In The Matter Of: 

SERVED: May 20, 2016 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

Docket No. FAA-2013-0848 

ENDLESS MOUNTAINS 

AIR, INC. 

) 

) 

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Case No. 2012EA50008 

Respondent 

INITIAL DECISION OF U.S. ADMINISTRATIVE LAW JUDGE 

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, specifically violations 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 of the March 10, 2015 Hearing, the 

Respondent clarified that it was admitting to all twelve (12) violations alleged in the 

FAA's Complaint had occurred. 

Undisputed based on Admission: 

1. Count No.1: The Respondent committed six (6) violations of 14 C.P.R.§ 135.293(a) 

between September 23,2011 and October 9, 2011, as identified in the FAA's Complaint; 

and 

2. Count No.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 during the 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 of proof to show that 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 violations that occurred during six ( 6) flights. 

I. CASE BACKGROUND 

On December 17, 2013,2 th~ Federal Aviation Administration ("FAA") issued a 

Complaint charging the Responden.t, Endless Mountains Air, Inc., ("Respondent") with an 

unspecified number oftwo different violations of Federal 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 a total civil penalty of $46,200 for the violations. Comp. 1-3, § IV. 

After the December 17, 2013 Complaint was 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. 

It should be noted, however, that on March 18, 2014, the FAA orally clarified, during a 

Litigation Scheduling Conference, that in its Complaint it was charging the Respondent with two 

(2) different regulatory violations for each of the 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.) 

Pursuant to the FAA's Complaint, and its oral clarifications regarding the Complaint, the 

FAA was alleging that for each of the six ( 6) flights the Respondent had alleged! y operated 

between the dates of September 23, 2011 and October 9, 2011, the Respondent's aircraft pilot, 

2 The FAA's Complaint was not dated. Based on the totality of the 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. 

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Mr. Randy Palmer, had operated the 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, pursuant to 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) of the F ARs." 

(3/10/15 Tr. 14:18- 15:18). The Respondent did not object to the amendment, the motion was 

granted, and the Respondent admitted to 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 on the issue of the proposed civil penalty. The FAA presented two (2) witnesses: FAA 

Inspector Harry Soudas and FAA Inspector Robert Ference. During the 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 Respondent presented two (2) witnesses: Pilot Randy Palmer and the Respondent's 

owner William J. Dobitsch, Jr. During the 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 PENALTY EVIDENCE DISCUSSION 

All admitted testimony and exhibits were considered. The discussion herein provides 

only a brief summary and analysis of the evidence as needed. 

A. Brief Summary of Parties' Evidence 

In its Complaint, the FAA alleged that pursuant to 49 U.S.C. §46301(a)(5), the 

Respondent was subject to a maximum $11,000 civil penalty for each violation. (Comp. 3, §IV. 

1 ). The Respondent did not disagree with this allegation or the legal support cited. The 

Respondent did, however, disagree with the FAA's proposed $46,200 civil penalty. 

Utilizing the FAA's sanction guidelines in FAA Order 2150.3B, Appendix B, Inspector 

Soudas testified that the Respondent was in Group IV (3110/15 Tr. 60:11-61 :4; Ex. C-7, 1). 

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Both of the Respondent's violations fell under Fig. B-1-n (3) (use of unqualified crewmember), 

for which the FAA guidelines recommended utilizing the maximum penalty range (3/1 0115 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 (3/1 0/15 Tr. 63: 1 - 8; Ex. C-7, 3 ). Instead of charging 

fines for each violation, the FAA asserted that it was charging a penalty for each flight where the 

two violations had occurred.3 It then took the mid-range of the 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 a result, $7,700 x 6 = $46,400. (3/10/15 Tr. 64:4- 19.) 

As part of its case-in-chief, the FAA asserted that its calculations were accurate and 

appropriate, and that there were no mitigating circumstances to support reducing the proposed 

$46,400 fine. During testimony,F AA Inspector Harry Soudas stated that the Respondent should 

have had a clear understanding of the FARs and how to apply them to 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 calculating the civil penalty. 

(311 0115 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. (3/1 0/1.5 Tr. 188: 1-2.) Thus, calculating a civil penalty 

based on the "mid point" ofthe maximum 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 proposed penalty was not appropriate or fair, 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 

prior to the March 10, 2015 Hearing. Thus, during this Conference, the FAA explained that it had calculated the 

proposed amount of the $46,200 by assigning a fine of$3,850 for each of the 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. 

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circumstances involved. Both Mr. William J. Dobitsch, Jr. and Mr. Randy Palmer testified about 

how the violations had occurred, after they had attempted to obtain assistance from the FAA 

Field Office regarding what regulatory time period was applicable. Among other things, the 

Respondent asserted that the violations were inadvertent, particularly given the advice received 

from FAA Inspector Ference. 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 of Inability to Pay- Not Proven 

At the beginning of the March 10, 2015 Hearing, the Respondent was re-ad vised that if it 

made any argument regarding financial inability to pay the proposed civil penalty, such argument 

had to be supported by financial documentation. If no financial documentation or insufficient 

documentation was introduced into: :evidence, such an affirmative defense would fail. (3/1 0115 

Tr. 11:22- 12:8.) 

Mr. Dobitsch testified that the Respondent was unable to pay the proposed $46,200 

penalty. (3/10/15 Tr. 134- 140.) However, as supporting documentation of the company 

·finances and inability to pay, the ,Respondent introduced only three (3) W -2 forms showing what 

Mr. Dobitsch, as the owner of the company, had paid himself as an employee. (Exs. E, F, G.) 

At the conclusion of the Hearing, the Court made an oral ruling that the Respondent had 

failed to meet its burden of proo:t'on the affirmative defense of inability to pay the proposed 

penalty. (311 0115 Tr. 205:20 - 206:9.) This oral ruling is codified in this Decision. 

C. Discussion of Other Evidence 

It was undisputed that Mr. Palmer was a seasoned and experienced pilot. He had flown 

various aircraft since 1996 (i.e., for approximately 19 years as of the date of the Hearing). He 

had flown over 15,000 hours. Historically, he had never had problems obtaining re-certification. 

He did, however, have problems obtaining recertification when Inspector Soudas was assigned to 

replace Inspector Ference as the Respondent's principal operations inspector ("POI"). 

It was undisputed that as of July 22, 2010, Mr. Palmer was "current" on all his 

certification tests. 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 or written) and 14 C.F.R. 

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§ 135.299(a) (i.e., pilot flight check) were due in July 2011. (3/10/15 Tr. 45:3 -6.) However, 

because of a one (1) month "grace period," Mr. Palmer's certification remained current until the 

last day of August 2011. (!d. at 45:7- 18.) In contrast, Mr. Palmer's six (6) month 

recertification under 14 C.F.R. §§ 135.297 would have been due in approximately October 2011. 

(!d. at 49:9-20.) 

On August 29, 2011 (i.e., two (2) days prior to the last day of the month on August 31, 

2011), both Mr. Dobitsch and Mr. Palmer contacted the 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, and that Inspe~tor Ference took the call. 

Both the Respondent and the FAA agreed that Inspector Ference did not specifically 

answer Mr. Dobitsch's and Mr. Palmer's questions about the pilot certification time issue. They 

disagreed, however, about the substance of the telephone call. Both Mr. Dobitsch and Mr. 

Palmer testified that FAA Inspector Ference told them to simply check their paperwork for the 

answer. In contrast, Inspector Ference recalled telling Mr. Dob.itsch and Mr. Palmer that 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 about Mr. Palmer's recertification time without seeing the 

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 of all the Respondent's 

records, but he chose not to look at them. He explained he did not look at the FAA's copies, 

because he didn't know if they would match the Respondent's records. Thus, he asked Mr. 

Dobitsch and Mr. Palmer to 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 not be exactly the same. 

Upon inquiry from the Court, Inspector Ference 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 about the conversation. (311 0/15 Tr. 96: 1-2.) He also testified could not recall 

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whether 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 Respondent presented additional testimony. After speaking with Inspector Ference, 

Mr. Dobitsch and Mr. Palmer testified that they looked at their paperwork and the regulations, as 

Inspector Ference had instructed them to do. They interpreted the material together, and, [in 

retrospect] came up with the wrong answer regarding when Mr. Palmer was due for 

recertification, in part because Mr. Palmer's certification under 14 C.F.R. § 135.297 was not yet 

due. Mr. Palmer then flew six~1t?tfferent flights, between September 23, 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 of Civil Penalty- Total $16,200 , .. >!' ·q , I;'' 

One of the underlying pt·o'b1ems in this case is that Mr. Palmer had developed a negative 

perception of Inspector Soudas; ~H)Jart because Inspector Soudas had earlier rated him as 

"failing" pilot tests. Mr. Palmet·testified about his years as a pilot, and how he had never had an 

FAA Inspector rate him as a fai'h1re before. He also testified that he had been given these failed 

ratings without any specific exP.!anation of what he 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 clear that Inspector Ferance wanted to .,., ' 1,, 

support his 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 of Inspector 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's phone call and 'illquiry to him. Assuming this did occur, then it is also clear 

that Inspector Soudas did not return the Respondent's call or provide any information about the 

recertification time requirement Instead, Inspector Soudas waited for the Respondent to call or 

email him directly ("myself being the principal") or alternatively, to contact' management at the 

FAA Field Office. (311 0/15 Tr.:.,86:6'~ 12). Thus, Inspector Soudas chose not to respond or offer 

immediate help. 

Page 7 of 9 

,, 
Given all the evidence in this case, it is obvious the Respondent feared that time was 

running out, when it called two days before Mr. Palmer's grace period expired. While this Court 

agrees with Inspector Soudas that the 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 either Inspector Soudas or someone else in the Field Office (311 0/15 Tr. 80:6-12), 

that did not happen. Nevertheless, the Respondent did contact the FAA during Mr. Palmer's 

grace period and ask for advice. The FAA knew the Respondent was in danger of safety 

noncompliance, and chose not to help. 

The FAA's argument that "no mitigating circumstances" exist in this case is not \ 1 ·~;'!. ' ' 

persuasive. When the Respondent called the FAA on August 29,2011, the FAA should have 

;L,:: ::. 

been responsive and answered the question. The FAA's primary 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 of compliance) and 

therefore not committed the vi9l~t~ons. 

''·,• 

Given the evidence in this,1

case, the FAA's recommended maximum penalty range (Ex . . '!'; ,, 

C-7, 6) fails to reflect the uniquepircumstances of this case. Therefore, the maximum penalty 

range will not be utilized. Instead, the moderate range of the penalty guidance is more fitting to • . <1•. 

the facts. The moderate range 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 

of the moderate penalty range sl;tould be utilized. Thus, the amount of $2,700 is appropriate as .·• ':';"l. •. 

the penalty charged per flight in this case. Since there were six ( 6) flights, there are six ( 6) 

charged penalty amounts. 

Based on the foregoing the Respondent 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· 

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Respondent and others. It also reflects the goals of the sanction guidance and the totality of the 

circumstances. 

Pursuant to 14 C.F.R. § 13.232(d), this Initial Decision shall be considered a final order 

assessing civil penalty unless either party files a notice of appeal within 10 days of service of this 

Initial Decision pursuant to 14 C.P.R.§ 13.233. 

Attachment: Service List 

Page 9 of 9 
SERVICE 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-Suite 2W1 000 1 

Mr. Zachary M. Berman 

Complainant's Counsel 

ONE COPY 

Office of Regional Counsel, Eastern Region 

Federal Aviation Administration 

1 Aviation 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, P A 18419 

TEL: 570-945-5125 

FAX: 570-945-5953 

Judge J.E. Sullivan 

U.S. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey 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-Suite 2WJOOO, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.