## 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 FLIGHTADVENTURE CLUB, ) ) Respondent. ) DMS No. F AA-2008-0780 ) )

INITIAL DECISION OF ADMINISTRATIVE LAWJUDGE RICHARD C. GOODWIN
Found: 1) Respondentviolated 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 setoutin the amended Complaint; 2) Respondentis herebyassessed a civil penaltyof$15,000.



### . I. TheComplaint Respondent John Hutton Corporation d/b/a Tora FlightAdventure Club ("Respondent" or "Tora Flight") conducts on-demandtours by airwithin the State of Hawaii. Its chiefexecutive 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 atthe hearing (1 Tr. 23, 27, 29, 91-92), alleges that Respondentviolated 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 aircraftwithout proper credentials (1 Tr. 11). The agencyis 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 priorto the filing ofthe Complaint concerning the issues in this case. It is useful to an understanding ofthe agency's claims and Respondent's defensesto summarize them. Complainant's witnesses were FAA aviation safety inspectorahd 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 theirtestimony credible. Inspector Lusk testified that in March, 

### 2005, he learned that Respondent was conducting revenue flights between a point on the island ofOahu and a point on the island of Molokai. More specifically, hefound thatTora Flightwas 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 ofthe FARs - a certificate that Tora Flightdid not possess. Luskconcluded that Respondent was operating Part 

### 135 flights iIIegal/y(

### 1 Tr. 

### 59-62, 81-82).
When informed, Respondent countered thatthe 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 ofthe Federal Aviation Regulations and you may considerthe 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 Respondentby facsimile legal interpretations he

I Respondent's counsel,DavidTurk, withdrewon the first day ofhearing when he learned ofapossible conflict ofinterest. 1Tr. 125-27, 130. The hearing wasthen adjourned. 1Tr. 140. Mr. WeiserofTora Flight, who isnot an attorney, was advisedto obtain substitute counsel. 1Tr. 144. Atthereconvened hearingWeiserrepresented Respondent 2 Citations from the first dayofthe hearingwill be "1 Tr.," from the first day ofthe reconvenedhearing, "2 Tr.," and from the secondday ofthereconvenedhearing, "3 Tr." Complainant'sexhibits will be designatedas "Exh. C- " followedbythe exhibitnumber.3

believed to be consistent with his conclusion. 3 In earlyApril of2005, 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 viewthat Respondent's point-to-point revenue operations

### ~ required a Part 135 air carrier certificate. Respondentwas operating contraryto the FARs, inspector Lusk wrote. The letter concluded (as LOis normally do) by inviting Tora Flightto submitwithin 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 forthe applicant tofile a form known as a "preapplication statement of intent" ("PASI") (1 Tr. 70-72, 77-78). Respondentfiled a PASI untierdate ofJune 8,2005 (Exh. C-4). The next step is a preapplication meeting. This is an informal get-together atwhich FAA officials explain howto 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 letterdated August 31, 2005, more than 60 days afterthe pre-application meeting that the formal application meeting

­ which would include the candidate's presentation ofall required manuals and documents

- needed to be held no laterthan 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 ofcertification. It stated that Respondent's counsel, Mr. Turk, had been told at a meeting of May 25 (the day before the date ofthe LOlletter) that ifTora Flight "was proactive" during the certification process, and was certificated in a "timely" manner, these circumstances would be considered mitigating in the eventthatthe agency brought an enforcement action. The pre-application meeting ofJune 22 had "made clear [to Mr. Weiser] that the certification ofTora was critical to mitigating any future investigation and resulting enforcement" (Exh. C-6, p. 1; 1 Tr. 95).

, The formal application meeting eventuallywas 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; 1Tr.63-65. Itis well-settledthatthe governmenthas the power to change its interpretation of the law. See, e.g., Bissonv. Office o/PersonnelManagement, 908 F.2d947,950 (Fed.Cir. 1990), 41 Tr,73-74. The letter is dated May 26,2005,butthemailing documents indicatethat it was mailed on May 27. See Exh, C-3, p. 3.

. 5 Exh. C-6, p. 2; 2 Tr. 12. Inspector Lusk stressed atthe hearingthat"time is ofthe essence in

.. , continuingthe certificationprocess" (1 Tr.97). Mr. Weiseragreedthat inspectorLusk "was very adamant aboutgetting 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 ittwo letters: a second LOI (Exh. C-15), and an orderto 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 aftertakeoff. Inspector Parrott was assigned to investigate. The agency proved through his testimony and the testimony of inspector Lusk thatthis flight carried passengers and was operated forcompensation or hire (Exhs. C-10, C-17; 1Tr. 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. Violationof14 C.P.R. §119.5(g) FAR section 119.5(g) prohibits a person from operating as a direct air carrier or commercial operatorwithout an appropriate certificate and operations specifications. The agency asserts that Respondent operated as a direct air carrier and commercial operatorwithoutthe required certificate

-- that is, a certificate issued under Part 135. Complainant proved this charge. The evidence showed that Respondent had offered tothe public andhad operated point-to-point airtransportation operations for compensation in 2005 and at least up to the aircraft accident on April 30, 2006. It had advertised tothe general public since at least 2004 and as late as May 10, 2006, atour package involving airtransportation from Oahu to destinations in Molokai and back to Oahu (2 Tr. 110; Exh. C-13). Investigation ofthe 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. Thefour 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 nottherefore violate §119.5(g), it asserts (3 Tr. 160-61; see 14 C.F.R. §61.118). Respondent's argument is rejected. The key determinantfor common carriage is whetherthe 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 publicfor profit. The package included air transportation

.. Any doubts asto whetherTora 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 thatthe 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 forthe nighttime tourwas directlytied to the promise ofsights that onlytransportation by air could offer. The nightflights 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 "nighttours to view the city lights"». Respondent's tours offered, in exchange for compensation, an experience. The full experience could only have been enjoyed with airtransportation. The flights were not incidental to the tour. Operations held outto the publicfor compensation or hire constitute common carriage. Tora Flight's operations fell within that description. Respondent, I conclude, operated in common carriage. 6
Aircarriers engaging in common carriage are subjectto the certification and operating rules of Part 135 ofthe FARs. Respondent acknowledged that it did notpossess the required certificate. Tora Flight had held one atone 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 ofthe 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 ofdeparture. These tours also had landed. Such operations independently require a Part 135 certificate and appropriate operations specifications (14 C.F.R §91.147(a); 1Tr. 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 Gormanv. National Transportation SafetyBoard, 558 F.3d580,582 (D.C. Cir. 2009), cert. den. 130 S.Ct. 374 (2009), reh. den. 2009 WL4111126,78 USLW 3321 (2009); 14 C.F.R. §374.40(b); Las Vegas Hacienda, supra; VanceA. Motley, OrderNo. EA-450, 2 NTSB 178, 1973 WL 18367 (NTSB 1973); see also 2 Tr. 49.6

B. Violation of14 C.P.R. §119.5(k) FAR section 119.5(k) prohibits a personfrom advertising or otherwise offering to perform airtransportation 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 tothe general public varioustours 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. Violationof14 C.P.R. §135.21(a)

. FAR section 135.21(a} prohibits Part 135 entities using more than one pilotfrom operating without a current manual acceptable tothe Administrator. Complainant provedthis charge. The evidence showedthat, during the relevant period, Respondent utilized more than one pilot. .It used as many asthree in daily operations (2 Tr. 44, 111, 113). The evidence also showed thatthe agency had yet to accept (or to approve) any manual submitted by Respondent (2 Tr. 51-52). As such, Tora Flight was operating pursuantto Part 135 without manuals. This charge, therefore, was proven. D. Violationof14 C.P.R. §135.63(a)(4)
FAR section 135.63(a}(4} directs Part 135 certificate holders to keep an individual record ofeach 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 ofthis section.
E. Violation of14 C.P.R. §135.95(b)
FAR section 135.95(b} prohibits certificate holders from using an airman who is unqualified forthe operation forwhich 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 Tora Flight's pilots had passed none of7

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 ofthis section. 

### F. Violationof14 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 ofthe 1ihcalendar month before the flight. Complainant proved this charge. Respondent offered no documentation tending to showthat any of its pilots passed the knowledge tests required by Part 135 (2 Tr. 55). As such, Complainant proved a violation ofthis section.


### G. Violationof14 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 ofthe 1ihcalendar month before the flight. Complainant proved this charge. Respondent offered no documentation tending to showthat any of its pilots passed the competency tests required by Part 135 (2 Tr. 55). As such, Complainantproved a violation ofthis section.


### H. Violationof.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 ofthe types of aircraft which the pilot is to fly since the beginning ofthe 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. Violationof14 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 ofthis section.

# .. 8


## J. Violation of14 C.F.R. §135.343
14 C.F.R. §135.343 requires certificate holders using morethan one pilot to use only crewmembers who have completed the appropriate phase ofthe training program appropriate to the type ofoperation since the beginning ofthe "'\> 12th calendar month before that service. Complainant proved this charge.
No training ofthe type contemplated under Part 135 was provided to Respondent's crewmembers (see, e.g., 2 Tr. 55-59). The charge was proven.


### K Respondent'sAdditionalDefenses
Mr. Weiser, Respondent's chief, acknowledged that Respondent did not have a Part 135 certificate during relevant periods. But he was toldt'h& maintained, thatTora Flight did not need it

-- so long asthe carrier's application for that authority proceeded without undue delay. Assuming without deciding thatWeiser's testimony would absolve Respondent ofviolations or mitigate any penalties, I conclude thatthe evidence does not support him and I rejectthis 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 gavethe company at least a temporary pass, Weiser maintained. He testified that inspector Lusk said thatTora 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 notmove as swiftly as the agency woul.d have liked, Weiser acknowledged, thatwas not his fault; the Tora Flight official in charge of certification failed in his responsibilities and lied in assuring Weiserthatthe process was moving at a satisfactory pace (2 Tr. 90-92). In the early months of 2006, Mr. Lusk became dissatisfied with the progress ofTora 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 whichwere shown to be false. He maintained that Tora Fllght had surrendered its Part 135 certificate in 2001 only on the strength of an agency inspector's opinion thatthe carrier did not need it for its Molokai-Oahu operations. But inspector Lusk credibly testified thatMr. 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 defensethat itwas 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 thatTora Flight received the letter through the mailafter the accident (Exh. C-15; 2 Tr. 97), thatfact is irrelevant; the letter had been sent byfacsimile and received by Respondent (through counsel) on April 26, 2006, four days priorto the crash 

### (1.0., p. 4; 2 Tr. 127). Respondent was on notice priortothe accidentthat the 

## '" FAA had issued it a cease-and-desist order. It chose to keep flying.
Mr. Weiser's testimony generally was ofdubious value. It could not be credited when it contrasted with testimony offered by Complainant's trustworthy witnesses. Assuming Mr. Weisertestified 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 ofTora Flight's subsequent actions. Inspector Lusk credibly denied Mr.Weiser'sversion ofevents. Mr. Lusk had informed Respondent unequivocally no laterthan 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 clearthatTora 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, anddid 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 truethat inspector Lusk had made a promise to Mr. Weiser concerning Tora Flight's application 'for certification. Butthe promise

- orally and in writing

-- consisted only ofthe assurance that ifTora Flight initiated and obtained a Part 135 certificate in a timely fashion, the agencywould consider such circumstances as mitigating in any enforcement action (2 Tr. 125; see 

### 1.0., p. 3). "I made very clearto Mr. Weiser [atthe June 22. 2005 meeting]," inspector Lusk summed up, "that those operations are still considered illegal operations and thatthe certification process can only be considered, maybe considered mitigating ifthere was a future enforcement" (2 Tr. 126).
I conclude thatthe agency never suggested thatTora 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 supportfor rejecting Mr. Weiser's defense originates in inspector Lusk's letterto him ofAugust 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 ofJune 22 ofthatyear, that a "proactive" and relatively quick certification process would only be considered '.,. mitigating in the event ofenforcement action; by necessary implication, continuing and completing the process in a timely mannerwould not absolve Respondent of FAR violations.?
I have considered all other objections raised by Respondent and reject them without comment as without merit. Forthe reasons stated above, Tora Flight's defenses fail. Respondent is found in violation ofeach ofthe charges set out by Complainant irlits'amended Complaint.



### IV. Penalty
The agency has ask.ed for a total civil penalty of$15,000. Complainant bearsthe burden ofjustifying the amount ofthe 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 ofthe violation; (2) the extent and gravity ofthe violation; (3) the respondent's degree of culpability; (4) the respondent's history of prior violations, ifany; (5) the respondent's ability to pay the civil penalty; (6) the effect on the entity's abilityto stay in business; and (7) other matters asjustice may require. See, e.g., Folsom's AirService, Inc., FAA Order No. 2008-11 (November 6,2008), p. 11. The determination weighs whethertheviolation was inadvertent ordeliberate, the private or public character ofthe violation, and the attitude ofthe violator. The agency also considers the respondent's size, particularly in determining the offender's abilityto absorb the sanction.
An appropriate civil penalty must reflectthe totality ofthe circumstances surrounding the violations (Tr. 110-11, 117; Folsom's AirService, Inc., FAA Order No. 2008-11 (November 6,2008), p. 12; Eastern AirCenter, Inc., FAA Order No. 2008-3 (January 28, 2008). Finally, the civil penalty should provide sufficient incentive to deterthe respondent and similarly-situated entities from future violations. Folsom'sAirService, Inc., Id., p. 20

.. The agency has issued enforcement guidelines, FAAOrder No.2150.3A (Exh. C-19, and also found atwww.airweb.faa.gov), for its employees tofollow in

7 Exh. C-6,p. 1; see 1.0., p. 3. Mr. Lusk's statementsinthe Augusnl, 2005 letter do not showthat the facts recited therein occurred; butitdoes showthatMr. Weiser, no laterthanthe delivery ofthis letter (September 12, 2005), kneworshouldhave known the contents.11
determining appropriate sanctions. The guidelines also advise the public ofthe sanction policy thatthe Administrator intends to follow through the adjudication of individual cases. Folsom's AirService, Inc., FAA Order No. 2008-11 (November 6,2008), p. 13. The Sanction Guidance Table, contained in Appendix 4 ofOrder No. 2150.3A, and as amended by Compliancel EnforcementBulletin No. 92-1,**~** sets out penalty recommendations within three ranges ofamounts
- designated minimum, moderate, and maximum

- to best reflect the nature and circumstances ofeach violation. Mitigating and/oraggravating factors are part of the calculus. For air carriers, the Sanction Guidance Table sets outthe civil penalty ranges perviolation 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 forthe patronage ofthe general public than the standards set by Part 91 for private carriage. Part 135 affords a greater measure ofprotection. By operating outside these safeguards, Respondent materially compromised air travel safety forthe public at large. Tora Flight's pilots were not Part 135-qualified. Its aircraftwere never tested underthat section's more stringent standards. Proving runs atthe difficult Panda Ranch airstrip, a prerequisite for Part 135 certification, had never been undertaken (2 Tr. 53). Respondent's operations plainly were in derogation ofair transportation safety.
Tora Flight's actions, further, were deliberate (2 Tr. 60-63). Respondent knew no laterthan March 31,2005thatthe FAA had determined that its interisland tour package hesitated Part 135 certification. Yet it operated in defiance ofthe agency's direction for over a year- despite, among other things, oral warnings,two letters of investigation, and a third letter (that ofAugust 31 , 2005) containing LOI language. Indeed, its deliberate noncompliance continued until the agencyflat-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 ofwhich might have led to a better outcome. 9

8 Exh. C-20, p. 3. The guidelines' tables showthe maximum range as $7,500 to $10,000. The upper limit, however, was adjustedto $11,000 by regulation effectiveJanuary21, 1997. See 14 CFR §305{d); 62 Fed.Reg. 4134 (January 29, 1997).

FAA OrderNo. 2150.3B updated the guidelineseffective October 1, 2007 for violations occurringonor afterthat date. Sincethe instant violations occurredno laterthan 2006, OrderNo.**2150~3B** does not apply. See 72 Fed.Reg. 55853 (October 1, 2007); Folsom'sAirService, Ibid., p. 12, n. 26.

. 92Tr. 58-59. Mr. Weiser acknowledgedthat, with Part 135 training, "maybeyouwould learn howto do that [properlytake offfrom 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 underPart 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 memberalso warrants a civil penalty in the maximum range (Table, p. 6). None of Respondent's pilots were qualified underPart 135. Each daythat Respondent operated in violation ofthe FARs could, in theory, have led to a civil penalty of$7,500

- $11,000 for each ofthe three groupings ofviolations. Because ofthe Violations' deliberate character, a levy at the high end is justified. Underthese circumstances, a civil penalty assessment of$15,000 is well warranted

- perhaps even lenient Ifind that it is commensurate with the nature and extent ofthe violations. The ass'essment sufficiently accounts forthe Respondent's conduct. Ifind also thatthe penalty has "bite," ordeterrenteffect (see Toyota MotorSales, Inc., FAA Order no. 94

..28 (September 30, 1994), p. 11).
In sum, I find and conclude thata sanction amount of$15,000 appropriately accounts forthe totality ofthe circumstances ofthis case. John Hutton Corporation, d/b/a Tora Flight Adventure Club, is hereby assessed a civil penalty of$15,000 forviolations 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 LawJudge
Attachment

- Service List

10Any appeal from the Initial Decisionto the Administrator mustbe in accordance with sections 13.210 and 13.233 ofthe Rules ofPractice, whichrequire 1) that a notice ofappeal befiled no laterthan 10 days (Plus an additional 5 formailing) from the date ofthis decision and 2)thatthe appealbeperfected with a written brieformemorandum not laterthan 50 days (plus 5 for mailing) from the date ofthis decision. Each is to be senttothe Federal Aviation Administration, 800 Independence Avenue, S.W., Washington, DC 20591, Attn: HearingDocketClerk, AGC-430, WilburWrightBuilding-Suite2W1000, andto agency counsel. Serviceuponthepresidingjudge is optional.FAA DocketNo. CP08WP0013 (Civil Penalty Action)
SERVICELIST
ORIGINAL & ONE COPY
Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: HearingDocketClerk, AGC-430 WilburWright Building-Sl.Jite2W10001 

### ONE COpy
David 

### L. Turk, Esq. 18 Lagoon Drive Honolulu, HI 96819 TEL: (808) 839-7555 FAX: (808}·839-7556
Lisa 

### 1. Toscano, Attorney Officeofthe Regional Counsel, AWP-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 ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, S.E. EastBuilding Ground Floor, RoomE12-320 Washington, D.C. 20590 TEL:**(~02)** 366-2139Attorney-Advisor (202) 366-5121 Legal Assistant FAX: (202) 366-7536

1 Service was by U.S. Mail. Forservice in person orby expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur WrightBuilding-Suite2WIOOO, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.