U.S. DEPARTMENT OF TRANSPORTATION 1 ^ I^ C 

OFFICE OF HEARINGS ^ 

WASHINGTON, DC jy|^ . g 2OIO 

EiVEO 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

vs. 

FRANK TERLIZZI, 

Respondent. 

!^EARING DOCKET 

FAA Docket No. CP10SO0007 

FAA Case No. 2009SO270275 

DMS No. FAA-2010-0537 

- 1 . ^ 

••'-': > 

Judge Ronnie A. Yoder Q 

AGENCY'S MOTION TO DEEM ALLEGATIONS ADMITTED 

The Complainant, by and through the undersigned attorney, pursuant to Sections 

13.218 of the Rules of Practice in FAA Civil Penalty Actions (14 C.F.R. §13.218) and the 

Order Of Chief Administrative Law Judge, served June 4, 2010, hereby moves the 

Administrative Law Judge to determine that the allegations in the complaint have been 

admitted, and if a hearing is necessary in this matter, that the unscheduled hearing, if 

necessary at all, will only be for the purpose of determining the sanction involved in the 

matter. As grounds for this motion, Complainant states the following: 

1. 

In a letter dated May 6, 2010, Respondent sent a response to a Final Notice of 

Proposed Civil Penalty requesting a hearing in this matter. Exhibit I. 
2. 

On May 17, 2010, Complainant filed the complaint in this matter with the 

Hearing Docket and served a copy on Respondent and his attorney. Exhibit 2. 

Complainant sent a copy of the complaint to complainant's last known address and the 

address on Respondent's request for a hearing, "929 Massachusetts Avenue, Level #01, 

Cambridge, MA 02139", which is the same as the address of Respondent's attorney. 

3. 

The copy of the complaint sent to Respondent was marked "unclaimed" by the 

U.S. Post Office on June 4, 2010 and returned to Complainant. Exhibit 3.' The copy of 

the complaint sent to Respondent's counsel was received on May 20, 2010. Exhibit 4. 

4. 

Pursuant to 14 C.F.R. §13.211(g), the complaint was validly served on 

Respondent on May 20, 2010.^ 

5. 

Pursuant to 14 C.F.R. §13.209(a) and §13.211(e) Respondent had 35 days (30 

days plus 5 for mail service) to file an answer. The complaint itself explicitly reminded 

Respondent of this deadline. The "Order Of Chief Administrative Law Judge" also 

explicitly reminded Respondent of this deadline. Under the Rules of Practice In FAA 

Civil Penalty Actions, Respondent's answer was due no later than June 26, 2010. 

' 14 C.F.R. §13.211(g) ''Validservice. " A document that was properly addressed, was sent in 

accordance with this subpart, and that was returned, that was not claimed, or that was refused, is deemed to 

have been served in accordance with this subpart. The service shall be considered valid as of the date and 

the time that the document was deposited with a contract or express messenger, the document was mailed, 

or personal delivery of the docimient was refused." 

^ 14 C.F.R. § 13.211(a) "General. " Service on a party's attorney of record or a party's designated 

representative may be considered adequate service on the party. 
explicitly reminded Respondent of this deadline. Under the Rules of Practice In FAA 

Civil Penalty Actions, Respondent's answer was due no later than June 26, 2010. 

6. 

As of the date of this filing, Complainant has not receive an answer to the 

complaint. 

7. 

According to § 13.209(f), a person's failure to file an answer without good cause 

shall be deemed an admission of the truth of each allegation contained in the complaint. 

See. FAA v. Budde W. Playter, FAA Docket No. CP89GL0257 (March 19, 1990) 

("Although this is a severe penalty for failure to file an answer, the rule is clear and does 

not permit exceptions."). 

8. 

Complainant requests a ruling on this motion as soon as possible, to allow proper 

preparation of a response to the honorable ALJ's June 4, 2010 order. 

WHEREFORE, Complainant respectfully moves the Administrative Law Judge to deem 

as an admission of truth each allegation in the complaint, and if a hearing is still deemed 

necessary, that it should be only for the purpose of determining the amount of the 

sanction in this matter. 

Respectfully submitted this 7f9^•j da I y of July, 2010 

GERALD A. ELLIS 

Attorney 

Office of the Regional Counsel 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Motion To Deem Allegations Admitted has been mailed 

this date by CERTIFIED-RETURN RECEIPT REQUESTED as indicated below: 

The Honorable Ronnie A. Yoder (original) 

Chief Administrative Law Judge 

Office of Hearings, M-20 

Room 5411 

U.S. Department of Transportation 

400 Seventh Street, S.W. 

Washington, DC 20590 

TEL: 202-366-2142 

FAX: 202-366-7536 

WiUiam R. Byrne (1 copy) 

929 Massachusetts Avenue 

Level #01 

Cambridge, MA 02139. 

Hearing Docket Clerk (1 copy) 

FAA, AGC-430, Suite 2W1000 

800 Independence Avenue, SW 

Washington, DC 20591 

JUJULL 2 ; ?f)if 20iO ) 0 

Dated 
LAW OmCE OF 

WILLIAM R. BYRNE 

Attorney at Law 

Federal Aviation Administration 

600 Independence Avenue, SW 

Room 2014 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-400 

May 06,2010 

Hearing Docket Clerk, 

I am requesting a hearing as per the instructions in Ae enclosed Final Notice of 

Proposed Civil Penalty, wiiich I received on April 24,2010. I am aLsd sending a copy 

of this correspondence to FAA Attorney Gerald A. Ellis, Federal Aviation 

Administration, Southern Regional Counsel Office, P.O. Box 20636, Atlanta, Georgia 

30320. 

Further, I am represented by Attorney William R. Byrne and I am authorizing the FAA to 

communicate with him on this matter. 

Sincerely, 

Frank Terlizzi 

J 111 MAY 1 4 2010 

FW, REGIONAl COUNSEL 

SOUTHERN REGION 

r|0OVERNMENT 

I EXHIBIT 

929 MASSACHUSETTS AVENUE / LEVEL #01 / CAMBRIDGE, MA 02139 / 781-856-9909 
o 

U.S. Department 

of Transportation 

Federal Aviation 

Administration 

Southern Region 

Office of the Regional Counsel 

^FILE 

P.O. Box 20636 

Atlanta, Georgia 30320 

(404) 305-5200 

(404)305-5223 FAX 

MAY 1 7 2010 

CERTIFIED - RETURN RECEIPT REQUESTED 

Hearing Docket Clerk 

FAA, AGC-430, Suite 2W1000 

Wilbur Wright Building 

800 Independence Avenue, SW 

Washington, DC 20591 

Re: In the Matter of Frank Terlizzi 

FAA Case No. 2009SO270275 

Enclosed herewith please find a copy of a request for hearing and the original and one copy of 

the Complaint in the above-referenced proceeding. 

The FAA requests that the hearing in this matter be held in the Atlanta, Georgia area, and 

expects that the hearing will last one day. 

Please address all communications for the FAA to the undersigned, at: 

Federal Aviation Administration 

Office of the Regional Counsel, ASO-7 

Southern Region 

P.O. Box 20636 

Atlanta, Georgia 30320 

Telephone: (404) 305-5200, facsimile (404) 305-5223. 

Sincerely, 

GERALD A. ELLIS 

Attorney 

Office of the Regional Counsel 

Enclosures 

GOVERNMENT 

EXHIBIT 
U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

vs. 

Frank Terlizzi 

Respondent. 

FAA Docket No. 

Judge 

JUDGE NOT YET ASSIGNED 

COMPLAINT 

The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, 

pursuant to Rule 208 of the Rules of Practice (14 C.F.R. 13.208), and states as follows: 

I. 

1. On April 21, 2010, Respondent, Frank Terlizzi was advised through a Final 

Notice of Proposed Civil Penalty that the FAA proposed to assess a civil penalty in the amount 

of $800. On May 14, 2010, the Agency Attorney received a written request for a hearing fi-om 

the Respondent. 

n. 

2. On or about June 23,2009 you were a passenger aboard Northwest Airlines Flight 

400 fi-om Seattle. Washington to Memphis, Tennessee, designated as a non-smoking flight, with the 

"No Smoking" warning lights lit throughout the flight. 

3. The preflight passenger briefing, given by a crewmember, instructed all passengers 

that smoking is prohibited aboard the flight, including in the lavatories. 

4. Passenger Safety Information cards, located in each passenger seat pocket, instmct 

all passengers that smoking is prohibited on the flight, including in the lavatories. 

5. Placards posted inside and outside each lavatory instruct all passengers that smoking 

is prohibited in the lavatory. 
6. During the flight, you smoked a cigarette in the aircraft's right aft lavatory. 

in. 

7. By reason of the foregoing facts and circumstances. Respondent violated the 

following sections of the Federal Aviation Regulations: 

a. Section 121.317(g) by smoking during a designated non-smoking flight, 

while the no-smoking sign was lighted. 

b. Section 121.317 (h) by smoking in a passenger aircraft lavatory. 

c. Section 121.317(k) by disobeying a crewmember's instruction in the form of 

a preflight passenger briefing, not to smoke. 

8. Pursuant to 49 U.S.C. Sections 46301(a)-(d), Respondent is subject to a civil 

penalty not to exceed $1,100 for each of the violafions alleged. 

9. Under the facts and circumstances of this case, a civil penalty of $800 is 

appropriate. 

WHEREFORE, the Agency, by counsel respectfully requests that the Administrative Law 

Judge enter an order that Respondent be assessed a civil penalty in the amount of $800. 

Respectfully submitted this J T day of May, 2010. 

GERALD A. ELLIS 

Attorney 

Office of the Regional Counsel 
r 

PLEASE NOTE: 

Pursuant to Title 14 CFR Section 13.209(a), you are required to file a written answer to this 

Complaint, or a written Motion to Dismiss if appropriate, not later than 30 days after the date 

shown on the Certificate of Service which follows. 

US-Postal Service.,, 

Si"I!^If5,M'*"-.. RECEIPT 

CERTIFICATE OF SERVICE 

I hereby certify that a copy of the foregoing Complaint has been mailed this date by Certified 

Mail, Return Receipt Requested, to the following: 

Frank Terlizzi 

200 Swanton St. 

Apt. L-29 

Winchester, MA 01890-4327 

William R. Byrne, Esq. 

929 Mass Ave Level 01 

Cambridge, MA 02139 

Hearing Docket Clerk 

FAA, AGC-430, Suite 2W1000 

Wilbur Wright Building 

800 Independence Avenue, SW 

Washington, DC 20591 

"-^^kj^^g^ ^^Jb^ 

U.S. Postal Service a, 

CERTIFIED MAILK, RECEIPT 

(Domestic Mai l Only ; No Insurance Coverage Provided) 

For delivery information visit our website at www.usps.com, 

OFFICIA L US E 

Postage 

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(Endorsement Required) 

Restricled Dollvsry Fee 

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$ 

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Sent To 

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or PO Box No. 

.^.iy^llj(k2M. 

CWy, State, ZiP*A 

laa^^WnW^^WHM a 
LAW OFFICE OF 

WILLIAM R. BYRNE 

Attorney at Law 

Federal Aviation Administration 

600 Independence Avenue, SW 

Room 2014 

Washington, DC 20591 

Atm: Hearing Docket Clerk, AGC-400 

May 06,2010 

Hearing Docket Clerk, 

I am requesting a hearing as per the instructions in the enclosed Final Notice of 

Propoaed Civil Penalty, wdiich I received on April 24,2010. I am also sending a copy 

of this corres{X)ndence to FAA Attorney Gerald A. Ellis, Federal Aviation 

Administration, Southern Regional Counsel Office, P.O. Box 20636, Atlanta, Georgia 

30320. 

Further, I am represented by Attorney William R Byrne and I am authorizing the FAA to 

communicate with him on this matter. 

Sincerely, 

r 

Frank Terlizzi ^ ^^^;;?^t < 

MAY I 4 2010 

f M . REG/OfMl COUNSEL 

SOUTHERN REGION 

929 MASSACHUSETTS AVENUE / LEVEL #01 / CAMBRIDGE. MA 02139 / 781-856-9909 
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U.S. DEPARTMENT OF TRANSPORTATIOlNf * '""^^ ^ ' ^-" 

OFFICE OF HEARINGS 

WASHINGTON, DC JUL " » 2010 

VEO 

HEARING DOCKET 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

vs. 

FRANK TERLIZZI, 

Respondent. 

FAA Docket No. CP10SO0007 

FAA Case No. 2009SO270275 

DMS No. FAA-2010-0537 

Judge Ronnie A. Yoder 

AGENCY'S RESPONSE TO ALJ'S PRE-HEARING ORDER 

The Complainant, by and through the undersigned attorney, hereby responds to 

the Order Of Chief Administrative Law Judge (ALJ), served June 4, 2010. This response 

is filed without receiving an Answer to the complaint and may therefore requirement 

amendment prior to hearing. 

The Complainant suggests that if a hearing in deemed necessary in this matter that 

discovery be filed one month after the filing of an answer to the complaint or a decision 

on the Complainant's Motion To Deem Allegations Admitted and completed one month 

later. Complainant suggests a hearing date a month after discovery is completed. 

Complainant suggests a hearing site in or near Minneapolis, Minnesota, which is 

presumably near where the most of the Complainants witnesses, related to Northwest 

Airlines reside. 
The Parties have discussed discovery, but have not reached any agreement to settle the 

matter. 

Respectfully submitted thiis^ s ^>^ i/ day of July, 2010 

GERALD A. ELLIS 

Attorney 

Office of the Regional Counsel 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Complainant's Response to AU's Pre-Hearing Order has 

been mailed this date by CERTIFIED-RETURN RECEIPT REQUESTED as indicated 

below: 

The Honorable Ronnie A. Yoder (original) 

Chief Administrative Law Judge 

Office of Hearings, M-20 

Room 5411 

U.S. Department of Transportation 

400 Seventh Street, S.W. 

Washington, DC 20590 

TEL: 202-366-2142 

FAX: 202-366-7536 

WiUiam R. Byrne (1 copy) 

929 Massachusetts Avenue 

Level #01 

Cambridge, MA 02139. 

Frank Terlizzi (1 copy) 

200 Swanton St. 

Apt. L-29 

Winchester, MA 01890-4327 

Hearing Docket Clerk (1 copy) 

FAA, AGC-430, Suite 2W1000 

800 Independence Avenue, SW 

Washington, DC 20591 

JUL 

Dated 

2 cOiO ^