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 242014 HEARING DOCKET

FAA Case No.: 2013S0950011 Enclosed herewithplease find a copy ofa request for hearing andthe original and one copy of the Complaint inthe above-referencedproceeding. The FAA requests thatthe hearing inthis matter be held inNewark, NJ, and expects that the hearing will last one day. Please address all communications for the FAA to the undersigned at: Office ofthe ChiefCounsel 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 ofComplaint) Sincerely,

# M~~?f-44; Senior AttorneyCERTIFICATE OF SERVICE I hereby certifythat I have, this date, served the foregoing Complaintby mailing the following copies, Certified Mail (RetnmReceipt Requested): Original and 1 Copy:

One Copy:

Datedthis 19'h day ofMarch 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 07050JOHN P. DELL'ITALIA DAVIDP. AFFINITOt • STACY A. SANTOLA t Certified by the SupremeCourt ofNJ as a Civil Trial Attorney • Member ofNJ, NY, PA & FLABars 

### DELL'ITALIA, AFFINITO & 

### SANTOLA ATTORNEYS ATLAW

18 TONY GALENm PLAZA ORANGE, NEWJERSEY07050 Telephone (973)672-8000

Fax (973)672-8215 301 South Livingston Ave, Suite 100 Livingston, NewJersey 07039 Telephone (973) 535-8811 Fax (973)**672·8~15**

Reply to Orange



### March 18, 2014 

# RECEIVED

FederalAviation Administration 600 IndependenceAvenue, SW WilburWright Building- Suite 2W1000 Washington, DC 20591 Attn: Hearing DocketClerk, AGC-430 RE: JAMES MILLER/ M.T.l. TRAVEL, INC. CASE NO. 201350950011 Dear Sir/Madam: 

## MAR 242014 

## 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 matterasto all ofthe paragraphs contained in the Final Notice. By copy of this letter, I am providing Mr. Michael McKinley, Esq., Senior Attorney with a copy ofthis response. I amalso providinga copy ofthis letterto Mr. McKinley via email on this date. Kindlyforward all correspondenceto my office in Orange, NewJersey.
DEll ' A, AFFINITO & 

### SANTOLA 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. FAADOCKET 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, pursuantto Rule 208 ofthe Rules ofPractice (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 ofProposed Civil Penalty that the FAAproposed 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 inthis document, M.T.I. was authorized to operate as a CommercialAir Tour Operator, with certificate number MT7Jl75C, under 14 C.F.R. 

### § 91.147 in accordance withthe limitations andprovisions ofthe Letter ofAuthorization ("LOA"), issued to M.T.I. by the FAA for such operations.3. At all times mentioned inthis document, 14 C.F.R. 

### § 91.147(d) requiredthatM.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 withthe limitations and provisions ofthe LOA referenced inPart I, paragraph 

### 1., above. 5. At all times mentioned in this document, the LOAreferenced inPart 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 preventionprogram. 6. At alitimes 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 withthe 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 ifthe employee performs a function listed in subpart E in accordance with that subpart. 8. At all times mentioned inthis document, 14 C.F.R. 

### § 120.39(a) required that M.T.I. establish an alcohol testing program in accordance with the provisions ofsubpart F ofthis 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 orby 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 inthis document, 14 C.F.R. § 120.215 required that each employee who performed a safety-sensitive function for M.T.I., directly orby contract, be subject to alcohol testing under an alcohol misuse preventionprogram implemented in accordance with 14 C.F.R. 

### § 120. This includes full-time, part-time, temporary, and intermittent employees. 11. At all times mentionedinthis 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 orpreventive maintenance duties. 12. At all times mentioned inthis document, 14 C.F.R. 

### § 120.35(b) forbade M.T.I. from using a contractorto perform a safety-sensitive function unless the contractor, or any employees ofthe contractorthatperform a safety-sensitive function, was subjectto drug testing in accordance with 14 C.F.R. 

### § 120 subpartE. 13. At all times mentioned inthis document, 14 C.F.R. 

### § 120.39(b) forbade M.T.I. from using a contractorto perform a safety-sensitive function unless the contractor, or any of the contractor's employees thatperform a safety-sensitive function, was subjectto alcohol testing in accordance with 14 C.F.R. 

### § 120 subpartF. 14. At all times mentionedinthis 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 ithadfirst conducted a pre-employmenttest and received a verified negative drug testresult for that individual.15. At all times mentioned inthis 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 inthis 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 inthis document, 14 C.F.R. § 120.70) defined hire as the retention ofanindividual for a safety-sensitive function as a paid employee or through another form ofcompensation. 18. At all times mentioned inthis 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 ofM.T.I.'s antidrug program. 

### 4

19. At all times mentioned inthis 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 ofM.T.I.'s alcohol misuse preventionprogram. 20. Regarding M.T.I. employee Anthony Lucchese:
a. At all times mentioned inthis document, Mr. Lucchese was employedby 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 onboth occasions performed on civil aircraftN41SJ, which is listed on M.T.I.'s LOA and is authorized for use in operations conductedunder 14 C.F.R. 

### § 91.147. d. Prior to performing for M.T.I., Mr. Lucchese was not administered a DOT-requiredpre-employment drug test for M.T.I. orfor American Helicopter.
e. Prior to American Helicopter's attainment ofthe antidrug and alcohol misuse preventionprogramreferenced in PartIII, paragraph 20., d., above, Mr. Lucchese
was not subject to a DOT-requiredrandom 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 preventionprogram. 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 ofselection for random drug testing proceedto the collection site immediately; provided, however, that ifthe employee is performing a safety-sensitive function at the time ofthe notification, the employer shall instead ensure thatthe 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 ofselection for random testing proceedto the testing site immediately; provided, however, thatifthe employee is performing a safety-sensitive function at the time ofthe 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 inthis document, 40 C.P.R.§ 40.191 defined refusal to take a DOTdrug test as an employee's failure to appear for any test other than a preemploymenttest within a reasonable time after being directed to do so bythe employer. This includes the failure ofan employee, including an owner-operator, to appear for a test when called by a C/TPA. 24. At all times mentioned inthis 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 ofan employee, including an owner-operator, to appear for a test when called byaC/TPA. 25. At all times mentioned inthis document, 14 C.P.R.§ 120.33(c) forbade M.T.I. from knowingly using any individual to perform any safety-sensitive function ifthat individual has refused to submitto a drug test required by subpart E. This section also forbade any individual from performing any safety-sensitive function ifthat individual has refused to submitto a drug test required by subpart E. 26. At all times mentioned inthis 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 onNovember 1, 2011, and April1, 2012, from M.T.I.'s C/TPA, NewEraDrug Testing ("New Era").
c. NewEra's random testing notification referenced in Part IV, paragraph 27., b., above, clearly states "ifyou are an Owner Operatoryou must complete your random selection upon receiving this letter." d. Mr. Miller did not proceed to the testing site after he was notified ofhis random drug and/or alcohol testing selection referenced inPart IV, paragraph 27., b., above.
e. After Mr. Miller was notified ofhis selections referenced inPartIV, 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 inoperations conducted under 14 C.F.R. 

### § 91.147. 

### II Byreason ofthe foregoing, M.T.I. violatedthe 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 inaccordance with 14 C.F.R. part 120. 

### 7

b. 14 C.F.R. 

### § 91.147(e), in that it did not comply with provisions ofthe 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 pursuantto § 120 complied with 49 C.F.R. 

### §40.8 d. 14 C.F.R. 

### § 120.35(a), inthat itused Mr. Lucchese for a safety-sensitive function without ensuringMr. Lucchese was subject to DOT-required random drug testing in accordance with subpart E.
e. 14 C.F.R. 

### § 120.39(a), inthat itused Mr. Lucchese for a safety-sensitive function without ensuringMr. Lucchese was subjectto DOT-required random alcohol testing in accordance with subpart F. f. 14 C.F.R. 

### § 120.105, inthat 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 programimplemented in accordance with 14 C.F.R. § 120. g. 14 C.F.R. 

### § 120.215, inthat 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 misusepreventionprogramimplemented in accordance with 14 C.F.R. 

### § 120. h. 14 C.F.R. 

### § 120.35(b), inthat itused contractor Mr. Lucchese for safety-sensitive functions without ensuring Mr. Lucchese was subjectto DOT-required random drug testing pursuant to 14 C.F.R. 

### § 120.
1. 14 C.F.R. 

### § 120.39(b), inthat it used contractor Mr. Lucchese for safety-sensitive functions without ensuring Mr. Lucchese was subjectto DOT-requiredrandom alcohol testing pursuant to 14 C.F.R. 

### § 120. J. 14 C.F.R. 

### § 120.109(a)(1), inthat ithired 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 testresult for Mr. Lucchese.k. 14 C.F.R. 

### § 120.109(b)(6)(i)(B), in that ithired Mr. Lucchese for safety-sensitive functions without including Mr. Lucchese in a pool for DOT-requiredrandom drug testing as part ofM.T.I.'s antidrug program. 

### 9



### I. 14 C.F.R. 

### § 120.217(c)(6)(i)(B), inthat it, inthat ithired Mr. Lucchese for safetysensitive functions without including Mr. Lucchese in a pool for DOT-required random alcohol testing as part ofM.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 ofhis selection for random drug testing, to proceed to the collection site immediately; or if Mr. Miller was performing a safety-sensitive function atthe time ofnotification, M.T.I. failed to ensure that Mr. Miller ceasedto perform the safety-sensitive function and proceeded to the collection site as soon as possible.
n. 14 C.F.R. 

### § 120.217(c)(8), 

### inthatitfailed to require Mr. Miller, after notification ofhis selection for random alcohol testing, to proceed to the testing site innnediately; or ifMr. Miller was performing a safety-sensitive function at the time ofnotification, 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), inthat itknowingly used Mr. Miller to perform a safety-sensitive function after herefused to submit to a drug test required by subpart E. p. 14 C.F.R. 

### § 120.33(f), inthat itpermitted Mr. Miller, who refused to submit to a required alcohol test, to perform or continue to perform a safety-sensitive function. III Pursuantto Title 49 ofthe United States Code, Section 46301, Respondent is subject to a civilpenaltynotto exceed $11,000 for each violation alleged.10

Underthe facts and circumstances ofthis case, a civil penalty of$22,000 is appropriate. 

### WHEREFORE, the Agency, by counsel, respectfullyrequests that the Administrative Law Judge enter an Order that Respondent be assessed a civil penalty inthe amount of$22,000. Respectfully submitted this 191 h day ofMarch, 2014.

Senior Attorney Office ofthe ChiefCounsel 800 Independence Avenue, S.W. Washington, D.C. 20591 Ph: 202-267-7100 Fax: 202-267-5106 E-mail: michael.f.mckinley@faa.gov11 CERTIFICATE OF SERVICE I hereby certifY thatthe foregoing Complainthas 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 ofMarch, 2014

# ?1/~-r:

# J!f1f?z Michael F. McKinley