. UNI'l~D'S'FATES OF :AMERICA·· ·' . · --.. ~· , . . · . . . · . 

·'wsJ!Ff~NJFo~~o~~~~frECEIVEO WASHINGTON, D. c. NOV 1 ~ 2012 

.... ' . q 

F\~derar Aviation Administration, HiAAING DOCKET 

: ' ) ' ·' } ',• ! i • ' . ~ ' ' ' • I •, ,' 

,.,~· · Complairia:tit, 

·:· :: ·' ·:. r··· . 1;, .... FAA.DoeketNo.·.CP09~Q}0008 

vs. DMS No. FAA-2009-0100 ·:····~r.:~ l( .i~·~. ·•· •. -;. L:;r~ · 

Air Charter Inc., FAA Case No. 200880190254 , '· J 1 .f : ~: ,' , 1 ' 

Respondent. ... ,1 ·'·· . 

. .. 

COMPLAiNANT'S PETITION TO RECONSIDER OR MODIFY DECISION 

Complainant, the Federal Aviation Administration (FAA), by and through the 

undersigned counsel, pursuant to section .13.234 <;>f.the Rules of Practice in FAA Civil 

. P~nalty Actions (14 C.F .R. § 13 .234) hereby. ftl~~ this Petition to Reconsider or Modify 

the Decision An~ Order served in this matter on Octo_ber 11, 2012. The petition seeks a . . '1,:. 

modification of the sanction based on Respondent's "\{iolation history. Complainant also 

/! ' . .'·~·· ·.... ~' ·, ..• :· ! ':' ,. ~ ~- •• :, •• ~:.l·~-~ -~:) j:\p. 

p~titions for reconsideration of the Decision's finding that the FAA's inspector could not •< ' /i i"f : I.•:,. f '• ·X• ',• ~~,;:..,t\l. ;, 1, ' ,, / ' l • \ 'l_ .... ) lJ" \.1 '-· 

identify the number of belts on the stretcher. In suppbrt ofthe:petitiOl'l/, C.QltnpW.n.a:pt 

offers the! :f6n6Wiiig: 

., .•• ,. , ..... ,w ..... '""'''"" .......... , ................. _~,p ... , .. .-. ............ ,.. .... ,. .. . 

1. 

During the hearing, Co'mpla'hianfprovided. evidence that Respondent had a 

previous violation of the JI~'edctrru A.vi'ation Regulations. Within approximately three and a 
2 

half years of the allegations in this matter for which it paid a penalty. The FAA's 

inspector testified that he researched Respondent's violation history in the FAA's 

database and found that Respondent had paid a civil penalty for a previous violation. Tr. 

132-133, 229. Respondent admitted that it had a previous violation. Tr. 230. 

Respondent stated that violation was for hiring a pilot that did not have enough hours. 1 

Ibid. Respondent admitted this previous violation. 

2. 

Complainant asked the ALJ to take notice of and defer to the sanction guidance in 

its closing argument brief. Exhibit 1. However, the ALJ did not discuss Respondent's 

violation history in the initial decision. 

3. 

The ALJ's failure to properly evaluate the violation and the sanction imposed for 

it was one ofthe bases of Complainant's appeal. Exhibit 2. However, neither 

Respondent's violation history nor the calculation of the sanction was addressed in the 

Acting Administrator's Decision & Order. 

4. 

Pursuant to the Administrator's Sanction Guidance, a violation-free history is the 

expected norm. FAA Order 2150.3B, p. 7-7. The sanction guidance states, "a violation 

history can justify imposing a sanction at the higher end of the normal range or a sanction 

beyond the normal range." Ibid. Here, a sanction in the moderate range for a Group IV 

1 The Regulation that corresponds to 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 of an aircraft under VFR unless that person--

... (2) Has had at least 500 hours time as a pilot, including at least 100 hours of cross-country flight time, at 

least 25 hours of which were at night. 
3 

($2,200- $4, 399) is supported by Respondent's violation history. When Respondent has 

a violation history, a higher penalty is justified to have the proper deterrent effect. See, In 

the Matter of Pinnacle Airlines, FAA Order No. 2012-2 (2012). The violation was within 

approximately three and a half years of the matter at issue. Respondent's violation 

history is evidence of a poor compliance disposition and a disregard for the FAA's 

regulations. 

5. 

In contrast, there is no support for a violation at the bottom of the minimum range 

when the Respondent has a recent violation history. 

B. Evidence of Number of Seat Belts 

6. 

The FAA's inspector Eugene Jester testified that he physically inspected the belts 

on the 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 not tell from 

looking at photograph 5 how many seatbelts were on the stretcher. Decision at 15, fn. 

14. While that fact is true, it is not true that the FAA did not prove the number ofbelts 

on the stretcher, as stated in footnote 15 of the 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 on Respondent's failure to follow the TSO requirements for the number 

ofbelts on the stretcher. See, FAA Ex. 15. 

WHEREFORE, for the reasons set forth above, Complainant petitions the FAA 

Decisionmaker to reconsider the finding addressed above, modify the sanction, and 

·assess a penalty in the moderate range or higher against Respondent pursuant to the 

Administrator's sanction guidance for each regulation found to have been violated. 

Respectfully submitted this _r_ day ofNove:qtber, 2012. 

Managing Attorney 

Office of the Regional Counsel 

FAA Southern Region 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing COMPLAINANT'S PETITION TO RECONSIDER 

OR MODIFY DECISION has been sent by Certified Mail to: 

Attention: Hearing Docket Clerk, 

AGC 430, Wilbur Wright Building- Suite 2Wl 000 

Federal Aviation Administration 

800 Independence A venue 

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 of the regulations cited. We ask the ALJ to take notice of deference 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 of violation is described in the sanction guidanc/ tables. However, there 

is particular citation for operation in violation of Op 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 of any kind are an aggravating factor. That history justifies 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 is justified considering the totality of 

circumstances 

., 

3 Violations that involve careless or reckless conduct in violation of 14 CF.R, § 91.13 may warrant more 

severe sanctions. Carelessness connotes conduct that falls below the standard of care or prudence expected 

of a reasonable person, or holder of the 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 7-4 
endangerment is required" in order to find a violation of §91.13). Therefore, 

based on the proven facts, the Respondent's operation was clearly careless. Dr. 

Rodriguez gave Respondent "the name of the 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 of the patient/passenger. If 

the doctor didn't know better, Respondent, the air carrier, should have. If the 

patient went into shock or cardiac arrest, or if she was improperly loaded, secured, 

or unloaded, there would have been nothing Respondent could do about it because 

it had none of the basic equipment or personnel necessary to take of care of such a 

patient. According to the testimony of it 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 of care required of an 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 of fact, 

the ALJ failed to recognize the evidence in the record that supported the 

Complainant's recommended sanction. Additionally, none of the reasons given 

18 
for reducing the civil penalty to a minimum are supported by the record, agency 

policy, or case law. Pursuant to 49 C.F.R. §46301(a)(5)(a) the maximum sanction 

for each ofthe pleaded 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 of Respondent, number 

of air9.raft and number of pilots 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 not just 

"serviceable". The evidence may not show full extent of the potential safety of 

flight issues presented by Respondent's use of the 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 can justify imposing a sanction at 

the higher end of the 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 the Matter of Warbelow '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 

19 
20 

penalty of$11,000 was nowhere near the statutory maximum penalty of$33,000 

Complainant could have proposed for each of the regulations cited in the complaint. 

Finally, Complainant is not required to present evidence of Respondent's ability 

to pay the proposed civil penalty. Folsom's Air Service, Inc., FAA Order No. 2008-11 

(2008); In the Matter of Conquest Helicopters, 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 of reliable, 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 of the ALJ and assess a penalty of 

$11,000 against Respondent. 

· Respectfully submitted this 2 /> lctay of March, 2010. 

GERALD ~K A. ELLIS 

Attorney 

·Office of the Regional Counsel