# EASTMAN

# & ASSOCIATES,

# LLC

Haslachstrasse 39 79868 Feldberg-Falkau GERMANY 

### ATTORNEYSATLAW POSTOFFICEBox180 CHARLESTON, SOUTHCAROLINA29402 USA ROBERTG.EASTMAN ADMITTEDINDE, FL, GA,:MD,NJ, PA, & SC

Office ofthe ChiefCounsel Attention: FAA Part 16 DocketClerk AGC-600 FederalAviation Administration 800 IndependenceAvenue, SW Washington, DC 20591 July 1, 2014

Re: Part 16 Formal Complaint PHONE: {843) 329-9657 FAX: {843)723-0005 robertgeastman@msn.com 

# It-1'1-a..S

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# IJUL 7



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### 6DOCKETS

SkydiveMyrtle Beach, Inc. v. HorryCountyDepartmentof Airports andRobinsonAviation, Inc. d/b/a CREAircraftControl Tower DearSiror Madame: Skydive Myrtle Beach, Inc. (SDMB) 1 (f/k/a Skydive Myrtle Beach, LLC), respectfully requests the Federal Aviation Administration (FAA) to initiate a Formal Complaint pursuant to Part 16 ofTitle 14, Code of Federal Regulations (CFR) for the hereinafterstated reasons. SUMMARY Since Harry County Department of Airports (HCDA) resumed control of Grand Strand Airport (GSA), SDMB has: been unable to renegotiate a written long-term lease with Harry County; been unable to receive mail and parcels at its business address during normal business hours; been continually harassed in its FAA-recognized aeronautical activity of non-emergency parachuting or skydiving; had its secure hangar broken into by HCDA personnel; received an unreasonable offerto continue occupation of its business in exchange for 10-24% of its gross proceeds; been cited by the Deputy CountyAttorneyfor making repairs to meetfire code compliance; and otherwisetreated differentlyfrom othercommercial tenants within HCDAjurisdiction. Additionally, under the direction of HCDA, GSA Air Traffic Control (CRE) has initiated a reporting process whereby conduct in compliance with Part 105 of Title 14, Skydive Myrtle Beach, LLC, (SMB) was reformed into Skydive Myrtle Beach, Inc. a North Carolina corporation in January 2014. Member Aaron Holly owned 100% interest of SMB and retains 100% orall shares ofSDMB.

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CFR is styled as "unsafe" and in violation of Part 139 resulting in the unnecessary expenditure of resources of all concerned parties. This conduct by HCDA and its private AirTrafficControl has resulted in the expenditure oftens ofthousands ofdollars in legal fees, significant interference with its normal business operations, and loss of business revenue by SDMB. ISSUE It appears that CRE and HCDA are confused about the proper application of Parts 105 (Parachute Operations) and 139 (Airports) ofTitle 14, CFR and the difference between "pedestrians" and "parachutists" in Parts 139 and 105 respectively. Sport parachuting safety and its interaction with related FAA recognized aeronautical activities is more fully explained in FAA Advisory Circular (AC) 105-4E "Sport Parachuting" (December4, 2013). FAAstatesthat: [w]hile skydivers attempt to land in [designated landing zones (LZ or LZs)], at times there may be inadvertant landings in other grass or hard-surfaced areas. This could include landings on runways, taxiways, and other hardsurfaced areas. Areas such as runways, taxiways, clearways, and Obstacle Free Zones (OFZ) are not prohibitedareas butshould not be designated as a primary landing area and should be vacated as soon as practicable. AC 105-4E,

### ,-r6{c)(2) (emphasis supplied). FAA also requires towered operatorsto implement policies forvehicles and pedestrians from entering into designated areas by such measures as two-way radio communication with theAirTraffic ControlTower (ATC). See 14 CFR 

### § 139.329(c). HCDA and CRE have a Letter ofAgreement (LOA) that requires all pedestrians and vehicles to have two-way radios and receive CRE authorization prior to entering active areas defined as taxiways and runways at GSA. See Exhibit2, at 1-3. It appears that CRE and HCDA "feel" that Part 139 supersedes Part 105 and FAAs interpretation ofthe regulatory interrelation ofsport parachuting operations and airport safetyfound in FAA AC 105-4E. This apparent regulatory misinterpretation is the genesis of the current issues identified below. PART 16 CERTIFICATION Pursuant to 14 CFR 

### § 16.21(c), SDMB certifies that it has made substantial and reasonable good faith efforts to resolve the issues relating to FAA recognized

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aeronautical activity, non-emergency parachuting/skydiving, since HCDA resumed operations at GSAin August 2013. From May 2012 to August 2013 or more than fifteen (15) months and over2,500 parachute jumps, SDMB received no complaints from FAA, CRE or HCDA.2 From August 2013, to date (the period since HCDA has resumed control ofGSA), SDMB has received repeated complaints and been subjected to other intimidation attempts.3 SDMB has requested multiple meetings concerning GSA active areas with both HCDA and CRE officials since HCDA took over GSA management. When SDMB requested mediation with HCDA, however, it was unaware of the HCDA/CRE partnershipthat initiated policing "unusual" airport activity and refereeing the boundaries of SDMBs primary LZ. Additionally, HCDA continues its refusal to mediate within the bounds of South Carolina Rules of Professional Conduct (SCRPC) by demanding an expanded scope to include matters ofstate law before it will discuss issues relating to this Part 16 Complaint4 See Exhibit 3, at 1-14. Since HCDA and CRE are working together to report and enforce subjective "unusual incidents"5and CRE will no longer discuss applicable regulations with SDMB, there is no other option than for SDMB to refile its complaint for resolution by FAA. Without FAA intervention for the reasons enumerated below, there is no reasonable prospectfor practical, equitable, and timely resolution ofthe dispute. STATEMENTOF FACTS In April 2012, SDMB negotiated a lease with Ramp 66, LLC for Hangar 7 at the GSA in North Myrtle Beach, SC and was granted exclusive rights to conduct parachute operations at CREfora period ofeight (8) years. On May 11, 2012, a Letter of Agreement (LOA) was signed by SDMB, HCDA, Myrtle Beach AirTraffic Control Tower (MYR) and CRE for conducting non-emergency parachute operations. See Exhibit2at 19-21.

2 A SDMB tandem instructor did receive a warning letter forjumping too close to clouds while conducting non-emergency parachute operations in the summerof2012. This included a two-year probationary period forthe instructorfrom FAA Flight Standards District Office (FSDO) Colombia, SC.
3 SDMB has alleged that the conduct of CRE and HCDA has materially interfered with its business. See gen. Exhibit5.
4 On June 5, 2014, HCDA utilized an alternative legal forum to attempt to have SDMB evicted and removed from Hangar7 in Myrtle Beach Magistrate's Court. See Exhibit4. 5 See Exhibit2, at 10-13for an explanation and examples offiled reports.

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On or about July 15, 2013, Ramp 66, LLC represented to SDMB that HCDA would require SDMB to enter into a Lease with HCDAwith the same orsimilarterm and rental cost provisions. On August 1, 2013, Ramp 66, LLC sold its leasehold interest to HCDA and HCDA resumed control ofGSA. In August2013, HCDA informed SDMB that itwould haveto double its liability of "slip and fall" policy coverage to $2,000,000 and pay $1 ,200 per month for Hangar 7 or HCDAwould not permit SDMB to operate its business on GSA property. See Exhibit 1 at 14-16. HCDA represented to SDMB that these terms would be presented to Horry County Council during the six (6) month temporary period fora long-term lease. On October 15, 2013, CRE notified SDMB of a situation whereby a skydiver crossed ataxiway ratherthan staying on the grass as required by FAA regulations. See Exhibit 1at 86. On October27, 2013, a skydiver inadvertently landed on the taxiway adjacent to the landing area and was medivacked to the hospital. Information requested from HCDA relating to this incident was not released to avoid a potential Health Information Privacy ProtectionAct (HIPPA) and PrivacyActviolation. See Exhibit 1, at 99. In October 2013, Sgt. Ortiz, a North Myrtle Beach, SC fire inspector, informed SDMB that it needed to replace a blank panel in the electrical box, remove extension cords, and install electrical receptacles for its office equipment to avoid a fine or violation. SDMB requested HCDA, through its manager Tim Jackson, to correct the electrical deficiencies. In November, having heard nothing from HDCA relating to the electrical issues, SDMB repaired the defective receptacles and conduit with a licensed electrical engineer. Due to HCDAs failure to correct the electrical deficiencies, SDMB was issued afine forthe violations bythe North Myrtle Beach Fire Departmentand paid a$205 dollarfine to the city. See Exhibit2, at22-24. On November 27, 2013, via certified mail, return receipt requested, HCDA alleged that SDMB had an unrestrained dog roaming the "active areas" of the airport and had overnight guests in the Hangar in violation of unpublished HCDA policies that would result in the revocation of SDMBs operating permit and space use permit, if repeated. See Exhibit2, at 27-28. On or about January 6, 2014, SDMB addressed HCDAs concerns and notified HCDA that the failure to respond to its letterwas due to the fact that it's Manager, Tim Jackson had issued instructions to the FBO employees to refuse to accept any and all mail and parcels requiring signatures. See Exhibit 1, at 109-110.

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On January 21, 2014, CRE notified SDMB that it manager "feels" parachuting on GSA was unsafe and steps should be taken to improve safety due to the HCDA mandated change of parachute Landing Zone (LZ), banner tow, and helicopter guide operationsforthe upcoming season. See Exhibit 1, at 111. On January 23, 2014, SDMB requested a meeting with CRE to address its safety concerns and discuss operations for the upcoming season. See Exhibit at 113. In its answer, CRE indicated that HCDAshould also be a partyto the discussion. See Exhibit 1, at 114. Three days later, on Sunday, January26, 2014, responding to an inquiry relating to holds, Robinson Aviation, Inc., Manager of Aviation Area II, Richard Allen indicated the need to possibly contact the FAA "runway incursion folks again ref. the golf carts and etc. today." See Exhibit 1, at 119. On February 3, 2014, SDMB again attempted to schedule a meeting with MYR, CRE and other interested parties. See Exhibit 1, at 130. Later that same day, SDMB was contacted by HCDA about anothervehicle/pedestrian complaint by CREto FAAfor an active area incursion. See Exhibit 1, at 138. On February 5, 2014, SDMB set a meeting for Friday, February 7, 2014, to discuss CREs recent complaintstothe FAA. See Exhibit 1, at 153. Additionally, SDMB responded to HCDAs request for information related to the golf cart and skydiver taxiway "incursion". See Exhibit 1, at 158. In the February 7, 2014, meeting, CRE advised SDMB about a LOA between HCDA and CRE whereby procedures for vehicular and pedestrian entry into "active areas" required CRE ground communication protocols. SDMB agreed to comply with these provisions, requested a copy ofthe LOA and implemented internal procedures to meet the terms of the HCDA-CRE LOA. See Exhibit 1, at 164-166. SDMB also requested repairs to the hangar for electrical, lighting and a street side door access to mitigate the deleterious effects of HCDAs refusal to accept parcel deliveries. See Exhibit 1, at 167-168. Mr. Jackson objected to the minutes in that "the FBO would not sign for deliveries however we will except [sic] any delivery that does not require a signature". See Exhibit 1, at 167. Following the meeting, CRE provided SDMB 14 CFR 

### § 139.329 as the authority for its complaints to the FAA and HCDA. See Exhibit 1, at 192. On February 10, 2014, CRE and SDMB included the ground communications in part of the draft between SDMB, ZJX, MYR, CRE, and HCDA proposed LOA. See Exhibit 1, at 194.

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On or about February 14, 2014, CRE indicated that it would attend the Safety Meeting March 8, 2014, adding "I plan to do all I can to make this work for all of us." See Exhibit 1, at 197. On February 17, 2014, SDMB attempted to address its maintenance, mail and parcel delivery issueswith HCDA. See Exhibit 1, at210. On February 19, 2014, HCDA was provided a letter from the Deputy County Attorney, Director ofAirports, and Airport Manager, at the FAA-sponsored Safety Day. The letter identified more than ten (10) "serious" alleged FAA regulatory violations relating to skydiving as reported to HCDA by CRE. See Exhibit 3 at pages 54-57. Due to these allegations, the Deputy County Attorney indicated that a lease was not forthcoming but a new temporary space use could be used as an alternative provided SDMB paid the higher of$1,200 per month or 24% of its gross sales. See Exhibit 3, at 60, 1[4.B. The new terms were non-negotiable and SDMB had seventy-two (72) hours to execute orvacatethe hangar. See Exhibit3, at 57. On February 19, 2014, a copy of the proposed LOA with the terms between SDMB and CRE as agreed was sentto MYR for review and comment. See Exhibit 1, at 214. On February 24, 2014, skydiving operations at Grand Strand appeared smooth, without incident, and aworking relationship with ZJX, MYR, CRE and SDMB had been developed with aworkable LOA involving all parties. See Exhibit 1, at216-224. (HCDA did not participate in the draft LOA discussions although itwas invited to do so). On February 21, 2012, SDMB addressed each of the allegations in the HCDA letter, denied violating any Title 14 regulation, asked for a copy ofthe HCDA operating regulations or authority and requested to work out the issues between HCDA either informallyorin a court. See Exhibit3, at67-78. On February 23, 2014, the day after Harry County's seventy-two (72) hourtakeit-or-leave-it deadline, without notice, HCDA FBO staff under the direction of manager Tim Jackson, delayed fuel service to SDMB at Grand Strand by initially denying altogether, and later reconsidering on the phone. See Exhibit 5, at 35 (Affidavit of Ben Auker). On February24, 2014, SDMB filed a Formal Complaintwith FAA. See Exhibit 3, at50. On February 26, 2014, HCDA attorneys informed SDMB that it did not engage in "good faith" negotiations priorto filing its Part 16formal complaint and requested SDMB to withdraw its formal complaint. See Exhibit3, at 48. By letter dated February 28, 2014, SDMB related its Part 16 Complaint was discrete from its state court complaint and attached a copy of its state complaint as a

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courtesy. See Exhibit 3, at 46. SDMB also indicated its willingness to resolve the matters but refused towithdraw its Part 16 complaint. /d. On March 4, 2014, HCDA moved to dismiss the Part 16 Complaint without prejudice. See Exhibit3, at44. On March 6, 2014, SDMB attempted to amend its Part 16 Complaint. See Exhibit3, at 39. On March 7, 2014, HCDA raised SDMBs failure to attach supporting documents and movedto dismiss. See Exhibit3, at 38. On March 18, 2014, FAA dismissed SDMBs Part 16 Complaint for incompleteness. See Exhibit3, at35. On March 20, 2014, HCDA issued a policy letter for tenant mail and parcel deliveryfortenants atGSAand instituted DriverTraining. See Exhibit3, at 34. On March 25, 2014, and again on March 27, 2014, SDMB staff attempted to attend the required driver training but no HCDA representative showed up. HCDA Manager Tim Jackson and Lineman Jack Teal personally came to Hangar 

### 7 to apologize for the course failure. The driving course was rescheduled on March 28, 2014. See Exhibit 1, at 228. The class was again cancelled and has not been rescheduled to date. On April 3, 2014, HCDAdumped approximately six (6) yards ofpeat moss on the SDMB staff parking lot preventing access to three (3) staff parking spaces. See Exhibit 1, at235. On April 7, 2014, through its attorneys, HCDA offered its version of "good faith" negotiations- reducing the monthly lease percentage ofgrossfrom 24% to 10%. HCDA also indicated that eviction proceedings would be initiated if this was not accepted by SDMB. See Exhibit 3, at23. On April 12, 2014, a heated email exchange between CRE and SDMB ended with a threat to file another FAA complaint and a promise to forward all future CRE complaintsto the FSDO and HCDA. See Exhibit 1, at 241. On April 18, 2014, SDMB again attempted to negotiate terms for leasing Hangar 7, and again requested a meeting to finalize the LOA for non-emergency parachute operations atGSA. See Exhibit 3, at21-22. On April 28, 2014, HCDA issued a Notice ofTermination unless the terms in its April 7, 2014, correspondence were agreed to. See Exhibit 3, at 19. The letterfurther

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stated, "SDMB may not base its aircraft or its skydiving operations at CRE. However, as long as SDMB operates in accordancewith all applicable laws, including the letterof agreement, the [FAA], the CRE tower and HCDA, SDMB may continue to use the aeronautical facilities at CRE, including the landing zone as a transient operator. However, without avalid Space Use Permit, SDMB mustvacate Hangar No. 7and may not base its aircraft at CRE." 

### /d. On May 10, 2014, CRE notified SDMB it was forwarding a complaint for a taxiway incursion. See Exhibit 1, at 243. On May 19, 2014, HCDA requested information relating to an FAA "Letter of Investigation triggered by skydivers operating on an active taxiway on May 10." See Exhibit 1, at245-256. On May 22, 2014, SDMB gave a counter offer to HCDAs Notice ofTermination relating to Hangar No. 7 and again requested a meeting to finalize the LOA. See Exhibit 3, at 16-18. On May24, 2014, CRE reported a skydiver crossing the runway. See Exhibit 1, at 257.On May28, 2014, HCDA rejected SDMBs counter offerand demanded SDMB to vacate Hangar No.7and remove its aircraftfrom CRE. See Exhibit3, at 14-15. On May 29, 2014, SDMB offered to mediatewith HCDA in an attemptto resolve the issues. See Exhibit 3, at 19. On May 30, 2014, HCDA conditionally accepted SDMBs offer to mediate. See Exhibit 3, at 10. On June 2, 2014, SDMB countered HCDAs conditional offerto mediate in order to meetethical requirements relating to South Carolina state law. See Exhibit3, at8-9. On June 5, 2014, HCDA conditionally accepted SDMBs offer to mediate with several modifications and filed an Application for Eviction in Myrtle Beach Magistrate's Court. See Exhibit3, at5-6; Exhibit2. On June 10, 2014, MYR invited all interested parties to discuss the LOA. See Exhibit 1, at272. Although the proposed LOA included penalty and reporting provisions that were objectionable to SDMB, a meeting was setfor June 24, 2014. See Exhibit 1, at 273-298. On June 18, 2014, SDMB offered to mediate but conditioned its acceptance on compliance with SCRPC Rule 4.2 necessitating the attendance orwritten consent ofall

140627.sdmb.hcda.faa.complaintFAA Office ofthe ChiefCounsel July 1, 2014 Page 9 represented parties in orderto discuss matters relating to SC state law. See Exhibit 3, at4. On June 24, 2014, HCDA, ZJX (via phone), MYR, CRE and SDMB met at MYR to discuss the LOA. The meeting did not finalize the LOA, and it was agreed that operations would continue under the terms of the existing LOA until matter could be finalized. HCDAcould notprovide a return date. Incident reporting was discussed, and for the first time HCDA revealed that CRE was reporting all skydivertaxiway crossings to HCDAattheirdirection. On June 27, 2014, SDMB requested regulatory authority requiring CRE to report skydivers on active areas to FAA and requested a discussion about Title 14, Part 105. SDMB was referred to FAA. See Exhibit 1, at322. On or about June 27, 2014, an unidentified photographer6was observed taking pictures ofHangar7from the Grand Strand Airport Parking lot. See Exhibit2, at 15. On June 27, 2014, at 1546 on a Friday, counsel for HCDA rejected SDMBs offer to mediate by its failure to offer assurances that counsel for all parties would attend or provide written consentto discuss matters ofstate law. See Exhibit 2, at 14; Exhibit 3, at 1. On June 27, 2014, HCDA emailed SDMB relating its safety concerns from CRE and FAA with reports thatwere attached. See Exhibit 2, at 11. The FAA reports were styled "Horry County Department ofAirports Unusual Activity Report" and filed by CRE to HCDAemployees Stan Cox and Edward Dingley. See Exhibit2, at 10-13. On Sunday, June 29, 2014, HCDA employee Ed Dingley repeatedly drove to the LZ in agolfcart to observe each parachute drop conducted during the day. See Exhibit 2, at 17-18. CONCLUSION Since it appears that HCDA and CRE are either unable or unwilling to differentiate between Part 139 "pedestrian" activity and Part 105 "parachutist" activity in Title 14as it appliesto legitimateaeronautical practices delineated in Parts105, AC 105- 4E and set forth above, SDMB has no alternative otherthan to see reliefthrough FAAs Part 16formal complaint process.

6 The photographer has been identified by SDMB staff as HCDA Operations Supervisor Edward Dingley. On Friday when questioned by SDMB staffafter being observed taking pictures from a concealed location in the parking lot, Mr Dingley stated that he was a taking pictures as was his hobby when on vacation orwords to thateffect.

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The current arbitrary attempts to restrict the landing area and the continued practice of reporting authorized parachute operations (landings) as violations pursuant to Part 139, under the sheepskin of "safety concerns" is unreasonably restrictive and discriminatory as applied to an FAA recognized aeronautical activity. Safety concerns have been continually improved and updated with national input by experts from the parachute industry and FAA and are addressed in AC 105-4E. The purpose ofthis AC is to "improve sport parachuting safety and disseminat[ion of] information to assist all parties associated with sport parachuting." SeeAC 105-4E,

**~** 1. Thankyou for your attention to this matter. I lookforward to hearing from you in the nearfuture. Should you have any questions, please do not hesitateto contact me.

Encl.: Exhibit 1 Emails (323 pages) Exhibit2 Documents (28 pages) Verytrulyyours, 

# /) UJ(_}

. 

# ruh-vf;

# r

**{f;d~** Robert G. Eastman

Exhibit 3 Part 16 Correspondence {88 pages) Exhibit4 SC Magistrate Court Pleadings (15 pages) Exhibit 5 SC CourtofCommon Pleas Pleadings (36 pages)
cc: Aaron Holly(via email)

RGE/fub RobertVarnado, Esq. (via email) Samuel F. Arthur, Ill, Esq. (via email) David Bannard, Esq. (via email) Mike Battle, Esq. (by hand)

140627.sdmb.hcda.faa.complaintFAA Office ofthe ChiefCounsel July 1, 2014 Page 11

CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing Complaint on the following persons atthe following addresses and emails byfirst class US Postal Service and electronically. 9-AWA-AGC-Part 16@faa.gov Office ofthe ChiefCounsel Attention: FAA Part 16 Docket ClerkAGC-600 Federal Aviation Administration 800 IndependenceAvenue, SW Washington, DC 20591 Richard.allen@rvainc.com Robinson Aviation, Inc. 1601 NW Expressway Oklahoma City, OK73118-1435

Dated this 1stdayofJuly, 2014.

Robert G. Eastman, Esq. ForSkydive Myrtle Beach, Inc.

140627.sdmb.hcda.faa.compiaint Aponep@HorryCounty.org PatApone, Director Harry County Dep'tofAirports (HCDA) 1100Jetport Road Myrtle Beach, SC29577
dbannard@foley.com David Banner, Esquire Jeffrey Blease, Esquire Jaclyn Piltch Foley

### &Lardner LLP 111 HuntingtonAvenue Boston MA 02199 CounselforHCDA