4 ' ' '' SERVED OCTOBER 3, 2011 

UNITED STATES DEPARTMENT OE TIMNSPORTATION e- '^i-^CT^ 

0!'FICE OF HEARINGS ^ -'^ ^ 

WASHINGTON, D.C. 1 '^'^5=-' 

^> - 3§^^ 

FEDERAL AVIATION ADMINISTRATION, ) ^ </.' 

) ^ 

Complainant, ) FAA DOCKET NO. CP10GL0002 

) 

V. ) (Civil Penalty Action) 

) 

RUSHMORE HELICOPTERS, INC. ) 

) 

Respondent. ) DMS No.'FAA-20.\0-0023 

) 

INITIAL DECISION 

OF ADWIINISTRATIVE LAW JUDGE RICHARD C. GOODWIN 

Found: I) Respondent violated 14 CFR §§9I.7(a) and 91.13(a) as charged; and 

2) Respondent is hereby assessed a civil penalty of $22,500. 

I. Background 

Respondent Rushmore Helicopters, Inc. ("Respondent" or "Rushmore"), is 

a Part 91 commercial air tour operator located in Keystone, SD (Tr. 18-19). One 

of its pilots, Robert L. "Lee" Leffert, discovered in the late afternoon of August 6, 

2009, that the fuel cap for the Bell 206 helicopter he had been operating was not 

in place. After he tried and failed to locate it, he placed duct tape over the fuel 

filler port. The Complaint of the Federal Aviation Administration ("Complainant," 

"FAA," or "the agency"), as amended, asserts that Respondent violated Federal 

Aviation Regulations ("FARs") when Mr. Leffert operated ten passenger-carrying 

air tour flights on August 7, 2009, in this condition. —^ ^_ _^^ ^=r—-

Complainant charges that Respondent violated the following FARs (both 

in 14 CFR): section 91.7(a), which prohibits the operation of a civil aircraft unless 

it is in an airworthy condition; and section 91.13(a), which prohibits a person from 

operating an aircraft in a careless manner so as to endanger life and property. 

The agency seeks a civil penalty of $25,000. 

Respondent, which appeared through its president and owner, Michael 

Jacob ("Mr. Jacob"), acknowledged the facts underlying the allegations (Tr. 41, 
117-18). Lee Leffert, the pilot, conceded that, on August 6, 2009, once he 

realized that the fuel cap had been misplaced and that an adequate replacement 

was unavailable, he placed duct tape over the fuel port. He flew the aircraft the 

next day, August 7, in that condition (Tr. 70-73). Mr. Jacob testified that he 

learned of the situation on the morning of August 7^^, before any flights took off. 

He permitted the helicopter to be flown in that condition (Tr. 42, 44, 118, 120; see 

also Resp. Br., p. 1). Respondent denied liability, however (Resp. Br., pp. 1, 9). 

A hearing was held on April 27, 2011, in Rapid City, SD. I determined that 

a written decision was reasonable and appropriate under the circumstances (Tr. 

122). The parties have filed briefs and the matter now is ready for decision. 

I hold that the facts and circumstances of this case justify findings of 

violations of each count and, allowing for mitigating and aggravating factors, 

warrant an assessment against Respondent of $22,500. 

II. The Proceeding 

A. The Evidence 

Aviation safety inspectors Gary Kwasniewski and Barry Dunmire of FAA's 

Flight Standards District Office ("FSDO") in Rapid City, SD looked into the matter. 

Each testified at the hearing. James Bad Horse, Rushmore's principal 

maintenance inspector ("PMI"), also testified. 

On August 7, 2009, inspector Kwasniewski stated, he learned of a 

complaint that Rushmore had placed duct tape over the fuel filler port on one its 

helicopters. He and inspector Dunmire traveled to Respondent's facility in 

Keystone, SD, and talked to a pilot, Mr. Leffert. A helicopter Leffert had been • 

operating had just landed and its engine was running. The inspectors did not yet 

know if this was the helicopter implicated by the complaint they had received. 

They could not see the fuel port. Kwasniewski'asked Leffert if his helicopter had 

any maintenance issues. Leffert replied in the negative (Tr. 113). Inspector 

Kwasniewski testified that he did not have any reason to doubt the pilot's 

response. As inspector Dunmire explained, "We take the pilot's word for it." (Tr. 

113). But this in fact was the helicopter in question. Leffert did not volunteer to 

ihe inspectors,that.ducttape was covering the fuel cap (Tr. 75, 84). "They didn't 

askTancIlliidn't say," he testified (Tr. 86). 

Leffert also seemed to be in a hurry. He said that he had passengers 

waiting. Kwasniewski and Dunmire allowed him to continue (Tr. 21-26, 61, HOIS). According to Leffert, the inspectors told him to fly the aircraft and said that 

they would talk after he returned (Tr. 75). 

Momentarily, and before Mr. Leffert took off with his passengers, inspector 

Kwasniewski noticed that Leffert had repositioned the helicopter to another pad. 
Passengers were loading. The inspectors now could see the fuel port, and duct 

tape appeared to be covering it (Agency Exhs. 1 and 2; Tr. 31-32). So this was 

the helicopter in question. It had the registration number 2268W (referred to as 

"68 Whiskey"). The aircraft now began to take off. Inspectors Kwasniewski and 

Dunmire agreed that it was not safe to approach. They let it go (Tr. 25-26, 59, 

67, 112). 

Mr. Leffert returned a short time later. When inspector Kwasniewski -

now aware of the duct tape covering the fuel port - asked the pilot to explain, 

Leffert stated that he had discovered that the helicopter's fuel cap was missing 

shortly before 4 o'clock in the afternoon on the previous day (August 6, 2009). 

With no adequate substitute cap available, he then decided to cover the fuel filler 

port with duct tape until a replacement could be obtained^ Kwasniewski 

wondered if Leffert then thought the helicopter had been airworthy. Leffert 

replied in the afl'irmative (Tr. 26-30). The pilot had not sought the opinion of any 

maintenance personnel, he said, because there had been none to ask. Inspector 

Kwasniewski now advised Leffert to refrain from further ftying until the 

airworthiness of the aircraft could be determined. The inspector also told Leffert 

that any flights already undertaken in that condition might be in violation (Tr. 28, 

45, 75-76, 85). 

Inspectors Kwasniewski and Bad Horse testified that to be airworthy, an 

aircraft must 1) conform to its type certificate or supplemental type certificate 

("STC") and 2) be safe for ftight (Tr. 45-46, 95). This indeed is the 

Administrator's test. See, e.g., Delaware Skyways LLC, FAA Order No. 2005-6 

(March 8, 2005), p. 2; California Helitech, FAA Order No. 2000-18 (August 11, 

2000), p. 3 n. 7. The inspectors concluded that 68 Whiskey, with duct tape 

covering the fuel ftller port, had not been airworthy. 

The inspectors supported their position by explaining that the fuel cap is 

an essential component of the aircraft. It is shown in the helicopter's engineering 

drawings. The drawings are considered part of the type certificate data sheet. 

This view was confirme"d''by a Bell Helicopter technician inspector Kwasniewski 

later contacted (49-50). When an aircraft does not conform to its type certificate, 

it is not airworthy by definition (Tr. 45-46, 96, 104). It fails the first prong of the 

ain/vorthiness test. Moreover, inspector Kwasniewski added, the aircraft had not 

been safe for flight - thus failing the second, independent, prong as well. The 

use of duct tape risked fuel contamination (Tr. 46-47, 58).^RdtoTwash''could"get^ 

into the fuel cell. Additionally, in an aircraft rollover, fuel might spill out and lead 

to a fire.^ Three Bell Helicopter technicians whom inspector Kwasniewski later 

contacted substantiated his conclusion that the aircraft in the described condition 

had been unairworthy. One technician specifically confirmed that the fuel-cap 

' Tr. 47, 96'98, 105. Had the cap been vented, duct tape sealing up the port would have prevented the port 

to vent. That could have caused partial fuel cell collapse and eventually fuel starvation. This vvas not a 

concern in this case because the cap had not been vented. Tr. 48, 97, 104. 
substitution created unacceptable concerns for safety (Tr. 49-51, 64; Agency 

Exh. 7). 

Inspector Kwasniewski determined from Respondent flight records that 68 

Whiskey had operated ten times on August 7 with duct tape substituting for a fuel 

cap. The helicopter had carried a total of twenty-seven passengers.^ 

Respondent defended its conduct. Rushmore witnesses testified that 

Respondent had received assurances from knowledgeable and experienced 

people in the industry that the duct-tape solution - which, the witnesses noted, 

was expected to last only until another cap could be delivered to it - did not 

render the helicopter unairworthy. 

Mr. Jacob testified that on the morning of the 7^^, after he learned of the 

situation, he had spoken with a design engineer at Bell. The engineer had 

advised that the cap was not a structural component. This individual, whom 

Jacob named, said that, as such, the situation had not created a safety or ftight 

issue. According to pilot Lee Leffert, the engineer added that while Rushmore's 

temporary solution was not recommended, it had not been a violation to operate 

without a fuel cap (Tr. 82). The engineer also had promised to forward to Mr. 

Jacob a "letter of non-objection." (Tr. 118-19). Jacob, in consultation with 

Rushmore's chief pilot - a veteran of more than 40 years of flying - and other 

Rushmore pilots, including Mr. Leffert, decided after this conversation that the 

duct-tape substitution did not render the aircraft unairworthy (Tr. 82-83, 119). 

Leftert added that he proceeded to operate with relatively little gas in the tank to 

keep the helicopter's total weight down and thereby fly the passengers in a safer 

condition (Tr. 73-74). 

Jacob also noted in Respondent's defense that Mr. Leffert was pilot in 

command ("PIC"). Protocol and custom dictated that he alone was charged with 

determining if the aircraft was safe to operate. Since his decision as PIC had 

been in the affirmative, the implication was that Leffert's decision should be 

respected. - -- -

Perhaps, Mr. Jacob hinted, the pilot's fix nonetheless had constituted an 

error in judgment. But it had not been undertaken with the intention to 

circumvent any regulation or to create a hazardous situation, Jacob maintained 

,(Ir._1-19).—-^ • — • 

The Bell engineer was unable to make good on his promise. He.told Mr. 

Jacob later, the witness testified, that his supervisors directed him not to provide 

written approval. The reason offered was that such a letter could establish a 

(presumably unwanted) precedent (Tr. 120). 

^ Agency Exhibits 3 and 4; Tr. 40. The flight schedules list the dale as August 6, 2009. but the evidence 

showed that the flights took place on August 7. and the documents properly should have reflected that. Tr. 

36-37. 
B. Findings and Conclusions 

I find and conclude that Complainant proved each of the violations it 

alleged. 

As noted, Respondent admitted the facts underlying the charges. 

Rushmore's witnesses each acknowledged that its Bell 206 helicopter known as 

68 Whiskey had operated ten flights without a fuel filler cap and with duct tape 

over the area (Initial Decision ("I.D."), p. 2). 

Complainant showed that Rushmore violated 14 C.F.R. §91.7(a) by 

operating in an unairworthy condition. The evidence demonstrated that the 

helicopter was not ainworthy under either prong of the airworthiness test.^ As 

inspectors Kwasniewski and Bad Horse explained, the duct tape covering the 

fuel filler port meant that the helicopter did not match its essential engineering 

drawings. I found that, as such, the aircraft failed to conform to its type certificate 

(I.D., p. 3). I agree also with inspector Kwasniewski's testimony that the aircraft 

was neither airworthy under the second prong because the substitute covering 

placed the safety of passengers and crew at an unacceptable risk. The prospect 

of fire and the possibility of fuel depletion were too great to be consistent with 

minimum mandated levels of aircraft safety. Taping the fuel filler port, while wellintentioned and anticipated to be short-term, was an unaccepted and unapproved 

solution to the lack of a fuel cap." The described situation compels the 

conclusion that the aircraft was not airworthy when operated for the ten flights on 

August 7, 2009 shown by the evidence. As such, Complainant proved a 

violation of §91.7(a). 

Secondly, by operating the helicopter in the manner described. 

Respondent endangered life and property to an unacceptable degree. Its actions 

risked fuel contamination and created an intolerable risk of fire (see I.D., p. 3). 

Complainant thus proved a violation of §91.13(a) as well. I reject Respondent's 

counter that §91.13(a) should be treated merely as a residual violation or that 

Complainant failed to prove the elements of the violation (Resp. Br.,' pp." 7-8). 

Complainant made its case. 

Respondent also contends that it should not be held responsible for the 

violations. It was the PIC, Lee Leffert, who operated the helicopter, not 

Rushmore. The aircraft was Leffert's sole responsibility. Rushmore did not ~ 

"operate" the aircraft in the regulatory sense, it maintains, and therefore cannot 

be accountable for the results (Resp. Br., pp. 3-4, 9). This argument is rejected. 

^ See I.D., p. 3. Respondent stales thai Complainant must demonstrate that Rushmore violated both prongs 

of the airworthiness test to prove a §91.7(a) violation. Resp. Br., p. 5. This is not correct; the agency is 

required only to prove either that Respondent violated the first prong or that it violated the second. See 

I.D., p. 3; Compl. Reply Br., p. 2. 

•* Complainant was not required to show thai the described condition was unsafe in fad. It was enough to 

demonstrate that it carried the potential for harm. Polynesian Airways. FAA Order No. 1994-40 

(December 9, \99A); DcmdH. Mayer. FAA Order No. 1997-12 (February 20, 1997). 
Rushmore's contention ignores the fact that Respondent's president and 

owner, Mr. Jacob, knew on the morning of August 7 that 68 Whiskey had 

covered its fuel filler port with duct tape and nonetheless had allowed the 

helicopter to operate the ten flights in issue (I.D., p. 2). Responsibility for the 

resultant violations thus falls squarely on him and, through him, on his company, 

the Respondent. But even putting that fact aside, it is well-established that air 

carriers are responsible for regulatory violations committed by anyone acting 

within his or her scope of employment for that carrier. See, e.g., Warbelow's Air 

Ventures, Inc., 2000 WL 298578 (FAA Order No. 2000-3), February 2, 2000; 

Alika Aviation, FAA Order No. 1999-14 (December 22, 1999). Air carriers, 

mandated to perform their services with the highest possible standard of care, 

carry responsibilities too critical to permit them to transfer their obligations to 

another. An air carrier's duty of care simply is non-delegable. The public must 

be assured that carriers will do everything in their power to ensure that everyone 

working on their behalf complies with safety regulations. TWA, FAA Order No. 

1999-12, pp. 9, 10 (October 7, 1999). As the pilot of 68 Whiskey, Mr. Leffert 

clearly was acting within his scope of employment. Respondent is legally 

responsible for Leffert's conduct. Respondent operated the helicopter. 

Against this background, 1 find and conclude that Respondent violated 

FAR §§ 91.7(a) and 91.13(a) as set out in the Complaint.^ 

III. Penalty 

The agency has asked for a total civil penalty of $25,000. Respondent 

takes exception. It asks that, should a violation or violations be found, the 

agency's proposed fine be "significantly.reduc[ed]." (Resp. Br., p. 1). 

Complainant bears the burden of justifying the amount of the civil penalty it 

seeks. Phyllis Jones Luxemburg, FAA Order No. 1994-18 (June 22, 1994), p. 6. 

I conclude that the evidence, taken in total, warrants a civil penalty in the 

amount of $22,500. 

A. Issues 

Complainant is obligated to consider the following factors when 

^determining the civil penalty amount: (1) the nature and circumstances of the 

•violatiorTr(2)"th'e''^ent and gravity of the violation; (3) the respondent's degree of 

culpability; (4) the respondent's history of phor violations, if any; (5) the 

respondent's ability to pay the civil penalty; (6) the effect on the entity's ability to 

stay in business; and (7) other matters as justice may require. See, e.g., 

Folsom's Air Sen/ice, Inc., FAA Order No. 2008-11 (November 6, 2008), p. 11. 

The determination weighs whether the violation was inadvertent or deliberate, the 

private or public character of the violation, and the attitude of the violator. The 

agency also considers the respondent's size, particularly in determining the 

' I have considered all other arguments advanced by Respondent Euid reject them without comment. 
offender's ability to absorb the sanction. An appropriate civil penalty must reflect 

the totality of the circumstances surrounding the violations (Tr. 110-11, 117; 

Folsom's Air Sen/ice, inc., FAA Order No. 2008-11 (November 6, 2008), p. 12; 

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

civil penalty should provide sufficient incentive to deter the respondent and 

similarly-situated entities from future violations. Folsom's Air Sen/ice, Inc., Id., p. 

20. 

The agency has issued enforcement guidelines for its employees to follow 

in determining appropriate sanctions. The guidelines also advise the public of 

the sanction policy that the Administrator intends to abide by in adjudicating 

individual cases. Folsom's Air Service, Inc., FAA Order No. 2008-11 (November 

6, 2008), p. 13. (A relevant excerpt was admitted as Exhibit 6. It is also found at 

www.aihA/eb.faa.gov). The guidelines set out penalty recommendations within 

three ranges of amounts - designated minimum, moderate, and maximum - to 

best reflect the nature and circumstances of each violation. Mitigating and/or 

aggravating factors are part of the calculus. 

Complainant states that its civil penalty determination followed the 

guidelines. Under them, an unainworthy aircraft having an actual or potential 

adverse effect on safe operation warrants a civil penalty in the moderate-tomaximum range. For a small business concern such as Respondent, the 

Sanction Guidance Table sets out the civil penalty ranges per violation as 

follows: moderate, $2,200 to $4,399; and maximum, $4,400 to $11,000. For ten 

violating flights, then, the Sanction Guidance Table recommends a total penalty 

of between $22,000 and $110,000 (Agency Exh. 6; Compl. Br, p. 12) 

Complainant concluded that, in view of the guidelines' recommendations 

and all the factors pertinent to this case, an appropriate civil penalty should be 

$2,500 per flight, or $25,000 in total (Compl. Br., p. 12). 

B. Decision 

In weighing all the facts'and circumstances, I And and conclude that a civil 

penalty assessment of $22,500 is appropriate. It is commensurate with the 

nature and extent of the violations, while accounting in suitable measurejor ^ 

mitigating and aggravating factors. 

The record shows that Respondent's helicopter was flown outside of the 

speciflcations of its type certiflcate and in an unsafe manner on ten occasions. 

These actions placed the travelling public at signiflcant and unacceptable risk. 

Respondent's conduct warrants a substantial penalty. 

Rushmore contends in mitigation that it did not intend to bypass or evade 

any requirement. Nor was it trying to court an unsafe situation {see I.D., p. 4). 

This argument fails to persuade. The behavior of 68 Whiskey's pilot, Lee Leffert, 

was not completely forthcoming. He demonstrated that he was aware that the 
fuel-cap situation might raise questions. When the inspectors asked him if he 

had any maintenance issues with the helicopter, he replied in the negative (I.D., 

p. 2). Perhaps in his own mind he had no such issues ~ but as a veteran PIC 

with forty years' experience (Tr. 43), Mr. Leffert was not naive. He had to have 

known what the inspectors were getting at. He had a duty under the 

circumstances to offer a fuller explanation. He should have raised the matter of 

the missing fuel cap. He did not. Additionally, Leffert claimed to be in a hurry -

and it may be fairly inferred in this context that he was hoping to cut short the 

inquiry.^ The pilot's behavior during this conversation, in sum, was not 

particularly accommodating. Against this background, Respondent may not fairly 

assert that it had no intention to overlook requirements. It may claim no 

mitigation on this ground. In fact, Leffert's coy conduct amounts to an 

aggravating circumstance. 

Mr. Jacob also asserted in mitigation that Respondent had operated in 

reliance on an opinion from a Bell technician (I.D., p. 4). I will permit some 

mitigation on this ground, noting that this testimony is entitled to lesser weight as 

pure hearsay. Respondent produced neither the technician nor an attestation 

from him.^ 

The sanction amount of $22,500 suitably accounts for the totality of the 

circumstances of this case. The assessment determined also is substantial. 

Further, it is within the guidelines' moderate-to-maximum range of suggested 

penalty amounts. 1 find also that the penalty has sufficient "bite," or deterrent 

effect (see Toyota Motor Sales, Inc., FAA Order No. 94-28 (September 30, 

1994), p. 11). 

'' 1 note that inspector Kwasniewski testified not that he had asked Mr. Leffert if his helicopter had any 

maintenance issue^. but the more pointed - and more difficult to deny — question of whether the pilot had 

any airworthiness issues. Tr. 24. Leffert denied that the inspectors asked him specitlcally about 

airworthiness. Tr. 84. For purposes of the discussion in the text, 1 accept Leffert's recollection ofthe 

conversation. 

^ Complainant's assertion that three Bell technicians believed that the duct-tape solution rendered the 

helicopter unairworthy also was hearsay, of course; however, it wa.s supported by an e-mail written by one 

ofthe technicians. Agency Exhibit 7. Moreover, this testimony was offered in support of, and confirmed, 

by the expertise of Complainant's inspectors -- who did, of course, testify. 

I give no weight to the opinions of other Rushmore pilots supporting Mr. Leffert's duct-lape solution. In 

addition to its hearsay nature, there was no showing of expertise; moreover, their opinions, as Rushmore 

employees, were self-serving. 
Rushmore Helicopters, Inc. is hereby assessed a civil penalty of $22,500 

for violations of FAR §§91.7(a) and 91.13(a) as described in this Initial Decision.' 

Adniinistralivc Law Judge 

Attachment - Service List 

"Any sppeai from the Initial Decision to the Administrator must be in accordance with section 13.233 of 

the Rules of Practice, which requires I) that a notice of appeal be filed no later than 10 days (plus an 

additional 5 for mailing) from the dale of this order and 2) that the appeal be perfected with a written brief 

or memorandum not later than 50 days (plus 5 for mailing) from the date of this order. Each is to be sent to 

the Appellate Docket Clerk, Room 924rA, Federal Aviation Administration, 800 independence Avenue, 

S.W., Washington, DC 20591, and to agency counsel. Service upon the presiding judge is optional. 
FAA Docket No. CP10GL0002 

(Civil Penalty Action) 

SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building—Suite 2W1000' 

ONE COPY 

Michael Jacob, Respondent 

President or CEO 

Rushmore Helicopters, Inc. 

24564 Highway 16/385 

Custer, SD 57730 

Briana Martino, Complainant ^s Counsel 

Great Lakes Region, AGL-7 

Federal Aviation Administration 

2300 East Devon Avenue 

Des Plaines, IL 60018-4696 

TEL: 847-294-7313 

FAX: 847-294-7498 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

Washington, DC 20590 ..,. 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Legal Assistant 

FAX: 202-366-7536 

' Ser\'icc was by U.S. Mail. For ser\'ice in person or by expedited courier, use tlie following address: 

Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building—Suite 

2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.