U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERAL AVIATIONADMINISTRATION

FEDERALAVIATION ADMINISTRATION, Complainant, 

# RECEIVED SEP 282015 HEARING DOCKET

vs. DocketNo. FAA-2015-1325 FAACaseNo. 201380950071 BEACHAVIATION, LLC, Respondent. Judge J.E. Sullivan
MOTION TO DEEMADMITTED AND FORJUDGMENT ON THE PLEADINGS Pursuant to 14 C.F.R. §§ 13.209 and 13.218, the FAA moves to deem admitted the allegations inthe Complaint and forjudgment on the pleadings. Respondent has failed to file an Answer and, accordingly, the allegations in the Complaint shall be deemed admitted. The allegations in the Complaint are sufficient to demonstrate a regulatory violation and the appropriateness of the sanction. Therefore, judgment on the pleadings is appropriate. Additionally, without an Answer, the FAA is unable to meaningfully prepare a scheduling proposal for the December 10, 2015, scheduling conference. STATEMENT OF THE CASE OnJune 3, 2015, the FAA issued a FinalNotice ofProposed Civil Penalty, which proposed a penalty of$15,400. Respondent timely appealed, and the Complaint, attachedhereto
as Attachment A and incorporatedbyreference, was filed onJuly 1, 2015. In the Complaint, the FAA alleged as follows: I.1. On June 3, 2015, Respondent, BeachAviation, LLC was advised through a Final Notice ofProposed Civil Penaltythat the FAAproposed to assess a civil penaltyin the amount of$15,400. On June 23, 2015, the AgencyAttorney received a writtenrequest for ahearing from the Respondent. IL 1. At all times material herein, Beach Aviation, LLC (Beach Aviation) was and is now the holder ofa Letter ofAuthorization (LOA) issued bythe FAA, authorizing it to conduct commercial air tour operations under 14 C.F.R. § 91.147. 2. At all times material herein, 14 C.F.R. § 91.147(d) and its LOAA049-2, issued on or about September 7, 2012, required that Beach Aviation register and implement its drug and alcohol testingprograms in accordance with 14 C.F.R. part 120. 3. At all times material herein, 14 C.F.R. § 91.147(e) required that Beach Aviation complywith the provisions ofits LOA, which provides that Beach Aviation will complywiththe requirements of 14 C.F.R. part 120 and 49 C.F.R. part 40 and fully implement an Antidrug Testing and Alcohol Misuse Prevention Program in accordance withtheseregulations. 4. On or about September 8, 2012, BeachAviation started operations as defined in§ 91.147.5. Beach Aviation was required to implement an FAA drug testing program and an FAA alcohol testingprogramno laterthan September 8, 2012. 6. Between September 8, 2012 and on or about December 3, 2012, Beach Aviation failed to implement an FAA drugtestingprogram. 7. Between September 8, 2012 and on or about December 3, 2012, Beach Aviation failed to implement anFAA alcohol testingprogram. 8. As a result, Beach Aviation failed to implement an FAA drug or alcohol testing programno laterthanthe date it started operations. III. 9. Byreason ofthe foregoing facts and circumstances, Respondent violatedthe following sections ofthe Federal AviationRegulations: 10. Section 120.117(b)(2)(ii), which states that a company that intends to begin operations as defined in§ 91.147 ofthis chapter must implement an FAA drug testing program no laterthanthe date it starts operations.

### 11. Section 120.225(b)(2)(ii), which states that a company that intends to begin operations as defined in § 91.147 of this chapter must implement an FAA alcohol testing program no laterthan the dateit starts operations. 12. Pursuantto 49 U.S.C. Sections 4630l(a)-(d), Respondent is subjectto a civil penaltynotto exceed $1,l00 for each ofthe violations alleged. 13. Under the facts and circumstances ofthis case, a civil penaltyof$15,400 is appropriate. See 

### Complaint at 1-2. No Answerhas been filed. ARGUMENT Respondenthas failed to file an Answer in this case. Therefore, each ofthe allegations in the Complaint shouldbe deemed admitted. The allegations inthe Complaint include the facts of Respondent's conduct, that this conduct violated§§ 120.117(b)(2)(ii) and 120.225(b)(2)(ii) of the Federal Aviation Regulations, and that $15,400 is an appropriate civil penaltyunder the facts and circumstances ofthis case. This penalty was determined in accordance with FAA Order 2150.3B. The relevant portions of the 2150.3B are attached hereto as Attachment B and incorporated by reference. Specifically, Respondent is subject to the penalty classification established in Figure B-5-a(5) on page B-31 and the corresponding range defined in item (7) at thebottom ofpage B-6. Accordingly,judgment onthepleadings is appropriate. Section 13.209(a) of Title 14 of the Code of Federal Regulations provides that the Respondent must file an Answer within 30 days of the date of service of the Complaint. Pursuant to § 13.209(f), a Respondent's failure to file an Answer shall be deemed an admission ofthe allegations inthe Complaint. Here, Respondent has failed to file an Answer at all, much less within 30 days ofthe date of service of the Complaint. The Complaint was served on July 1, 2015. The Complaint included a notice to Respondent (set out under its own bold, underlined, all capitals topicheading) that Respondent was required to Answer within 30 days after the date shown on the Certificate ofService. See Complaint at 3. The certified mail was made available bythe United States Postal Service ("USPS") on July 8, 2015. See USPS Tracking, attached hereto as Attachment C and incorporated by reference. Even if Respondent was required to file his Answer within thirty-five days ofthe date ofservice, pursuant to 14 C.F.R. § 13.211(e)-inthis case, on or before August 4, 2015

- the Answer would still be long past due. It has now been almost three months since the Complaint was served and, therefore, almost two months since the Answerwas due. Therefore, pursuant to 14 C.F.R. § 13.209(f), the Judge should deem admitted the allegations in the Complaint. Because these allegations establish that Respondent violated Federal Aviation Regulations and that the sanction requested is appropriate, there are no matters left to try at hearing, andjudgment onthepleadings is appropriate. As such, the FAA requests that the Judge convert the currently-scheduled December 10, 2015, scheduling conference into a motion conference or, alternatively, that the December 10, 2015 conference also beused as amotion conference. CONCLUSION The allegations in the Complaint are due to be deemed admitted as a result of Respondent's failure to file an Answer. The allegations in the Complaint establish Respondent's violations and the appropriateness ofthe sanction requested. Accordingly, the FAAis entitled to judgment on thepleadings.

### WHEREFORE, the FAA respectfully requests that the Judge deem admitted the allegations inthe Complaint and grant the FAAjudgment onthe pleadings. 

## i+ Respectfully submitted this

## 1l_day ofSeptember, 2015. 

## -z;J.--J-__ (_~

Brandon C. Goldberg Attorney Office ofthe ChiefCounsel EnforcementDivision Southern Team
CERTIFICATE OF SERVICE 

### Ihereby certifythat a copy ofthe foregoing Motion to DeemAdmitted and for Judgment onthe Pleadings has been sentthis date byCertified Mail, Return Receipt Requested, to: Hearing Docket Clerk FAA, AGC-430, Suite 2Wl000 WilburWright Building 800 Independence Avenue, SW Washington, DC 20591 Charles Brady BeachAviation, LLC, Respondent 

### 3700 AirportRoad Suite 405
· BocaRaton,FL 33431

Hon. J.E. Sullivan,AdministrativeLawJudge 

### Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (El 1-310) Washington, DC 20590

Dated (original + I copy)U.S. Department ofTransportation Federal Aviation Administration



## 'JU[ '- 

# ~f 201f Southern Region Office of the Regional Counsel

CERTIFIED

- RETURN RECEIPT REQUESTED Hearing Docket Clerk FAA., AGC-430, Suite 2Wl000 Wilbur Wright Building 800 Independence Avenue, SW Washington, DC 20591 Re: In the Matter ofBeach Aviation LLC FAA Case No. 2013S0950071 P.O. Box 20636 Atlanta, Georgia 30320 (404) 305-5200 (404) 305-5223 FAX

Enclosed herewith please find a copy ofarequest for hearing and the original and one copy of the Complaint inthe above-referenced proceeding. The FAA requests that the hearing in this matter be held in the Fort Lauderdale, Florida area, and expects that the hearing will last one day. Please address all communications for the FAAto the undersigned, at: Federal Aviation Administration Office ofthe Regional Counsel, A.SO-7 Southern Region 1701 Columbia Avenue College Park, GA 30337 Telephone: (404) 305-5200, facsimile (404) 305-5223. Sincerely,

BRANDON C. GOLDBERG Attorney Office ofthe Regional Counsel Enclosures 

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# AU.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERAL AVIATION ADMINISTRATION

FEDERAL AVIATION ADMINISTRATION, Complainant,
vs. BEACH AVIATION LLC Respondent.
JUDGE NOT YET ASSIGNED FAA DocketNo. Judge

COMPLAINT The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, pursuant to Rule 208 ofthe Rules ofPractice (14 C.F.R. 13.208), and states as follows: I. 1. On June 3, 2015, Respondent, Beach Aviation, LLC was advised through a Final Notice ofProposed Civil Penalty that the FAA proposed to assess a civil penalty inthe amount of$15,400. On June 23, 2015, the Agency Attorney received a written request for ahearing from the Respondent. II. 1. At all times material herein, Beach Aviation, LLC (Beach Aviation) was and is now the holder ofa Letter ofAuthorization (LOA) issued by the FAA, authorizing it to conduct commercial air tour operations under 14 C.F.R. § 91.147. 2. At all times material herein, 14 C.F.R. 

### §91.l47(d) and its LOA A049-2, issued on or about September 7, 2012, required that Beach Aviation register and implement its drug and alcohol testing programs in accordance with 14 C.F.R. part 120. 3. At all times material herein, 14 C.F.R. 

### § 91.147(e) required that Beach Aviation comply with the provisions ofits LOA, whichprovides that Beach Aviation will comply with the requirements of 14 C.F.R. part 120 and 49 C.F.R. part 40 and fully implement an Antidrug Testing and Alcohol Misuse Prevention Program in accordance withthese regulations.4. 

### 91.147. On or about September 8, 2012, Beach Aviation started operations as defined in§
5. Beach Aviation was required to implement an FAA drug testing program and an FAA alcohol testing program no later than September 8, 2012. 6. Between September 8, 2012 and on or about December 3, 2012, Beach Aviation failed to implement an FAA drug testing program. 7. Between September 8, 2012 and on or about December 3, 2012, Beach Aviation failed to implement an FAA alcohol testing program. 8. As a result, Beach Aviation failed to implement an FAA drug or alcohol testing program no later than the date it started operations.

III. 

### 9. By reason ofthe foregoing facts and circumstances, Respondent violated the following sections ofthe Federal Aviation Regulations: 10. Section 120.ll7(b)(2)(ii), which states that a company that intends to begin operations as defined in§ 91.147 ofthis chapter must implement an FAA drug testing program no later thanthe date it starts operations. 11. Section 120.225(b)(2)(ii), which states that a company that intends to begin operations as defined in § 91.147 of this chapter must implement an FAA alcohol testing program no laterthan the date it starts operations. 12. Pursuantto 49 U.S.C. Sections 46301(a)-(d), Respondent is subject to a civil penalty not to exceed $1, 100 for each ofthe violations alleged. 13. Under the facts and circumstances ofthis case, a civil penalty of$15,400 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$15,400. 

# Ii-\- Respectfully submitted this day ofJuly, 2015.

# ~ {Ll---/ BRANDON C. 

### GOLDBERG P 

### Attorney Office ofthe Regional Counsel 

# ATrACm.im~,:.....,_-·-· ......

# ~ ......-,..-, -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 ifappropriate, not later than 30 days after the date shown onthe Certificate ofService which follows. CERTIFICATE OF SERVICE I hereby certifythat a copy ofthe foregoing Complaint has been mailed this date by Certified Mail, Return Receipt Requested, to the following: Hearing Docket Clerk FAA, AGC-430, Suite 2WIOOO Wilbur Wright Building 800 Independence Avenue, SW Washington, DC 20591 Charles Brady Beach Aviation, LLC 3700 Airport Road Suite 405 Boca Raton, FL 33431



# ~ah /(lRALD A. JE

### ING

Program Analyst

Dated (original 

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# ATTACHMBNt
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__ _10/01/07 2150.38 Fig. B-4-c. Drug convictions

- no falsification involved Civil Penalty Certificate cont. Action (2) Multiple convictions for simple possession* 120-day Suspension to Revocation ofall part 61, 63, or 65 certificates (3) Conviction(s) for other than simple possession* Revocation ofall part 61, 63, or 65 certificates *It may be appropriate, in the exercise ofprosecutorial discretion, not to take enforcement action when a conviction is several years old when discoveredbythe FAA andthere is evidence thatthe certificate holder has beenrehabilitated such that the individual canbe expectedto conform his orher conductto safety requirements. 5. DRUGAND ALCOHOLTESTINGVIOLATIONS. Fig. B-5-a. Drug andAlcohol TestingViolations CivilPenalty Certificate Action (I) Failure ofan air carrier operating underpart 121 orpart Moderate 135 operator to obtain an operations specification (2) Failure ofa part 145 operator (that opts to have its own Moderate drug program and AMPP) to obtain an operations specification (3) Failure ofa Section 135.l(c) or non-FAA airtraffic Moderate control facility to submit aregistration to the FAA (4) Failure ofa contractor (that opts to have its own drug and Moderate alcohol prosrrams) to submit a registration to the FAA (5) Failure to implement ormaintain continuous coverage in Maximum Indefinite an FAA antidrug program and/or AMPP in accordance with Suspension Appendices I and/or J pending compliance or Revocation Fig. B-5-b. Coverage Civil Penalty Certificate Action 

### (!) Failure to include a safety-sensitive employee in FAA Maximum mandated drug and alcohol testing oro<>rams (2) Permitting a contractor employee to perform a function Maximum listed in Appendix I or Jwho is not coveredunder an FAAmandated antidrug and/or alcohol misuse prevention program

B-31 

# ATTACm.ttNT_.

# _[3
__10/01/07 2150.3B

Small Business Concern (for violations coveredunder 49 U.S.C. §46301(a)(l)(A) or (B) but not under49 U.S.C. §46301(a)(5)(A)): Maximum $750-$1,100 Moderate $450-$749 Minimum $250 $449 (5) VIOLATION COMMITTED BYAIRPORT OPERATOR. Large Business Concern: Maximum $18,750-$25,000 Moderate $10,000-$18,749 Minimum $2,000-$9,999 Small Business Concern (for violations covered under 49 U.S.C. § 46301(a)(5)(A)): Maximum $8,250-$11,000 Moderate $4,400-$8,249 Minimum $1,100-$4,399 Small Business Concern (for violations coveredunder 49 U.S.C. § 46301(a)(l)(A) or (B) but not under 49 U.S.C. § 4630l(a)(5)(A)): Maximum $850-$1,100 Moderate $650-$849 Minimum $500 $649 (6) LARGE BUSINESS CONCERN

-- DOES NOT HOLD CERTIFICATE Maximum $18,750-$25,000 Moderate $10,000-$18,749 Minimum $2,000-$9,999
(7) SMALL BUSINESS CONCERN

- DOES NOT HOLD CERTIFICATE Forviolations covered under 49 U.S.C. § 46301(a)(5)(A): Maximum $4,400-$11,000 Moderate $2,200-$4,399 Minimum $550-$2,199
B-6

### 10/01/07 2150.38

Forviolations covered under 49 U.S.C. §4630\(a)(l)(A) or (B) butnotunder 49 U.S.C. § 4630l(a)(5)(A): Maximum $500-$1,100 Moderate $300-$499 Minimum $100-$299 (8) VIOLATION RELATING TO THE TRANSPORTATION OF A HAZARDOUS MATERIAL 04 CFR), THE REGISTRATION ORRECORDATION OF AN AIRCRAFT NOT USED TO PROVIDE AIR TRANSPORTATION, THE LIMITATION ON THE CONSTRUCTION ORESTABLISHMENT OF A LANDFILL, ORTHE SAFE DISPOSAL OF A LIFE-LIMITED AIRCRAFT PART. Large Business Concern (ifentity is not within a more specific category, for example, Group I Air Carrier or Operator): Maximum Moderate Minimum $16,250-$25,000 $8,750-$16,249 $1,850-$8,749 Small Business Concern (ifnot within a more specific category for example, Group II Air Carrier or Operator) orIndividual: For violations coveredunder 49 U.S.C. § 4630\(a)(S)(A): Maximum $4,400-$11,000 Moderate $2,200-$4,399 Minimum $550-$2,199 For violations coveredunder 49 U.S.C. § 4630\(a)(l)(A) or (B) butnot under 49 U.S.C. § 46301(a)(5)(A): Maximum Moderate Minimum $500-$1, 100 $300-$499 $100-$299 (9) OTHER VIOLATION COMMITTED BY AN INDIVIDUAL. AIRMAN SERVING AS AN AIRMAN

- INDIVIDUAL SERVING IN CAPACITY OF AN AIRMAN. ALL VIOLATIONS EXCEPT THOSE LISTED IN (8). Maximum $850-$1,100 B-7USPS.com®

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