U.S. Department 

of Transportation 

Federal Aviation 

Administration 

Office of the Chief Counsel 

Enforcement Division 

March 19, 2014 

CERTIFIED 

Hearing Docket 

Federal Aviation Administration 

600 Independence Avenue, S. W. 

Washington, DC 20591 

Attn: Hearing Docket Clerk 

AGC-430, Wilber Wright Building 

Suite 2Wl000 

Re: M.T.I. Travel, Inc. 

800 Independence Ave., SW. 

Washington, DC 20591 

Area Code 202 267-7100 

RECEIVED 

MAR 2 4 2014 

HEARING DOCKET 

FAA Case No.: 2013S0950011 

Enclosed herewith please find a copy of a request for hearing and the original and one copy of 

the Complaint in the above-referenced proceeding. 

The FAA requests that the hearing in this matter be held in Newark, NJ, and expects that the 

hearing will last one day. 

Please address all communications for the FAA to the undersigned at: 

Office of the Chief Counsel 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Ph: 202-267-7100 

Fax: 202-267-5106 

E-mail: michael.f.mckinley@faa.gov 

Enclosures: Request for Hearing 

Complaint 

cc: Respondent (w/copy of Complaint) 

Sincerely, 

M~~?f-44; Senior Attorney 
CERTIFICATE OF SERVICE 

I hereby certify that I have, this date, served the foregoing Complaint by mailing the following 

copies, Certified Mail (Retnm Receipt Requested): 

Original and 1 Copy: 

One Copy: 

Dated this 19'h day of March 2014. 

Hearing Docket 

Federal Aviation Administration 

600 Independence Avenue, S. W. 

Washington, DC 20591 

Attn: Hearing Docket Clerk 

AGC-430, Wilber Wright Building 

Suite 2WIOOO 

DavidP. Affinito, Esq. 

Dell'Italia, Affinito & Santola 

18 Tony Galento Plaza 

Orange, NJ 07050 
JOHN P. DELL'ITALIA 

DAVID P. AFFINITO t • 

STACY A. SANTOLA 

t Certified by the Supreme Court ofNJ 

as a Civil Trial Attorney 

• Member ofNJ, NY, PA & FLABars 

DELL 'IT ALIA, AFFINITO & SANTO LA 

ATTORNEYS AT LAW 

18 TONY GALENm PLAZA 

ORANGE, NEW JERSEY 07050 

Telephone (973)672-8000 

Fax (973)672-8215 

301 South Livingston Ave, Suite 100 

Livingston, New Jersey 07039 

Telephone (973) 535-8811 

Fax (973) 672·8~15 

Reply to Orange 

March 18, 2014 RECEIVED 

Federal Aviation Administration 

600 Independence Avenue, SW 

Wilbur Wright Building- Suite 2W1000 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

RE: JAMES MILLER/ M.T.l. TRAVEL, INC. 

CASE NO. 201350950011 

Dear Sir/Madam: 

MAR 2 4 2014 

HEARING DOCKET 

This is to advise you that I represent M.T.l. Travel, Inc., in the above captioned ,matter. 

Pursuant to the Final Notice of Proposed Civil Penalty dated March 13, 2014, kindly be 

advised that the Respondent, M.T.I. Travel, Inc., hereby seeks a formal hearing in this 

matter as to all of the paragraphs contained in the Final Notice. 

By copy of this letter, I am providing Mr. Michael McKinley, Esq., Senior Attorney with a 

copy of this response. I am also providing a copy of this letter to Mr. McKinley via email on 

this date. 

Kindly forward all correspondence to my office in Orange, New Jersey. 

DEll ' A, AFFINITO & SANTO LA 

BY: DAVID P. AFFINITO, ESQ. 

DPAbn 

cc: Michael F. McKinley, Esq. 

M.T.I. Travel, Inc. 
U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

M.T.I. TRAVEL, INC. 

FAA DOCKET NO. (not assigned) 

(Civil Penalty Action) 

FDMS NO. (not assigned) 

FAA CASE NO. 2013S0950011 

COMPLAINT 

nECE\VED 

IY 11 ()o\AR 24 2014 

HEARING DOCKET 

The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, 

pursuant to Rule 208 of the Rules of Practice (14 C.F.R. 13.208), and states as follows: 

I 

I. On March 13,2014, M.T.I. Travel, Inc. (Respondent) was advised 

by a Final Notice of Proposed Civil Penalty that the FAA proposed to assess a civil 

penalty in the amount of$22,000. On March 18, 2014, Respondent submitted a written 

request for a hearing. 

2. At all times mentioned in this document, M.T.I. was authorized to operate as a 

Commercial Air Tour Operator, with certificate number MT7Jl75C, under 14 C.F.R. § 

91.14 7 in accordance with the limitations and provisions of the Letter of Authorization 

("LOA"), issued to M.T.I. by the FAA for such operations. 
3. At all times mentioned in this document, 14 C.F.R. § 91.147(d) required that M.T.I. 

register and implement its drug and alcohol testing programs in accordance with 

14 C.F.R. § 120. 

2 

4. At all times mentioned in this document, 14 C.F.R. § 91.147(e) required that M.T.I. 

comply with the limitations and provisions of the LOA referenced in Part I, paragraph 1., 

above. 

5. At all times mentioned in this document, the LOA referenced in Part I, paragraph 1., 

above, required M.T.I. to comply with the requirements of 14 C.F.R. § 120 and 49 C.F.R. 

§ 40 for its antidrug and alcohol misuse prevention program. 

6. At ali times mentioned in this document, 14 C.F.R. § 120.5 required that M.T.I., in 

conducting its drug and alcohol testing program under 14 C.F .R. § 120, do so in 

compliance with the procedures set forth in 49 C.F .R. § 40. 

7. At all times mentioned in this document, 14 C.F.R. § 120.35(a) required that M.T.I. test 

any employee for prohibited drugs if the employee performs a function listed in subpart E 

in accordance with that subpart. 

8. At all times mentioned in this document, 14 C.F.R. § 120.39(a) required that M.T.I. 

establish an alcohol testing program in accordance with the provisions of subpart F of this 

part. 

9. At all times mentioned in this document, 14 C.F.R. § 120.105 required that each 

employee who performed a safety-sensitive function for M.T.I., directly or by contract, be 

subject to drug testing under an antidrug program implemented in accordance with 14 

C.F.R. § 120. This includes full-time, part-time, temporary, and intermittent employees. 
3 

10. At all times mentioned in this document, 14 C.F.R. § 120.215 required that each 

employee who performed a safety-sensitive function for M.T.I., directly or by contract, be 

subject to alcohol testing under an alcohol misuse prevention program implemented in 

accordance with 14 C.F.R. § 120. This includes full-time, part-time, temporary, and 

intermittent employees. 

11. At all times mentioned in this document, 14 C.F.R. § 120.7(p) defined safety-sensitive 

function as a function listed in 14 C.F.R. §§ 120.105(a)-(h) and 120.215(a)(l)-(8), 

including flight crewmember duties and aircraft maintenance or preventive maintenance 

duties. 

12. At all times mentioned in this document, 14 C.F.R. § 120.35(b) forbade M.T.I. from 

using a contractor to perform a safety-sensitive function unless the contractor, or any 

employees of the contractor that perform a safety-sensitive function, was subject to drug 

testing in accordance with 14 C.F.R. § 120 subpart E. 

13. At all times mentioned in this document, 14 C.F.R. § 120.39(b) forbade M.T.I. from 

using a contractor to perform a safety-sensitive function unless the contractor, or any of 

the contractor's employees that perform a safety-sensitive function, was subject to alcohol 

testing in accordance with 14 C.F.R. § 120 subpart F. 

14. At all times mentioned in this document, 14 C.F.R. § 120.109(a)(1) prohibited M.T.I. 

from hiring any individual for a safety-sensitive function listed in 14 C.F.R. § 120.105 

unless it had first conducted a pre-employment test and received a verified negative drug 

test result for that individual. 
15. At all times mentioned in this document, 14 C.F.R. § 120.7(e) defined contractor as an 

individual or company that performs a safety-sensitive function by contract for an 

employer or another contractor. 

16. At all times mentioned in this document, 14 C.F.R. § 120.7(h) defmed employee as an 

individual who is hired to perform a safety-sensitive function for an operator as defined 

by 14 C.F.R. § 91.147. 

17. At all times mentioned in this document, 14 C.F.R. § 120.70) defined hire as the 

retention of an individual for a safety-sensitive function as a paid employee or through 

another form of compensation. 

18. At all times mentioned in this document, 14 C.F.R. § 120.109(b)(6)(i)(B) required that 

each M.T.I. safety-sensitive employee be included in a pool for random drug testing as 

part of M. T .I.'s antidrug program. 

4 

19. At all times mentioned in this document, 14 C.F.R. § 120.217(c)(6)(i)(B) required that 

each M.T.I. safety-sensitive employee be included in a pool for random alcohol testing as 

part of M. T .I.'s alcohol misuse prevention program. 

20. Regarding M.T.I. employee Anthony Lucchese: 

a. At all times mentioned in this document, Mr. Lucchese was employed by 

American Helicopter, which contracts its services to M.T.I. 

b. On or about July 16,2011, and August 10,2012, Mr. Lucchese performed a 

safety-sensitive maintenance function as a contractor for M.T.I. 

c. The maintenance Mr. Lucchese performed for M.T.I., referenced in Part II, 

paragraph 17., b., above, was on both occasions performed on civil aircraft 
N41SJ, which is listed on M.T.I.'s LOA and is authorized for use in operations 

conducted under 14 C.F.R. § 91.147. 

d. Prior to performing for M.T.I., Mr. Lucchese was not administered a 

DOT-required pre-employment drug test for M.T.I. or for American Helicopter. 

e. Prior to American Helicopter's attainment ofthe antidrug and alcohol misuse 

prevention program referenced in Part III, paragraph 20., d., above, Mr. Lucchese 

was not subject to a DOT -required random drug and alcohol testing pool for 

American Helicopters. 

5 

f. Mr. Lucchese was not subject to a DOT -required random drug and alcohol testing 

pool under M. T .I.'s antidrug and alcohol misuse prevention program. 

21. At all times mentioned in this document, 14 C.F.R. § 120.109(b)(8) required that M.T.I. 

require each safety-sensitive employee who is notified of selection for random drug 

testing proceed to the collection site immediately; provided, however, that if the 

employee is performing a safety-sensitive function at the time of the notification, the 

employer shall instead ensure that the employee ceases to perform the safety-sensitive 

function and proceeds to the collection site as soon as possible. 

22. At all times mentioned in this document, 14 C.F.R. § 120.217(c)(8) required that M.T.I. 

require each safety-sensitive employee who is notified of selection for random testing 

proceed to the testing site immediately; provided, however, that if the employee is 

performing a safety-sensitive function at the time of the notification, the employer shall 

instead ensure that the employee ceases to perform the safety-sensitive function and 

proceeds to the testing site as soon as possible. 
6 

23. At all times mentioned in this document, 40 C.P.R.§ 40.191 defined refusal to take a 

DOT drug test as an employee's failure to appear for any test other than a preemployment test within a reasonable time after being directed to do so by the employer. 

This includes the failure of an employee, including an owner-operator, to appear for a test 

when called by a C/TP A. 

24. At all times mentioned in this document, 40 C.P.R. § 40.261 defined refusal to take an 

alcohol test as an employee's failure to appear for any test other than a pre-employment 

test within a reasonable time after being directed to do so by the employer. This includes 

the failure of an employee, including an owner-operator, to appear for a test when called 

byaC/TPA. 

25. At all times mentioned in this document, 14 C.P.R.§ 120.33(c) forbade M.T.I. from 

knowingly using any individual to perform any safety-sensitive function if that individual 

has refused to submit to a drug test required by subpart E. This section also forbade any 

individual from performing any safety-sensitive function if that individual has refused to 

submit to a drug test required by subpart E. 

26. At all times mentioned in this document, 14 C.P.R.§ 120.37(±) forbade M.T.I. from 

permitting an employee who refuses to submit to a required alcohol test to perform or 

continue to perform safety-sensitive functions. 

27. Regarding M.T.I. owner-operator James Miller: 

a. Mr. Miller is the owner-operator, designated employer representative, and sole 

pilot ofM.T.I. 
b. Mr. Miller received his random testing notifications by mail on November 1, 

2011, and April1, 2012, from M.T.I.'s C/TPA, New Era Drug Testing ("New 

Era"). 

c. New Era's random testing notification referenced in Part IV, paragraph 27., b., 

above, clearly states "if you are an Owner Operator you must complete your 

random selection upon receiving this letter." 

d. Mr. Miller did not proceed to the testing site after he was notified of his random 

drug and/or alcohol testing selection referenced in Part IV, paragraph 27., b., 

above. 

e. After Mr. Miller was notified of his selections referenced in Part IV, paragraph 

27., b., above, he continued to operate civil aircraft N41SJ, which is listed on 

M.T.I.'s LOA and is authorized for use in operations conducted under 14 C.F.R. 

§ 91.147. 

II 

By reason of the foregoing, M.T.I. violated the following Federal Aviation Regulations: 

a. 14 C.F.R. § 91.147(d), in that it did not implement its Antidrug and Alcohol Misuse 

Prevention Program in accordance with 14 C.F .R. part 120. 

7 

b. 14 C.F.R. § 91.147(e), in that it did not comply with provisions of the LOA referenced in 

Part I, paragraph 1., above, issued by the FAA for commercial air tour operations 

conducted under 14 C.F.R. § 91.147. 

c. 14 C.F.R. § 120.5, in that it did not ensure that all drug and alcohol testing conducted 

pursuant to § 120 complied with 49 C.F.R. § 40. 
8 

d. 14 C.F.R. § 120.35(a), in that it used Mr. Lucchese for a safety-sensitive function without 

ensuring Mr. Lucchese was subject to DOT -required random drug testing in accordance 

with subpart E. 

e. 14 C.F.R. § 120.39(a), in that it used Mr. Lucchese for a safety-sensitive function without 

ensuring Mr. Lucchese was subject to DOT -required random alcohol testing in 

accordance with subpart F. 

f. 14 C.F.R. § 120.105, in that it did not ensure Mssrs. Lucchese and Miller, who performed 

safety-sensitive functions, for M.T.I. were subject to drug testing under an antidrug 

program implemented in accordance with 14 C.F.R. § 120. 

g. 14 C.F.R. § 120.215, in that it did not ensure Mssrs. Lucchese and Miller, who performed 

safety-sensitive functions, for M.T.I. were subject to alcohol testing under an alcohol 

misuse prevention program implemented in accordance with 14 C.F .R. § 120. 

h. 14 C.F.R. § 120.35(b), in that it used contractor Mr. Lucchese for safety-sensitive 

functions without ensuring Mr. Lucchese was subject to DOT-required random drug 

testing pursuant to 14 C.F.R. § 120. 

1. 14 C.F.R. § 120.39(b), in that it used contractor Mr. Lucchese for safety-sensitive 

functions without ensuring Mr. Lucchese was subject to DOT -required random alcohol 

testing pursuant to 14 C.F.R. § 120. 

J. 14 C.F.R. § 120.109(a)(1), in that it hired Mr. Lucchese for safety-sensitive functions 

listed in 14 C.F.R. § 120.105 without first conducting DOT-required pre-employment 

testing and receiving a verified negative drug test result for Mr. Lucchese. 
k. 14 C.F.R. § 120.109(b)(6)(i)(B), in that it hired Mr. Lucchese for safety-sensitive 

functions without including Mr. Lucchese in a pool for DOT-required random drug 

testing as part ofM.T.I.'s antidrug program. 

9 

I. 14 C.F.R. § 120.217(c)(6)(i)(B), in that it, in that it hired Mr. Lucchese for safetysensitive functions without including Mr. Lucchese in a pool for DOT -required random 

alcohol testing as part of M. T.I.' s alcohol misuse prevention program. 

m. 14 C.F.R. § 120.109(b)(8), in that it failed to require Mr. Miller, after notification of his 

selection for random drug testing, to proceed to the collection site immediately; or if 

Mr. Miller was performing a safety-sensitive function at the time of notification, M.T.I. 

failed to ensure that Mr. Miller ceased to perform the safety-sensitive function and 

proceeded to the collection site as soon as possible. 

n. 14 C.F.R. § 120.217(c)(8), in that it failed to require Mr. Miller, after notification of his 

selection for random alcohol testing, to proceed to the testing site innnediately; or if Mr. 

Miller was performing a safety-sensitive function at the time of notification, M. T .I. 

failed to ensure that Mr. Miller ceased to perform the safety-sensitive function and 

proceeded to the collection site as soon as possible. 

o. 14 C.F.R. § 120.33(c), in that it knowingly used Mr. Miller to perform a safety-sensitive 

function after he refused to submit to a drug test required by subpart E. 

p. 14 C.F.R. § 120.33(f), in that it permitted Mr. Miller, who refused to submit to a required 

alcohol test, to perform or continue to perform a safety-sensitive function. 

III 

Pursuant to Title 49 of the United States Code, Section 46301, Respondent is subject to a 

civil penalty not to exceed $11,000 for each violation alleged. 
10 

Under the facts and circumstances of this case, a civil penalty of$22,000 is appropriate. 

WHEREFORE, the Agency, by counsel, respectfully requests that the Administrative 

Law Judge enter an Order that Respondent be assessed a civil penalty in the amount of $22,000. 

Respectfully submitted this 191

h day of March, 2014. 

Senior Attorney 

Office of the Chief Counsel 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Ph: 202-267-7100 

Fax: 202-267-5106 

E-mail: michael.f.mckinley@faa.gov 
11 

CERTIFICATE OF SERVICE 

I hereby certifY that the foregoing Complaint has been mailed this date by Certified Mail, Return 

Receipt Requested, to: 

Original and One Copy: 

One Copy: 

Hearing Docket 

Federal Aviation Administration 

800 Independence Avenue, S. W. 

Washington, DC 20591 

Attn: Hearing Docket Clerk 

AGC-430, Wilber Wright Building 

Suite 2Wl000 

David P. Affmito, Esq. 

Dell'Italia, Affmito & Santola 

18 Tony Galento Plaza 

Orange, NJ 07050 

Dated this 19th day of March, 2014 

?1/~-r: J!f1f?z 

Michael F. McKinley