! • rANSPORTAItO?^ 

^ARTMENTOF RECEIVED 

[OPERATIONS JAtl12;»n 

m M 8 P i uo {^EARING DOCKET 

FEDERAL AVIATION ADMINISTRATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of Diamond Air Charter, Inc. 

FAA Docket No. CP10EA0004 

DMS No. FAA-2010-0620 

Judge Yoder 

AGENCY'S MOTION TO LIMIT HEARING TO ISSUE OF SANCTION 

Pursuant to 14 C.F.R, Section 13.218(f)(5), Complainant (Agency) moves for 

decision. Agency submits that there is no genuine issue of material fact and the 

Agency is entitled to partial judgment in its favor as a matter of law, specifically that 

Diamond Air Charter (Respondent) violated tiie Federal Aviation Regulations as 

alleged in the Complainant, and the hearing should be limited to the issue of sanctions. 

UNDISPUTED FACTS' 

In his capacity as an Aviation Safety Inspector (ASI) for the Federal Aviation 

Administration (FAA), while reviewing the web site for Diamond Air Charter, holder of 

Air Carrier Certificate No. D9CA276H (hereinafter "DAC") on or about October 29, 

2009, Louis Misiano (hereinafter "ASI Misiano") discovered that the website had a tab to 

view the type of aircraft operated by DAC in its air carrier on demand (Part 135) 

' The facts stated herein are based on the Affidavit of Louis Misiano, attached herein as 

Exhibit A-1. 
operations. When ASI clicked on that tab, one of the aircraft that came up was the Cessna 

560 aircraft. Exhibit A-1, Paragraph 2. 

On or about October 29, 2009, ASI Misiano did fiirther subsequent research on 

DAC's website and discovered other items on the website and/or its links indicating that 

DC A was advertising or otherwise offering to use a Cessna 560 aircraft in its air carrier on 

demand (Part 135 operations). Exhibit A-1, Paragraph 3. In fact, ASI Misiano's research 

revealed such advertising pertaining specifically to Aircraft N365EA. Id. 

Section D085 of DAC's operations specifications that was current as of October 

29, 2009 (hereinafter "Section D085"), listed all the aircraft that DAC was authorized to 

operate in Part 135 operations. Exhibit A-1, Paragraph 4. Section DOS5 did not list any 

Cessna 560 aircraft. Exhibit A-1, Paragraph 5. Section D085 did not list the N365EA 

aircraft. Exhibit A-1, Paragraph 6. Thus, DAC was not authorized to operate any Cessna 

560 aircraft, including the N365EA aircraft, in Part 135 operations. 

On or about December 16, 2009, ASI Misiano wrote a Letter of Investigation to 

John Diamond, Director of Operations of DAC (hereinafter "Mr. Diamond"), in which it 

was stated that "Information obtained by this office has shown that you are offering to 

perform Part 135 operations with aircraft that are not authorized." Exhibit A-1, 

Paragraph 7; Exhibit LM-8. On or about January 29, 2010, ASI Misiano received a 

response to the letter fi-om Mr. Diamond, dated January 20, 2010. Exhibit A-1, Paragraph 
8. In the letter, Mr. Diamond did not deny submitting the advertisements to DAC's 

advertising agent, but claimed that "the apparent confiision occurred when the Advertising 

Agent took it upon himself to submit the ads for publication prior to and without approval 

fi-om the Director of Operations for Diamond Air Charter" Exhibit LM-8, page 2 of 3. 

ISSUE 

Whether DAC advertised or otherwise offered to use a Cessna 560 aircraft, 

specifically the N365EA aircraft in Part 135 flight operations when DAC was not 

authorized to use any Cessna 560 aircraft, including the N365EA aircraft in Part 135 

operations? 

ARGUMENT 

DAC advertised or otfaerwise offered to use a Cessna 560 aircraft, specifically the 

N365EA aircraft in Part 135 flight operations when DAC was not authorized to use 

any Cessna 560 aircraft including the N365EA aircraft, in Part 135 operations? 

Under 14 CFR Section 119.5(k), no person may advertise or otherwise offer to 

perform an operation subject to this part unless that person is authorized by the Federal 

Aviation Administration to conduct that operation. Under 14 CFR Section 119.1, Part 

135 air carrier operations are subject to Part 119. Under 14 CFR Section 119.7, a 

certificate holder's operations specifications must contain (1) The authorizations, 

limitations, and certain procedures under which each kid of operation, if applicable, is 

to be conducted; and (2) Certain otiier procedures under which each class qand size of 

aircraft is to be operated. 
Section D085 of DAC's operations specifications, which listed all the aircraft 

that DAC was authorized to use as of October 29,2009 in Part 135 operations, did not 

list a Cessna 560 aircraft and, in particular, did not list the N365EA aircraft. 

Therefore, DAC was not authorized to conduct Part 135 operations in any Cessna 560 

aircraft, including the N365EA aircraft. Therefore, DAC was prohibited from 

advertising or offering to perform Part 135 operations in Cessna 560 aircraft. Yet as 

indicated by the findings of ASI Misiano on October 29, 2009, DAC was advertising 

its Part 135 services in Cessna 560 aircraft, including the N365EA aircraft, and was 

thus in violation of 14 CFR 119.5(k). 

WHEREFORE, the FAA, by counsel, respectfiilly requests tiiat the 

Administrative Law Judge enter an order finding Respondent in violation of the 
FARs as alleged in the Complaint and limit the hearing to the issue of sanctions. 

Respectfiilly submitted, 

Alfred R. Johnson, Jr. 

Regional Counsel 

By: 

Zac! ;haiy^. Berman 

Attorney 

Federal Aviation Administration 

1 Aviation Plaza 

Jamaica, NY 11434 

718 553-3258 

718 995-5699 
U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

DIAMOND AIR CHARTER, INC. 

FAA DOCKET NO. CP10EA0004 

(Civil Penalty Action) 

DMS NO. FAA-2010-0620 

AFFIDAVIT OF LOUIS MISIANO 

I, Louis Misiano, hereby state under penalty of perjury as follows: 

1. I am currently employed as an Aviation Safety Inspector (ASI) at the 

Farmingdale Flight Standards District Office (FSDO), 7150 Republic Airport, 

Administration Building, Suite 235, Farmingdale, NY, Federal Aviation 

Administration (FAA) and have been in that position since xxxx. 

2. On or about October 29, 2009, in my capacity as an ASI for the FAA, while 

reviewing the web site for Diamond Air Charter, holder of Air Carrier Certificate 

No. D9CA276H (hereinafter "DAC"), I discovered that the website had a tab to 

view the type of aircraft operated by DAC in its air carrier on demand (Part 135) 

operations. When I clicked on that tab, one of the aircraft that came up was the 

Cessna 560 aircraft, as reflected in Exhibit LM-1, attached herein. 

3. On or about October 29,2009,1 did fiirther subsequent research on DAC's 

website and discovered other items on the website and/or its links indicating that 

DCA was advertising or otherwise offering to use a Cessna 560 aircraft in its air 

carrier on demand (Part 135 operations), as reflected in Exhibits LM-2, LM-3, 

LM-4, LM-5, and LM-6, attached herein. In fact niy research revealed such 

advertising pertaining specifically to Aircraft N365EA, as reflected in Exhibit 

LM-3. 

4. Section D085 of DAC's operations specifications that was current as of October 

29, 2009, attached herein as Exhibit LM-7 (hereinafter "Section D085"), listed all 

the aircraft that DAC was authorized to operate in Part 135 operations. 

5. Section D085 did not list any Cessna 560 aircraft. 

6. Section D085 did not list the N365EA aircraft. 

EXHIBIT 
7. On or about December 16,2009,1 wrote a Letter of Investigation to John 

Diamond, Director of Operations of DAC (hereinafter "Mr. Diamond"), as 

reflected in Exhibit LM-8, attached herein. 

8. On or about January 29, 2010,1 received a response to the letter from Mr. 

Diamond, dated January 20,2010, as reflected in Exhibit LM-9, attached herein. 

Dated: 

C^^Z^^ftLOUIS MISIANO 

Aviation Safety Inspector 

Farmingdale FSDO, FAA 

BEBSRAH A. BROV 

^tary Public, State of New York 

No. 01BR5027047 

Qualified in Nassau County/2^y/ ^ 

Commission Expires May 02, ^^^zi/ / 
12/16/2009 7:59:17 AM 

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^^ DIAMOND AIR CHARTER, INC. 

Qualifications 

Established: 1996 • Fleet: 6 • Pilots: 7 fiill time, 10 part 

time 

Certificate: D9CA276H(Licensed to fly US,CN,CB,MX) 

http://www.flydiamond.com 

Contact Information 

DIAMOND AIR CHARTER, INC. 

85 TOWER RD. 

HANGARE 

WHITE PLAINS, NY United States 10604 

Tel: 914-761-7336,203-730-9955 • Fax: 203-730-9966 

Email: info@flydiamond.com 

Company Profile 

Diamond Air Charters Inc. is a HPN based Executive Charter company with offices and a FBO in DXR. We offer a 

ftill range of aircraft such as piston Navajo's, TBM 700, King Air, Citation V and soon the new very light jet Phenom 

100. We specialize in aircraft management and acquisition/sales. We strive for the highest safety standards and 

customer satisfaction. 

Fleet 

KHPN - White Plains, NY US 

Qty. Type (Common Name) 

1 a_CE-560 (CITATION V) 

1 ai_BE-100 (KING AIR) 

1 a_TBM-700 

2 a_PA-31-350 (CHIEFTAIN)Piston-Multi 

1 10 _PA-34 (SENECA) Piston-Multi 

Category 

Light Jet 

TurboProp 

TurboProp 

SeatsPrice Range (Per Hour) 

8$ 2545 avg. Price Quote 

8$ 1150 Price Quote 

4$ 795 Price Quote 

6$ 495 Price Quote 

4$ 427 avg. Price Quote 

Back to Operator Listings 

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Vi^ us at: 

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DL\MQND AIR CHARTER, INC. Page 1 of: 
10/29/2009 2:13:34 PM 

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To request a quote on chartered aircraft, enter your flight information, contact information, and 

select an operator/aircraft. Then click on the "Send RFQ" button. This will send a RFQ to all the 

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2009 ^|Oc t ^|30_ J 

1:00PM j j 

2009 _^ |Oct ^ |31 2 \ 

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(~ One-Way <* Round Trip 

(~ Multi-Leg 

Company 

Name: 

Phone: 

Fax: 

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t •• 

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F CHARTER. INC. 

, CE-560 

\a:iTATIONV) Light Jet 8 $2541 avg. O 

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jack to operator details. 

lequest Air Charter Quote for CE-5... • Page 1 of 2 
DIAMOND AIR CHARTER, INC. 

1991 CE-560 (CITATION V) - 8 seats 

10/29/2009 2:13:06 PM 

Tail Number 

• N365EA 

Image 1 of 1 

Aircraft Photos Page 1 of 1 
10/29/2009 2:09:52 PM 

1 

Diamond Air Charter 

^ Email This 

View Aircraft For Charter 

Send A Message to Diamond Air Charter 

'IJ/amonc/.y com 

Chartering your own aircraft from Diamond Air Charter 

• puts you in complete control of your joumeyl Any 

time...Anywhere - we handle each minute detail of 

your trip so that your entire flying experience is 

absolutely hassle freel Our in depth industry 

knowledge gives our customers the insider's advantage in chartering a pr|^^||ircraft for business 

or pleasure. At Diamond Air Charter our customers are guaranteed tl^ilii^^^comfort, and 

p,easure.Ha..he,..»TMe. ^ 

Our aircraft network consists of a diverse fleet of jet, turbi^rop, and tvi/lfTengine equipment. 

Customers are matched to a particular aircraft based on their unique needs and travel profiles. 

Diamond Air Charter's goal is to maximize comfort, while minimizing travel time and overall cost 

}ur in depth inci 

g a priv^M|irc 

1 tvi/irrengine e< 

factors. Efficiency and value are important considerations when planning any trip. 

Diamond Air Charter can utilize small, executive class airports that offer easy access to the 

customer's home base and final destination. Private airports typically offer their patrons "free 

parking" just steps away from their door. Private car service and rental cars are easily arranged, in 

advance, by our staff. Additionally, flights can be custom catered to accommodate the most 

discriminating preferences! 

Diamond Air Charter, a private aviation company, is FAA licensed , Bahamian permitted, and U.S. 

insured. Our aircraft and flight crews meet the highest FAA standards for safety and 

professionalism. 

OUR PROMISE. 

As an experienced jet charter company, we know that price and flexibility are very important to our 

clients. As a charter company, we also recognize that NOTHING is more Important than safety 

and security. To that end, we have secured systems and developed relationships that allow us to 

provide information and services to our clients that assure them that, when using our air charter 

services, they are flying safe and secure whenever they work with Diamond Air Charter. 

Products & Services 

We work with the following categories of aircraft: 

»Jet Aircraft • Turboprop 

Aircraft 

• Piston Twin 

Aircraft 

We woric with the following categories of faciiites: 

• Brokering • Charter • Management 

• Line Services 

Sales 

We provide the following services: 

• Conference • Flight Planning 

Rooms 

• Restaurant 

Pilots Lounge ' Tie Downs 

Contact Information 

Diamond Air Charter 

85 Tower Road 

Hangar E 

Diamond Air Charter 

Certificate #: D9CA276H 

Phone: (203)730-9955 

Page 1 of 2 
10130/2009 \ CESSNA CITATION V Jet Aircraft R)r C/ 

General Information 

call for details and availability 

Say you saw this CESSNA CITATION V On CharterHub.comI 

Send Diamond Air Charter A Message 

Contact: 

Diamond Air Charter 

Anthony Debany 

Aircraft is located in: 

White Plains, New York 

Phone: (203)730-9955 

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charterhub.com/llstingsdetail/detail.asp. 2/2 
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CESSNA CITATION V 

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t 4 P+ P- Reset Special ZOOM Features 

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CITATION V 

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8 

charterhub.com/llstingsdetail/detall .asp... 1/2 
U.S. Department 

of Transportation 

Federal Aviation 

Administration Operations Specifications 

DOSS . Aircraft Listing HQ Control: 02/06/1998 

HQ Revision: 02a 

a. The certificate tiolder is authorized to conduct operations under 14 CFR Part 133 using the aircraft 

identified on this operations specification. 

Registrmtion No. 

N6045S 

N21AB 

N27726 

2930Y 

N708PW 

Serial No. 

BE-6S 

31-8052122 

31-7852125 

34-7450099 

29 

Aircraft M/M/S 

BE-100-100 

PA-31-350 

PA-31-350 

PA.34-200 

TBM-700-700 

) 

Print Date: 10/26/2009 D085-1 

Diamond Air Charter, Inc. 

Certificate No.: D9CA276H 
® 

U.S. Department 

of Transportation 

Federal Aviation 

Administration 

DEC 1 6 2009 

Farmingdale Flight Standards District Office 

7150 Republic Airport 

Admin. Building, Suite 235 

Farmingdale, NY 11735 

Tel: (631) 755-1300 Ext. 237 

Fax:(631)694-5516 

CERTiFIED l\^AIL - RETURN RECEIPT REQUESTED 

File No. 2010EA110008 

Mr. John Diamond, Director of Operations 

Diamond Air Charter 

Westchester County Airport 

85 Tower Road, Hanger E 

White Plains, NY 10604 

Dear Mr. Diamond: 

Information obtained by this office has shown that you are offering to perform Part 135 

operations with aircraft that are not authorized. Operations of this type may be contrary to 

Federal Aviation Regulations (FAR). 

This letter is to inform you that this matter is under investigation by the Federal Aviation 

Administration (FAA). We would appreciate receiving any evidence or statements you might 

care to make regarding this matter within 10 days of receipt of this letter. Any discussion or 

written statements furnished by you will be given consideration in our investigation. If we do not 

hear from you within the specified time, our report will be processed without the benefit of your 

statement. 

Sincerely, 

Original Signed By 

Louis Misiano 

Aviation Safety Inspector 

Enclosure: Privacy Act Notice 

N:\letter\LXM - LOI Diamond Air Advertising 
<$^ AIR <b 

^KX ^ 

/nc. 

Executive 

Air Charter and 

Aircraft Management 

1 '• ' 

Jftil 2 iS 2010 

'r-' ^ •;;..• T| -

January 20,2010 

Via FacsimUe (631) 694-5516 

and Regular Mail 

Inspector Louis Misiano 

Federal Aviation Administration. 

Flight Standards District Office 

7150 Republic Airport, Route 110 

Farmingdale, New York 11735 

Re: File #2010EA110008 

Dear Inspector Misiano: 

This will serve as a follow-up to our conversations regarding the above file number. 

Accordingly, this letter is written in response to your request for further explanation of 

the circumstances surrounding advertisements recently placed by Diamond Air Charter 

concerning a Cessna Citation aircraft, registration number N365EA. Please be advised 

that the advertisements in question were intended to be released to the public only when 

the aircraft was formally authorized for charter service on the Diamond Air Charter 

certificate. 

As you are aware, 14 C.F.R. §119.5, entitled Certifications, authorizations, and 

prohibitions, states the following, in part, regarding advertising or otherwise offering to 

perform an operation subject to Part 119: 

(k) No person may advertise or otherwise offer to perform an operation subject to 

this part unless that person is authorized by the Federal Aviation Administration 

to conduct that operation. 

(1) No person may operate an aircraft imder this part, part 121 of this chapter, or 

part 135 of this cluster in violation of an air carrier operating certificate, 

operating certificate, or appropriate operations specifications issued under this 

part. 

Westchester County Airport 

85 Tower Road, Hanger E 

White Plains, N.Y. 10604 
<J^ AIR <b 

inc. 

Executive 

Air Charter and 

Aircraft Management 

Inspector Louis Misiano 

January 27,2010 

Page 2 

Since the aircraft was scheduled to conduct proving or validation tests in December 2009 

(pursuant to 14 C.F.R. §135.145), Diamond Air Charter had prepared advertising 

materials in anticipation of announcing the addition of Cessna Citation charter services to 

the company. Once the aircraft had been approved for charter operations by the FAA, the 

advertisements were to be submitted for publication. Nevertheless, under no 

circumstances did Diamond Air Charter intend to advertise or otherwise offer to perform 

an operation subject to Federal Aviation Regulations (FARs) Part 119 or Part 135, unless 

the aircraft was authorized by the Federal Aviation Administration (FAA) to conduct 

such operations. Furthermore, Diamond Air Charter never operated the Cessna Citation, 

N365EA, under Part 135 in violation of its operating certificate or operations 

specifications. 

When the aircraft was initially scheduled for proving tests in December 2009, the 

proposed advertisements were submitted to Anthony Debany, Advertising Agent for 

Diamond Air Charter, Avith explicit instructions to hold the ads until further word from 

the company concerning the status of FAA approval for the Cessna Citation in Part 135 

charter services. However, the apparent confusion occurred when the Advertising Agent 

took it upon himself to submit the ads for publication prior to and Avithout approval from 

the Director of Operations for Diamond Air Charter. Upon further investigation, it was 

discovered that advertisements for the Cessna Citation were combined with similar ads 

that were already listing the Citation as "coming soon", and as a result were inadvertentiy 

released for publication without my knowledge or consent. All advertisements were 

pulled and stopped upon the receipt of your correspondence. Moreover, the Advertising 

Agent was appropriately covmseled and reprimanded 

Nevertheless, as the Director of Operations for Diamond Air Charter, I have ultimate 

Operational Control authority of the air carrier. As a result, at no time did Diamond Air 

Charter offer to perform an operation subject to FAR Part 119 or Part 135, unless the 

aircraft was authorized by the FAA to conduct such operations. Furthermore, Diamond 

Air Charter never operated Citation N365EA under Part 135 in violation of its operating 

certificate or operations specifications. 

I trust that this letter sufficientiy explains the circumstances under investigation. 

Accordingly, I understand that this matter will be closed without further action. 

However, if my understanding is incorrect, kindly advise me in writing otherwise. 

Westchester County Airport 

85 Tower Road, Hanger E 

White Plains, N.Y. 10604 
<$^ AIR <b 

*^^J^RV^ 

inc. 

Executive 

Air Charter and 

Aircraft Management 

Inspector Louis Misiano 

January 27,2010 

Page 3 

If you have any questions, please do not hesitate to contact me. Thank you in advance 

for your anticipated cooperation. 

« 

Sincerely, ' 

John Diamond Jr. 

Director of Operations 

cc: Gregory S. Winton, Esq. 

The Aviation Law Firm 

Westchester County Airport 

85 Tower Road, Hanger E 

White Plains, N.Y. 10604 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Agency's Motion to Limit Hearing to Issue of 

Sanctions has been sent via first class mail and facsimile to the following: 

Gregory S. Winton 

Aviation Law Experts , LLC 

One Research Court, Suite 450 

Rockville, MD 20850 

Telefax: (301)294-2525 

The Honorable Ronnie A. Yoder 

Chief Administrative Law Judge 

U.S. Department of Transportation 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room E12-320 

Washington, DC 20590 

Telefax: (202)366-7536 

I hereby certify that the foregoing Agency's Motion to Limit Hearing to Issue of 

Sanctions has been sent via first class mail to the following: 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building, Suite 2W1000 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Room 924A 

Washington, D.C. 20591 

Date: JAN - 4 2011 ^ ^ 

Lisa Hooks 

Paralegal Specialist 

Federal Aviation Administration 

Office of Regional Coimsel 

1 Aviation Plaza 

Jamaica, NY 11434