UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

In the Matter of: SUN QUEST EXECUTIVE AIR CHARTER, INC. 

FAA Order No. 2011-13 

Docket No. CP08WP0004 

FDMS No. FAA-2008-0238 1 

Served: November 22, 2011 

DECISION AND ORDER2 

I. Introduction 

Complainant Federal Aviation Administration (FAA) has appealed the written 

initial decision of Administrative Law Judge (ALJ) Richard C. Goodwin. 3 Among his 

findings, the ALJ held that the failure of Respondent Sun Quest Executive Air Charter, 

Inc. (Sun Quest) to include in its flight and duty time records 50.4 hours of flights that 

one of its pilots made for the Los Angeles Police Department (LAPD) did not constitute a 

violation of 14 C.F.R. § 135.63(a)(4)(vii)4 

1 Materials filed in the FAA Hearing Docket(except for materials filed in security cases) 

are also available for viewing at the following lntemet address: www.regulations.gov. 

2 The Administrator's civil penalty decisions, along with indexes of the decisions, the rules 

of practice, and other infonnation, are available on the Internet at the following address: 

wwwfaa.govlaboutlojjice _org/headquarters_ojficeslagc!pol_adjudication!AGC400/ 

Civii_Penalry. In addition, Thomson Reuters/West Publishing publishes Federal Aviation 

Decisions. Finally, the decisions are available through LEX IS (TRANS library) and WestLaw 

(FTRAN-FAA database). For additional information, see the Web site. 

3 A copy of the ALJ's initial decision is attached. 

4 Section l35.63(a)(4)(vii) provides as follows: 

(a) each certificate holder shall keep at its principal business office or at 

other places approved by the Administrator, and shall make available for 

inspection by the Administrator the following-

* * * 

( 4) An individual record of each pilot used in operations under this part, 
Section 135.63(a)(4)(vii) of the Federal Aviation Regulations (FAR) requires 

certificate holders who operate under 14 C.P.R. Part 1355 to "keep [a]n individual record 

of each pilot ... including ... the pilot's flight time in sufficient detail to determine 

compliance with the flight time limitations." The FAR require certificate holders to 

count "other commercial flying" as flight time for the purpose ofthe flight time 

limitations. See, e.g., 14 C.P.R.§ 135.267(b) and (c)(2), which include "other 

commercial flying" in the amount of flight time that a Part 135 flight crewmember may 

not exceed. 6 

The FAA had argued that Sun Quest pilot Mark C. Smith's flight time for the 

LAPD was "other commercial flying," a record of which Sun Quest needed to keep. 7 

The ALJ held that the LAPD flights involved public aircraft and were therefore not 

subject to FAA regulation. To support his determination that the LAPD helicopter was a 

including the following information: 

* * If; 

(vii) The pilot's flight time in sufficient detail to determine compliance 

with the flight time limitations of this part. 

5 Requirements for commuter and on demand operators are set forth in 14 C.F .R. 

Part 135. 

6 Section 135.267(b) and (c)(2) provide: 

(b) Except as provided in paragraph (c) of this section, during any 24 consecutive 

hours the total flight time of the assigned flight when added to any other commercial 

flying by that flight crewmember may not exceed - (I) 8 hours for a flight crew 

consisting of one pilot; or (2) I 0 hours for a flight crew consisting of two pilots qualified 

under this part for the operation being conducted. 

(c) A flight crewmember's flight time may exceed the flight time limits of 

paragraph (b) of this section if the assigned flight time occurs during a regularly assigned 

duty period of no more than 14 hours 'and - ... (2) If flight time is assigned during this 

period, that total flight time when added to any other commercial flying by the flight 

crewmember may not exceed- (i) 8 hours for a flight crew consisting of one pilot; or 

(ii) 10 hours for a flight crew consisting of two pilots .... 

(Emphasis added.) 

7 The FAA did not allege that Sun Quest actually violated the flight time limitations-

. instead, it simply alleged that Sun Quest failed to record the pilot's flight time for the LAPD. 

2 
public aircraft, the ALJ wrote that the LAPD was a governmental unit and that it owned 

and operated the helicopter flown by the Sun Quest pilot. Further, the ALJ wrote, there 

was no evidence that the aircraft performed any activities other than police work. 

In addition, the ALJ held that: 

• Sun Quest did not violate Section 135.63(a)(4)(vii) by not tracking in the 

flight and duty time records as other commercial flying the 1.3-hour check 

ride that Smith administered on January 24, 2005; 

• Sun Quest violated Section 135.63(a)(4)(vii) by not tracking in the flight and 

duty time records as other commercial flying the 1.5-hour check ride that 

Smith gave to a company pilot on March 9, 2005; 

• Sun Quest's records generally failed to satisfy Section 135.63(a)(4)(vii) 

regarding the flight time that it did track because while it recorded the total 

amount of time per flight, it did not record the time that each flight began and 

ended. 

TheFAA sought a $20,000 civil penalty in the amended complaint. The ALJ 

assessed a $5,000 civil penalty for the violations that he found. 

The FAA only appealed from the ALJ's finding regarding the LAPD flights, and 

Sun Quest did not appeal. This decision affirms the ALJ's decision in Sun Quest's favor 

regarding the LAPD flights, but not for the reasons cited by the ALJ. Instead, this 

decision holds that the FAA failed to prove that the flights were "other commercial 

flying" that Sun Quest was required to record under Section 135.63(a)( 4)(vii) because the 

FAA failed to prove that the LAPD paid Smith for the flights. As for the sanction, given 

that the FAA argues only that the sanction should be increased to $20,000 ifthis decision 

is in its favor (Appeal Brief at 27), which it is not, the civil penalty will remain as 

assessed by the ALJ, at $5,000. 

3 
II. Facts 

The facts relevant to this appeal are as follows.' During all relevant times, Sun 

Quest held an air carrier certificate and operatedunder 14 C.F.R. Part 135. (Stip. ~ 2.) 

Smith was the President, Chief Pilot, Check Pilot, and Line Captain for Sun Quest. 

(Amended Complaint & Amended Answer~ II, § 4.) Sun Quest used Smith as a pilot in 

operations under Part !35. (Id.) 

There is no disagreement that Smith also served as a police officer for the LAPD. 

(See Exhibit A to the FAA's "Trial Brief Based on Stipulated Statement of Facts." 

Exhibit A is a letter dated May 5, 2005, from the LAPD Chief of Police, stating that he 

was responding to the request of Sun Quest's Principal Operations Inspector (POI) for 

"Officer" Smith's flight records for the LAPD. See also Amended Complaint & 

Amended Answer~ II, § 4, both stating that Smith was a police officer for the LAPD.) 

Smith's work for the LAPD involved piloting a police helicopter owned and operated by 

the LAPD. (Stip. ~ 24.) 

During February 2005, Smith served as a police officer pilot for the LAPD on 

17 dates, with a total flight time for the month of 50.4 hours. (Stip. ~ 24, which 

incorporates Amended Complaint~ II, § 12.) Sun Quest's Part !35 flight and duty time 

records for Smith did not reflect any of this pilot flight time for the LAPD. (Stip. ~ 23.) 

The LAPD had operational control over the initiating, conducting, and terminating of all 

flights in its helicopters. (Stip. ~ 26.) 

8 The parties agreed, with the ALJ's approval, to file a joint stipulation and then to submit 

briefs in which they argued their respective positions. 

4 
III. Arguments on Appeal 

A. The FAA's Arguments 

The FAA's arguments on appeal include the following. 

1. The ALJ erred in finding that the FAA does. not have any jurisdiction over 

public aircraft operations. (Appeal Brief at 6.) 

2. The ALJ erred in finding that the LAPD aircraft were public aircraft, 

because there was no evidence that the LAPD flights were public aircraft 

operations. (!d. at 7 .) 

3. Under the FAA's interpretation of the term "other commercial flying," 

flying in a public aircraft may be "other commercial flying" within the 

meaning of 14 C.P.R.§ 135.267 ifthe pilot was paid for the flying. (Id. at 

23.) 

4. Amendments to the statutory definition of "public aircraft" do not justify 

changing the FAA's interpretation of the term "other commercial flying" 

to exclude all public flying (as opposed to excluding only military aircraft 

operations.) 

5. Sun Quest's argument that it only had to track other commercial flying 

that it assigned fails because this argument is based on FAA legal 

interpretations invo,lving rest requirements rather than flight time 

limitations. 

B. Sun Quest's Arguments 

Sun Quest's counterarguments include the following. 

1. The LAPD flights involved public aircraft, and the Federal Aviation Act, 

as amended, gives the FAA the authority to regulate public aircraft 

regarding airspace, but not to regulate public aircraft when airspace is not 

at issue, as in the instant case. 

2. Under FAA legal interpretations, the LAPD flying was not "other 

commercial flying" for purposes of Sun Quest's recordkeeping because 

Sun Quest did not assign the flying: 

3. The FAA's interpretation of"other commercial flying," which excludes 

only military flying, a subset of public aircraft flying, is incorrect because 

the statute exempts all public aircraft from FAA regulation, except for 

airspace regulation. 

5 
4. The FAA did not produce any evidence that Smith received any 

compensation for the LAPD flights. 

IV. Discussion 

The FAA is correctthat it has jurisdiction over some public aircraft operations.' 

Regardless, the FAA's appeal must be denied because the FAA failed to prove that 

Smith's flying for the LAPD constituted "other commercial flying" within the meaning of 

14 C.P.R.§ 135.267. Hence, the FAA did not prove that Sun Quest violated 

Section 135.63(a)(4)(vii), as alleged, by failing to record Smith's flight time for LAPD as 

"other commercial flying." 

The FAA's own longstanding interpretation, which there is no reason to disturb, 10 

is that'" [ o ]ther commercial flying' means any nonmilitary flying as a required 

9 For example, the Federal aviation statute provides:· "[T]he FAA Administrator shall ... 

assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft 

["aircraft" includes both civil and public aircraft] .... " 49 U.S.C. § 40103(b)(l). See also U.S. v. 

Christensen, 419 F.2d 1401, 1402 (91

h Cir. 1969), finding that FAA regulations requiring 

"aircraft" to comply with air traffic control instructions apply to "public aircraft." Further, 

49 U .S.C. § 44701 provides that the FAA Administrator shall promote safe flight of civil aircraft 

in air commerce. Insofar as public aircraft operations may adversely affect the safety of civil 

aircraft, the FAA may regulate them under circumstances that will not be delineated here. 

Regardless, Sections 135.63(a)(4)(vii) and 135.267(b) and (c)(2), do not regulate public 

aircraft operations, but instead regulate civil aircraft operations. The FAA's case was against Sun 

Quest, a civil operator. Hence, the FAA was not seeking to regulate public aircraft or an operator 

of public aircraft. Consequently, there is no need to address the issue whether Sun Quest proved 

that Smith's flights for the LAPD constituted public aircraft flights. 

10 The Administrator permitted the parties to submit additional briefs (both initial and 

reply briefs) on whether the longstanding FAA interpretation of the term "other commercial 

flying" (as stated above, any nonmilitary flying, as a required crewmember, other than in air 

transportation, for which the crewmember is paid for his or her services) had changed or should 

be changed, given statutory changes in the definition of "public aircraft." Sun Quest, FAA Order 

No. 2011-1 at 2 (January 5, 2011). Specifically, the Administrator inquired whether the 

definition of "other commercial flying" should be changed to exclude any public aircraft flying, 

rather than excluding only military aircraft flying, which is a subset of public aircraft flying. In 

its additional brief, the FAA asserts that no statutory changes justifY a change in the definition of 

"other commercial flying." The FAA points out that the legislative history shows that in the past, 

Congress has treated military flying differently than non-military public aircraft for purposes of 

flight time limitations because military flying is essential to the national defense. Sun Quest does 

not point to any statutory changes that justifY a change in the definition of"other commercial 

flying." 

6 
crewmember, other than in air transportation, for which the crewmember is paid for his or 

her services."'' Letter from Assistant Chief Counsel for Regulations to 

Richard Martinelli, 2009 WL 737336 (March II, 2009); Letter from Assistant Chief 

Counsel for Regulations to Ryan Koepp, 2008 WL 3200870 (March 6, 2008); Letter from 

Assistant Chief Counsel for Regulations to James W. Johnson, 2003 WL 25427850 

(May 9, 2003); Letter from Assistant Chief Counsel for Regulations to Jeff J. Jacober 

(June 24, 1991 ); and Letter from Assistant Chief Counsel for Regulations to Manager, 

NE-FSD0-03 (October 31, 1990). 

The FAA failed to prove the element of compensation-specifically, that the 

LAPD paid Smith for his LAPD flying. Although the ALJ found that "Smith was a 

required crewmember and received payment" (Initial Decision at 6), there was no 

stipulation or admission that Smith was compensated for his work with the LAPD. As 

11 Sun Quest argues for an additional element of "other commercial flying" -that the 

flying be assigned by the certificate holder. However, the numerous FAA interpretations defining 

"other commercial flying" do not include "flying for the same employer" as part of the definition. 

Also, as the FAA points out, FAA interpretations indicate that flying performed for other 

employers can in fact be "other commercial flying." For example, one interpretation states that 

the following types of flying, at least some of which would be for other employers, would count 

as "other commercial flying"- executive pilot services, aer.ial application, sight-seeing flights, 

carriage of parachutists, banner and glider towing, game survey, power and pipeline patrol. 

Letter from Chief, Air Carrier and General Operating Branch, AGC-22, to AFS-200 n.9, 1975 

WL 342744 (August I, 1975). 

Sun Quest quotes from the following interpretation: 

The rule regarding "other commercial flying" is that it may not be 

conducted during required rest periods, if it is assigned by the certificate holder. 

Specifically, the prohibition against "other commercial flying" during the 

required rest period applies to situations where the certificate holder requires the 

flying. 

Letter from Acting Assistant Chief Counsel, Regulations and Enforcement, to Manager, FAA 

Lincoln Flight Standards District Office, 1989 WL 1631930 (August 9, 1989). (Emphasis added 

by Sun Quest.) 

The cited portion of the interpretation is not on point- it deals only with whether "other 

commercial flying" may be performed during a rest period, which is not the issue here. 

Moreover, as this interpretation makes clear, "other commercial flying" that precedes Part 13 5 

flying, regardless of whether it was assigned by another certificate holder, must be counted 

against the daily flight time limitations. 

7 
Sun Quest points out, Smith's work for the LAPD may have been on a volunteer basis, 

like that of volunteer firefighters. 12 The FAA simply did not bear its burden of proving 

compensation to the pilot, an element of "other commercial flying." 

In conclusion, the FAA failed to show that Smith's LAPD flying met all the 

elements of"other commercial flying." Consequently, the FAA failed to show that Sun 

Quest violated 14 C.F.R. § 135.63(a)(4)(vii), as alleged, regarding Smith's flights for the 

LAPD. The FAA's appeal is denied." 

• # ~t; ... u ~ RANDOLPH BABBITT 

ADMINISTRATOR 

> 

Federal Aviation Administration 

12 Judicial notice is taken of the LAPD Web site, which indicates that the LAPD does in 

fact use volunteer police officers: 

The Los Angeles Police Reserve Corps is comprised of community members 

who volunteer their time to fulfill many of the roles handled by full-time sworn 

police officers. Reserve officers receive the same training as full-time officers 

and work alongside them in every aspect of Department operations. 

http://www.lapdonline.org/join the team/content basic view/542 

13 Under the circumstances, there is no need to address any of the other issues raised by 

the parties on appeal. 

8 
•. 

SERVED JANUARY26, 2010 

uNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

. WASHINGTON, D.C. 

) 

FEDERAL AVIATION ADMINISTRATION, ) 

) 

•• ,, ~"1 

Complainant, ) FAA DOCKET No. CP08WP0004 

) 

v. ) (Civil Penalty Action) 

) 

SUN QUEST EXECUTIVE AIR CHARTER, INC. ) 

) 

Respondent. ) DMS No. FAA-2008-0238 

--------------------~----) 

INITIAL DECISION 

·oF ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN 

Found: 1) Respondent violated 14 CFR §135.63(a)(4)(vii) on two counts; and 

2) Respondent is assessed a civil penalty of $5,000. 

I. Background 

Flight and duty times for. pilots operating under Part 135 of the Federal 

Aviation RegUlations ("FARs") are circumscribed. Section 1S5.267{b), 14 C.F.R. 

§) 35.267(b ), generally limits one-pilot flight crews during any 24 consecutive hours to 8 

· hours of total flight time "when added to any other commercial flying by that flight 

crew member"; for flight crews of two pilots, the regulation caps flight time at !0 hours 

of total flight time (including "other commercial flying''). 

Respondent Sun Quest Executive Air Charter, Inc. ("Respondent" or "Sun 

Quest") is an. air carrier certificated under Part 135. Certificate holders are required to 

keep records of pilots' flight time in sufficient detail to determine compliance with the 

described limitations. The issue in this case is whether Sun Quest did so. · 

This matter originated in a records inspection 'carried out by agency inspectors 

on March 18, 2005. The inspectors noted several discrepancies in Respondent's · 

records. The Complaint of the Federal Aviation Administration ("FAA," "Complainant," 

or "the agency") followed. 

. The Complaint, as amended, asserts that Sun Quest violated 14 C.F.R. 

§ 1.'!5.6S{a)( 4)(vii). This FAR requires certificate holders to "make.available for 

t. ~) ~) 

; . /_ .J 
2 

inspection by the Administrator ... [t]he pilot's flight time in sufficient detail to 

determine compliance with the flight time limitations of this part." Complainant 

charges four violations of this FAR. The agency asks for a total civil penalty until49 

U.S.C. §46Sill(a)(2) of$25,000. 

Charge one is that Respondent's pilot records· themselves are not sufficiently "' 

detailed to determine compliance with relevant limitations oil flight time. Charges two 

and three assert that Sun Quest President and chief pilot Mark Smith failed to comply 

with flight and duty time limitations in providing (a) flight training on January 24, 2005 

(charge two), and (b) a check ride on March 9, 2005 (charge three). The fourth charge 

alleges that Sun Quest records failed to reflect Captain Smith's flight time for the Los 

Angeles Police Department ("LAPD"). Because Smith's piloting for the LAPD 

constitutes "other commercial flying''.under § 135.267(b) according to the Complaint, 

Sun Quest should have tracked it. 

Respondent denied the charges. It contends that no discrepancies were noted or 

in fact existed (Stip. ~ 11 ). 

The parties met for hearing on January ~6, 2009. Since nearly all the facts of the 

case were undisputed (Tr. 4 ), the parties agreed, with the Court's approval, to file a joint 

stipulation and then to submit briefs arguing their respective positions. The 

stipulations and briefs have now been filed and the case is ready for decision.' 

The agency has the burden of proof.· To prevail it must prove its case by a 

preponderance of the reliable, probative, and substantial evidence (14 C.F.R. §13.223). 

II. Discussion 

A. The Nature of Respondent's Pilot Logs Violates the Regulation 

Sun Quest records its flight time and duty time records for its pilots in a 

document it calls "Duty and Flight Time Log Sheet" ("Log Sheet"). See, e.g., Compl. Br., 

Exh B. The document has column entries for duty beginning time (called "Time On 

Duty"), duty end time ("Time Off Duty"), total duty time, and total flight time ("Flight 

Time"). . 

Flight time limitations are calculated on a rolling 24-hour basis (14 C.F.R. 

§ 135.'267). The FAA determines compliance by counting back 24 hours from the 

scheduled end of a shift. So, for example, if a pilot's shift is scheduled to end at 9:00 p.m. 

on September 2, and the pilot is limited under FAR§ l.'l5.267(b) to 8 hours of flight 

time, that pilot .may not accumulate more than 8 hours of flight time between 9:00p.m. 

1 Complainant's briefs, entitled Complainant's Trial Brief Based on Stipulated Statement of Facts, 

Complainant's Reply to Respondent's Trial Brief, and Complainant's Supplemental Brief, wiJI be referred 

to as "Compl. Br.," "Compl. Reply," and "Compl. Suppl.," respectively; Respondent's briefs, entitled 

Respondent's Brief, Respondent's Reply Brief, and Respondent's. Supplemental Brief, will be referred to as 

"Resp. Br.," "Resp. Reply,~' and "Resp. Suppl." respectively. (The supplementalbriefs were filed at the 

behest ofthe Court by Order served September I, 2009). Citations to Stipulate<~ Facts will be noted as 

"Stip." followed by the p!!fagraph number. · 

-··· 
, .. 3 

September 1 (counting back 24 hours from the scheduled end of the shift) and 9:00p.m. 

September 2 (the scheduled end of the shift). 

Sun Quest's Log Sheet does not record when flight time (as opposed to duty 

time) begins and ends. It is COmplainant's contention that because of this omission, 

Respondent's records are insufficient to determine compliance with flight time -~ 

limitations, thus making out the alleged violation of§136.63(a)(4)(vii). 

I find the violation. Complainant has shown that Sun Quest's records for its 

pilots do not provide the information necessary to determine compliance with the FAR's 

limitations on flight time. · 

In failing to record the time a flight begins and ends, the Log Sheet does not 

enable a determination of whether regulatory standards have been met. If a pilot 

operates for six consecutive hours on two consecutive days, for exampi~. til'e. data Sun 

Quest enters permit a conclusion that the pilot gained sufficient rest, thereby complying 

with the regulations- but the data, or lack of it, also permit the opposite conclusion. 

Sun Quest's failure to record the times that the flights begin and end make it impossible 

to know which. · 

days. 

The following example illustrates why: 

Scenario One: 

September 1 

12-hour shift, 10:00 a.m.-10:00 p.m . 

. 6-hour flight, 10:30 a.m.-4:30 p.m. 

September 2· 

Scenario Two: 

12-hour shift, 10:00 a.m.-10:00 p.m. 

6-hour flight, 3:30 p.m.-9:30p.m. 

September 1 

12-hour shift, 10:00 a.m.-10:00 p.m. 

6-hour flight, IJ:SO p.m.-9:80p.m 

September 2 

12-hour shift, 10:00 a.m.-10:00 p.m. 

6-hour flight, 10:80 a.m.-4:80p.m. 

The scenarios span identical duty times, 10:00 a.m. to 10:00 p.m. on consecutive . 

Scenario One is legal -the pilot has flown the aircraft within limits, 6 hours in a · 
4 

24~hour period.2 But Scenario Two is not. In Scenario Two, the pilot has flown 11 hours 

· in a 24-hour period.' That situation constitutes a violation of §135.267. 

The point is that Sun Quest's records do not enable a records examiner to 

detennine which scenario has occurred. Respondent's failure to document when a pilo(~ 

flight time begins and ends .is inadequate to the task. The express purpose of 

§ 135.63(a)(4)(vii)- to set out the pilot's flight time "in sufficient detail to detennine 

compliance with the flight time limitations of this part" -is not fulfilled. Sun Quest's · 

pilot records thus fall short of compliance. 

Respondent counters that its Log Sheet "does not standalone." The FAA 

inspector should have compared it with Sun Quest's flight manifest, the carrier states 

(Resp. Suppl. Br., p. 2). This argument is rejected. A fonn entitled "Duty and Flight 

Time Log Sheet" is self-evidently intended to address duty and flight time. "An FAA 

representative, therefore, should look to such a document to ascertain if flight-time 

limitations have been respected-- and need look no further. The document's title plainly 

indicates its intended function. It points to only one souree for duty and flight time dataitself. An inspector is under no duty in such circumstances to search elsewhere. 

Moreover, the regulations contemplate that inspectors be able to draw conclusions 

"readily." South Aero, FAA Order No. 96-4 (February 13, 1996), pp. 8, 10. But placing a 

duty on inspectors to rummage for other documents, as Respondent apparently would, 

does not in any sense suggest "readily." It would place on the agency a burden not 

warranted by the sense ofthe regulations. · 

The agency was justified in basing its detennination that the pertinent regulation 

had been violated on Sun Quest's Duty and FlightTime Log Sheet. 

B. Other Flying · 

1. Flight Training and Check Ride 

On January 24, 2005, Mark Smith of Sun Quest provided 1.3 hours of flight 

tr;rining to a company pilot. On March 9, 2005, Captain Smith gave a oompany pilot a 

check ride lasting 1.5 hours. These actions were included in Smith's duty time records 

but not in his flight time records (Stips. mJ12, 13, 17, 22). Complainant contends that 

Sun Quest should have recorded these flights as flight time under the category of "other 

commercial flying." Respondent demurs. 

2 - • . 

For instance, between 10:00 a.m. on September I and 10:00 a.m. on September 2, a 24-hour period, the 

pilot has flown 6 hours (10:30 a.m. September 1 to 4:30p.m. September 1); or between 10:00 p.m. · 

September I and I 0:00 p.m. September 2, likewise a24-hour period, the pilot also has flown 6 hours {3:30 

p.m. September 2 to 9:30p.m. September 2). · . 

Between 3:30p.m. on September 1 and 3:30p.m. on September 2, a 24-hour period, the pilot has flown 

from 3:30 p;m. to 9:30p.m. on September I (6 hours) plus between 10:30 a.m. and 3:30p.m. on September 

2 (5 hours). See also Compl. Br., pp. 6-7, for another illustration of two scenarios which span identical 

duty times, but result in flight times on either side of the law. · 
5 

In support of its position, the FAA argues that the January 24 training flight lists 

Captain Smith as the check airman. He also was acting as the pilot-in-command ("PIC"). 

·Regarding the check ride of March 9, Complainant argues that Respondent records show 

Smith as the assigned captain. Additionally, during at least part of the check ride, Smith · 

would have been the sole pilot observing traffic because the trainee would have been ~ 

"under the hood" (that is, using a vision-restricting device). As such, Smith would have 

been a required crewmember. Finally, Complainant notes that Captain Smith was paid 

for these tasks. 

In sum, because Smith was a paid, and required, crewmember, Complainant 

states, these flights must be considered "other commercial flying" ooder FAR § 135.267. 

Both the training flight of January 24 and the check ride of March 9 should have been 

added to Smith's assigned flight time in calculating his flight time limitations. Because 

Sun Quest did not do so, the company stands in violation of the regulation (Compl. Br., 

pp. 8-9; Compl. Reply, pp. 1-2). 

Respondent counters that the January 24 flight was ln an aircraft certified for 

single-pilot operation. Captain Smith could not be the pilot-in-command of a single pilot 

flight, nor could he record the flight as such, Sun Quest contends. The trainee could have 

logged the flight as PIC. Nor could Smith have logged the flight as a second-incommand -- not on a flight with one pilot. He was a check airman. Sun Quest concludes, 

contrary to Complainant, that Smith was not a required crewmember under Part 91 (under 

which the training took place). As to the March 9 check ride, the aircraft used also was 

certificated for single pilot flight. As in the January 24 flight, Smith could nothave 

logged his service as second-in-command in a onecperson crew. He was a check airman 

on this flight too, Sun Quest contends. The cheqk airman's function is to oversee the 

operation of the pilot; he is nota member ofthe crew (Resp. Br., pp. 2-3; Resp. Reply, ~~· . . . 

I find and conclude that the January 24 training flight cannot be considered "other 

commercial flying" under §135.267. The March 9 check ride, on the other hand, must be 

considered "other commercial flying" and should have been counted toward flight time. 

On the January 24 flight, Sun Quest's flight training record shows that Captain 

Smith served as check airman (Compl. Br., Ex.h. C). He did not fly the aircraft. Since the 

trainee-pilot did not wear a view-limiting device, Smith was never required to assume 

any responsibilities of a sole pilot. As such, he was not a required crewmember. While 

the flight training record lists the trainee as "SIC" (second-in-command), Smith did not 

thereby assume the tole of PIC. In sum, Captain Smith did not act as a crewmember with 

responsibility for the safe operation of the aircraft. The critical concerns underlying the 

idea that flight time must be recorded - promotion of safety in air transportation by 

reducing pilot fatigue (South Aero, FAA Order No. 96-4 (February 13, 1996), p. 7) -- . 

were notin this instance directly or substantially implicated. I conclude for these reasons 
6 

that Smith's actions in giving a company pilot flight training on January 24, 2009 counts 

as duty time but !JOt as flight time. 4 · 

The circumstances of the March 9 check ride lead to the opposite i:onclusion. A 

key difference is that Captain Stnith on this flight was a required crewmember. He was..,. 

the assigned captain (Compl. Br., Exh. D). Another critical factor is that check rides 

. require the trainee pilot to have vision-restricting devices in place. Smith would have had 

to observe traffic while the trainee was ''under the hood." Smith thus attained.the status 

of a required crewrnember (Compl. Br., pp. 8-9). Captain Smith was compensated for 

serving as a crewmember. The check ride should have been logged as flight time. 

2. L.A.P.D. Flyitig 

During February of2005, Captain Smith served as a pilot for the Los· Angeles 

Police Department. He piloted a helicopter owned and operated by the LAPD on 14 

occasions for a total flight time of 50.4 hours (Com pl. Br., Exh. A; Stip., ~24). Srnith's 

duty and flight time records for Sun Quest did not reflect any of this activity (Stip., ~23). 

Complainant argues that Captain Smith's LAPD flying constituted "other 

· commercial flying" which should have been recorded by Sun Quest for the purpose of 

calculating his flight time limitations. Smith was a required crewrnember and received 

payrnent. ·Since Respondent did not record Smith's LAPD operations, its records were 

"deficient,'' the agency contends. This omission constitutes another violation of 

§135.63(a)(4)(vii) (Compl. Br., p. 9; Compl. Reply, p. 2). Respondent counters that 

Smith's flying was performed ail a police.officer. The LAP D-owned and -operated 

helicopter was properly considered a "public aircraft" exempt from the agency's reach.' 

I conclude that Complainant has failed to prove a violation. 

I fi11!l that the helicopter was a statutory "public aircraft," and, as such, is not 

subject to FAA jurisdiction. The governing statute defines a ''public aircraft" as an · 

aircraft used exclusively for the service of any government which is not carrying persons 

or property for commercial puqioses. 49 U.S.C. §401 02 (a)(4l)(D). The helicopter 

piloted by Captain Smith was owned arid operated by the LAPD, a governmental unit. 

There is no evidence that it performed any activities other than police work. The plain 

words of the statute compel me to conclude that under .these circumstances the helicopter 

must be considered a "public aircraft." The agency does not have jurisdiction over public 

aircraft. 49 U.S.C. §40102; U.S. v. Aero Spacelines, Inc. 361 F.2d 916,921 (91

h Cir. 

1966). Respondent must prevail on this issue.6 

· 

4 That Smith was compensated is not determinative. He was not compensated for serving as a 

crewmember. See.genera/(y FAA Legal Interpretation 1990·21 (August 9, 1990), 1990 WL 10519417. 

5 Resp. Br., pp. 7-8. Respondent's Brief, ]l. 4, states that "[i]t has been stipulated that the helicopter which 

Mark Smith flew for the L.A.P.D. was a 'public aircraft."' This is not correct. Stipulation ~25 reads 

"Legal determination will have to be made as to whether the helicopter in question was a "public ai;craft" 

within the meaning of[the statute]." · . 6 Complainant contends that a finding for Respondent, by allowing pilots to add flight hours within a . 

defined period, would undermine the safety concerns undergirding the regulatory limitations on flight time 

.. 

. 
.. 7 

All arguments have been considered. Those not explicitly addressed in this Initial 

Decision are denied as without merit. Further, Respondent's request for oral argument 

(Resp. Suppl. Br., p. 1) is denied. 

III. Penalty 

I will assess against Respondent a civil penalty of$5,000. 

An appropriate civil penalty must reflect the totality of the circumstances 

surrounding the violations. Eastern Air Center, Inc., FAA Order No. 2008-3 (January 28, 

2008)). The penalty should provide sufficient incentive to deter the respondent and 

similarly-situated entities from future violations. Folsom's Air Service, Inc., FAA Order 

No. 2008-11 (November 6, 2008), p. 12. · · · 

The rules limiting the hours pilots may operate aircraft serve critical safety 

purposes. They ensure that pilots gain sufficient rest and minimize the risk of pilot 

fatigue. The safety implications of inadequate rest are well-known. Pilot fatigue can 

have catastrophic results. See South Aero, FAA 6rder No. 96-4 (February 13, 1996), p, 

7. 

The FAA's mandate to insure safety would ring hollow without a concomitant 

ability to monitor limitations Compliance through examination of :flight and duty time 

records. Premier Jets, Inc., FAA Order No. 99-7 (August 31, 1999); p. 5. The FARs 

require that flight and duty time records be sufficiently detailed to enable a determination 

of compliance. Sun Quest's pilot records fell short of that standard The agency's 

mandate to insure safety in the air was thereby compromised. The risk that pilots would 

operate aircraft without sufficient rest was unacceptably increased as a result. 

Respondent's failure to count a check ride toward restrictions on pilot time also was in 

derogation or the agency's duty to promote safety. Sun Quest's practices merit a 

significant assessment. 

Yet it also must be recognized that Respondent's forms for logging pilot flight 

time were accepted for years by FAA inspectors assigned to supervise the carrier's 

practices. They were incorporated into Sun Quest's .Operations Manual (Stip., '1[8). This 

circumstance does not allow Respondent to escape liability;7 but it must be considered as ' . . 

(Compl. Br., p. I 0; Compl. Reply, p. 3). This is essentially a policy argument. It cannot trump the Clear 

meaning ofthe statute. Moreover, an air carrier which permits, or a pilot who undertakes, any flying under 

conditions which may endanger others risks a violation of 14 C.F.R. §91.13. That provision warns that 

aircraft may not operate '~n .a careless or reckless manner so as to endanger the life or properly of another." 

See FAA Legal Interpretation 1989-23, 1989 WL 1631930 (August9, 1989). · 7 This argument amounts to a claim of an equitable estoppel. Estoppel against a government will not lie, at 

least absent a showing of affirmative misconduct by a government representative. See, e.g., Siu de Puerto 

Rii:o, Car/beY Latino America v. Virgin Island Port Authortty, 42 F.Jd 801, 803 (3"' Cir. 1994). No 

showing of such conduct was made here. 

It should be noted that our sister agency the National Transportation Safety Board whose decisions are 

persuasive, has stated that estoppel will never lie where the public interest and safe~ in air commerce and 

transportation are implicated. Ronald G. Fisher, EA-2986, 6 NTSB 1292, 1294 (1989), ajf'd sub. nom. 
8 

a mitigating factor-in the determination of penalty. The fact that Respondent's 

recordkeeping practices passed muster several times understandably could have 

suggested to it that these practices were acceptable and consistent with applicable F ARs. 

Against this background, Sun Quest had no evident reason to change them to conform to 

what the agency deems acceptable today. · .• 

I conclude that a civil penalty of $5,000 is appropriate. It is commensurate with 

the nature and context ofthe·violations while appropriately promoting the agency's 

policies of compliance and deterrence. It suitably accounts for the totalityofthe · 

circUmstances of th\s case. · 

Sun Quest Executive Air Charter, Inc. is hereby assessed a civil penalty of $5,000 

for two violations of FAR § 14 C.F.R. § l35.63(a)( 4)(vii), as discussed herein.' · 

Attachment - service list 

;~~~ -~ 

• Administrative Law Judge 

Fisher v. Department of Transportation; 917 F;2d 27 (9 Cir. 1990); Erik Milton Poole, EA-4425, 1996 

NTSB Lexis I I (February 7, 1996). · . · 

'This decision may be appealed to the Administrator of the FAA. The notice of appeal must conform to 

sections 13.210, 13.21l(e) and 13.233 of the Rules of Practice, which require that a notice of appeal I) be 

filed not later than I 0 days (plus an additional' five days if mailed) from the service date of this decision, 

and 2) be perfected with a written brief or memorandum not later than 50 days (plus an additional five, if 

mailed) from the service date of this decision. The notice of appeal and brief or memorandum must either 

be a) mailed to the Federal Aviation Admini~tion, 800 Independence Avenue, S.W., Washington, DC 

20591, Attn: Headhg Docket Clerk, AGC-430, Wilbur Wrigbt Building-Suite 2WIOOO, or b) delivered 

personally or via expedited courier service to the Federal Aviation Administration, 600 Independence 

Avenue; S.W., Wilbur Wright Building-Suite 2WIOOO, Washington, D.C. 20591, Attn: Hearing Docket 

.Clerk, AGC-430. A copy of the notice of appeal and brief or memorandum also must be sent to agency 

counsel. Service upon the presiding judge is optional. 

1,