•.

U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERAL AVIATION ADMINISTRATION
FEDERAL AVIATIQN ADMINISTRATION, FAA DOCKET NO.: FAA-2012-1262 CASE NO: 2011S0190332 ' Complainant,
vs. AERIAL CROP PROTECTION, Respondent.



# ________________________________ /
RESPONSE TO MOTION FOR DECISION ON THE PLEADINGS OR IN THE ALTERNATIVE, MOTION FOR HEARING ON SANCTION ONLY; AND MOTION FOR EXTENSION OF TIME TO FILE ANSWER Respondent, AERIALCROPPROTECTION ["Aerial Crop"],respondstothe Complainant, FEDERAL AVIATION ADMINISTRATION ["FAA"]'s Motion for Decision on the Pleadings or in the Alternative, Motion for Hearing on Sanction Only ["Motion"], and Motion for Extension of Time to File Answer, says: 1. Pursuant to 14 C.P.R. 13.218(b), Respondent, FAA, was required to "personally deliver or mail a copy ofthe complaintonthe respondent, the president ofthe corporation orcompany named as a respondent, or a person designated by the respondent to accept service of documents in the civil penalty action." 2. Petitioner, FAA, did not serve Respondent,' Aerial Crop, or the president ofthe company. 3. Apparently, Petitioner, FAA, sought service on Respondent's Counsel. 4. The undersigned was Counsel for Respondent in the civil penalty action. 5. However, the undersigned understood that the Complaint was going to be served on

# ..
Federal Aviation Administration vs. Aerial Crop Protection FAA Docket No.: FAA-2012-1262 Case No: 2011S0190332 Response to Motion for Decision on the Pleadings or in the Alternative, Motion for Hearing on SanctionOnly; and Motion for Extension ofTime to File Answer Page 2 of3 Respondent, not Respondent's Counsel. In fact, the undersigned has beenawaiting service
on Respondent to proceed with the defense. 6. Oddly, the undersignedwas in constantcommunicationwithPetitioner'sCounsel,who never raised the issue ofservice ofthe Complaint nor that an answer was due. 7. In fact, several e-mails were exchangebetween the undersigned and Petitioner's Counsel on Tuesday, February 26, 2013, the day that the Motion was faxed. But, thee-mails took place before the Motion was filed. 8. Further, again on the same day, the undersigned called Petitioner's Counsel to discuss

I ; settlement, but had to leave a message. wit.h the assistant. However, Petitioner's Counsel
never called back to raise the issue ofthe Motion or the Answer. Afterwards, the Motion
was received faxed to the undersigned. 9. Why Petitioner's Counsel "sand-bagged" the issue unknown, but, ifCounselfor Petitioner intended to pursue the issue, she could have, and should have, raised the issue with Respondent's Counsel who would have immediately responded to the Complaint. 10. Sincethis is Respondent's Counsel's first matter with the Federal Aviation Administration, and since Respondent's Counsel immediately filed this response and requested an extension oftimeto file the Answer, which is attached hereto as Exhibit 

### "A," Respondent's Counsel has set forth a good cause showing why it should be granted the extension oftime to allowthe Answer to be filed. Federal Aviation Administration vs. Aerial Crop Protection FAA Docket No.: FAA-2012-1262 Case No: 2011S0190332 Response to Motion for Decision on the Pleadings or in the Alternative, Motion for Hearing on Sanction Only; and Motion for Extension ofTime to File Answer Page 3 of3
WHEREFORE,Respondent, Aerial Crop, prays for an Orderwhich: (a) grants the Motion; (b) extends the time to file an Answer; (c) authorizes the Answer attached hereto to be filed; and (d) grants such further reliefdeemedjust and appropriate. SUBMITTED this

## E._ day of**~b..w0o** '2013

# P~IELDS,SR CERTIFICATE OF SERVICE I HEREBY CERTIFYthat a copy ofthe foregoing was served by U.S. Mail and Facsimile upon: Andrea Michelle Harper, Esquire, Senior Attorney, Federal Aviation Administration, Office ofthe Regional Counsel, AS0-7, Post Office Box 20636, Atlanta, Georgia 30320 (Facsimile: 404- 305-5223);the HonorableJ.E. Sullivan, DOT, AdministrativeLawJudge, Office ofHearings,M-20, 1200NewJerseyAvenue, S.E. (E 11-310), Washington, D.C. 20590 (Facsimile: 202-366-7536); and the Federal Aviation Administration, Hearing Docket, AGC-430, ATTN: Stephanie McClain, 800 Independence Avenue, SW, Wilbur Wright Building, Suite 2W1000, Washington, D.C. 20591 (Facsimile: 202-493-5020), on this ].,

## =t day of**RbM.,~** 

### ,2013. PRESTON J. FIELDS, P.A. Attorneys for Respondent 11211 Prosperity Farms Road, Suite C-301 Palm Beach Gardens, Florida 33410 Telephone: (561) 799-9910 Facsi 'le: (561) 799-0388**PRESTON~.** FIELDS, SR. Florida BarNumber: 0867616 E-mail: pjfields@southernlawfirm.com \\Cp2-server\cpshare\CPWIN\HISTORY\121121_000I\709.08\pjf\163-012c-Doc.8

# EXHIBIT 

# "A"

PRESTON

### J. FIELDS, P.A. 11211 PROSPERITY FARMS ROAD, SUITE C-301, PALM BEACH GARDENS, FLORIDA 33410 TELEPHONE (561) 799.9910 • FACSIMILE (561) 799-0388U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERAL AVIATION ADMINISTRATION
FEDERAL AVIATION ADMINISTRATION, FAA DOCKET NO.: FAA-2012-1262 CASE NO: 2011S0190332 Complainant,
vs. AERIAL CROP PROTECTION, Respondent.

## ------------------------------~' ANSWER AND AFFIRMATIVE DEFENSES Respondent, AERIAL CROPPROTECTION ["Aerial Crop"], pursuantto 14 CFR §13.209, l I hereby files this Answer and Affirmative Defenses to Complaint filed by the Complainant, FEDERAL AVIATION ADMINISTRATION ["FAA''], and says: 1. Admitted. 2. Without knowledge. 3. Admittedthat on saiddate Respondent, Aerial Crop, didnothave a valid agricultural aircraft operator certificate. 4. Admitted that a discussion took place. All other provisions not specifically admitted are hereby denied. 5. Admitted that a discussion took place. All other provisions not specifically admitted are hereby denied. 6. Admitted that Respondent, Aerial Crop, performed commercial aerial chemical operations in western Palm Beach County, Florida. All other provisions not specifically admitted arehereby denied. 7. Denied. Federal Aviation Administration vs. Aerial Crop Protection FAA Docket No.: FAA-2012-1262 Case No: 2011 S0190332 Answer and Affirmative Defenses Page 2 of4

8. The statute speaksforitself. All otherprovisionsnot specificallyadmitted areherebydenied. 9. Denied. AFFIRMATIVE DEFENSES 10. First Affirmative Defense. Respondent, Aerial Crop, affirmatively asserts the defense of estoppel. As confirmed in the Complaint, the Petitioner, FAA, discussed the issue with Respondent. Factually, Respondentmade an applicationwithPetitionerapproximatelythree and one-halfyearsbefore Petitionerwentto Respondent's facility. Petitioneracknowledged that it delayed the application process because it did not have enough personnel to process Respondent's application and ultimately unilaterally closed the application file without addressing the issue with Respondent. During the on-site meeting, when Petitioner spoke with Respondent, it did not direct that Respondent cease it's operation. Thus, the Petitioner allowed Respondent to continue its operations while Petitioner sought to clean-up its administrative issues. Based thereon, the Petitioner is estopped from now asserting that Respondent is inviolation ofanyrule orthat it shouldbe fined. Accordingly, the Complaint should be avoided. 11. Second Affirmative Defense. Respondent, Aerial Crop, affirmatively asserts the defenseFederal Aviation Administration vs. Aerial Crop Protection FAA Docket No.: FAA-2012-1262 Case No: 20l!S0190332 Answer and Affirmative Defenses Page 3 of4 of unclean hands. Respondent realleges the factual assertions as set forth in the First Affirmative Defense and incorporates them herein. Based thereon, the allegations in the Complaint should be avoided. 12. Third Affirmative Defense. Respondent, Aerial Crop, affirmatively asserts the defense of bad faith. Respondent realleges the factual assertions as set forth in the First Affirmative Defense and incorporates them herein. Based thereon, the allegations in the Complaint should be avoided. SUBMITTED this 2

### T day of**H~**

J. FIELDS, SR. CERTIFICATE OF SERVICE I HEREBY CERTIFYthat a copy ofthe foregoing was served by U.S. Mail and Facsimile upon: AndreaMichelle Harper, Esquire, Senior Attorney, Federal Aviation Administration, Office oftheRegional Counsel, AS0-7,Post Office Box 20636, Atlanta, Georgia 30320 (Facsimile: 404- 305-5223);theHonorableJ.E. Sullivan,DOT,AdministrativeLawJudge, OfficeofHearings,M-20, 1200NewJerseyAvenue, S.E. (E 11-310), Washington, D.C. 20590 (Facsimile: 202-366-7536);and the Federal Aviation Administration, Hearing Docket, AGC-430, ATTN: Stephanie McClain, 800 Independence Avenue, SW, Wilbur Wright Building, Suite 2W1000, Washington, D.C. 20591(Facsimile: 202-493-5020), on this 

### 2.-1- Federal Aviation Administration vs. Aerial Crop Protection FAA Docket No.: FAA-2012-1262 Case No: 2011 SO 190332 Answer and Affirmative Defenses Page 4 of4 '2013.
PRESTON 

### J. FIELDS, P.A. Attorneys for Respondent 11211 Prosperity Farms Road, Suite C-301 Palm Beach Gardens, Florida 33410 Telephone: (561) 799-9910 Facsimile: (561) 799-0388

PRESTON 

### J. FIELDS, SR. Florida BarNumber: 0867616 E-mail: pjfields@southemlawfirm.com \\Cp2-server\cpshare\CPWIN\HISTORY\121121_ 000 1\709.09\pjf\163-0 12c-Doc.8