465 California Street Suite 210 

## •
San Francisco California 94104 

## • (415) 421-2500 Fax (415) 421-2560

www.avialex.com law@avialex.com 

### Michael L. 

### Dworkin and Associates Law Offices

FEDEX: 

### FederalAviationAdministration Attn: HearingDocket Clerk, AGC-430 WilburWrightBuilding-Suite 2W1000 800 Independence Avenue SW Washington, DC 20591
RE: Beltmakers, Inc. FAA Case No. 2011WP910400 FDMS No. FAA-2013-0049



### Dear HearingDocket Clerk: 

### ZiilJ APR 2b 

### P 2: 0t) 

### April19, 2013 

# RECEIVED APR 2 22013 

# HEARING DOCKET

Enclosedherewithfor filing is the following document: Beltmakers, Inc's Answerto Complaint (original plus one copy).

cc: The Honorable Richard C. Goodwin Administrative LawJudge Lisa Toscano, Esq. FAA,AWP-7 Verytrulyyours,

Caitlin M. Miller Legal Assistant

# ·- MICHAEL L. DWORKIN #64047 MICHAEL L. DWORKIN and ASSOCIATES 465 California Street, Suite 210 San Francisco, California 94104 Telephone: (415) 421-02500 Facsimile: (415) 421-2560 Email: law@avialex.com Attorneys for BELT MAKERS. INC 

# RECEIVED APR 2 22t13 

## HEARING DOCKET

UNITED STATES OFAMERICA DEPARTMENT OFTRANSPORTATION OFFICE OFHEARINGS

WASHINGTON, D.C.
Inthe Matter of:

BELT MAKERS, INC. FAA Case No. 2011WP910400 FDMS No. FAA-2013-0049

BELT MAKERS. INC'S ANSWERTO COMPLAINT

BELT MAKERS. INC ("BELT MAKERS"), by and through its undersigned counsel, hereby files its Answerto Complaint, pursuantto Rule 13.209 ofthe Rules ofPractice, (14 CFR § 13.209), and states as follows: I. Answering Part I. ofthe Complaint, BELT MAKERS admits thatitwas advised through
a Notice ofProposed Civil Penalty, dated November 16, 2012, and by Final Notice ofProposed Civil Penalty, dated March 28,2013,thatthe Federal Aviation Administration ("FAA") proposed to assess a civil penalty in the amount of$25,000.00 and avers that onApril1, 2013, BELTMAKERS submitted a timely writtenrequest for a hearing. Except as expressly admitted above, BELT MAKERS denies each and every, all and singular, allegations containedtherein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. II. Answering PartII. ofthe Complaint: Answering Paragraph 1, BELT MAKERS admits that itholds AirAgency CertificateNo. YL3R002M withrepair station privileges, issued by the FAAunder Part 145 ofthe Federal Aviation Regulations (FARs). Except as expressly admitted above, BELTMAKERS denies each and every, all and singular, allegations contained therein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 2, BELT MAKERS admits that it performs safety-sensitive functions, as defined in FARPart 120. Except as expressly admitted above, BELT MAKERS denies each and every, all and singular, allegations contained therein, and each and every part thereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 3, BELT MAKERS admits that at all pertinenttimes alleged, its Operations Specifications ("OpSpecs") stated, among otherthings, that it elected to implement
an Antidrug and Alcohol Misuse Prevention Program. Except as expressly admitted above, BELTMAKERS denies each and every, all and singular, allegations contained therein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 4, BELT MAKERS is without information orbeliefas to the matters alleged and basedthereon, denies each and every, all and singular, allegations contained therein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 5, BELT MAKERS admits that on or about September 16,2011,the
FAA Case No. 2011WP910400 FDMS No. FAA-2013-0049

BELT MAKERS. INC'S ANSWER TO COMPLAINT 2FAA conducted an inspection at BELTMAKERS' facilities. Except as expressly admitted above, BELTMAKERS denies each and every, all and singular, allegations contained therein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 6, BELTMAKERS admits thatMaria Sanchez was hired on or about May 16, 2011. Except as expressly admitted above, BELT MAKERS denies each and every, all and singular, allegations contained therein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 7, BELTMAKERS admits that at all pertinent times alleged, it utilized TAG/ AMS as its Employee Drug Testing Consortium and that certainrecords indicate that Maria Sanchez was enrolled in a random testing pool on September 20, 2011. Except as expressly admitted above, BELTMAKERS denies each and every, all and singular, allegations contained therein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 8, BELT MAKERS admits that it conducted a draw from its random testing pool onJuly 20, 2011. Except as expressly admitted above, BELT MAKERS denies each and every, all and singular, allegations contained therein, and each and every part thereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 9, BELTMAKERS admits that Maria Sanchez was not in the randompool onJuly 20, 2011. Except as expressly admitted above, BELT MAKERS denies each and every, all and singular, allegations contained therein, and each and every part thereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 10, BELT MAKERS admits that Maria Sanchez was employed and working from May 16, 2011 to September 20, 2011. Except as expressly admitted above, BELT
FAA Case No. 2011WP910400 FDMS No. FAA-2013-0049

BELT MAKERS. INC'S ANSWERTO COMPLAINT 3MAKERS denies each and every, all and singular, allegations contained therein, and eachand every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 11, BELT MAKERS admits that it hired SamanthaVillalobos on May 23,2011. Except as expressly admitted above, BELT MAKERS denies each and every, all and singular, allegations contained therein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 12, BELT MAKERS admits that at all pertinenttimes alleged, it utilized TAG/AMS as its Employee Drug Testing Consortium and thatrecords indicate that SamanthaVillalobos was enrolled into a random testing pool on September 20, 2011. Except as expressly admitted above, BELTMAKERS denies each and every, all and singular, allegations contained therein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 13, BELT MAKERS admits that it conducted a draw from the random testing pool onJuly 20, 2011. Except as expressly admitted above, BELT MAKERS denies each and every, all and singular, allegations contained therein, and each and every part thereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 14, BELT MAKERS admits that SamanthaVillalobos was not enrolled in a randomtesting pool on July 20, 2011. Except as expressly admitted above, BELT MAKERS denies each and every, all and singular, allegations containedtherein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 15, BELT MAKERS admits that Samantha Villalobos was employed and working from May 23, 2011 until September 20, 2011. Except as expressly admitted above, BELTMAKERS denies each and every, all and singular, allegations contained therein, and each
FAA Case No. 2011WP910400 FDMS No. FAA-2013-0049

BELTMAKERS. INC'S ANSWERTO COMPLAINT 4and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 16, BELT MAKERS admits that ithired Emesto Mendoza on February 2, 2011. Except as expressly admitted above, BELT MAKERS denies each and every, all and singular, allegations containedtherein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 17, BELT MAKERS admits that at all pertinent times alleged, it utilized TAG/AMS as its Employee Drug Testing Consortium andthat certainrecords indicate thatEmesto Mendozawas enrolled into a random testing pool on September 20, 2011. Except as expressly admitted above, BELTMAKERS denies each and every, all and singular, allegations contained therein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 18, BELT MAKERS admits that itconducted a draw from the random testing pool onApril13, 2011 and denies that a drawwas made onJuly 21, 2011. Except
as expressly admitted above, BELT MAKERS denies each and every, all and singular, allegations contained therein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 19, BELT MAKERS admits that Emesto Mendoza was not enrolled in a random testing pool onApril 13, 2011. Except as expressly admitted above, BELT MAKERS denies each and every, all and singular, allegations contained therein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 20, BELTMAKERS admits thatEmesto Mendozawas employed and working from February 2, 2011 untilSeptember20, 2011. Except as expressly admitted above, BELTMAKERS denies each and every, all and singular, allegations contained therein,
FAA Case No. 2011WP910400 FDMS No. FAA-2013-0049

BELT MAKERS. INC'S ANSWERTO COMPLAINT 5and each and every part thereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 21, BELTMAKERS admits that it employed Maria Sanchez, SamanthaVillalobos and Ernesto Mendoza, who were enrolled inthe randomtesting pool on September 20, 2011. Except as expressly admitted above, BELT MAKERS denies each and every, all and singular, allegations contained therein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 22, BELT MAKERS avers that 14 C.P.R. Section 120.115(a) speaks for itself. Answering the remainder ofParagraph 22, BELT MAKERS denies each and every, all and singular, allegations contained therein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 23, BELT MAKERS avers that 14 C.F.R. Section 120.115(c)(l)(iii) speaks for itself. Answering the remainder ofParagraph 23, BELTMAKERS denies each and every, all and singular, allegations contained therein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 24, BELTMAKERS avers that 14 C.P.R. Section 120.115(c)(3) speaks for itself. Answering the remainder ofParagraph 24, BELT MAKERS denies each and every, all and singular, allegations containedtherein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 25, BELTMAKERS avers that 14 C.F.R. Section 120.219(a)(2)(ii)(G) speaks for itself. Answering the remainder ofParagraph25, BELT MAKERS denies each and every, all and singular, allegations contained therein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 26, BELTMAKERS avers that Ernesto Mendoza, Maria Sanchez
FAA Case No. 2011WP910400 FDMS No. FAA-2013-0049

BELT MAKERS. INC'S ANSWERTO COMPLAINT 6and SamanthaVillalobos received drug and alcohol testing training on or abouttheirrespective dates ofhire and thatdocumentation ofthistraining was maintained and available for FAA inspection. Except as expressly admitted above, BELT MAKERS denies each and every, all and singular, allegations containedtherein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 27, BELT MAKERS avers that Leonard Byrdreceived the requisite EAP initial training. Exceptas expressly admitted, BELTMAKERS denies each and every, all and singular, allegations contained therein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively, and specifically denies that documentation ofEAP initial training for Leonard Byrdwas not available on September 16, 2011. Answering Paragraph 28, BELT MAKERS avers that documentation evidencing Leonard Byrd'straining was maintained and available for FAA inspection. Except as expressly admitted, BELT MAKERS denies each and every, all and singular, allegations containedtherein, and each and every part thereof, both generally and specifically, conjunctively and disjunctively, and specifically denies that the sign-in sheet document was not available for inspection on September 16, 2011. Answering Paragraph 29, BELT MAKERS avers that 14 C.P.R. Section 120.219(a)(2)(ii)(F) speaks for itself. Answeringthe remainder ofParagraph 29, BELT MAKERS denies each and every, all and singular, allegations contained therein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 30, BELT MAKERS denies each and every, all and singular, allegations containedtherein, andeach and every partthereof, both generally and specifically, conjunctively and disjunctively.
FAA Case No. 2011WP910400 FDMS No. FAA-2013-0049

BELTMAKERS. INC'S ANSWERTO COMPLAINT 7III. Answering Part III. ofthe Complaint, BELT MAKERS denies that it violated the cited statutory and regulatory provisions and avers that 14 C.P.R. Sections 120.109(b)(6)(i)(B), 120.217(c)(6)(i)(B), 120.115(c)(1)(iii), 120.219(a)(2)(ii)(G), and 120.219(a)(2)(ii)(F) and 49 U.S.C. Section46301 speak for themselves IV. Answering Part IV. ofthe Complaint, BELT MAKERS denies that a civilpenalty of $25,000, orin any other amount, is appropriate.

AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE As and for a separate and distinct defense, BELTMAKERS alleges: 

### I. The sanction sought by Complainantis unwarrantedbythe facts, safety in commerce and the public interest and is not only excessive, but, far exceeds policy, precedent and Complainant's
own Sanction Guidance Table. Further, the sanction is compounded, inviolation ofthe Complainant's own Sanction Guidance Table. SECOND AFFIRMATIVE DEFENSE As and for a separate distinct defense, BELT MAKERS alleges: 

### I. The Complainant's case, is unwarranted and withoutbasis orjurisdictionin law or fact.

FAA Case No. 2011WP910400 FDMS No. FAA-2013-0049

BELTMAKERS. INC'S ANSWERTO COMPLAINT 8' '

THIRD AFFIRMATIVE DEFENSE As and for a separate distinct defense, BELTMAKERS alleges: I. On September 16,2011, the FAA was not able to find those records referenced in its Complaintbecause oftheFAA'sfailure to perform a thorough inspection, notbecause ofany failure or inability ofBELT MAKERS to maintain required documentation. II. Any and all alleged discrepancies withthe requirements ofthe citedprovisions of 14 C.F.R. Sections 120.109(b)(6)(i)(B), 120.217(c)(6)(i)(B), 120.115(c)(1)(iii), 120.219(a)(2)(ii)(G), and 120.219(a)(2)(ii)(F), iftrue, are the product ofsimple human error, contrary to BELTMAKERS's ownpolicies and procedures, and contrary to the training and guidance that the employees were provided, and are inno way indicative ofBELTMAKERS's regulatory compliance disposition. The employees involved, all received initialjobplacement drug testing, were adequately trained and knowledgeable ofBELTMAKERS's approved drug and alcohol testing program and have since received additional training. Moreover, BELT MAKERS, in an immediate response to the matters giving rise to this case, revised and updated its drug and alcohol testing procedures, its documentation oftraining, including but not limited to EAP training, revised its compliance document retention program and mandated additional training, including training for all management personnel responsible for EAP compliance. Subsequent internal audits have shownthat compliance has been achieved. FOURTH AFFIRMATIVE DEFENSE As and for a separate distinct defense, BELTMAKERS alleges: I.
FAA Case No. 2011WP910400 FDMS No. FAA-2013-0049

BELTMAKERS. INC'S ANSWERTO COMPLAINT 9

### . '

BELT MAKERS has proactively mitigated any and all damage such thatthis action is unwarranted by policy or the need for safety. Specifically, BELT MAKERS has: 1. Counseled all employees involved in incidents alleged in the Complaint; 11. Counseled all managerial personnel in the interests ofpreventing recurrence ofsuch incidents; 111. Revised its employee drug and alcohol testing program to specifically address said problems and ensure future compliance;
IV. Revised those documents documenting compliance to ensure employees are aware of company policy towards retaining compliance documents;
v. Provided its personnel with additional training so as to prevent recurrence ofsuch incidents; and v1. Implemented a program ofaudits ofall BELT MAKER employee files whichhave since shownthat compliance has been achieved. FIFTH AFFIRMATIVE DEFENSE As and for a separate distinct defense, BELT MAKERS alleges: I. BELT MAKERS has taken all necessary corrective actions to avoid repeated mishaps such that penalties are redundant and will not result in any increase in safety. SIXTH AFFIRMATIVE DEFENSE As and for a separate distinct defense, BELT MAKERS alleges: I. To the extentthat the Complainanthas relied upon FAA Order 2150.3B in determining the sanction in this case: FAA Case No. 2011WP910400 FDMS No. FAA-2013-0049

BELT MAKERS. INC'S ANSWER TO COMPLAINT 10' '

1. Complainanthas compoundedthe alleged violations and sanctions in contravention ofsaid Order; 2. Complainant seeks civil penalties in excess ofthose suggested in said Order's Figure 7-4, for small businesses; 3. Complainanthas further contravened said Order in not taking into consideration the considerable corrective action that was immediately thereaftertaken by BELT MAKERS; 4. Said Order, to the extentthat ittreats BELT MAKERS as anything otherthan a small business, is arbitrary, capricious and unenforceable. SEVENTH AFFIRMATIVE DEFENSE As and for a separate distinct defense, BELTMAKERS alleges: I. Complainant's case is devoid ofany sense ofproportion. II. During the period oftime coveredby the Complaint, BELT MAKERS was able to find andprovide all documentation soughtby Respondent. III. As a small company (and a small business) that employs less that a dozenpeople, occupying a business premises ofonly about 5,000 square feet, the burden onBELTMAKERS causedby a $25,000.00 penalty would be excessive. EIGHTH AFFIRMATIVE DEFENSE As and for a separate distinct defense, BELTMAKERS alleges: I.
FAA Case No. 2011WP910400 FDMS No. FAA-2013-0049

BELT MAKERS. INC'S ANSWERTO COMPLAINT 11Complainant contacted BELTMAKERS customers alleging unfounded and unproven violations withthe intent ofdestroying BELT MAKERS credibility and to cause financial harm in an attemptto punish BELT MAKERS withouthaving to follow standard protocol for initiating and following through with an investigation. As a direct and foreseeable result ofComplainant's malicious and despicable efforts and acts, BELTMAKERS has suffered irreparable harm, including lost business opportunities, lostrevenue and loss ofgood will. 

### II. By virtue ofthe FAA's malicious and despicable efforts and acts alleged above, BELT MAKERS has beenpunishedby Complainant and any further sanction is unwarranted, excessive, overlypunitive and in violation ofthe Complainant's statutory authorization for ensuring safety in air commerce. WHEREFORE, it is prayedthatthe Administrative LawJudge not enter an orderthat BELTMAKERS be assessed civil penalties inthe amount of$25,000, or in any other amount; thatthe Complaintbe dismissed withprejudice; and for such other and further reliefas maybe deemed appropriate.

Datedthis 19th day ofApril, 2013.

1chael L. Dworkin Attorneys for BELTMAKERS. INC

FAA Case No. 20l1WP910400 FDMS No. FAA-2013-0049

BELTMAKERS. INC'S ANSWERTO COMPLAINT 12* L • -w



### CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 19th day ofApril, 2013, a true and correct copy ofthe foregoing 

### BELTMAKERS. INC'SANSWER TO COMPLAINT was served as follows: Federal Aviation Administration Attn: Hearing Docket Clerk, AGC-430 Wilbur WrightBuilding- Suite 2Wl000 800 Independence Avenue SW Washington, DC 20591 (Original plus one copy) {Federal Express)
The Honorable Richard C. Goodwin Administrative Law Judge Office ofHearings, M-20 Department ofTransportation 1200 NewJersey Avenue, S.W. Washington, DC 20590 FAX: 1-202-366-7536 {FAXandFederalExpress) Lisa Toscano, Esq. Federal Aviation Administration Office ofthe Regional Counsel Western-Pacific Region, AWP- 7 15000 Aviation Boulevard Lawndale, CA 90261 FAX: 1-310-725-6816 {FAXandFederalExpress)

Ca m M. Mtller

FAA Case No. 2011WP910400 FDMS No. FAA-2013-0049

BELT MAKERS. INC'S ANSWERTO COMPLAINT 13