In The Matter Of: 

### SERVED: May 20,2016 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

DocketNo. FAA-2013-0848 ENDLESS MOUNTAINS AIR, INC. ) ) ) ) ) ) CaseNo. 2012EA50008 Respondent
INITIAL DECISION OF U.S. ADMINISTRATIVE LAWJUDGE
Pro Se Respondent's Admissions Regarding the Alleged Violations: 1. In the Respondent's April3, 2014 Answer, it generally admitted to the violations alleged in the FAA's Complaint, specificallyviolations of 14 C.F.R. § 135.293(a) and 14 C.F.R. § 135.299(a). 1 2. Approximately one (1) year later, at the beginning ofthe March 10, 2015 Hearing, the Respondent clarifiedthatit was admittingto all twelve (12) violations alleged in the FAA's Complainthad occurred. Undisputed based on Admission: 

### 1. Count No.1: The Respondent committed six (6) violations of 14 C.P.R.§ 135.293(a) between September23,2011 and October 9, 2011, as identified in the FAA's Complaint; and 2. CountNo.2: The Respondent committed six (6) violations of 14 C.F.R. § 135.299(a) between September 23,2011 and October 9, 2011, as identified in the FAA's Complaint.

1 It should be noted, however, that duringthe May 28,2014 Litigation Scheduling Conference, the Respondent orally admitted to the FAA's allegations in Paragraphs I, 2, and 3 in Section II ofthe FAA's Complaint (re: 14 C.F.R. § 135.293(a)), but denied the allegation in Paragraph 4 in Section II ofthe FAA's Complaint (re: 14 C.F.R. § 135.299(a)). The parties discussed these oral admissions, and agreed to proceed with discovery on the disputed allegations.Held after Full Evidentiary Hearing: 1. The Respondent did not meet its burden ofproofto showthat it was financially unable to pay a civil penalty. 2. Total Civil Penalty Assessed- $16,200: The Respondent is assessed a total civil penalty of$16,200 for the twelve(12) admitted violationsthat occurred during six (6) flights.
I. CASE BACKGROUND On December 17, 2013,2



## th~ Federal Aviation Administration ("FAA") issued a Complaint chargingthe Responden.t, Endless Mountains Air, Inc., ("Respondent") with an unspecified number oftwo different violations ofFederal Aviation Regulations: 14 C.F.R. 

### §§ 135.293(a) and 135.299(a). The Complaint asserted these violations occurred when the Respondent operated six (6) flights between September 23,2011 and October 9, 2011, utilizing a Cirrus SR20 aircraft, identification numberN624CP. Comp. 1-3, §§II and III. The FAA proposed atotal civil penalty of$46,200 for the violations. Comp. 1-3, § IV. Afterthe December 17, 2013 Complaintwas served and filed, the parties participated in various discussions, motions, and discovery exchange. This is fully documented in the case record, and will not be repeated here. Itshould be noted, however, that on March 18, 2014, the FAA orally clarified, during a Litigation Scheduling Conference, that in its Complaintit was charging the Respondent with two (2) different regulatory violations for each ofthe six (6) flights the Respondent had allegedly operated between September 23,2011 and October 9, 2011, for a total oftwelve (12) alleged violations. (3/18/14 Tr. 15.) Pursuantto the FAA'sComplaint, and its oral clarifications regarding the Complaint, the FAA was alleging that for each ofthe six (6) flights the Respondenthad alleged!y operated between the dates ofSeptember 23, 2011 and October 9, 2011, the Respondent's aircraftpilot,

2 The FAA's Complaint was not dated. Based on the totality ofthe record, the Court made a pre-hearing finding that the Complaint was served on December 17,2013. See, e.g., May 15,2014 Order Denying the FAA's Motionfor Decision. The parties did not dispute this finding. See, e.g., 5/28114 Tr. 12, lines 17-20. Page 2 of9Mr. Randy Palmer, had operatedthe aircraft without having passed his annual (i.e., 1

### i 11 calendar month) test pursuant to 14 C.F.R. § 135.293(a). Mr. Palmer had also not passed his annual (i.e., 1i11 calendar month) flight check in a Cirrus SR-20 aircraft, pursuantto 14 C.F.R. § 135.299(a). On March 10, 2015, the parties convened in Allentown, Pennsylvania for Hearing. The FAA orally moved to amend the Complaint by deleting the period and adding to the end of Section II, paragraph 4 the following:", as required by Section 135.299(a) ofthe FARs." (3/10/15 Tr. 14:18- 15:18). The Respondent did not objectto the amendment, the motion was granted, and the Respondent admittedto the allegations contained in the amended Complaint. (ld. at 15:21-16:4, 16:14-17:1.) With all factual allegations and violations admitted by the Respondent, the Hearing proceeded onthe issue ofthe proposedcivil penalty. The FAApresentedtwo (2) witnesses: FAA Inspector Harry Soudas and FAA Inspector Robert Ference. Duringthe Hearing, the FAA moved to admit seven (7) exhibits into evidence (i.e., Exs. C-2 through C-5, and C-7 through C-9). The motion was granted and all seven (7) exhibits were admitted. After the FAA rested its case-inchief, the Respondentpresentedtwo (2) witnesses: PilotRandy Palmer and the Respondent's owner William J. Dobitsch, Jr. Duringthe Hearing, the Respondent moved to admit five (5) exhibits into evidence (i.e., Exs. B, D, E, F, and G). The motion was granted and all five (5) exhibits were admitted. II. CIVIL PENALTYEVIDENCE DISCUSSION All admitted testimony and exhibits were considered. The discussion herein provides only a briefsummary and analysis ofthe evidence as needed. A. BriefSummary ofParties' Evidence In its Complaint, the FAA alleged that pursuant to 49 U.S.C. §46301(a)(5), the Respondent was subjectto a maximum $11,000 civil penalty for each violation. (Comp. 3, §IV. 1

). The Respondent did not disagree with this allegation orthe legal support cited. The Respondent did, however, disagree with the FAA'sproposed $46,200 civil penalty. Utilizing the FAA's sanction guidelines in FAA Order 2150.3B, Appendix B, Inspector Soudas testified thatthe Respondent was in Group IV (3110/15 Tr. 60:11-61:4; Ex. C-7, 1). Page 3 of9Both ofthe Respondent's violations fell under Fig. B-1-n (3) (useofunqualified crewmember), for which the FAA guidelines recommendedutilizing the maximum penalty range (3/10115 Tr. 61:14- 62:7; Ex. C-7, 6). The violations had occurred after June 15, 2006, so the maximum range was between$4400 and $11,000 (3/10/15 Tr. 63: 1 - 8; Ex. C-7, 3). Instead ofcharging fines for each violation, the FAA asserted that it was charging a penalty for each flight where the two violations had occurred.3 Itthentook the mid-range ofthe



### ma~imum penalty by adding $4,400 and $11,000, which equaled $15,400. The FAA then divided $15,400 in halfto reach the median amount of$7,700 (i.e., $15,400/2 

### =$7700). Since there were 6 flights, there were 6 violations. As aresult, $7,700 x 6 = $46,400. (3/10/15 Tr. 64:4- 19.) As part ofits case-in-chief, the FAA assertedthat its calculations were accurate and appropriate, and thatthere were no mitigating circumstances to support reducing the proposed $46,400 fine. Duringtestimony,FAA InspectorHarry Soudas stated thatthe Respondent should have had a clearunderstanding ofthe FARs and howto apply themto its operation, particularly since it had been a certificated operator since 2003. Inspector Soudas opined that neither the Respondent's confusion regarding the recertification time requirements, nor any other circumstance, should be considered as a mitigating factor in calculatingthe civil penalty. (3110115 Tr. 79:4-80:16). In closing argument, the FAA also asserted that the Respondent should not have had to rely upon the FAA to give it guidance regarding FAA regulations. (3110115 Tr. 186:16-18.) No matter w)lat the circumstances, the Respondent was "ultimately responsible" to know the FAA regulations, and to be safety compliant. (3/10/1.5 Tr. 188:1-2.) Thus, calculating a civil penalty based on the "midpoint" ofthemaximum range was appropriate. (3/10/15 Tr. 189:17-21.) In its defensive case, the Respondent asserted 1) an inability to pay the $46,200 proposed civil penalty; and, 2) the proposedpenalty was not appropriate orfair, given all the

3 This evidence differed from the FAA's March 18,2014 oral explanation ofthe civil penalty calculation during a pre-heari"ng Conference. While the FAA's Conference explanation was not presented as evidence, nor is it considered by this Court in any way as evidence, it was the information provided to the Respondent and the Court priorto the March 10, 2015 Hearing. Thus, duringthis Conference, the FAA explained that it had calculated the proposed amount of the $46,200 by assigning a fine of$3,850 for each ofthe 2 regulatory violations, which then totaled $7,700 for each flight (e.g., $3,850 x 2 = $7,700). Six (6) flights x $7,700 = $46,200. Page 4 of9circumstances involved. Both Mr. William J. Dobitsch, Jr. and Mr. Randy Palmer testified about how the violations had occurred, afterthey had attempted to obtain assistance from the FAA Field Office regarding whatregulatorytime periodwas applicable. Among otherthings, the Respondent asserted thatthe violations were inadvertent, particularly giventhe advice received from FAA InspectorFerence. The Respondent was dedicated to flight safety, had a history of safety compliance, and had never intentionally acted to compromise flight safety.

B. 

### Affirmative Defense ofInability to Pay- Not Proven At the beginning ofthe March 10, 2015 Hearing, the Respondent was re-advised that ifit made any argument regarding financial inability to pay the proposed civil penalty, such argument had to be supportedby financial documentation. Ifno financial documentation or insufficient documentation was introduced

### into::evidence, such an affirmative defense would fail. (3/10115 Tr. 11:22- 12:8.) Mr. Dobitsch testified thatthe Respondent was unable to pay the proposed $46,200 penalty. (3/10/15 Tr. 134- 140.) However, as supporting documentation ofthe company ·finances and inability to pay, the,Respondent introduced only three (3) W-2 forms showing what Mr. Dobitsch, as the owner ofthe company, had paid himselfas an employee. (Exs. E, F, G.) At the conclusion ofthe Hearing, the Courtmade an oral ruling that the Respondent had failed to meet its burden ofproo:t'onthe affirmative defense ofinability to pay the proposed penalty. (3110115 Tr. 205:20
- 206:9.) This oral ruling is codified in this Decision. 

### C. Discussion ofOtherEvidence Itwas undisputedthatMr. Palmerwas a seasoned and experienced pilot. He had flown various aircraft since 1996 (i.e., for approximately 19 years as ofthe date ofthe Hearing). He had flown over 15,000 hours. Historically, he had neverhad problems obtaining re-certification. He did, however, have problems obtainingrecertification when Inspector Soudas was assigned to replace Inspector Ference as the Respondent's principal operations inspector ("POI"). Itwas undisputed that as ofJuly 22, 2010, Mr. Palmer was "current"on all his certificationtests. According to Inspector Soudas, this meant that Mr. Palmer's one (1) year recertification under both 14 C.F.R. § 135.293(a) (i.e., pilot test- oral orwritten) and 14 C.F.R. Page 5 of9§ 135.299(a) (i.e., pilot flight check) were due in July 2011. (3/10/15 Tr. 45:3 -6.) However, because ofa one (1) month "graceperiod," Mr. Palmer's certificationremainedcurrent until the last day ofAugust 2011. (!d. at 45:7- 18.) In contrast, Mr. Palmer's six (6) month recertification under 14 C.F.R. §§ 135.297 wouldhave beendue in approximately October2011. (!d. at 49:9-20.) On August 29, 2011 (i.e., two (2) days priorto the last day ofthe month on August 31, 2011), both Mr. Dobitsch and Mr. Palmer contactedthe FAA Field Office by telephone to get clarification about the time

**obli~ations** for obtaining Mr. Palmer's annual pilot certifications. 

### It was undisputed that they asked for,FAA Inspector Ference, who had previously been the Respondent's POI, andthat

**Inspe~tor** Ference took the call. Boththe Respondent andthe FAA agreedthat Inspector Ference did not specifically answer Mr. Dobitsch's and Mr. Palmer's questions aboutthe pilot certification time issue. They disagreed, however, about the substance ofthe telephone call. Both Mr. Dobitsch and Mr. Palmertestified thatFAA Inspector Ference told them to simply checktheirpaperwork for the answer. In contrast, InspectorFerencerecalled telling Mr. Dob.itsch and Mr. Palmerthat they needed to "present" their paperwork to him so that it could be checked. (3/1 0/15 Tr. 89:12- 22.) During cross-examinatim1, Inspector Ferance testified that he could not give Mr. Dobitsch and Mr. Palmer guidance aboutMr. Palmer's recertification time without seeingthe Respondent's documents or discussing it with the Respondent's current POI, Inspector Soudas. Inspector Ference agreed that the FAA Field Office had accessible copies ofall the Respondent's records, but he chose notto look atthem. He explainedhe did not look at the FAA'scopies, becausehe didn'tknow ifthey would matchthe Respondent'srecords. Thus, he asked Mr. Dobitsch and Mr. Palmerto physically come to the Field Office and "present" him with their records. (!d.) Inspector Ference did not, however, provide any reason(s) why he thought the records would notbe exactly the same. Upon inquiry from the Court, InspectorFerence admitted that he had not offered the Respondent an opportunity to e-mail or fax the documents to him so that he could review and compare them. (3/10/15 Tr. 94:12- 18.) Inspector Ference agreed he had not made any notes of the phone call or aboutthe conversation. (3110/15 Tr. 96: 1-2.) He also testified could not recall Page 6 of9whether or not he had "mention[ed]"the Respondent's call and questions to Inspector Soudas (the Respondent's POI). (3110115 Tr. 93:20 -94:1.) The Respondentpresented additional testimony. After speaking with Inspector Ference, Mr. DobitschandMr. Palmertestifiedthatthey looked attheirpaperwork and the regulations, as Inspector Ference had instructedthem to do. They interpretedthe material together, and, [in retrospect] came up with the wrong answer regarding when Mr. Palmer was due for recertification, in partbecause Mr. Palmer's certificationunder 14 C.F.R. § 135.297 was not yet due. Mr. Palmerthen flew

**six~1t?tfferent** flights, between September23, 2011 and October 9, 2011, before getting recertified 1 as fyquired by 14 C.F.R. §§ 135.293(a) arid 135.299(a). D. Assessment ofCivil Penalty- Total $16,200

, ..>!' ·q ,I;'' One ofthe underlying pt·o'b1ems inthis case is thatMr. Palmerhad developed a negative perception ofInspector Soudas;

**~H)Jart** because Inspector Soudas had earlierrated him as "failing" pilottests. Mr. Palmet·testified abouthis years as a pilot, and how he had never had an FAA Inspectorrate him as a fai'h1re before. He also testified that he had been given these failed ratings without any specificexP.!anation ofwhathe had done wrong. It is clear that on August29, 2011 there was an attempt by Mr. Dobitsch and Mr. Palmer to avoid talking to Inspector

**Soii~a$·.** However, it is also clearthat Inspector Ferance wanted to

.,., ' 1,, supporthis colleague,

**Inspecto~** §p,\ldas, in his role as the assigned POI for Respondent. So when ,-,•, ·:· \ Mr. Dobitsch and Mr. Palmer

**cap~d** Inspector Ferance instead ofInspector Soudas on August 29, 2011, Inspector Ferance

**wa~,pot** helpful. Inspector Soudas



### testifi~dll~at he thought Inspector Ference had referred Mr. Dobitsch's and Mr. Palmer'sphone call and'illquiry to him. Assumingthis did occur, then it is also clear that Inspector Soudas did notreturnthe Respondent's call orprovide any informationabout the recertification time requirement Instead, Inspector Soudas waitedfor the Respondent to call or email him directly ("myselfbeing the principal") or alternatively, to contact'management at the FAA Field Office. (3110/15



## Tr.:.,86:6'~12). Thus, Inspector Soudas chose not to respond or offer immediate help.

Page 7 of9

,,Given all the evidence in this case, it is obvious the Respondent feared that time was running out, when it calledtwo days before Mr. Palmer's grace period expired. While this Court agrees with Inspector Soudasthatthe Respondent could have called earlier than August 29, 2011, or, after having spoken to an unhelpful Inspector Ference on August 29,2011, tried to call and speak with eitherInspector Soudas or someone else in the Field Office (3110/15 Tr. 80:6-12), that did not happen. Nevertheless, the Respondent did contactthe FAA during Mr. Palmer's grace period and ask for advice. The FAA knewthe Respondent was in danger ofsafety noncompliance, and chose not to help. The FAA's argument that "no mitigating circumstances" exist in this case is not \ 1

**·~;'!.** ' ' persuasive. When the Respondentcalled the FAA on August 29,2011, the FAA should have ;L,:: ::. been responsive and answeredthe question. The FAA'sprimary concern on August 29,2011 i,' .i: l ·. . . should have been to help ensure.that the Respondent remained safety compliant. Instead, the
:. ...., {

**~!** ; : FAA erected roadblocks for the. Rt;spondent to overcome, and then the FAA waited to see what would happen. Thus, whether or

**~ot** the FAA thinks that Respondent should have known about the certification time

**requirem~nts** doesn't eliminate its responsibility to have answered the Respondent's safety compliance question fully, fairly, and promptly when it was asked. Had the FAA done so, the Respondent

**\yp~ld** likely have complied (given its history ofcompliance) and therefore not committed the

**vi9l~t~ons.** ''·,• Given the evidence in this, 1case, the FAA's recommended maximum penalty range (Ex.

. '!'; ,, C-7, 6) fails to reflect the uniquepircumstances ofthis case. Therefore, the maximum penalty range will not be utilized. Instead, the moderate range ofthe penalty guidance is more fitting to •. <1•. the facts. The moderaterange for any violations occurring after June 15, 2006 is between $2,200 and $4,399 (Ex. C-7, 3). This

**Co~rt** agrees with the FAA that a penalty should be charged for each flight where the two violatiors occurred. In addition, given all the evidence, the lower end ofthe moderate penalty range sl;tould be utilized. Thus, the amount of$2,700 is appropriate as .·• ':';"l.•. the penalty chargedper flight inthis case. Since there were six (6) flights, there are six (6) charged penalty amounts. Based on the foregoing theRespondent is assessed a total civil penalty of$16,200 (i.e., $2,700 x 6 = $16,200) for the six flights and twelve admitted violations. This $16,200 civil penalty has sufficient "bite"to promote compliance, and deter future violations by the

. I· Page 8 of 9Respondent and others. It also reflects the goals ofthe sanction guidance and the totality ofthe circumstances. Pursuant to 14 C.F.R. § 13.232(d), this Initial Decision shall be considered a final order assessing civil penalty unless eitherparty files a notice ofappeal within 10 days ofservice ofthis Initial Decision pursuantto 14 C.P.R.§ 13.233.

Attachment: Service List

Page 9 of9SERVICE LIST- BY

### U.S. MAIL

Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 ORIGINAL & ONE COPY

Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite2W1000 1

Mr. Zachary M. Berman Complainant's Counsel ONE COPY
Office ofRegional Counsel, Eastern Region Federal Aviation Administration 1Aviation Plaza Jamaica, NY 11434 TEL: 718-553-3258 FAX: 718-995-5699 Mr. William J. Dobitsch, Jr. Endless Mountains Air, Inc. Respondent Seamans Airport 727 Windsock Lane Factoryville, PA 18419 TEL: 570-945-5125 FAX: 570-945-5953 Judge J.E. Sullivan U.S. Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 FDMS No. FAA-2013-0848 (Civil Penalty Action)

1 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite2WJOOO, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.