FEDERAL AVIATION ADMINISTRATION OFFICE OF THE CHIEF COUNSEL SKYDIVE MYRTLE BEACH, INC. , Complainant,
vs. HORRY COUNTY DEPARTMENT OF AIRPORTS, Respondent. ) 

### ) ) 

### ) ) ) ) ) ) ) 

### )



# _______________________________ ) FAA Docket No.: 16-14-05

COMPLAINANT'S STATEMENT OF MATERIAL FACTS Background . Skydive Myrtle Beach, Inc. , (SDMB) is a successor interest in Skydive Myrtle Beach , LLC , organized in 2012 to promote skydiving and conduct skydiving operations at the Grand Strand Airport (GSA) in North Myrtle Beach, South Carolina. As a disabled vete r an owned business, SDMB prides itself in operating a professional , safe, and cutting edge full-service parachute operation, that operates within all appl icable rules , regulations, industry standards , and training. It desires to deliver and create new standards of safety and professionalism for the industry. At all times , SDMB has operated within the governing Federal Aviation Administration (FAA) , United States Parachute Association (USPA), and manufacturer statutory, regulatory, and published guidance. Harry County Department ofAirports (HCDA) owns and operates in Harry County, South Carolina, and manages four airports : Myrtle Beach International , (MYR) , Grand Strand Airport (GSA), Conway Airport, and Loris Airport. On information and belief, it

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### 1leases commercial hangar space at each of its airports, sells fuel , rents commercial tenant space , oversees maintenance and other aviation and non-related activities at each airport. SDMB's Part 16 Complaint comes before the 

## FAA under the authority granted by Congress pursuant to 49 USC§ 40103. HCDA receives federal funding and must operate in a manner consistent with federal law, namely without unjust discrimination pursuant to Grant Assurance 22. HCDA admits that "claims of ' harassment' are paired with claims of

'discrimination' under Grant Assurance 22, [and] may be considered together". See Memorandum of Points and Authorities in Support of Respondent's Motion to Dismiss at page 19, citing Roadhouse Aviation v. City of Tulsa & the Tulsa Airports Improvement Trust , FAA Docket No
. 16-05-08, 32-33 (Dec. 14, 2006).

Since SDMB filed its Part 16 Complaint on July 1 , 2014, new evidence has surfaced clearly indicating HCDA's intent was to remove SDMB from Hangar 7 in order to rehabilitate the GSA ramp . ISSUES The underlying issues were and remain: 1) HCDA intended to remove SDMB from GSA utilizing whatever means possible

### 1; 2) HCDA has continuously refused to permit SDMB to relocate from Hangar 7 to an available fully serviceable hangar at the north end of GSA Hangar 1; 3) ignoring Part 105 of Title 14 Code of Federal Regulations (CFR), HCDA continues to interfere with parachute operations by unreasonably restricting and reporting authorized parachute drops through spurious enforcement mechanisms ; and 4)

HCDA is also attempting to remove Banner Tow from the hangars adjacent and connected to Hangar 7. Banner Tow has also refused to enter into the new permit terms set forth in HCDA's Space Use Permit.

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### 2HCDA continues its pattern of harassment and interference of SDMB's aeronautical activity. STATEMENT OF ADDITIONAL MATERIAL FACTS2 Du ri ng its skydiving operations from Aprii2012-September 2013 , SDMB received no complaints. In late August 2013 , HCDA purchased Ramp 66's management interest and notified SDMB that a new lease would be necessary between it and HCDA to continue ope rations at GSA. In good faith, SDMB entered into a tempo r ary Space Use Permit agreement with HCDA for no more than a six-month period (Initial Permit). See Exhibit 2
. The Initial Permit requ ired a month ly payment of $1,200.00 for Hangar 7. The I nitial Permit was intended to be a "bridge term" that would permit the statutorily required Harry County Council 3 readings and acceptance of the Initial Perm it fo r a final long-term lease. No long-term lease has ever been presented to SDMB by HCDA. Sometime in October 2013 , HCDA notified the GSA tenant's and advised them that the north half ofthe Airport would undergo re-surfacing
. HCDA notified SDMB that it would be necessary to relocate the landing zone (LZ) to the southern end ofthe airport in front of the ATC sometime in the future. During the period between October 2013 and February 2014 , HCDA began to initiate a series of quasi-legal complaints against SDMB that increased in severity and frequency to the current point of harassment.

2 SDMB incorporates by reference its recitation offacts and exhibits iterated and attached to its Part 16 Complaint dated July 1, 2014, herein, and has attempted to present these additional facts in support of its Statement of Material Facts. 3 At HCDA's Myrtle Beach Magistrate's Court hearing, Deputy Cou nty Attorney H
. Randolph Haldl, testified that the Initial Permit had not been sent to the County Council by HCDA and it had "fallen through the cracks". A transcript of the heari ng is not available at this time.
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### 3Although the ATC has gas operated grill in plain view at its tower, HCDA lodged a comp laint against SDMB for grilling but permitted the ATC to use its gas grill. SDMB has requested airport rules to abide by and has also attempted to meet the growing demands of HCDA. Other than changing oral admonitions from multiple HCDA managers stationed at MYR , no written rules have ever been provided
. In October 2013 , HCDA initially objected to SDMB's planned event due to security, crowd control, permit requirements and other HCDA rule concerns . In response, SDMB presented a detailed Operations Order
. Following several meetings and email , the event took place with no further objection from HCDA. However at the event, HCDA sent two uniformed county pol icemen to observe the entire event. During the event, the police ordered SDMB to remove a meal truck, prohibited customer parking in the GSA terminal parking lot, limited ingress/egress to the south gate adjacent to the FBA and next to Hangar 7 , prohibited alcoholic beverages and smoking on airport property by SDMB customers, and ensured that doors were closed at 9:00 p.m. per the Operations Order. The police made no arrests. Following this event, HCDA airport manager, Tim Jackson , began to require GSA terminal employees to refuse mail and parcel delivery for any SDMB packages or mail requiring a signature
. During the month of January 2014 , SDMB aircraft was placed on increasing holds during jump runs and on ramp access . Additionally, pedestrian and golf cart "incursion" complaints were being alleged by HCDA with increasing frequency. SDMB stated it was in compliance with Part 105, industry standards , and associated FAA guidance, indicated

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### 4its strict adherence to rules and regulations and demanded a meeting with HCDA and the ATC and requested the authority for the alleged violations. On February 5, 2014, a HCDA employee was observed trespassing SDMB's Hangar. The HCDA employee indicated he regularly went in the Hangar by removing the French links from the Hangar door and had authority to do so at any time for any reason. On February 7, 2014, a meeting between HCDA, ATC and SDMB took place at SDMBs request. During the meeting SDMB attempted to resolve issues relating to mai l delivery, unauthorized hangar entry, alleged incursions, mail delivery interruptions, hangar maintenance and safety concerns , alleged rule violations, a new LOA and requested a status report on the long-term lease. With regard to the unauthorized entry, HCDA manager, Tim Jackson, refused to discuss the matter as it was "under investigation". Mr
. Jackson also represented that he did instruct GSA employees to refuse parcel and mail for SDMB
.4 SDMB indicated that 

### it wou ld be required to file a police report for the unauthorized entries for insurance purposes but it did not intend to press charges or pursue the matter, only that it wanted the unauthorized practice to cease. A police report was filed. See SDMB's Part 16 Complaint (P16) , Ex. 2, at 25-46
. On February 19, 2014, HCDA, through its property manager and deputy county attorney, H. Randolph Haldi, notified SDMB that a long-term lease would not be forthcoming. See P16 , Ex. 5 , at 21-24
. HCDA cited twelve rule violations and three ongoing violations in support of its denial but offered a new Space Use Permit with materially different terms, including, inter alia, the greater of$ 1,200
.00 or 24% or gross

Mr. Jackson requested correction to the prepared minutes In that only parcels and mail req uiring signatu res was to be rejected. See SDMB's Part 16 Complaint (P16}, Ex. 1, at 167.
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### 5revenue per month use fee, restriction of skydiving activity to GSA property, additional rules and a 24 hour termination clause for any violation of the terms. 

### /d. The new Space Use Permit would also expire on July 31, 2014, and was subject to a 72 hour take-it-orvacate dead line. 

### /d. On Saturday, February 22, 2014, the HCDA deadline, two uniformed police officers and multiple HCDA staff gathered in the GSA FBA observing SDMB operations. On April 7, 2014, a letter from Foley and Lardner represented that the terms of a new Space Use Permit "were consistent with the fees charged other commercial operators at 

### CRE ." See P16 , Ex. 3, at 23. (emphasis supplied). To avoid legal action, the new permit had to be accepted by April15 2014 (eight days). 

### /d. By letter dated April28, 2014, HCDA, through its Boston attorneys, issued a Notice of Termination that included a thirty day deadline or May 27, 2014, to accept the Space Use Permit and thus avoid litigation. See P 16, Ex3. at 19. On May 24, 2014, HCDA responding to an ATC email from manager Glenn Ray, filed an " Unusual Incident Report" alleging a parachutist's unauthorized crossing of an active runway and taxiway
. See P16 Ex. 2, at 12
.5 Each of these reports were initiated by alleged ATC "Mandatory Occurrence Reports6".

5 Despite multiple requests, no other written allegations of violations from HCDA have been provided to SDMB. As such these "Mandatory Occurrence Reports" from the ATC or other "Unusual Incident Reports" by the county other than this have been provided to SDMB
. 6 During the June 25, 2014, LOA meeting, ATC manager Glenn Ray stated the multiple incident reports were requested by HCDA. HCDA stated that its reports were a result of ATC and FAA complaints and the source of its "safety concerns". Both HCDA and ATC are justifying the need for "safety violations" based on the request the other. This bootstrapping of subjective observations styled as safety violations and reporting appears to be a procedure for GSA only and no other commercial enterprise has been cited under this system. On July 8, 201 4, SDMB requested this policy, all violations, and any reports generated by this system in its discovery request to HCDA. HCDA has not provided any documents to date
.

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### 6On May 28, 2014, HCDA objected to the twenty-two delay, renewed its offer but indicated that rejection would requ ire SDMB to "immediately vacate all premises it occupies at CRE and remove its aircraft from the airport .'' See P16 Ex
. 3 at 14-15, (emphasis supplied). On June 2 , 2014 , SDMB conditionally accepted HCDAs counter offer provided counsel for SDMB's ethical obligations to have consent ofthe two other law firms handling the state litigation were present or consented to the increased scope of representation by the Boston law firm to include state law matters . See P16 , Ex
. 3, at 8-9
. Counsel for HCDA was also advised that he was potentially exposing himself to criminal and civil liability in the event he expanded his scope of representation. /d. On June 13, 2014 , SDMB filed a Motion to Remove the Ejectment proceeding to consolidate HCDA's ejectment proceeding as part of an answer to SDMBs claim or retaliatory eviction. See Exhibit A at 35
. On June 19 , 2014 , a Motion for Consol idation , injunctive relief and emergency hearing was filed by SDMB to remove HCDA's ejectment proceeding in magistrate's court. See Exhibit A at 40. On July 1 , 2014 , SDMB refiled its Part 16 Complaint with FAA
. On July 2 , 2014, Myrtle Beach Magistrate's Court denied SDMBs request to remove the ejectment complaint. On July 10 , 2014, HCDA, through its director, Pat Apone , admitted to a new reporting policy
. She stated : As one measure to improve safety, as we discussed , within the past few months , HCDA has adopted a policy of documenting incidents and accidents with respect to operations at CRE . In just three months, CRE Tower,

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### 7private operators at CRE and HCDA staff have documented 10 such incidents and accidents involving 

### SDMB, including five pedestrian or vehicular incursions into the runway or operating taxiways at CRE after landing well outside of the designated landing zone, and several other serious incidents, including a SDMB parachutist landing on top ofa fuel tank, and another landing in front of a moving fuel truck. This regular failure of SMB parachutists to land within the designated landing zone at CRE as well as to observe the bar on crossing active taxiways and runways without permission from CRE ATC could lead to serious injuries, property damage or the death of skydivers or other persons at CRE. These conditions are simply not acceptable to HCDA. * * 

### * As a result of our recent meeting and SDMB's history of repeated excursions from the designated landing zone , HCDA is instituting the following changes and conditions with respect to SDMB's operations at CRE: 1. SDMB must maintain a log of all jumpers and their U
.S.P
.A. licensure status , or indicate that they were a tandem jumper, and make that log available to HCDA staff for inspections and copying upon request; 2. All SDMB staff and skydivers must be instructed that, if they land outside the landing zone , no one may cross the taxiway or runway without permission from CRE ATC. If a landing on a taxiway or runway cannot be avoided , the skydiver must exit the taxiway or runway as quickly as possible, and any such landing must be reported to CRE ATC and HCDA immediately by SOMB. 3. SDMB and its employees, agents, customers and guests must cooperate fully with any investigation by HCDA, 

### FAA, or other governmental entity with jurisdiction into any past or future incidents or accidents related to SDMB's operations at CRE. * * * HCDA has the obligation to monitor all operations at CRE, including those of SDMB
. 

### Ifwe find that SDMB's skydivers cannot consistently land within the landing zone at CRE andoperate in a safe manner, HCDA reserves the right to
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### 8impose additional conditions on SDMB's operations at CRE, up to and including barring SDMB and its customers andguests from landing at CRE. We recognize that skydiving is an aeronautical activity and we are making every reasonable effort to accommodate SDMB's operations at CRE. However, HCDA's overarching obligation is to operate CRE safely for all aeronautical users ofthe airport. If SDMB's operations conflict with that obligations, then HCDA will take whatever steps are necessary to ensure that safety is maintained at CRE. See Exhibit A at 23-5, (emphasis supplied. On July 11, 2014, in response to a report by SDMB about the dangerous condition of Hangar 7 doors ,7 HCDA stated : To be clear, Skydive's continued occupancy of Hangar 7 is at its own risk and without HCDA's authorization or permission. Should Skydive notice future operational difficulties with the door to Hangar 7 before the ejectment proceeding is concluded, including its mechanism , Skydive shou ld immediately cease any attempts to move the door in the interest of safety. HCDA reserves the right to recover from Skydive any costs associated with repairing any damage to Hangar 7 , including the door, caused by Skydive or its employees, agents or invitees. 

### If before the ejectment action is concluded Hangar 7 becomes unsafe to use for anyreason, as the owner ofHangar 7, HCDA reserves the right to restrict any orall use ofthe Hangar by anyparty , including Skydive. If Hangar 7 must be closed, Skydive would be required to immediately vacate Hangar 

### 7 , remove its personalproperty from the hangar, and make arrangements to undertake its non-aeronautical operations, such as classroom instruction, customer check-in, andparachute packing, from another location, remote from CRE . In such an event, HCDA would work with Skydive to develop a plan that would permit Skydive to continue its aeronautical operations at CRE, consistent with law and HCDA policies.

7 SDMB has reported this defective and dangerous condition to t he county on multiple occasions. This is the same door that HCDA pried open to access and remove the French links to gain unaut horized entry on multiple occasions and has degraded significantly since HCDA resumed control of GSA.

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. fin 9See Exhibit Bat 1-2, (emphasis supplied)
. On July 18, 2014, SDMB requested reconsideration by the magistrate's court. See Exhibit A at 72-74
. On July 21, 2014 , through its Conway , South Carolina lawyers, HCDA objected to SOMBs reconsideration request concluding : Harry County respectfully request that the ejectment hearing proceed as scheduled
. Harry County has planned a construction project for approximately Three Million Dollars for Ramp Rehabilitation which Harry County schedu led to begin on September 2, 2014. 

### The rehabilitation project is expected to require anyone occupying Hangar 7 to vacate the premises while the rehabilitation ofthe ramp is being completed. Bids have been receivedandHarry Countyis prepared to award the bid as soon as it receives grant approval for the project from the Federal Aviation Administration. Approval is expected in the very nearfuture. Harry County contends that SDMB's occupation of Hangar 7 and delaying tactics , if successful, will frustrate Horry County's Ramp Rehabilitation project and cause significant financial damage to Horry County. If SDMB has a valid defense, they should present it at the hearing scheduled for July 23 , 2014. See Exhibit A at 77 (emphasis supplied). On July 23, 2014, SDMB's Motion to Remove was denied and a bench trial was conducted relating to the HCDA ejectment proceeding
. At the bench trial, Aaron Holly testified for SDMB and H. Randolph Haldi testified for HCDA. 8 Mr
. Holly testified that he had made arrangements to move into an alternate and suitable hangar at the north end of GSA from Malcom Odom but it required HCDA authorization
. Mr
. Haldi testified that the original Space Use Permit had somehow slipped through the cracks and not been presented to the County Council by HCDA. In response to an inquiry by the judge,
A transcript ofth is trial is not yet available
. 140825.sdmb.part16
.response.mtd.fin 10Council for HCDA represented to the Court that Hangar 1 was not appropriate for SDMB as it would require three parking tie downs to be removed causing unnecessary harm to HCDA. Following testimony, the magistrate's court found in favor of HCDA and issued a Writ of Ejectment no later than Monday, July 28, 2014. See Exhibit A at 75 . On Ju ly 25 , 2014 , SDMB appealed
. See Exhibit 21
. On August 1 , 2014, a Bond to Stay Execution Pending Appeal was granted by the Myrtle Beach Magistrate's Court
. See Exhibit A at 2-1 09. On August 28 , 2014 , HCDA posted no parking signs in the parking spaces across from Hangar 7 at the site ofthe peat moss pile identified in the Part 16 Complaint and has renewed its parking complaints during operating hours with SDMB. ARGUMENT 

### I. Discriminatory Conduct 

### by HCDA SDMB alleges that HCDA has specifically violated Grant Assurance 22 discrimination prohibition and 14 CFR § 139.329 and FAA Compliance Manual, FAA Order 5190.6B (Sept. 30, 2009). As set forth in this Statement of Material Facts and contrary to federa l and state law. HCDA has acted and continues to act as the sole arbiter and compliance enforcement division with regard to SDMB's parachute operations. Additionally, under the cloak of safety concerns and "good faith" efforts to resolve issues relating to SDMB's ongoing skydiving operations, HCDA has uti lized the full resources of Horry County and its staff in an attempt to remove SDMB from its jurisdiction
. HCDA has attempted to style SDMB's complaints of a continuing pattern of harassment with increased severity and frequency which , individually identified and scrutin ized may not represent a federal claim , but 

## in toto can on ly be styled as an

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### 11aggressive campaign designed to remove SDMB from the airport and remove a recognized aeronautical activity from legally operating at a federally supported airport
. HCDA has also complained about SDMB's failure to negotiate in "good faith" to have FAA dismiss a Part 16 complaint while it simultaneously filed an eviction proceeding in a third forum through one of its South Carolina law firms
. As its defense has materialized , HCDA has attempted to separate, and thereby change the issues, in an effort to have SDMB's claims dismissed in both federa l and state forums. By employing the services of three discrete law firms practicing in two states , HCDA's arguments attempt to prevent SDMB from discussing the supporting facts underlying its attempt to exercise and protect its federally protected aeronautical activity from discriminatory treatment by HCDA. HCDA's disingenuous conduct is prohibited under both federal and state law
. HCDA has attempted to limit SDMB's legitimate complaints by presenting half the story to FAA and the other half of the story to state forums , thereby obfuscating its discriminatory and harassing conduct. In the state forum , HCDA argues that the court lacks jurisdiction to hear the claim because it is a federal matter. Before FAA, HCDA now argues that recitation of identical acts in support of a Part 16 discrimination complaint is jurisdictionally precluded because it concerns matters of state law and is not actionable before FAA
. Earlier, HCDA objected to SDMB's initial complaint for want of "good faith" efforts to resolve matters. HCDA refused to address operational issues clearly within federal jurisdiction through its Boston attorneys , blaming the FAA for the delay
.9 In contravention

9 In its notice of term i nation l etter dated Ap rll28, 2014, HCDA advised SD MBthat FAA was reviewing the new LOA and "[o]n ce t h at review is compl ete ... l ocal F AA st aff and HCDA wi ll co ntact [SDMB] to atte mpt t o
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### 12to South Carolina law, the correspondence relating to SDMB's operational comp laints was limited to lease negotiations through HCDA's Boston attorneys 10 and did not address SDMB's aeronautical operational complaints until June 25, 2014, almost a month after an ejectment proceeding in state court was filed by HCDA's Conway, South Carolina , law firm
. HCDA's intent was best articulated on July 21, 2014, by its Conway, South Carolina, attorney in its ejectment proceeding. HCDA stated to the court: Horry County has planned a construction project for approximately Three Million Dollars for Ramp Rehabilitation which Horry County scheduled to begin on September 2, 2014
. The rehabilitation project is expected to require anyone occupying Hangar

### 7 to vacate the premises while the rehabilitation of the ramp is being completed. Bids have been received and Horry County is prepared to award the bid as soon as it receives grant approval for the project from the Federal Aviation Administration. See Exhibit A at 77. (emphasis supplied). SDMB's Part 16 Complaint against HCDA is based on the discriminatory treatment from by HCDA relating to its skydiving operations. HCDA owns and operates four municipal airports. Apparently, its position is that different tenants may be treated differently so long as all tenants at an individual airport are equally treated, an "equa l but sepa rate" standard. Since resuming control of GSA, only three commercial aeronautical

resolve any open issues.'' See SDMB's Part 16 Complaint Exhibit (P16) 3 at 20. The meeting finally occurred June 25, 2014, almost three weeks after HCOA filed its ejectment action in local magistrate's court. 10 None of Foley and Lardner, LLC attorneys on record are licenses to practice law in South Carolina. S.C. Code Ann. § 40-5-310 provides that practicing law without a license is a felony. South Carolina courts have defined the practice of law broadly. See In re Duncan, 65 S,E.2d 210 (1909) (general advice and preparation of legal instruments constitutes "practice of law" ); South Carolina v. Buyers Serv. Co., 357 SE2d 15 (SC 1987) (practice of law extend s to fields that require specialized legal knowledge).

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. fin 13operators remain: SDMB, Banner Tow, and Executive Helicopters. 11 (Although Hertz and Avis leases vehicles and another commercial enterprise operates a parking lot within the curtilage of GSA independent of HCDA, HCDA has not provided SDMB the commercial operator leases to verify SDMB's discrimination complaint. 12) Black's Law Dictionary defines discrimination as "differential treatment, esp . , a failure to treat all persons equally when no reasonable distinction can be found between those favored and those not favored." BLACK's 

### LAw DICTIONARY, gth Ed. 2009 at 534. HCDA would have the FAA support its position that it can treat any activity differently, even in violation ofstate law, so long as all individuals at one of its four airports are treated the same . Ostensibly, HCDA argues that since 100% of the tenants at location A , representing 25% of its total tenants under its jurisdiction, are treated the same, they are incapable of discrimination
. Ignoring the other 75% oftenants, HCDA implies its disparate conduct is not discriminatory so long as each separate area is treated the same, the whole must be non-discriminatory
. On one hand HCDA has argued that SDMB's continued occupancy of Hangar 7 will disrupt a planned ramp rehabilitation project but, on the other hand , it refuses to consent to SDMB's assumption of the Hangar 1 lease, something that will not disrupt the ramp project or SDMB's parachute operations. Before the state court, HCDA argued that SDMB's harassment complaints are matters for the FAA to ·determine, and before the

ll HCDA has issued Banner Tow a notice of termination to its occupancy of an adjacent hangar according to its owner. 12 On July 8, 2014, SDMB requested documents from HCDA in its civil action. As of September 8, 2014, no documents have been produced
.

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### 14FAA, HCDA continues to argue that SDMB's claims are simply tenant disputes under state law delegated to South Carolina Courts and outside FAA's jurisdiction
. If successful, HCDA will close down a legitimate business enterprise , prevent SDMB from airing its grievances before FAA, and have no accountabi lity for a wellsupported pattern of behavior which is at best, poor and at worst may be criminal. 

### II. Targeted Harassment Intended to Cause SDMB to Vacate Hangar

### 7 and Remove its AeronauticalActivity From Grand Strand Airport At first blush, all appears proper and in order. However a global view reveals a well-orchestrated continuous plan to remove a federally recognized aeronautical activity and preclude it from legally operating
. HCDA has launched a first class legal campaign employing all the state resources at its disposal and those of an international law firm specializing in pretrial dismissal tactics
. HCDA's actions are irrefutable. It has: cancelled a long-term lease , lost a bridge lease , denied SDMB's request to assume another hangar lease or move to another airport area with adequate space , presented a lease no rational business could agree to , and finally evicted SDMB. Its failure to act and inform SDMB about policy changes is thunderous
. Ultimately, this has caused SDMB tens or thousands of dollars in lost business and legal fees and substantially interfered with its business
. HCDA cannot produce any safety violations against SDMB while GSA was managed by Ramp 66
. The frequency and severity of alleged incidents has increased incrementally as more FAA grant money has become available. As a threshold matter, SDMB agrees that matters of state law are generally outside ofF AAjurisdiction. However, SDMB is asserting facts that are inseparable from its state claims that also are actionable under federal law and under FAA's jurisdiction
. HCDA

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### 15admits that it is subject to Grant 22 Assurances as a recipient of federal funds provided by FAA
. HCDA has been malleable with regard to permitting skydiving activities since February 2014
. While reserving the right to prohibit skydiving 

### sua s ponte if HCDA determines safety is at risk, it argues that no discrimination exists
. However, HCDA's conduct portrays the reality and past practice of restricting skydiving without comment to SDMB and is demonstrative of an apparent malevolent intent and unjust discrimination. A great deal of time and energy have been spent on 14 CFR 

### § 139
.329(b) by HCDA. Throughout its interaction with HCDA, SDMB's chief complaint has been a failure of HCDA to communicate or publish its rules HCDA relating to its operating rules and regulations but continually complain about SDMB's recurrent violations. HCDA, however, fails to include subsection (e) in its argument. Notably the requirement that HCDA, Ensure that all persons are trained on procedures required under paragraph (b) of this section prior to the initial performance of such duties and at least once every 12 consecutive calendar months , including consequences of noncompliance , prior to moving on foot , or operating a ground vehicle , in movement areas or safety areas; 14 CFR 

### § 139.329 (e)
. Throughout this process, HCDA has implemented unpublished policies, targeted the skydiving activity solely to SDMB at GSA and to no other aeronautical activity in the county. 

### SDMB has exhausted all efforts to ensure that 

### FAA regulations are simply followed by all parties equally to include HCDA
. HCDA fails to meet its obligations under 14 CFR 

### § 139
.329 to inform tenants of unpublished agreements then cites 14 CFR 

### § 1 39.329 as justification for its safety concerns and new unpublished policies. These practices are 

### perse discriminatory.

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### 16CONCLUSION FAA, not HCDA, has the final say with regard to safety matters and whether or not discrimination against SDMB has occurred
. '' In all cases the FAA is the final arbiter regarding aviation safety and will make the determination regarding the reasonableness of the sponsor's proposed measures that restrict, limit, or deny access to the airport. " FAA Order 5190.6B, 

### § 14.3 at 14-3. HCDA has implemented its actions as demonstrated by its actions identified in SDMB's Part 16 Complaint and this Statement of Material Facts and respectfully requests FAA to exercise its jurisd iction
. For these reasons , Complainant, Skydive Myrtle Beach, Inc. , respectfully requests FAA to deny Respondent's Motion to Dismiss
.
Eastman & Associates , LLC

Merritt Island , FL Dated: September 

### 8, 2014

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### G. Eastman Attorney for Plaintiff SC Attorney ID 75900 PO Box 180 Charleston, SC 29402 (843) 329-9657CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing Complainant's Response to Respondent's Motion to Dismiss on the following persons at the following addresses , both by first class mail and by electronic mail in accordance with 14 CFR 

### § 16
. 13(h):

Office ofthe Chief Counsel ATTN: FAA Part 16 Docket Clerk AGC-600 Federal Aviation Administration 800 Independence Avenue , SW Washington, DC 20591 9-AWA-AGC-Part-16@faa.gov

Merritt Island , FL DATED: September 8, 2014

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### Y . Bannard , Esq
. Jeffrey R. Blease, Esq
. Jaclyn 

### V. Pilch, Esq. Foley and Lardner LLP 111 Huntington Avenue Boston , MA 02199 dbannard@foley.com jblease@foley.com jpilch@foley.com Counsel for Horry County Department of Airports

18 Attorney for Skydive Myrtle Beach, Inc
. EASTMAN & ASSOCIATES , LLC PO Box 180 Charleston , SC 29402 (843) 329-9657