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# ·'wsJ!Ff~NJFo~~o~~~~frECEIVEO WASHINGTON, D. 

## c. NOV 1**~** 

## 2012

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. q**F\~derar** Aviation Administration, 

# HiAAING DOCKET

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.**~** ' ' ' • I •, ,'**,.,~·** · Complairia:tit, 

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....**FAA.DoeketNo.·.CP09~Q}0008** vs. DMS No. FAA-2009-0100**·:····~r.:~** l(**.i~·~.** ·•· •.-;.**L:;r~** · Air Charter Inc., FAA Case No. 200880190254

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.

. 

## .. COMPLAiNANT'S PETITIONTO RECONSIDER OR

### MODIFYDECISION
Complainant, the Federal Aviation Administration (FAA), by and through the undersigned counsel, pursuantto section .13.234 <;>f.the Rules ofPractice in FAA Civil

.**P~nalty** Actions (14 C.F.R. 

### §13.234) hereby.**ftl~~** this Petition to Reconsider orModify the Decision**An~** Order served inthis matter on Octo_ber 11, 2012. The petition seeks a

. . '1,:. modification ofthe sanction based on Respondent's "\{iolation history. Complainant also /! '
.**.'·~··** ·....**~'** ·, ..• :· ! ':' ,.**~ ~-**  •• :, ••**~:.l·~-~ -~:)**  j:\p.**p~titions** for reconsideration ofthe Decision's finding thatthe FAA's inspector could not •< ' /i i"f : I.•:,. f '• ·X• ',•**~~,;:..,t\l.** ;, 1, ' ,, / ' l • \ 'l_
.... ) lJ" \.1 '-· identify the number ofbelts on the stretcher. In suppbrt ofthe:petitiOl'l/, C.QltnpW.n.a:pt offers the! 

## :f6n6Wiiig:

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.........., .................**_~,p**..., ...-.............,......,... . 1. During thehearing, Co'mpla'hianfprovided.evidence that Respondent had a previous violation ofthe**JI~'edctrru** A.vi'ation Regulations.Within approximately three and a2 halfyears ofthe allegations inthis matter for which it paid a penalty. The FAA's inspector testified that he researched Respondent's violationhistory inthe FAA's database and found thatRespondent had paid a civil penalty for a previous violation. Tr. 132-133, 229. Respondent admitted that ithad a previous violation. Tr. 230. Respondent stated that violation was for hiring a pilot that did not have enoughhours. 1 Ibid. Respondent admitted this previous violation. 2. Complainant asked the ALJ to take notice ofand defer to the sanction guidance in its closing argument brief. Exhibit 1. However, the ALJ did not discuss Respondent's violation history inthe initial decision. 

### 3. The ALJ's failure to properly evaluate the violation and the sanction imposed for it was one ofthebases ofComplainant's appeal. Exhibit 2. However, neither Respondent's violation history nor the calculation ofthe sanction was addressed inthe Acting Administrator's Decision & Order. 

### 4. Pursuantto the Administrator's Sanction Guidance, a violation-free history is the expected norm. FAA Order 2150.3B, p. 7-7. The sanction guidance states, "aviolation history canjustify imposing a sanction at the higher end ofthe normal range or a sanction beyond the normal range." Ibid. Here, a sanction inthe moderate range for a Group IV

1 The Regulation that correspondsto this violation is FAR 135.243(b)(2) which states: Except as provided in paragraph (a)**ofth~s** section, no certificate holder may use a person, nor may any person serve, as pilot in command ofan aircraftunder VFRunless that person--

...(2) Has had at least 500 hours time as a pilot, including at least 100 hours ofcross-country flight time, at least 25 hours ofwhich were at night.



# ..................**--------------~~----------**

### 3 ($2,200- $4, 399) is supported by Respondent's violation history. When Respondent has
a violation history, a higher penalty isjustifiedto have the proper deterrent effect. See, In the Matter of PinnacleAirlines, FAA Order No. 2012-2 (2012). The violation was within approximately three and a halfyears ofthe matter at issue. Respondent's violation history is evidence ofa poor compliance disposition and a disregard for the FAA's regulations. 

### 5. In contrast, there is no support for a violation at the bottom ofthe minimum range when the Respondent has a recent violation history.

B. Evidence ofNumber ofSeat Belts 

### 6. The FAA's inspector Eugene Jester testified that he physically inspected the belts
onthe stretcher. Tr. 53-54, 56. He testified that the stretcher had four belts, two more than 

### it should have according to the manufacturer's manual. Tr. 62-63. This testimony
was uncontroverted. The Decision and Order states that the inspector could nottell from looking atphotograph 5 how many seatbelts were onthe stretcher. Decision at 15, fn. 14. While that fact is true, it is nottrue that the FAA did not prove the number ofbelts
onthe stretcher, as stated in footnote 15 ofthe Decision. This is a material error.4 7. These errors also make it necessary to reconsider the violation ofF AR 91.13(a), which was based onRespondent's failure to follow the TSO requirements for the number ofbelts on the stretcher. See, FAAEx. 15.
WHEREFORE, for the reasons set forth above, Complainantpetitions the FAA Decisionmaker to reconsider the finding addressed above, modify the sanction, and
·assess a penalty inthe moderate range or higher against Respondentpursuantto the Administrator's sanction guidance for eachregulation found to have been violated.
Respectfully submitted this 

# _r_ day ofNove:qtber, 2012.

Managing Attorney Office ofthe Regional Counsel FAA Southern RegionCERTIFICATE OF SERVICE I hereby certify that the foregoing COMPLAINANT'S PETITION TO RECONSIDER ORMODIFY DECISION has been sent by Certified Mail to: Attention: Hearing Docket Clerk, AGC 430, Wilbur Wright Building- Suite 2Wl000 Federal Aviation Administration 800 Independence Avenue Washington, DC 20591 FAX: 202-493-2251 Gabriel 

### I. Penagaricano, Esq. PMB239. 405 Ave., Esmeralda, Ste. 102 Guaynabo, Puerto Rico 00969 TEL: 787-287-9024 FAX: (787) 731-0679

Dated 5



# ...............**----------------~------------~**

# I
10 SANCTION Pursuant to the statute, 49 U.S.C. Section 46301(A)(5) a civil penalty of$11,000 applies to each ofthe regulations cited. We ask the ALJ to take notice ofdeference to the FAA Sanction Guidance ofF AA Order 2150.3b. Respondent was considered to be a small business in Group III, operating a Part 135 operation, indicated in its certificate, which is in evidence. According to Respondent's Op Specs, which is also in evidence, it has at least 8 ale on its certificate. The maximum for each a single violation is $11,000. Not every type ofviolation is described in the sanction guidanc/tables. However, there is particular citation for operation in violation ofOp Specs- fi'gure B-1-c-3. A maximum sanction is also supported for careless or reckless violationst Respondent also operated without a current flight manual in the aircraft. Respondent has a previous violation history from 2005, for which it paid a $6500 civil penalty. Tr., p. 132. Previous, recent violations ofany kind are an aggravating factor. That historyjustifies a maximum sanction. 2150.3B, p. 7-7. Considering the preponderance**ofth~evidence,** 

### all the '\ 

### regulatory violations cited in the Complaint, and all the relevant factors, a civil penalty of $11,000 is eminently reasonable and completely supported by t};},e sanction guidance. We ask the ALJ to take notice ofthe sanction**guidanc~** 

### and defer to it. We ask the ALJ to fix the penalty at $11,000. No reduction isjustified considering the totality of circumstances

.,

3 Violations that involve careless orreckless conduct in violation of14 CF.R, § 91.13 may warrant more severe sanctions. Carelessness connotes conduct that falls below the standard ofcare or prudence expected ofa reasonable person, orholder ofthe relevant certificate, acting under the same or similar circumstances. Respondent's acts were clearly careless. Recklessness connotes conduct that demonstrates a gross, or even callous or flagrant, disregard for safety
.. FAA Order 2150.3B, at 7-4endangerment is required" in order to find a violation of§91.13). Therefore, based on the proven facts, the Respondent's operation was clearlycareless. Dr. Rodriguez gave Respondent "thename ofthe doctor and the institution where the patient [was] going". Tr., p. 274. Respondent knew the patient was being transported for further medical evaluation. Tr. 440-41. The patient needed an ambulance to travel to and from Respondent's aircraft. When this information
was given to them, along with immobilized elderly patient, Respondent chose to operate the aircraft without any care about whether they were properly equipped to perform loading, care during flight, and unloading ofthe patient/passenger. If the doctor didn't know better, Respondent, the air carrier, should have. Ifthe patient went into shock or cardiac arrest, or ifshe was improperly loaded, secured,
or unloaded, there would have been nothing Respondent could do about it because it had none ofthe basic equipment orpersonnel necessary to take ofcare ofsuch a patient. According to the testimony ofit witnesses, Respondent's employees had
no medical training and paid no special attention whatsoever to the patient on the stretcher. These actions do not demonstrate the level ofcare required ofan ondemand, passenger air carrier.
C. The ALJ Improperly Analyzed The Sanction Issue. Perhaps the most egregious error in this case involved the ALJ's calculation ofthe civil penalty. As described above in the material errors offact, the ALJ failed to recognize the evidence in the record that supported the Complainant's recommended sanction. Additionally, none ofthe reasons given 18for reducing the civil penalty to a minimum are supported bythe record, agency policy, or case law. Pursuant to 49 C.F.R. §46301(a)(5)(a) the maximum sanction for each ofthepleaded violations is $11,000. Therefore the maximum sanction in this matter could have been $33,000. That is where the sanction analysis should have begun. As stated above, the Op Specs, which are in evidence, provided all the evidence the 

### ALJ found to be missing including the size ofRespondent, number ofair9.raft and number ofpilots Respondent had. Additionally, the ALJ's reasons for reducing the CP are insufficient to reduce the CP. Intent is not an element of the cited violations. The fact that the violation was not intentional is not mitigating. The regulation requires the flight manual to be current notjust "serviceable". The evidence may not show full extent ofthe potential safety of flight issues presented byRespondent's use ofthe wrong manual. However, Respondent's expert witness did testify that the maximum weight limitations in the manuals were different by at least one hundred pounds. That amount is not insignificant. The ALJ completely ignored Respondent's violation history. That omission is
. contrary to the sanction guidance. A violation history canjustifyimposing a sanction at the higher end ofthe normal range or a sanction beyond the normal range. FAA Order 2150.3B, p. 7-7. The Administrator has both the authority and duty to impose the agency's policy on appeal. In theMatter ofWarbelow 's Air Ventures, FAA Order No. 2000-3, Docket No. CP97AL0012 (2000). The ALJ's penaltyof$550 is below the minimum amount in the sanction guidance for one violation ($850). The proposed 1920 penalty of$11,000 was nowhere near the statutory maximum penalty of$33,000 Complainant could have proposed for each ofthe regulations cited in the complaint. Finally, Complainant is not required to present evidence ofRespondent's ability to paythe proposed civil penalty. Folsom'sAirService, Inc., FAA Order No. 2008-11 (2008); In theMatter of ConquestHelicopters, FAA Order No. 1994-20 at 3 (1994). Respondent's ability to pay the proposed civil is in the nature of an affinnative defense. Toyota Motor Sales, USA Inc:, FAA Order No. 1994-28 at 10 (1994). For the above reasons, the proposed penalty of$11,000 should be reinstated.
CONCLUSION The preponderance ofreliable, probative, and substantial evidence in the record proved the Complainant's allegations discussed above and supported the Complainant's proposed civil penalty.

WHEREFORE, for the reasons set forth above, Complainant requests the FAA Decisionmaker issue an Order reversing the decision ofthe ALJ and assess a penalty of $11,000 against Respondent.

· Respectfully submitted this 

# 2 />lctayofMarch, 2010.

# ~K GERALD A. ELLIS Attorney ·Office ofthe Regional Counsel