UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

In the Matter of: ENDLESS MOUNTAINS AIR, INC. 

FAA Order No. 2017-1 

FDMS No. FAA-2013-08481 

Served: March 3, 2017 

DECISION AND ORDER 

Complainant Federal Aviation Administration ("Complainant" or "FAA") and Respondent 

Endless Mountains Air, Inc. ("Respondent" or "EMA") have filed cross-appeals from the Initial 

Decision of Administrative Law Judge J.E. Sullivan ("ALJ") 2 EMA had admitted that its pilot, 

who had not completed recurrent knowledge and flight check testing, operated six flights in 

violation of 14 C.F .R. Part 13 5. 3 The ALJ determined that the FAA Inspector's alleged failure to 

answer the pilot's questions about the deadlines for obtaining recurrent testing constituted a 

mitigating factor, and, consequently, the ALJ imposed a civil penalty that was lower than that 

proposed by Complainant.4 On cross-appeal, Complainant argues that the civil penalty should be 

increased from $16,200, the amount the ALJ assessed, to $46,200, the amount Complainant 

originally sought. For its part, EMA argues on cross-appeal that the $16,200 civil penalty should 

be further reduced due to its inability to pay. 

5 For the reasons discussed below, I grant 

Complainant's cross-appeal in part, deny EMA's cross-appeal, and assess EMA a civil penalty of 

$ 26,400. 

1 Generally, materials filed with the FAA Hearing Docket (except for materials filed in security cases) are 

also available for viewing at http://www.regulations.gov. 14 C.F.R. § 13.210(e)(l). 

2 The ALI's Initial Decision is attached. 

3 14 C.F.R. Part 135 regulations involve oversight of on-demand and air taxi operators. Tr. 29. 

4 Initial Decision at 8-9. 

5 Respondent's Appeal Brief at 1. See also Rushmore Helicopters, FAA Order No. 2012-8 at 14 (Oct. 11, 

2012), citing Folsom's Air Service, FAA Order No. 2008-11 at 11 (Nov. 6, 2008) (the Administrator will 

consider a respondent's ability to pay in establishing a penalty). 
I. Burden of Proof and Standard of Review 

It is Complainant's burden to prove that the sanction is appropriate. See, e.g., National Power 

Corp., FAA Order No. 2016-3 at 2 (Sept 30, 2016); Schuman Aviation Company, Ltd., FAA 

Order No. 2016-2 at 2 (Aug. 24, 2016); Seven's Paint & Wallpaper, FAA Order No. 2001-6 at 4-

5 (May 16, 2001). However, the respondent bears the burden to prove any affirmative defenses 

such as an inability to pay. ld. Seep. 9 infra. 

On appeal, the FAA decisionmaker considers whether: (1) each finding of fact is supported by a 

preponderance of the evidence, which must be reliable, probative, and substantial; (2) each 

conclusion oflaw is in accordance with applicable precedent and public policy; and (3) the ALJ 

committed any prejudicial errors.6 

II. Factual Background 

EMA is a charter air carrier7 and operates under 14 C.F.R. Part 1358 The company employs one 

pilot, Mr. Randy Palmer, and owns one aircraft, a single-engine Cirrus SR20 with registration 

number N624CP9 The president and owner is Mr. William J. Dobitsch, Jr. 10 

Mr. Palmer, at the time of this case, had been a certificated pilot for 19 years.ll He alleged that 

he was uncertain about the deadlines for completing his next required knowledge test and flight 

6 14 C.F.R. § 13.233(b). 

7 Tr. 72, 90, and 173. 

8 Tr. 29, 42, and 60. 

9 Tr. 33-35. 

10 Tr. 2, 7; 3/18/2014 Telecon. at 3; 10/27/2014 Telecon. at 5. 

11 Tr. 99. 

2 
cheekY The knowledge test is a written or oral test required by 14 C.F.R. § 135.293(a). The 

check is a flight check required by 14 C.F.R. § 135.299(a). Mr. Palmer affirmatively sought 

confinnation of the applicable deadlines by calling EMA's former Principal Operations Inspector 

("POI"), Inspector Robert Ference, on August 29, 2011Y Mr. Palmer stated that he did not call 

EMA's then current POI, Inspector Harry Soudas, because Inspector Soudas had given 

Mr. Palmer failing grades on three previous flight checks. 14 

Inspector Ference testified that he responded to Mr. Pahner by asking him to submit copies of his 

records (FAA Forms 8410-3) to compare with the files at the FAA Flight Standards District 

Office. 15 Inspector Ference further testified that he wanted to see Mr. Palmer's records because 

he did not want to give Mr. Palmer any misinformation, which he said could occur if he failed to 

review the records, or failed to discuss them with EMA's then current POI, Inspector Soudas. 16 

In conflicting testimony, Mr. Palmer stated that Inspector Ference did not ask him to produce his 

records. 17 Instead, Mr. Palmer asserted that Inspector Ference merely told him to review his 

paperwork to determine the date by which he needed to complete recurrent testing to remain 

certificated under 14 C.F.R. Part 13518 The ALJ did not make a credibility determination on the 

conflicting testimony. 

It is undisputed, however, that Mr. Palmer never produced the documentation in question 

to Inspector Ference. 19 Rather, according to Mr. Palmer, he reviewed the regulations and 

12 Tr. 122. 

13 Tr. 121. 

14 Tr.112, 117-118. 

15 Tr. 86, 89. 

16 Tr. 87-88. 

17 Tr. 104. 

18 Id. 

19 Id. 

3 
paperwork with Mr. Dobitsch, and together they concluded, erroneously, that Mr. Palmer would 

remain current on testing for 3 more months. 20 After meeting with the FAA Inspector, Mr. 

Dobitsch admitted that he and Mr. Palmer did, in fact, "make a mistake."21 Mr. Palmer called 

Inspector Ference for guidance on August 29, 2011.22 By then there were only 2 days remaining 

for Mr. Palmer to complete the recurrent testing by the August 31, 2011 deadline. 14 C.F.R. 

§§ 135.293(a) and 135.299(a).23 FAA Inspector Soudas testified that based on his review of 

Forms 8410-3 dated July 7, 2010 and July 22, 2010, he determined that Mr. Palmer's knowledge 

test under 14 C.F.R. § 135.293(a) and flight check under 14 C.F.R. § 135.299(a) were due in 

July, 2011 24 Under 14 C.F.R. § 135.301, there is a !-month grace period. The grace period 

allowed Mr. Palmer until the last day of August, 2011 to complete his recurrent testing. 14 

C.F.R. §§ 135.293(a) and 135.299(a).25 

Mr. Palmer continued to operate flights for EMA past the August 31, 2011 expiration date. 

EMA admitted that from September 23, 2011 through October 9, 2011, Mr. Palmer operated six 

Part 135 flights despite Mr. Palmer not completing the required recurrent testing26 Accordingly, 

EMA violated two regulations: (l) EMA used Mr. Palmer as a pilot when he had not completed 

the 14 C.F.R. § 135.293(a) knowledge test; and (2) EMA used Mr. Palmer as a pilot when he had 

20 Tr. 107, 121-122, and 124. Mr. Palmer and Mr. Dobitsch believed that the instrument proficiency test 

could substitute for the testing required under 14 C.F.R. §§ 135.293 and 135.299 (Tr. 107-108, 118, and 

121), and therefore, that Mr. Palmer did not have to repeat those tests until the end of November, 2011. 

They based their belief on a misreading of 14 C.F.R. § 135.293(c), which provides that "[t]he instrument 

proficiency check required by Section 135.297 may be substituted for the competency check required by 

this section for the type of aircraft used in the check." However, 14 C.F.R. § 135.293(c) does not permit 

the instrument proficiency check to substitute for the 14 C.F.R. § 135.293(a) knowledge test or the 14 

C.F.R. § 135.299(a) line flight check. Tr. 29-31; see also Tr. 185-186. 

21 Tr. 131. 

22 Tr. 121. 

23 Tr. 45. 

'"Tr. 42-45; Exhs. C-2 and C-3. 

25 Tr. 37-38, 45. 

26 Complaint IL2-4; Tr. 17, 35, and 62. 

4 
not completed the 14 C.F.R. § 135.299(a) flight check.27 

III. Complainant's Cross-Appeal 

Air carriers, including their pilots, have a duty to perform their services with the highest degree 

of safety in the public interest. 49 U .S.C. §§ 44701 (d) and 44702(b ). Air carriers must only use 

as pilots in command those who have passed and continue to pass, in a timely manner, the 

necessary checks and tests in accordance with the regulations. 14 C.F.R. §§ 135.293(a) and 

135.299(a). FAA Order 2150.3B, Compliance and Enforcement Program, contains the FAA's 

Sanction Guidance Policies28 and a Table of Sanctions setting forth a range of penalties that may 

be imposed for violations of these duties and regulations. 29 

FAA Order 2150.3B's Table of Sanctions (see below) indicates that the civil penalty for use of 

an unqualified crewmember should be the Maximum range. 30 

27 Jd. The two regulations violated are: 

(I) 14 C.F.R. § 135.293(a), which provides: "No certificate holder may use a pilot ... unless, 

since the beginning of the 121

h calendar month before that service, that pilot has passed a 

written or oral test, given by the Administrator or an authorized check pilot, on that pilot's 

knowledge ... ;" and 

(2) 14 C.F.R. § 135.299(a), which provides: "No certificate holder may use a pilot ... as a pilot 

in command of a flight unless, since the beginning of the 12th calendar month before that 

service, that pilot has passed a flight check in one of the types of aircraft which that pilot is to 

fly." 

Complainant explains that if it has been more than 12 months since a pilot has passed a knowledge test 

under 14 C.F.R. § 135.293(a), then the pilot must take and pass one before operating a Part 135 flight. 

Appeal Brief at 8. Similarly, Complainant explains, if it has been more than 12 months since a pilot has 

passed a flight check under 14 C.F.R. § 135.299(a), the pilot must take and pass one before operating a 

Part 135 flight. In addition, as stated above, there is a !-month grace period under 14 C.F.R. § 135.301. 

!d. 

28 Chapter 7. 

29 Appendix B -non-hazardous materials cases. 

30 Exh. C-7 at 6; Fig. B-l-n(3); Tr. 61-62. 

5 
Fig. B-1-n. Provisions specific to flight deck Civil Penalty 

crew 

(I) Use of crewmember with expired medical Minimum to moderate 

certificate 

(2) Failure to make flight deck seat available to Maximum 

authorized en route inspector 

(3) Use of unqualified crewmember Maximum 

( 4) Flight and duty time violation Moderate 

The FAA sanction guidance provided by FAA Order 2150.3B contains civil penalty ranges that 

depend on a carrier's or operator's size. 31 The guidance establishes four groups. The largest 

entities are in Group I and the smallest entities are in Group IV. 32 

EMA is categorized as a Group IV air carrier33 because it operates under 14 C.F .R. Part 13534 

with only one pilot and one aircraft35 EMA did not contest that, under 49 U.S. C. § 4630l(a)(5), 

EMA was subject to a Maximum civil penalty of $11,000 for each violation, as described in the 

Complaint.36 The Table of Sanctions indicates that for Group IV air carriers like EMA, where 

the violations are covered by 49 U.S.C. § 46301(a)(5)(A) and occurred after June 15, 2006, the 

appropriate sanction ranges are: 

Maximum 

Moderate 

Minimum 

$ 4,400- $ 11,000 

$ 2,200- $ 4,399 

$ 550- $ 2,19937 

According to Complainant, there were no aggravating or mitigating circumstances, and, 

31 Air Charter, FAA Order No. 2013-1 at 5 (May 14, 2013), citing FAA Order 2150.3B, Appx. B, B-3-

B-5. 

'' Id. 

33 FAA Order 2150.3B, Appx. B, B-4; Exh. C-7 at I; see also Tr. 60-61. 

34 Tr. 33. 

35 Tr. 61. 

36 Complaint IV.! at 3; see also Answer at 1-4. 

37 FAA Order 2150.3B, Appx. B, B-6; Exh. C-7 at 3; see also Tr. 63. 

6 
therefore, under the Table of Sanctions, a civil penalty in the middle of the Maximum range was 

appropriate. 38 The middle of the Maximum range- $4,400 plus $11,000 divided by 2- is 

$7,700 per flight. Multiplying that number by six flights results in a total civil penalty of 

$46,200, i.e., the amount Complainant originally sought. Complainant notes that it could have 

proposed a total civil penalty of double that amount, $92,400, by multiplying $7,700 x 6 

violations of 14 C.F.R. §135.293(a), plus $7,700 x 6 violations of 14 C.F.R. § 135.299(c), but 

Complainant decided that "compounding the sanction in this way would be disproportionate! y 

harsh."39 

The ALI, however, found a mitigating factor, i.e., that the FAA Inspector did not answer EMA's 

question concerning the deadlines for Mr. Palmer's recurrent testing. According to the ALJ, the 

FAA's Maximum penalty range did not reflect the "unique circumstances" of this case.40 The 

ALI stated that the FAA should have answered EMA's (Mr. Palmer's) question, but, instead, it 

"erected roadblocks" and "then waited to see what would happen.',41 The ALJ found that the 

Moderate range, which is between $2,200 and $4,399, was "more fitting.'A2 Indeed, the ALI 

further ruled that the lower end of the Moderate civil penalty range should be used. 43 The ALI 

then selected a civil penalty of $2,700 per flight multiplied by six flights, totaling $16,200, i.e., 

the amount assessed in the Initial Decision. 

The ALI's analysis, however, is not supported by the record. It is undisputed that the Inspector 

did not ignore Mr. Palmer's question. Rather, based on conflicting testimony, the Inspector 

38 "When determining a specific sanction amount within a range, FAA enforcement personnel begin with 

an amount in the middle of the range and increase that amount toward the higher end of the range for 

aggravating circumstances or decrease that amount toward the lower end of the range for mitigating 

factors." FAA Order 2150.3B at 7-9. 

39 Complainant's Appeal Brief at 12 n.3. 

40 Initial Decision at 8. 

41 Id. 

42 Id. 

43 Id. 

7 
either responded to Mr. Palmer's question by asking him to submit copies of his check records, 

or advised Mr. Palmer to review his paperwork. 44 Regardless of whether one accepts the 

Inspector's or Mr. Palmer's version, it is established that Mr. Palmer did not submit 

documentation to the Inspector, and failed to discern that his records indicated the expiration 

date for the knowledge test and the flight check. 45 

In addition, EMA 46 and Mr. Palmer 47 

were not novices. The ALI found that they were 

"seasoned" and "experienced."48 They had been subject to the regulations at issue for years, and 

never found to be in violation of these or any other Federal Aviation Regulations 49 Mr. Palmer 

deliberately sought help from an inspector who was not his current POI, rather than seeking out 

his POI, the person who was in the best position to advise him. 5° Thereafter, instead of following 

up with either inspector, Mr. Palmer chose to rely on his own incorrect determination of his 

status, notwithstanding that his paperwork expressly stated the pertinent expiration date. 51 Given 

all the circumstances, the ALI was not justified in reducing the proposed civil penalty to a level 

below the range specified in the Table of Sanctions. 5

2 

44 Tr. 86, 89, and 104. 

45 Tr. 104, Exhs. C-2 and C-3. 

46 EMA had been an air carrier since 2003. Tr. 58. 

47 Mr. Palmer had flown since 1996, for about 19 years, as of the date of the hearing. Tr. 99. He had 

been flying as a charter pilot for 14 years. Tr. I 00. He had flown more than 15,000 hours. I d. 

48 !nitial Decision at 5. 

49 Tr. 137. 

50 Tr. 112-113, and 116. 

51 Tr. 80; 202. 

52 The sanction guidance provides that it may be appropriate to select a civil penalty below the ranges, but 

only if the degree of culpability is rninintal, the degree of potential hazard is extremely low, and there are 

no aggravating circumstances. FAA Order 2150.3B at 7-13. 

8 
Nonetheless, under the unique circumstances of this case, including that EMA and Mr. Palmer 

had not ignored the recurrent testing requirements, but rather sought and received guidance; and 

mistakenly miscalculated the applicable due date, a lower penalty within the Maximum range 

will be assessed. As discussed above, the lowest applicable amount within the Maximum range 

for each violation is $4,400. Based on the entire record, I impose a civil penalty of $26,400 

($4,400 x 6 violations). 

IV. EMA's Cross-Appeal 

On cross-appeal, EMA argues that it is unable to pay the $16,200 sanction assessed by the ALL 

In determining an appropriate civil penalty, the respondent's ability to pay can be considered. 

Rushmore Helicopters, FAA Order No. 2012-8 at 14 (Oct. 11, 2012), citing Folsom's Air 

Service, FAA Order No. 2008-11 at 11 (Nov. 6, 2008). Inability to pay is an affirmative defense. 

Frostad Atelier, FAA Order No. 2013-5 at 15 (Sept. 5, 2013); Rushmore Helicopters, FAA 

Order No. 2012-8 at 14, citing Atlas Frontiers, FAA Order No. 2010-10 (June 16, 2010). 

However, the burden of proving an affirmative defense such as inability to pay is on the 

respondent. National Power Corp., FAA Order No. 2016-3 at 2 (Sept. 30, 2016); Schuman 

Aviation Company, Ltd., FAA Order No. 2016-2 at 2 (Aug. 24, 2016); Frostad Atelier, FAA 

Order No. 2013-5 at 15 (Sept. 5, 2013); Seven's Paint & Wallpaper, FAA Order No. 2001-6 at 5 

(May 16, 2001). 

The respondent must prove this affirmative defense, by a preponderance of the evidence in the 

record, which must be reliable, probative, and substantial, because the respondent has control 

over its financial information. Frostad Atelier, FAA Order No. 2013-5 at 15 (Sept. 5, 2013); 

Rushmore Helicopters, FAA Order No. 2012-8 at 14, citing Atlas Frontiers, FAA Order No. 

2010-10 at 11-12 (June 16, 2010). As Complainant has pointed out, 5

3 the Administrator stated in 

a previous case: "A respondent attempting to prove inability to pay must substantiate his or her 

claims at the hearing with the types of records that a reasonable person would accept as reliable 

53 Complainant's Reply Brief at 2. 

9 
and probative on the issues of incomes and expenses." Vi !lamar Tabula. FAA Order No. 2010-6 

at 13 (June 15, 2010). 

EMA failed to introduce sufficient proof of inability to pay before the ALI. EMA states that it 

did not submit its tax returns at the hearing because it had a large overdue balance that it was 

unable to satisfY prior to the hearing. 54 EMA further states that it strongly believes that if the 

Administrator reviews its Federal tax returns when completed, he will find that EMA is unable to 

pay a $16,200 civil penalty. 55 EMA, however, was not required to introduce the tax returns if 

they were not yet prepared. Instead, as Complainant points out, EMA could have introduced the 

financial records on which the tax returns were based. EMA only introduced three W-2 forms 

(Wage and Tax Statements), indicating the wages that EMA paid Mr. Dobitsch as its President in 

2012, 2013, and 2014. This information was inadequate to demonstrate the financial condition 

ofEMA as a whole. 

Inasmuch as EMA failed to meet its burden to introduce sufficient documentation of inability to 

pay before the ALI, any such evidence cannot be considered on appeal. It is well established 

that "it is too late to submit ... documents on appeal when their significance cannot be clarified 

through cross-examination." Villamor Tabula, FAA Order No. 2010-6 at 13 (June 15, 2010). In 

this case the ALI correctly declined to find that EMA was unable to pay the civil penalty. 

54 Respondent's Appeal Brief at 1. 

55 !d. 

10 
V. Conclusion 

Based on the foregoing, I grant Complainant's cross-appeal in part, deny EMA' s cross-appeal, 

and impose a civil penalty of$26,400.56 

Federal Aviation Administration 

56 This order shall be considered an order assessing civil penalty nnless Respondent files a petition for 

review within 60 days of service of this decision with the U.S. Court of Appeals for the District of 

Columbia Circuit or the U.S. court of appeals for the circuit in which the respondent resides or has its 

principal place of business. 14 C.F.R. §§ 13.16(d)(4), 13.2336)(2), 13.235 (2016). See 71 Fed. Reg. 

70460 (December 5, 2006) (regarding petitions for review of final agency decisions in civil penalty 

cases). 

11 
In The Matter Of: 

SERVED: May 20, 2016 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

MAY 2 3 2015 

ENDLESS MOUNTAINS 

AIR, INC. 

) 

) 

) 

) 

) 

) 

Docket No. FAA-2013-0848 HEARING DOCKET 

Case No. 2012EA50008 

Respondent 

INITIAL DECISION OF U.S. ADMINISTRATIVE LAW JUDGE 

Pro Se Respondent's Admissions Regarding the Alleged Violations: 

I. In the Respondent's April3, 2014 Answer, it generally admitted to the violations alleged 

in the FAA's Complaint, specifically violations of14 C.F.R. § 135.293(a) and 14 C.F.R. 

§ l35.299(a) 1 

2. Approximately one (1) year later, at the beginning of the March 10, 2015 Hearing, the 

Respondent clarified that it was admitting to all twelve (12) violations alleged in the 

FAA's Complaint had occurred. 

Undisputed based on Admission: 

1. Count No. 1: The Respondent committed six (6) violations of 14 C.F.R. § 135.293(a) 

between September 23,2011 and October 9, 2011, as identified in the FAA's Complaint; 

and 

2. Count No.2: Tbe Respondent committed six (6) violations of 14 C.F.R. § 135.299(a) 

between September 23, 2011 and October 9, 2011, as identified in the FAA's Complaint. 

1 It should be noted, however, that during the May 28,2014 Litigatlon Scheduling Conference, the Respondent 

omlly admitted to the FAA's allegations in Paragraphs l, 2, and 3 in Section ll of the FA A's Complaint (rc: 14 

C.F.R. § !35.293(a)), but denied the allegation in Paragraph 4 in Section II of the FAA's Complaint (re: 14 C.F.R. § 

135.299(a)). The parties discussed these oral admissions, and agreed to proceed with discovery on the dlsputed 

allegations. 
Held after Full Evidentiary Hearing: 

1. The Respondent did not meet its burden of proof to show that it was fmancially unable to 

pay a civil penalty. 

2. Total Civil Penalty Assessed- $16,200: The Respondent is assessed a total civil penalty 

of$16,200 for the twelve(12) admitted violations that occurred during six (6) flights. 

I. CASE BACKGROUND 

On December 17,2013,2 th~ Federal Aviation Administration ("FAA") issued a 

Complaint charging the Responde11t, Endless Mountains Air, Inc., ("Respondent") with an 

unspecified number of two different violations of Federal Aviation Regulations: 14 C.F.R. §§ 

135.293(a) and 135.299(a). The Complaint asserted these violations occurred when the 

Respondent operated six (6) flights between September 23,2011 and October 9, 2011, utilizing a 

CiiTus SR20 aircraft, identification number N624CP. Comp. 1-3, §§II and Ill. The FAA 

proposed a total civil penalty of$46,200 for the violations. Comp. 1-3, §IV. 

After the December 17, 2013 Complaint was served and filed, the parties participated in 

various discussions, motions, and discovery exchange. This is fully documented in the case 

record, and will not be repeated here. 

It should be noted, however, that on March 18, 20 I 4, the FAA orally clarified, during a 

Litigation Scheduling Conference, that in its Complaint it was charging the Respondent with two 

(2) different regulatory violations for each of the six (6) flights the Respondent had allegedly 

operated between September 23, 2011 and October 9, 2011, for a total of twelve (12) alleged 

violations. (3/18/14 Tr. 15.) 

Pursuant to the FAA's Complaint, and its oral clarifications regarding the Complaint, the 

FAA was alleging that for each of the six (6) flights the Respondent had allegedly operated 

between the dates of September 23,2011 and October 9, 2011, the Respondent's aircraft pilot, 

2 The FAA's Complaint was not dated. Based on the totality of the record, the Court made a pre-hearing finding that 

the Complaint was served on December 17, 2013. See, e.g., May 15, 2014 Order Denying the FAA's Motion -for 

Decision. The patties did not dispute this finding. See, e.g., 5!28114 Tr. 12, lines 17-20. 

Page 2 of9 
Mr. Randy Palmer, had operated the aircraft without having passed his annual (i.e., 12th calendar 

month) test pursuant to 14 C.F.R. § 135.293(a). Mr. Palmer had also not passed his annual (i.e., 

12'h calendar month) flight check in a Cirrus SR-20 aircraft, pursuant to 14 C.F.R. § 135.299(a). 

On March 10,2015, the parties convened in Allentown, Pennsylvania for Hearing. The 

FAA orally moved to amend the Complaint by deleting the period and adding to the end of 

Section II, paragraph 4 the following: ", as required by Section 135.299(a) of the F ARs." 

(3110115 Tr. 14:18 - 15:18). The Respondent did not objectto the amendment, the motion was 

granted, and the Respondent admitted to the allegations contained in the amended Complaint 

(Id. at 15:21 · 16:4, 16:14- 17:1.) 

With all factual allegations and violations admitted by the Respondent, the Hearing 

proceeded on the issue of the proposed civil penalty. The FAA presented two (2) witnesses: FAA 

Inspector Harry Soudas and FAA Inspector Robert Ference. During the Hearing, the FAA moved 

to admit seven (7) exhibits into evidence (i.e., Exs. C-2 through C-5, and C-7 through C-9). The 

motion was granted and all seven (7) exhibits were admitted. After the FAA rested its case-inchief, the Respondent presented two (2) witnesses: Pilot Randy Palmer and the Respondent's 

owner William L Dobitsch, Jr. During the Hearing, the Respondent moved to admit five (5) 

exhibits into evidence (i.e., Exs. B, D, E, F, and G). The motion wa' granted and all five (5) 

exhibits were admitted. 

II. CIVIL PENALTY EVIDENCE DISCUSSION 

All admitted testimony and exhibits were considered. The discussion herein provides 

only a brief summary and analysis of the evidence as needed. 

A. Brief Summary of Parties' Evidence 

In its Complaint, the FAA alleged that pursuant to 49 U.S.C. §46301(a)(5), the 

Respondent was subject to a maximum $11,000 civil penalty for each violation. (Comp. 3, § IV. 

1 ). The Respondent did not disagree with this allegation or the legal support cited. The 

Respondent did, however, disagree with the FAA"s proposed $46,200 civil penalty. 

Utilizing the FAA's sanction guidelines in FAA Order 2150.3B, Appendix B, Inspector 

Soudas testified that the Respondent was in Group IV (3!!0!!5 Tr. 60:11- 61:4; Ex. C-7, 1). 

Page 3 of9 
Both of the Respondent's violations fell under Fig. B-1-n (3) (use of unqualified crewmember), 

for which the FAA guidelines recommended utilizing the maximum penalty range (3110/15 Tr. 

61:14- 62:7; Ex. C-7, 6). The violations had occurred after June 15, 2006, so the maximum 

range was between $4400 and $11,000 (311 0/15 Tr. 63:1 - 8; Ex. C-7, 3). Instead of charging 

fines for each violation, the FAA asserted that it was charging a penalty for each flight where the 

two violations had occurred3 It then took the mid-range of the maximum penalty by adding 

$4,400 and $11,000, which equaled $15,400. The FAA then divided $15,400 in half to reach the 

median amount of $7,700 (i.e., $15,400/2 ~ $7700). Since there were 6 flights, there were 6 

violations. As a result, $7,700 x 6 ~ $46,400. (3110115 Tr. 64:4 -19.) 

As part of its case-in-chief, the FAA asserted that its calculations were accurate and 

appropriate, and that there were no mitigating circumstances to support reducing the proposed 

$46,400 fine. Dlli~ng testimony, FAA Inspector Harry Soudas stated that the Respondent should 

have had a clear understanding of the F ARs and how to apply them to its operation, particularly 

since it had been a certificated operator since 2003. Inspector Soudas opined that neither the 

Respondent's confusion regarding the recertification time requirements, nor any other 

circumstance, should be considered as a mitigating factor in calculating the civil penalty. 

(3110115 Tr. 79:4-80:16). 

In closing argument, the FAA also asserted that the Respondent should not have had to 

rely upon the FAA to give it guidance regarding FAA regulations. (3110115 Tr. 186:16-18.) No 

matter what the circumstances, the Respondent was "ultimately responsible" to know the FAA 

regulations, and to be safety compliant. (3/10115 Tr. 1 88:1-2.) Thus, calculating a civil penalty 

based on the "mid point" of the maximum range was appropriate. (3/10/J 5 Tr. 189:17-21.) 

In its defensive case, the Respondent asserted I) an inability to pay the $46,200 proposed 

ci vii penalty; and, 2) the proposed penalty was not appropriate or fair, given all the 

3 This evidence diffe.red from the FAA's March 18, 2014 oral explanation of the civil penalty calculation during a 

pre~hearihg Conference. While the FAA's Conference explanation was not presented as evidence, nor is it 

considered by this Court in any way a<; evidence, it was the information provided to the Respondent and the Co uti 

prior to the March I 0, 2015 Hearing. Thus, during this Conference, the FAA explained that it had calculated the 

proposed amount of the $46,200 by assigning a fine of$3,850 for each ofthe 2 regulatory violations, Vl'hich then 

totaled $7,700 for each flight (e.g., $3,850 x 2 ~ $7,700). Six (6) flights x $7,700 ~ $46,200. 

Page 4 of9 
circumstances involved. Both Mr. William J. Dobitsch, Jr. and Mr. Randy Palmer testified about 

how the violations had occurred, after they had attempted to obtain assistance from the FAA 

Field Office regarding what regulatory time period was applicable. Among other things, the 

Respondent asserted that the violations were inadvertent, particularly given the advice received 

from FAA Inspector Ference. The Respondent was dedicated to flight safety, had a history of 

safety compliance, and had never intentionally acted to compromise flight safety. 

B. Affirmative Defense of Inability to Pay- Not Proven 

At the beginning of the March 10, 201 SHearing, the Respondent was re-advised that if it 

made any argument regarding financial inability to pay the proposed civil penalty, such argument 

had to be supported by financial -documentation. If no financial documentation or insufficient 

documentation was introduced into evidence, such an affirmative defense would fail. (3/1 0/1 S 

Tr. 11:22 -12:8.) 

Mr. Dobitsch testified that the Respondent was unable to pay the proposed $46,200 

penalty. (3/10/15 Tr. 134 -140.) However, as supporting documentation of the company 

finances and inability to pay, the,Respondent introduced only three (3) W-2 forms showing what 

Mr. Dobitsch, as the owner of the company, had paid himself as an employee. (Exs. E, F, G.) 

At the conclusion of the Hearing, the Court made an oral ruling that the Respondent had 

failed to meet its burden ofproof'Cm the affirmative defense of inability to pay the proposed 

penalty. (3/l OilS Tr. 205:20- 206:9.) This oral ruling is codified in this Decision. 

C. Discussion of Other Evidence 

It was undisputed that Mr. Palmer was a seasoned and experienced pilot. He had flown 

various aircraft since 1996 (i.e., for approximately 19 years as of the date of the Hearing). He 

had flown over 15,000 hours. Historically, he had never had problems obtaining re-certi.tication. 

He did, however, have problems obtaining recertification when Inspector Soudas was assigned to 

replace Inspector Ference as the Respondent's principal operations inspector ("POI")_ 

It was undisputed that as of.luly 22,2010, Mr. Palmer was "current" on all his 

certification tests. According to Inspector Soudas, this meant that Mr. Palmer's one (1) year 

recertification under both 14 C.F.R. § l35.293(a) (i.e., pilot test- oral or written) and 14 C.F.R. 

Page 5 of9 
§ 135.299(a) (i.e., pilot flight check) were due in July 2011. (3/10/15 Tr. 45:3 -6.) However, 

because of a one ( 1) month "grace period," Mr. Palmer's certification remained current until the 

last day of August 2011. (Id. at 45:7 -18.) In contrast, Mr. Palmer's six (6) month 

recertification under 14 C.F.R. §§ 135.297 would have been due in approximately October 201 I. 

(!d. at 49:9-20.) 

On August 29, 2011 (i.e., two (2) days prim· to the last day of the month on August 31, 

2011 ), both Mr. Dobitsch and Mr. Palmer contacted the FAA Field Office by telephone to get 

clarification about the time obligations for obtaining Mr. Palmer's annual pilot certifications. It 

was undisputed that they asked for FAA Inspector Ference, who had previously been the 

Respondent's POI, and that Inspe;;tor Ference took the call. 

Both the Respondent and the FAA agreed that Inspector Ference did not specifically 

answer Mr. Dobitsch's and Mr. Palmer's questions about the pilot certification time issue. They 

disagreed, however, about the substance of the telephone calL Both Mr. Dobitsch and Mr. 

Palmer testified that FAA Inspector Ference told them to simply check their paperwork for the 

answer. In contrast, Inspector Ference recalled telling Mr. Dob.itsch and Mr. Palmer that they 

needed to "present" their paperwork to him so that it could be checked. (3/1 0115 Tr. 89:12 -22.) 

During cross-examination; Inspector Ferance testified that he could not give Mr. 

Dobitsch and Mr. Palmer guidance about Mr. Palmer's recertification time without seeing the 

Respondent's documents or discussing it with the Respondent's current POI, Inspector Soudas. 

Inspector Ference agreed that the FAA Field Office had accessible copies of all the Respondent's 

records, but he chose not to look at them. He explained he did not look at the FAA's copies, 

because he didn't know if they would match the Respondent's records. Thus, he asked Mr. 

Dobitsch and Mr. Palmer to physically come to the Field Office and "present" him with their 

records. (!d.) Inspector Ference did not, however, provide any reason(s) why he thought the 

records would not be exactly the- same. 

Upon inquiry from the Court, Inspector Ference admitted that he had not offered the 

Respondent an opportunity to e-mail or fax the documents to him so that he could review and 

compare them. (3/10115 Tr. 94:12 -18.) Inspector Ference agreed he had not made any notes of 

the phone call or about the conversation. (3110/15 Tr. 96:1-2.) He also testified could not recall 

Page 6 of9 
whether or not he had "mention[ed]" the Respondent's call and questions to Inspector Soudas 

(the Respondent's POI). (3110/15 Tr. 93:20 ·94:1.) 

The Respondent presented additional testimony. After speaking with Inspector Ference, 

Mr. Do bitsch and Mr. Palmer testified that they looked at their paperwork and the regulations, as 

Inspector Ference had instructed them to do. They interpreted the material together, and, [in 

retrospect] came up with the wrong answer regarding when Mr. Palmer was due for 

recertification, in part because Mr. Palmer's certification under 14 C.P.R.§ 135.297 was not yet 

due. Mr. Palmer then flew six((/) different flights, between September 23, 2011 and October 9, i : ; <,_.'l ~ : 

2011, before getting recertified; as f~quired by 14 C.F.R. §§ 135.293(a) arid 135.299(a). 

D. Assessment of Civil Penalty- Total $16,200 :·j,"!i "1;' 

One of the underlying pt6blems in this case is that Mr. Palmer had developed a negative 

perception of Inspector Soudas; 'in" part because Inspector Soudas had earlier rated him as 

"failing" pilot tests. Mr. Palmet'testified about his years as a pilot, and how he had never had an 

FAA Inspector rate him as a failirre'before. He also testified that he had been given these failed 

ratings without any specific exJ''/f!J.J.ation of what he had done wrong. 

It is clear that on Augus\-2~, 2011 there was an attempt by Mr_ Dobitsch and Mr. Palmer 

to avoid talking to Inspector S~tl~a;f However, it is also clear that Inspector Ferance wanted to 

support his colleague, Inspector §PJt,das, in his role as the assigned POI for Respondent. So when ~-·- .. ,,, ·' 

Mr. Dobitsch and Mr. Palmer called Inspector Ferance instead oflnspector Soudas on August 

29, 2011, Inspector Ferance wa~.not helpful. 

Inspector Sondas testifiedlliat he thought Inspector Ference had referred Mr. Dobitsch's 

and Mr. Palmer's phone call and 'iilquiry to him. Assuming this did occur, then it is also clear 

that Inspector Soudas did not retiil:it the Respondent's call or provide any information about the 

recertification time requirement Il).stead, Inspector Soudas waited for the Respondent to call or 

email him directly ("myselfbcing the principal") or alternatively, to contact management at the 

FAA Field Office_ (3/1 0/15 Tr.·'so:6~ 12). Thus, Inspector Soudas chose not to respond or offer 

immediate help. 

Page 7 of 9 
Given all the evidence in this case, it is obvious the Respondent feared that time was 

rum1ing out, when it called two days before Mr. Palmer's grace period expired. While this Court 

agrees with Inspector Soudas that the Respondent could have called earlier than August 29, 

2011, or, after having spoken to an unhelpful Inspector Ference on August 29, 2011, tried to call 

and spealc with either Inspector Soudas or someone else in the Field Office (3/1 0/15 Tr. 80:6-12), 

that did not happen. Nevertheless, the Respondent did contact the FAA during Mr. Palmer's 

grace period and ask for advice. The FAA knew the Respondent was in danger of safety 

noncompliance, and chose not to help. 

,,. 

The FAA's argumentthap ,''nq mitigating circumstances" exist in this case is not 

persuasive. When the Respondent, called the FAA on August 29, 2011, the FAA should have 'lc':' 

been responsive and answered the question. The FAA's primary concern on August 29,2011 .-~ '; i \ : : ; 

should have been to help ensureJhat the Respondent remained safety compliant. Instead, the >:1'. 

FAA erected roadblocks for the. Re,spondent to overcome, and then the FAA waited to see what 

would happen. Thus, whether or not the FAll. thinks that Respondent should have known about 

the certification time requirements doesn't eliminate its responsibility to have answered the 

Respondent's safety compliance question fully, fairly, and promptly when it was asked. Had the 

FAA done so, tl1e Respondent.wpllld likely have complied (given its history of compliance) and 

therefore not committed the vi9.l~tions. 

Given the evidence in this.'i::ase, the FAA's recommended maximum penalty range (Ex . . ''•'" 

C-7, 6) tails to reflect the unique}:ircumstances of this case. Therefore, the maximum penalty 

range will not be utilized. Instead, the moderate range oftl1e penalty guidance is more fitting to ,. 'I·_ 

the facts. The moderate range for any violations occurring after June 15, 2006 is between $2,200 

and $4,399 (Ex. C-7, 3). This Court agrees with the FAA that a penalty should be charged for ,_i. 

each flight where the two violatio11s occurred. In addition, given all the evidence, the lower end 

of the moderate penalty range s~?;tld be utilized. Thus, the amount of$2,700 is appropriate as 

the penalty charged per flight in fuis case. Since there were six (6) flights, there are six (6) 

charged penalty amounts. 

Based on the foregoing the Respondent is assessed a total civil penalty of $16,200 (i.e., 

$2,700 x 6 = $16,200) for the six f!{ghts and twelve admitted violations. This $16,200 civil 

penalty has sufficient "bite" to pr9mote compliance; and deter future violations by the 

Page 8 of 9 
Respondent and others. It also reflects the goals of the sanction guidance and the totality of the 

circumstances. 

Pursuant to 14 C.F.R. § 13.232(d), this Initial Decision shall be considered a final order 

assessing civil penalty unless either party files a notice of appeal within lO days of service of this 

Initial Decision pursuant to 14 C.P.R.§ 13.233. 

I 

Judg\!_.E. Sulli n 

U.S. A · · ative Law Judge 

Attachment: Service List 

Page 9 of9