part 135 training regulations (2 Tr. 52, 56). 

Complainant, therefore, proved a violation of this section. 
.. 
 8 

J. Violation of14 C.F.R. §135.343 

14 C.F.R. §135.343 requires certificate holders using more than one pilot 

to use only crewmembers who have completed the appropriate phase of the 

training program appropriate to the type of operation since the beginning of the "'\> 

12th calendar month before that service. Complainant proved this charge. 

No training of the type contemplated under Part 135 was provided to 

Respondent's crewmembers (see, e.g., 2 Tr. 55-59). The charge was proven. 

K Respondent's Additional Defenses 

Mr. Weiser, Respondent's chief, acknowledged that Respondent did not 

have a Part 135 certificate during relevant periods. But he was toldt'h& 

maintained, that Tora Flight did not need it -- so long as the carrier's application 

for that authority proceeded without undue delay. Assuming without deciding 

that Weiser's testimony would absolve Respondent of violations or mitigate any 

penalties, I conclude that the evidence does not support him and I reject this 

defense. 

Mr. Weiser raised no objection when inspector Lusk personally told him no 

later than June 2005 that Respondent needed a Part 135 certificate for its 

operations. But Lusk gave the company at least a temporary pass, Weiser 

maintained. He testified that inspector Lusk said that Tora Flight could continue 

to operate under Part 91 so long as the carrier took positive and timely steps to 

complete the Part 135 certification process (2Tr. 74, 88-90, 102-03). Whilethe 

process did not move as swiftly as the agency woul.d have liked, Weiser 

acknowledged, that was not his fault; the Tora Flight official in charge of 

certification failed in his responsibilities and lied in assuring Weiser that the 

process was moving at a satisfactory pace (2 Tr. 90-92). In the early months of 

2006, Mr. Lusk became dissatisfied with the progress of Tora Flight's application 

for certification and halted the process (2 Tr. 95-96; I.D., p. 3). 

Mr. Weiser largely was not a credible witness. His demeanor sometimes 

suggested deception. His testimony often was patently self-serving: in nearly 

every circumstance he posited facts which exonerated Respondent and/or 

himself. 

Mr. Weiser suggested scenarios which were shown to be false. He 

maintained that T ora Fllght had surrendered its Part 135 certificate in 2001 only 

on the strength of an agency inspector's opinion that the carrier did not need it for 

its Molokai-Oahu operations. But inspector Lusk credibly testified that Mr. 

Weiser had stated in a letter ofSeptember 2,2003 that Tora Flight had given up 

the certificate because the carrier no longer planned to operate interisland 

charter operations for golfing parties (2 Tr. 117 -18). Mr. Weiser also claimed in 

Tora Flight's defense that it was Respondent's April 30th , 2006 crash that 

triggered the agency's cease-and-desist letter (2 Tr. 97-98; see Exh. C-14; I.D., 
.. 


9 

p.3). The evidence showed this assertion to be untrue. The letter had been 

mailed on April 25, five days before (2 Tr. 126-27; Exh. C-15). And while it is true 

that Tora Flight received the letter through the mail after the accident (Exh. C-15; 

2 Tr. 97), that fact is irrelevant; the letter had been sent by facsimile and received 

by Respondent (through counsel) on April 26, 2006, four days prior to the crash 

(1.0., p. 4; 2 Tr. 127). Respondent was on notice prior to the accident that the '" 

FAA had issued it a cease-and-desist order. It chose to keep flying. 

Mr. Weiser's testimony generally was of dubious value. It could not be 

credited when it contrasted with testimony offered by Complainant's trustworthy 

witnesses. 

Assuming Mr. Weiser testified truthfully concerning his state of mind, 

however, I find that, even if he did gain the impression that the agency (per 

inspector Lusk) was allowing Tora Flight during the certification process to 

continue to operate under Part 91, his understanding was patently unreasonable; 

As such, it does not excuse or mitigate the effect of Tora Flight's subsequent 

actions. 

Inspector Lusk credibly denied Mr.Weiser's version of events. Mr. Lusk 

had informed Respondent unequivocally no later than March 31, 2005 that its 

operations required a Part 135 certificate (Exh. C-1; see 1.0., p. 2). He had, he 

said, made it clear that Tora Flight could not continue operating in common 

carriage without such certification (2 Tr. 74-76). Specifically referencing the 

preapplication meeting he had held with Tora Flight officials on June 22, 2005 

(1.0.,. p. 3), inspector Lusk testified that he did not have the authority to, and did 

not, authorize operations outside FAR boundaries (2 Tr. 122-24). At the hearing 

he stressed, citing contemporaneous records he had made, that he had informed 

Respondent officials during this period without qualification that its operations 

between Oahu and Molokai necessitated a Part 135 certificate (2 Tr. 124-26). 

It is true that inspector Lusk had made a promise to Mr. Weiser 

concerning Tora Flight's application 'for certification. But the promise - orally and 

in writing -- consisted only of the assurance that if Tora Flight initiated and 

obtained a Part 135 certificate in a timely fashion, the agency would consider 

such circumstances as mitigating in any enforcement action (2 Tr. 125; see 1.0., 

p. 3). "I made very clear to Mr. Weiser [at the June 22. 2005 meeting]," inspector 

Lusk summed up, "that those operations are still considered illegal operations 

and that the certification process can only be considered, maybe considered 

mitigating if there was a future enforcement" (2 Tr. 126). 

I conclude that the agency never suggested that Tora Flight could 

continue to operate under Part 91 and avoid enforcement during the pendency of 

the Part 135 certification process. Any understanding to the contrary simply was 

unreasonable. 
10 

Further support for rejecting Mr. Weiser's defense originates in inspector 

Lusk's letter to him of August 31,2005 (see I.D, p. 3). That letter reminded Mr. 

Weiser that Lusk had told Respondent's counsel on May 25, 2005, and reiterated 

to Weiser himself at the pre-application meeting of June 22 of that year, that a 

"proactive" and relatively quick certification process would only be considered '.,. 

mitigating in the event of enforcement action; by necessary implication, 

continuing and completing the process in a timely manner would not absolve 

Respondent of FAR violations.? 

I have considered all other objections raised by Respondent and reject 

them without comment as without merit. 

For the reasons stated above, Tora Flight's defenses fail. Respondent is 

found in violation of each of the charges set out by Complainant irlits'amended 

Complaint. 

IV. Penalty 

The agency has ask.ed for a total civil penalty of $15,000. Complainant 

bears the burden of justifying the amount of the civil penalty it seeks. Phyllis 

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

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 the violation; (3) the respondent's degree of 

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

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

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 absorb 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 similarly-situated entities from 

future violations. Folsom's Air Service, Inc., Id., p. 20.. 

The agency has issued enforcement guidelines, FAA Order No.2150.3A 

(Exh. C-19, and also found at www.airweb.faa.gov), for its employees to follow in 

7 Exh. C-6, p. 1; see 1.0., p. 3. Mr. Lusk's statements in the Augusnl, 2005 letter do not show that the 

facts recited therein occurred; but it does show that Mr. Weiser, no later than the delivery ofthis letter 

(September 12, 2005), knew or should have known the contents. 
11 


determining appropriate sanctions. The guidelines also advise the public ofthe 

sanction policy that the Administrator intends to follow through the adjudication of 

individual cases. Folsom's Air Service, Inc., FAA Order No. 2008-11 (November 

6,2008), p. 13. The Sanction Guidance Table, contained in Appendix 4 of Order 

No. 2150.3A, and as amended by Compliancel EnforcementBulletin No. 92-1, ~ 

sets out penalty 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 out the civil 

penalty ranges per violation as follows: minimum, $1,000 to $3,999; moderate, 

$4,000 to $7,499; and maximum, $7,500 to $11,000.8 

I conclude that a civil penalty in the amount of $15,000 is proper and 

warranted. . 

Part 135 applies higher safety standards to air transportation entities 

competing for the patronage of the general public than the standards set by Part 

91 for private carriage. Part 135 affords a greater measure of protection. By 

operating outside these safeguards, Respondent materially compromised air 

travel safety for the public at large. 

Tora Flight's pilots were not Part 135-qualified. Its aircraft were never 

tested under that section's more stringent standards. Proving runs at the difficult 

Panda Ranch airstrip, a prerequisite for Part 135 certification, had never been 

undertaken (2 Tr. 53). Respondent's operations plainly were in derogation of air 

transportation safety. 

Tora Flight's actions, further, were deliberate (2 Tr. 60-63). Respondent 

knew no later than March 31,2005 that the FAA had determined that its 

interisland tour package hesitated Part 135 certification. Yet it operated in 

defiance of the agency's direction for over a year - despite, among other things, 

oral warnings,two letters of investigation, and a third letter (that of August 31 , 

2005) containing LOI language. Indeed, its deliberate noncompliance continued 

until the agency flat-out ordered it to cease these operations and, soon after, a 

pilot unqualified for Part 135 operations and inexperienced with the Panda Ranch 

runway crashed. The pilot had not undergone the training and testing Part 135 

requires - the successful completion of which might have led to a better 

outcome.9 

8 Exh. C-20, p. 3. The guidelines' tables show the maximum range as $7,500 to $10,000. The upper limit, 

however, was adjusted to $11,000 by regulation effective January 21, 1997. See 14 CFR §305{d); 62 

Fed.Reg. 4134 (January 29, 1997). 

FAA Order No. 2150.3B updated the guidelines effective October 1, 2007 for violations occurring on or 

after that date. Since the instant violations occurred no later than 2006, Order No. 2150~3B does not apply. 

See 72 Fed.Reg. 55853 (October 1, 2007); Folsom's Air Service, Ibid., p. 12, n. 26. . 

92 Tr. 58-59. Mr. Weiser acknowledged that, with Part 135 training, "maybe you would learn how to do 

that [properly take off from MolokaiJ ..." 2 Tr. 112. 
12 

The Sanction Guidance Table suggests a maximum civil penalty for 

operations contrary to operations specifications (Table (Exh. C-19), p. 3). 

Respondent held no operations specifications under Part 135. The Sanction 

Guidance Table also suggests a maximum civil penalty for failure to have "an 

effective training program" (Table, p. 5). Respondent had no training program. "" 

Using an unqualified crew member also warrants a civil penalty in the maximum 

range (Table, p. 6). None of Respondent's pilots were qualified under Part 135. 

Each day that Respondent operated in violation of the FARs could, in 

theory, have led to a civil penalty of $7,500 - $11,000 for each of the three 

groupings of violations. Because of the Violations' deliberate character, a levy at 

the high end is justified. Under these circumstances, a civil penalty assessment 

of $15,000 is well warranted - perhaps even lenient I find that it is 

commensurate with the nature and extent of the violations. The ass'essment 

sufficiently accounts for the Respondent's conduct. I find also that the penalty 

has "bite," or deterrent effect (see Toyota Motor Sales, Inc., FAA Order no. 94 ..28 

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

In sum, I find and conclude that a sanction amount of $15,000 

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

John Hutton Corporation, d/b/a Tora Flight Adventure Club, is hereby 

assessed a civil penalty of $15,000 for violations of FAR §§119.5(g), 119.5(k), 

135.21(a), 135.63(a)(4), 135.95(b), 135.293(a), 135.293(b), 135.299(a), 

135.341(a), and 135.343 as set out in this Initial Decision. 1O 

:Richard C. Goodwin 

Administrative Law Judge 

Attachment - Service List 

10Any appeal from the Initial Decision to the Administrator must be in accordance with sections 13.210 and 

13.233 ofthe Rules of Practice, which require 1) that a notice of appeal be filed no later than 10 days (Plus 

an additional 5 for mailing) from the date ofthis decision 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 ofthis decision. Each is to 

be sent to the Federal Aviation Administration, 800 Independence A venue, S. W., Washington, DC 20591, 

Attn: Hearing Docket Clerk, AGC-430, Wilbur Wright Building-Suite 2W 1 000, and to agency counsel. 

Service upon the presiding judge is optional. 
FAA Docket No. CP08WP0013 

(Civil Penalty Action) 

SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Sl.Jite 2W10001 

ONE COpy 

David L. Turk, Esq. 

18 Lagoon Drive 

Honolulu, HI 96819 

TEL: (808) 839-7555 

FAX: (808}·839-7556 

Lisa 1. Toscano, Attorney 

Office of the Regional Counsel, A WP-7 

Western-Pacific Region 

Federal Aviation Administration 

P.O. Box 92007 

Los Angeles, CA 90009-2007 

TEL: (310) 725-7100 

FAX: (310) 725-6816 

The Honorable Richard C. Goodwin 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room E12-320 

Washington, D.C. 20590 

TEL: (~02) 366-2139 Attorney-Advisor 

(202) 366-5121 Legal Assistant 

FAX: (202) 366-7536 

1 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2WIOOO, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.