UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

JOHN CROFT 

FAA DOCKET NO. 2012-AWA-CPP-13423 

(Civil Penalty Action) 

DMS NO. FAA-2012-0903 

RECEIVED 

FEB 2 6 2013 

HEARING DOCKET 

COMPLAINANT'S MOTIONS TO DEEM ADMITTED EACH ALLEGATION IN THE 

COMPLAINT, AND FOR A DECISION AS TO THE VIOLATIONS 

The Complainant moves for an Order deeming admitted each allegation in the Complaint. 

The basis for this motion is that Respondent has failed to submit an answer to the Complainant 

as required by§ 13.209(a) of the Rules of Practice, 14 C.F.R. § 13.209. This motion is based on 

the following facts: 

1. On September 10, 2012, the Complaint in this matter was served on Respondent by 

certified mail, return receipt requested, at the address indicated in his request for a hearing. 

Included in the Complaint is a notice to the Respondent regarding the requirement for an answer 

as well as the effect of failing to timely submit an answer. 

2. The return receipt indicates receipt at Respondent's address on September 12, 2012. 

Exhibit A is a copy of both sides of the PS Form 3811, Domestic Return Receipt. 

3. On September 28, 2012, the assigned law judge issued a Procedural Order in which he 

specifically reiterates the requirement for an answer as well as the consequences of failing to file 

an answer. 

4. To date, Respondent has not filed an answer. 7 

1 
Section 13.209(a) ofthe Rules of Practice clearly requires that Respondent submit an Answer 

within 30 days of the service of the Complaint. Federal Aviation Administration v. Playter, FAA 

Order No. 90-15 (March 19, 1990). The 30-day time limit is an absolute requirement that may 

not be enlarged absent a showing of good cause for the failure to timely submit an answer. In the 

Matter of Pierre A. Robinson, FAA Order No. 97-18 (May 23, 1997); In the Matter of Atlantic 

World Airways, Inc., FAA Order No. 95-28 at 3-4 (December 19, 1995). Further, in In the 

Matter of Donald M Missirlian, FAA Order No. 97-19 (May 23, 1997), the FAA Decisionmaker 

finds the explanation insufficient to establish good cause, and he affirms the assessment of the 

civil penalty requested in the complaint. 

Based on the foregoing and pursuant to § 13.209(f) of the Rules of Practice, the 

Respondent's failure to timely submit an answer without good cause must be deemed an 

admission of the truth of each allegation in the complaint. 

The Complainant further moves, pursuant to § 13.218(£)(5) of the Rules of Practice, for a 

decision finding that Respondent violated the regulations as alleged in the complaint and limiting 

the hearing in this matter to the consideration of an appropriate sanction. This motion is based 

on the deemed admissions of the allegations in the complaint as well as the statements 

Respondent made in his response dated February 24, 2012, to Complainant's Notice dated 

February 17, 2012. (Exhibit B) In his written response, Respondent acknowledges that he was 

supposed to have transported his boss's bags on the Alaska Ferry, but forgot them. He then 

called the Skagway Police and asked for someone to collect the bags and have them delivered to 

a local air carrier for transportation by air to Sitka, Alaska. These statements clearly establish 

that through an agent, Respondent offered the bags for transportation by air, and there is no 

dispute that the bags contained signal and aerial flares. 

2 
Respondent may well not have known that the flares were in the bags. Such a lack of 

knowledge as to the facts, however, does not mean that he did not knowingly violate the 

regulations. Under 49 USC§ 5123(a)(l), "A person acts knowingly when-... (B) a reasonable 

person acting in the circumstances and exercising reasonable care would have that knowledge." 

As the shipper Respondent had a duty to know what was in the bags that he, either directly or 

through an agent, offered to Wings of Alaska for transportation by air. In the Matter of 

Riverdale Mills Corporation, FAA Order No. 2003-10 (September 10, 2003); In the Matter of 

Interstate Chemical Company, Inc., FAA Order No. 2002-29 (December 2, 2002); 49 C.F.R. §§ 

171.2(f) and 172.204( c)(3)(i)(B). Because a reasonable search would have revealed the presence 

of the flares, Respondent knowingly violated the regulations as that term is defined in 49 USC 

§ 5123(a). 

WHEREFORE, the Complainant requests that the Law Judge enter an order deeming the 

allegations admitted and finding that Respondent violated the regulations as alleged in the 

complaint, 1 and limiting the hearing in this matter to the consideration of an appropriate sanction. 

Respectfully submitted this the 19'h day of February 2013. 

HOWARD L. MARTIN, JR 

Regional Counsel 

By:2PJL~ Glenn H. Brown 

Senior Attorney 

1 Alternatively, Complainant asks that the law judge enter an order deeming admitted the factual allegations. Based 

on Respondent's failure to file an answer as well as the statements in his response to the original Notice, there is no 

genuine issue as to a material fact such that testimony from a percipient witness is necessary. 

3 
CERTIFICATE OF SERVICE 

Re: John Croft 

FAA Docket No. 2012-AWA-CPP-13423 

DMS No. FAA-2012-0903 

I hereby certifY that on this date I have served a copy of the Complainant's Motions to Deem 

Admitted Each Allegation in the Complaint, and For a Decision as to the Violations by facsimile 

transmission and by postage-prepaid, certified mail, return receipt requested, as indicated to the 

following: 

The Honorable Richard C. Goodwin 

Administrative Law Judge 

Office of Hearings, M-20; Room 5411 

400 Seventh Street, S.W. 

Washington, DC 20590 

FAX: (202) 366-7536 

John Croft (via certified mail only) 

134 Lincoln Street 

Sitka, AK 99835 

I further certify that on this date I have served the original of the Complainant's Motions to 

Deem Admitted Each Allegation in the Complaint, and For a Decision by postage-prepaid, 

certified mail, return receipt requested, addressed as follows: 

Federal Aviation Administration 

ATTN: Docket Clerk 

800 Independence Avenue, SW., Room 924A 

Washington, DC 20591 

DATED: J-&6. /~ ;l0/3 

Federal Aviation Administration 

Office of Regional Counsel 

222 West 7th Avenue, Box 14, AAL-7 

Anchorage, Alaska 99513-7587 

4 
SENDER: COMPLETE THIS SECTION, · 

• Complete Items '1, 2, and 3. Also complete 

item 4 If Restrict8d De!iv6ry Is desired. 

• Print your name and address on the reverse 

so that we can return the card to you. 

• Attach this card to the back of the mailplece, 

or on the front if space permits. 

1. Article Addressed to: 

Mr. John Croft 

134 Lincoln Street 

Sitka, AK 99835 

2. Article Number 

(Transfer from ~ 

;-"iECEI'VE.D 

7009 2250 00, 

PS Form 3811, February 2004 

!TED STATES POSTAL SERVtc~ I' c 

''" ..::k- "' ' 

UN 

DM j '\ .•.. sEP,;l oc> 

I 

COMPLETE THIS SECTION ON Di!JVERY~ l lt ff ' ' ! ' ~ "' ' " t 

0 Agent 

0 Addressee 

B. Re.celved byj.f'. rlnted .. Name) 

1--YJALLe'{ l

c. p~te ot p~llver; 

CiLJ'L! (l 

D. Is delivery address different from Item 17 0 Yes 

If YES, enter delivery address below: 0 No 

0 Express Mall 

3. Service 1)rpe 

)i:l Certified Mail 

D Registered 

D Insured Mall 

0 Retum Receipt for Merchandise 

Dc.o.o. 

4. Restr1cted De!lvery? (Extra Fee) 0 Yes 

'387 3824 

Rlrst"C~": - . 

. ~ 

,eostage.&-Fees}'_~~: ~ --=~-~-·· ~ . USPS . .,. , · -- 1---.J?.eonit . .f)JQ._G-1 cr:: 

......--"-L .-~'m'""-•--~ - . - • Sender: Please pri~; ·' '· ~~e. addres~+;flnthl~b~;;-. 

FEDERAL AVIATION ADMINISTRATION 

Alaskan Region Headquarters 

Office of the Regional Counsel 

222. W. 71

h Avenue #14 

Anchorage, AK 99513-7587 

' 

/l,l,, J ,I,, , I, i,," II, , II, I,, ,I, J, I, I, , 1,1,, , 11,1,, I, 1, ,J, ,I, I 

' 
UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

JOHN CROFT 

FAA DOCKET NO. 2012-AWA-CPP-13423 

(Civil Penalty Action) 

DMS NO. F AA-2012-0903 

DECLARATION OF CHERYL M. JONES 

I, CHERYL M. JONES, declare as follows: 

1. I am an attorney for the Federal Aviation Administration in the Office of Regional Counsel 

for the Alaskan Region. I have been in my present position since September 1990. As part of 

my duties, prior to February 1, 2013, I was handling the above-styled matter on behalf of 

Complainant. 

2. After reviewing the file, I issued the Notice of Proposed Civil Penalty in this matter on 

February 17, 2012. The Attachment to this declaration, which consists of a total of three pages, 

is a copy of what I received on March 12,2012, in response to the Notice. The first two pages 

are a statement by Respondent, and the third page is a statement by Douglas Borland, who 

indicates he was the owner of the bags that contained the flares. 

3. Based on the statements in the Attachment as well as similar statements during and after the 

informal conference on July 9, 2012, I issued a Superseding Notice of Proposed Civil Penalty on 

July 24, 2012. The purpose of the Superseding Notice was to clarify that Respondent's offer of 

the three bags to SeaPort Airlines, Inc., d!b/a Wings of Alaska, was through an agent. 

I declare under penalty of perjury that the foregoing is true and correct. 

Dated this 19th day of February 2013. 

~~~ CHERYL M. JONES 

I 
Feb. 24, 2012 

US Department of Transportation 

FAA Alaska Region 

222 W. 7th Avenue, #14 

Anchorage, AK 99513 

RE: Case No. 2011NM730130 "Notice of Proposed Civil Penalty" 

Dear Sir or Madame: 

------

Please accept this letter as partial submission of information for your consideration 

in my response to the above referenced case. 

Although admitting that there may have been a technical violation, circumstances 

leading up to the alleged violation should be considered; and for sure I object to the 

penalty proposed ($12,000) as unnecessary and excessive as there was no 

knowledge or intent to transport hazardous materials on my or any one else's part; 

no hazardous materials actually made it onto the Alaska Airlines plane, and the 

materials (several marine flares) were not known by me to be in the freight when it 

was shipped, in fact I did not "knowingly offer" or even actually physically ship the 

freight myself! Please let me explain in some detail the event as it occurred: 

On or about September 26, 2011, as an employee of the Russian American Store, I 

was responsible for closing up for the winter our Skagway store and Skagway 

employee housing; and then shipping our inventory and some of our worker's 

personal gear back to Sitka (my home and the home base of Russian American Co, 

my employer). 

At that time, all of this inventory and personal gear was being tal<en by me to the 

Alaska Marine Lines dock to be put on the barge to Sitka which departed that 

evening as did the Alaska Ferry which was my passage home to Sitka. 

In the rush to make the barge; close up the store, and for me to make my Alaska 

State Ferry home, I accidently overlooked 3 bags of my boss's personal gear, which 

were subsequently left outside on the street in Skagway in a staging area. These 

bags were supposed to be included by me as part of a huge shipment on the Alaska 

Marine Lines barge that I was loading out to be barged to Sitka that night. 

I was long gone from Skagway, as were all of our company employees, a day later, 

when I discovered my error with the bags, --that I had accidently left them behind!. 

So I called the Skagway police department to alert them that there were 3 bags of 

valuable personal gear left on the street; and they were nice enough to find them, 

pick them up, and per my instructions (since the Alaska Marine Lines barge had 

already left) they physically took them to Wings of Alaska and put them on Air 
Freight to Sitka under my name. So, first of all, I was not the one who physically 

took these 3 bags to Wings to ship them on Air Freight! 

Secondly, since these pieces were known to me only as duffle bags and a suitcase of 

clothing and personal gear, it did not occur to me that there might be any kind of 

"hazardous materials" involved. 

Further, since the actual owner of the bag in question assumed that his gear was 

going home by barge, he was 0 K in having the marine flares in the bag, so he did not 

have any intention of breaking the rules either! 

At that time, I was just thankful that the bags were recovered; and happy that the 

police found them intact, and happy that the Skagway police department was kind 

enough to ship them home to us by air-freight. We all had the best of intentions. 

Thus, a fine of $12,000 seems completely unreasonable and unfair, considering the 

circumstances; and I am already working at a minimum wage, living on the edge of 

my abilities, and most likely would have to file bankruptcy if faced with a $12,000 

fine! I cannot afford an attorney to fight this; and do not understand why this could 

possibly generate such a fine. I am ex-military and ex law-enforcement myself, and I 

certainly respect the rules and would never intentionally break any law. 

The Skagway police department, air service, my boss and fellow employees all are 

available and willing to attest to the facts and circumstances faced leading up to the 

inadvertent and accidental shipping of the marine flares in the bag. There was 

certainly no intent to knowingly break any rule; and no reasonable way I personally 

could have checked the bags or declared the contents., as they were in the 

possession of the police dept. and I was out of town! (Also, I understand that marine 

flares routinely can be transported on passenger planes if declared and 

accompanied by the owner; this was just impossible due to the circumstances). 

It also occurs to me that at our airport here in Sitka, many hunters and mariners 

travel through every year, and I know of several times passengers have 

inadvertently failed to declare marine flares or rifle ammunition in their luggage or 

even in their carry-on bag; these passengers are not fined, so singling me out seems 

particularly arbitrary and excessive. 

I respectively request that the proposed fine and penalty action against me be 

waived; as any fine or penalty is not warranted due to the circumstances. If this 

cannot be done administratively upon consideration of the above facts, then ! also 

am requesting an informal telephone discussion with your FAA attorney per my 

attached reply, and I would have to request further action if this cannot be resolved. 

Sincerely, 

4ftad,me~+ f-o -.Decl~""+"l'l 

o'f c~l'!ry( . ~n<'.,S 

;l. of:: 
TO WHOM IT MAY CONCERN: 

My name is Doug Borland and I was the owner of 3 bags of personal gear left behind in 

Skagway last September to be shipped via Alaska Marine Lines back to my home in Sitka by the 

Russian American Co. 

The bags were left acciden~y behind in Skagway, and did not make the barge as 

scheduled, so they were picked up by the Skagway police who dropped them off at Wings of 

Alaska to be shipped to Sitka via Air Freight. 

John Croft is an employee of Russian Amelican Company here in Sitka - he was closing 

our Sl<agway store, and he was the one who forgot the bags and then, because he had left 

Skagway, he phoned the Skagway police who found them, and it was the police personnel who 

actually did the shipping to us through Wings of Alaska and Alaska Air Lines. 

I understand that an incident occurred when the bags were x-rayed at the Juneau airport 

and they found some marine flares that I had in the pocket of my vest in one bag. (While in 

Skagway, we lived on the outskirts of town and had some bear troubles; I had the flares with me 

there to scare the bears!) 

John had no idea that they were in my bag; we had no communication about the bags until 

after the flares had been discovered at the airport. 

I was of course under the impression that my bags would be included on the barge 

shipment from Skagway, so the marine flares were perfectly fine traveling that way. 

It seems unreasonable to hold John responsible due to the circumstances -the Skagway 

police actually put the bags on Wings; the bags belonged to me; and John was just doing his best 

to take care of a problem. He was not physically present when the bags were shipped so he could 

not examine the contents; he naturally assumed that the bags contained only my clothing and 

items of a personal nature. 

I certainly apologize for any inconvenience !hat this incident may have caused, and I want 

this letter to be used as an affidavit of support and an explanation of what happened so John is not 

unjustly punished. I am available at any time for further explanation or discussion. 

Tha you, 

,I I 

Doug ~ s ori~;,-L ~ 

907) ?ai-3913 

11:5,