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FEDERAL AMM N ADMINISTRATION ' ^ *««'^ ^ " ^ « « » ^ B«r 

MAY ^ 0 2QV 

BEARING DOCKET 

In the matter of: F AA Docket No. CP1 OS WOO 10 

FDMS NO. FAA-2010-0974 

AIR Z FLYING SERVICE INC. Case No. 2009 SW910051 

JUDGE: YODER 

RESPONDENT MOTION FOR 

LEAVE TO FILE DELAYED 

RESPONSE TO 

ADMINISTRATOR'S MOTION 

FOR DECISION, INSTANTER 

Now comes Respondent Air Z Flying Service Inc and, in the event its response to the 

Administrator's motion for decision is not timely, requests that it be allowed to file the attached 

motion in opposition on the basis that the Respondent did not receive a complete copy of the 

Administrator's motion when it was first mailed. Only after contacting opposing counsel did Air 

Z receive the complete motion. In support of this motion, a copy of a recent communication from 

Administrator's counsel is attached. 

Respectfiilly Submitted, 

Laurence E. Rohl, President 

Air Z Flying Service Inc. 

355 Richmond Rd. Hangar 5 

Richmond Heights, Ohio 44143 

216-261-2992 
Missing page from Motion for Decision Page 1 of 1 

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From: Cole.MillJarcl@faa.gov Save Address | Headers 

To : lrohl@lostnation.com 

CC : 

Date : Tue, 3 May 2011 10:27:58 -0400 

Subject: Missing page from Motion for Decision 

Dear Mr. Rohl: 

I received your phone message regarding the motion for decision missing page two. I have attached a copy of 

the motion so that you will have the entire document. If you have trouble with the file, please let me know. 

Under 14 C.F.R. s. 13.218(d), answers to motions are due no later than ten (10) days after service of the 

motion. The motion was served on April 21, 2011 by certified mail and signed for at your Richmond Heights 

address by Jane Frisina on April 23, 2011. Ten days after service was yesterday. May 2, 2011. However, 14 

C.F.R. s. 13.211(e) adds five days to the time you have to respond because the motion was sent by mail. You 

must therefore respond by May 9, 2011 (when a due date falls on a weekend, it is pushed up to the next 

business day). Let me know if you have any further questions. 

Sincerely, 

Cole Milliard 

'Cole R. Milliard, Esq. 

Enforcement Division, AGC-300 

Office of the Chief Counsel 

Federal Aviation Administration 

800 Independence Ave., S.W. 

Washington, D.C. 20591 

(202) 267-3452 (phone) 

(202) 267-5106 (facsimile) 

Air Z Motion for SJ.pdf (Binary attachment) 

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http://mail.timesync.com/Xa254cccfcc9d9b9a9aeb814f52/rmail.814.cgi?&mbx=Main&ms... 5/10/2011 
Certificate of Service 

A copy of this answer to the Motion for leave to file a motion in opposition was served 

this I c day of May 2011 by regular mail on: 

1. Nicolas R. Millard, Attorney, Enforcement Division AGC-300 Office of Chief Counsel, 

Federal Aviation Administration 800 Independence Avenue, S.W. Washington D. C. 20591 

2. Hearing Docket, Federal Aviation Administration, Orville Wright Building, 800 Independence 

Avenue S. W., Washington D. C. 20591 

Xaurence E. Rohl 
U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

LiECEIVED 

HEARING DOCKET 

In the matter of: FAA Docket No. CPIOSWOOIO 

FDMS NO. FAA-2010-0974 

AIR Z FLYING SERVICE INC. Case No. 2009 SW910051 

JUDGE: YODER 

RESPONDENT MOTION IN 

OPPOSITION TO 

ADMINISTRATOR'S MOTION 

FOR DECISION 

Now comes Respondent Air Z Flying Service Inc, and submits its motion in opposition to 

the Administrator's motion for decision. The basis for this motion is that there is a genuine issue 

of material fact to be resolved at trial, to wit whether Respondent had received a verified 

negative test result before a subject "hire" or "employee" performed a safety sensitive function 

on an aircraft operated under its part 135 charter certificate. 

I. The Respondent will not go into the details of the complaint or the intricacies of the 

law.. While Respondent does not take issue with the basic law expounded by the Administrator 

concerning the standard for a "motion for decision" the path by which the Administrator arrives 

at its conclusions is in at least one case controlled substance test reports, a few details of the law 

and facts made by the Administrator are too blatantly incorrect or misleading that they must be 

initially brought to light here. 
2. Administrator claims that documents submitted in a discovery response are "implied 

admission" of the veracity of all the information contained in those documents. This is done by 

referencing the general legal effect of failing to deny any particular allegation of the complaint in 

an answer, (see pp. 1,3,4 of motion) Not only is this legally incorrect, it is most misleading to 

this court regarding the factual issue of what Air Z might have submitted (which is not attached 

as the referenced exhibit 4). Exhibit 4( from Administrator's motion) in no way makes any 

admission by Air Z as to the factual allegations suggested by Administrator. Additionally Air 

Z's answer filed at the outset of this action denied anything not specifically admitted. The whole 

reasoning process used by the Administrator here is, in actuality, completely confiising. 

3. From the time Air Z received notice of the proposed action by the FAA in this case, it 

has been repeatedly stated by Air Z to officials of the FAA that it was the belief of Air Z 

personnel that the negative test had been verified and such information received by Air Z prior to 

the time the safety sensitive maintenance function by subject Kovacic was performed on June 6, 

2008. (see Statement of Bradley Rohl attached as Exhibit A) However the FAA insisted that 

could not be the case because all of its records show that the test on the subject's specimen was 

not found to be negative until on or about July 17, 2008. In fact that is the very allegation in the 

complaint in this case , (see section II (4) (6) (c) of the Complaint. Furthermore, the FAA in one 

of its discovery responses ) now admits that it was unaware of documents from the MRO 

confirming that the specimen was tested and found negative in May 2008, and the MRO in fact 

verified the negative test result no later than June 6, 2008. ( See Exhibit B attached: and 

Exhibits 3 and 8, attachment A of Administrator's own motion. These were subpoenaed from the 

MRO by Air Z ,and sent to Administrator's counsel in discovery). This is certainly proof that 
the specimen in question had been tested, found to be negative, (apparently on or about May 28 

or 29, 2008) and then verified by the MRO no later than June 6, 2008—^asnd probably sooner 

(not July 17, 2008 which is alleged in the complaint which is the date of the alleged violation). 

The only issue remaining is whether Air Z had knowledge of that negative, verified result prior 

to Mr. Kovacic working on that aircraft on June 6, 2008. The attached statement of Bradley 

Rohl clearly presents information that is consistent with the position of Air Z fi-om the onset that 

it received a confirmation of that negative test result prior to the time when Kovacic worked on 

the aircraft in question. The Administrator has the burden of proof, at trial, of proving the 

contrary. 

The law imposes no requirement upon the Respondent as to the method that Respondent 

may use to '"''receive a verified negative test result" for the subject drug specimen. Nor does 

Administrator attempt to cite any law or regulation regarding such. The problem here was that 

because of a breakdown in the action expected of one or more entities with which Air Z 

contracted to perform the drug testing function on the subject, the expected immediate dispatch 

of a verified negative test result was not immediately forthcoming. 

Even if Air Z could be held strictly for any acts of service agents, as the Administrator 

claims, it exercised due diligence in obtaining the necessary information so that its business 

could continued while the contractors sorted out their "red tape". Air Z has attempted to gain 

any possible information in this regard but has been stifled by the unexplained gross delay by the 

FAA in bringing this case forth (19 months from the time the time Enforcement Investigative 

report was received -see FAA order 2150.3B Chapter 6, section 25.) The Administrator's 

response to that has essentially been of the nature that as long as the action was brought within 

the statute of limitation they can delay all they want. (See exhibit C- Answer to Interrogatory #9 
which was the Administrator's response to explain the prejudicial delay in the case—also see 

exhibit B, Administrator's supplemental answer to Interrogatory #9) In some cases records no 

longer exist which has prevented Air Z from collating information that would support the 

material issue of fact here, (see exhibit D , the lab response to Air Z subpoena) Air Z has been 

prejudiced procedurally and now the Administrator asks this Court to compound the problem 

There is a clear issue of fact to be resolved The Administrator, now that the allegations in its 

very complaint have been clearly refuted by information of which it was not aware at the time it 

made the decision to file the action, asks this court to grant a decision in its favor without the 

benefit of having any factual issue decided by an impartial magistrate. Such would be patently 

unfair. The bottom line is there is a clear material factual issue regarding the knowledge by Air Z 

of the test that was verified negative on or before June 6, 2008, ( not July 17, 2008 as 

Administrator has set forth in its very complaint.) Although the Administrator would obviously 

like to avoid the issue by its legally unsupported motion, to do so would deny Air Z the 

procedural and substantive due process it is clearly entitled to under the law. Administrator's 

motion should be denied. 

Respectfully Submitted, 

0 

Laurence E. Rohl, President 

Air Z Flying Service Inc. 

355 Richmond Rd. Hangar 5 
Cf/os'^ ool'* 

May 10, 2011 

EXPLANATION OF LETTER 

1 wrote a letter to the inspection team on July 23, 2008 in a hurried manner because they 

wanted a brief letter of correction on the Ritch Kovacic matter. They wanted the letter faxed to 

there room since they were leaving soon. They did not seem very concerned, since all of my 

other records were in order. I did not hear back from them so I thought the matter was 

rectified. 

The dates are off by my mistake, probably because I was rushed due to my other many duties 

with the FBO. I actually sent Ritch Kovacic on 5-28-08 and received a verbal negative within the 

next couple days. The MRO also would let me know at that time that I would be getting a fax. 

Since it was an unsecure fax I let the secretary know a fax would be coming in and to put it in 

my mail box. I went back to my FBO duties. 

Upon receiving a verbal "negative" from the MRO, I let Ritch Kovacic know that he was in the 

random drug program and that he was able to work on Air Z Flying Service aircraft. I only "OK" 

a person for Air Z work if 1 have a confirmed negative result, verbal or written. 

The reason for writing, "Don't remember what happened after that." Was that I did not 

remember what happened to the original faxed result sheet. 

When I did an audit on my own records, I noticed that I was missing Ritch Kovacic's drug result 

sheet. I called Concentra to get an additional copy of the drug result. They told me to contact 

the MRO for the results. I called the MRO, Choice Point, for an additional copy of the test 

results. I received that copy on 7-17-08. I then put it in his records. 

Bradley S.Rohl (/