UNITED STATES DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC

In the Matter of: AIR CHARTER, INC.

d/b/a AIR FLAMENCO

FAA Order No. 2013-1

Docket No. CP09SO0008

FDMS No. FAA-2009-01001

Served: May 14, 2013

ORDER ON RECONSIDERATION2

I. Introduction

In FAA Order No. 2012-11, the Administrator denied Complainant’s appeal from a 

written initial decision issued by Administrative Law Judge Isaac D. Benkin (“ALJ”). The 

Administrator affirmed the ALJ’s determination that Complainant failed to prove that 

Respondent Air Charter, Inc., d/b/a Air Flamenco (“Air Charter”) had violated 14 C.F.R. 

§§ 119.5(g)3and 91.13(a)4, as alleged in the complaint. Specifically, the Administrator affirmed 

the ALJ’s determinations that Complainant did not prove that Air Charter committed three 

separate violations of the regulations by operating (1) an unauthorized air ambulance (2) with a 

 

1 Generally, materials filed in the FAA Hearing Docket (except for materials filed in security 

cases) are also available for viewing at http://www.regulations.gov. 14 C.F.R. § 13.210(e)(1). 

2 The Administrator’s civil penalty decisions, along with indexes of the decisions, the rules of 

practice, and other information, are available on the Internet at the following address: 

www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/AGC400/Civil_Penalty/. See

14 C.F.R. § 13.210(e)(2). In addition, Thomson Reuters/West Publishing publishes Federal Aviation 

Decisions. Finally, the decisions are available through LEXIS (TRANS library) and WestLaw (FTRANFAA database). For additional information, see the Web site.

3

Section 119.5(g) provides in pertinent part: “No person may operate as a direct air carrier or as a 

commercial operator without, or in violation of, an appropriate certificate and appropriate operations 

specifications.”

4

Section 91.13(a) provides that: “No person may operate an aircraft [for the purpose of air 

navigation] in a careless or reckless manner so as to endanger the life or property of another.” 
2

stretcher installed backwards and (3) with the wrong number of restraint belts on the stretcher. 

Complainant did not appeal from the ALJ’s finding that Air Charter operated a Part 135 flight 

without a current approved flight manual on board in violation of 14 C.F.R. § 91.9(b)(1).5 The 

Administrator wrote in FAA Order No. 2012-11 that the $550 civil penalty assessed by the ALJ 

for the violation of Section 91.9(b)(1) would remain in effect.6 

In its petition for reconsideration, Complainant argues that the $550 civil penalty for Air 

Charter’s violation of Section 91.9(b)(1) is inconsistent with FAA sanction policy. In particular, 

Complainant argues, Air Charter’s history of previous violations warrants a higher civil penalty 

than would otherwise be appropriate for this violation, and neither the ALJ nor the Administrator 

considered Air Charter’s violation history in determining the sanction. Complainant also argues 

that the Administrator erred in FAA Order No. 2012-11 by finding that Complainant did not 

prove by the preponderance of the evidence that there were four restraints on the stretcher rather 

than two as called for under Technical Standard Order C22f. Accordingly, Complainant argues, 

the Administrator also should reverse FAA Order No. 2012-11 in part and hold that Air Charter 

violated 14 C.F.R. § 91.13. 

As will be explained further in this decision, Complainant’s petition for reconsideration is 

denied to the extent that Complainant seeks a reversal of the Administrator’s finding that it failed 

to prove that the stretcher had the wrong number of restraints. Complainant’s petition is granted 

 

5

Section 91.9(b)(1), 14 C.F.R. 91.9(b)(1) provided that:

(b) No person may operate a U.S.-registered civil aircraft –

(1) For which an Airplane or Rotorcraft Flight Manual is required by § 21.5 of this chapter unless 

there is available in the aircraft a current, approved Airplane or Rotorcraft Flight Manual or the 

manual provided for in § 121.141(b)....

6 Air Charter did not appeal from the ALJ’s determination that it had violated the Federal 

Aviation Regulations by failing to have a current approved flight manual on board or contest the 

appropriateness of the $550 civil penalty assessed by the ALJ for this one violation. 
3

to the extent that it seeks a modification of the civil penalty. As will be explained, the 

Administrator finds that under FAA sanction policy, a $2,500 civil penalty is warranted under 

the circumstances of this case for the violation of Section 91.9 (not having a current approved 

flight manual on board during the flight). 7 

II. Background

Air Charter is a certificated air carrier based in Isla Grande, Puerto Rico. It is authorized 

to conduct on-demand operations under 14 C.F.R. Part 135. (Government’s Exhibit 3 at A001-

1.) On June 8, 2008, it operated a flight on board a Britten-Norman BN-2A-26 aircraft, 

registration number N906GD, from Culebra to Isla Grande, Puerto Rico, carrying an elderly 

female passenger on a stretcher. After the aircraft landed, the patient was carried off the aircraft 

on the stretcher and transferred from the stretcher to a gurney on the tarmac. Subsequently, she 

was driven to the hospital by a ground ambulance. FAA Inspector Eugene Jester, who was 

conducting surveillance operations at Isla Grande Airport that day, observed the transfer of the 

patient from N906GD to the ground ambulance. 

III. The Restraints

Complainant alleged in paragraph II.7 of the complaint as follows: “The abovementioned stretcher had an improper number of safety belts (four) and therefore did not meet the 

standards of the Technical Standard Order (TSO-C22f). Britten-Norman Maintenance Manual, 

Supplement 16 to Chapter 2.4.” The FAA did not allege in the complaint that the safety belts 

were installed improperly or that the wrong safety belts were installed. 

 

7 During his inspection, Inspector Jester asked the pilot for a copy of the aircraft flight manual. 

(Tr. 42.) The pilot provided a copy of Britten-Norman Islander Flight Manual FM-7. (Tr. 122; 

Government’s Exhibit 12.) The current approved flight manual for this aircraft, when registered in the 

United States, was the FM-20. The aircraft was removed from the Anguilla, British West Indies Register 

of Civil Aircraft on May 13, 2005, and was issued a U.S. aircraft registration certificate on May 24, 2005. 

(Respondent’s Exhibits 34 and 38.) The FAA issued a standard airworthiness certificate on July 22, 

2005. 
4

In FAA Order No. 2012-11, the Administrator wrote:

Regarding the restraint belts on the stretcher, Mr. Torres [Air Charter’s president] 

testified that an M-915 stretcher unit kit was installed on the aircraft, and the belts were 

part of the kit. (Tr. 436.) According to the Britten-Norman representative who was 

consulted by Inspector Rodas, the NB-NM-0915 includes a stretcher which “comes with 

two safety belts, which ... are crossed across the patient. These belts are TSO’d to TSOC-22f.”) (Government Exhibit 16.) It stands to reason that the stretcher unit that was 

installed in this aircraft had the correct number of safety belts, i.e, two safety belts which, 

when fastened properly, would criss-cross the body of the patient.

The only photographs in which the belts can be seen are photograph 5 in Exhibits 3a and 

3b. These photographs show the stretcher with the recumbent patient. It cannot be 

determined from the photographs how many belts are attached to the stretcher because 

the stretcher is behind the gurney from the ambulance. Only one belt on the stretcher can 

be viewed extending horizontally across the woman’s thighs or lower torso, but it cannot 

be determined whether the belt is fastened incorrectly or fastened at all.

(FAA Order No. 2012-11 at 12-13.) 

In its petition for reconsideration, Complainant argues that Inspector Jestor testified that 

when he physically inspected the belts on the stretcher, he observed four belts, and therefore, the 

stretcher had two more belts than it should have had according to the manufacturer’s manual. 

(Petition at 3, referring to Tr. 62-63.) Complainant argues that this “uncontroverted testimony” 

proved its allegation that the stretcher had the wrong number of belts, regardless of the fact that 

Inspector Jester could not determine from looking at Photograph 5 in Government’s Exhibit 3b 

how many belts were on the stretcher. (Petition at 3.)

Here is what we know about the approved configuration of the safety belts on this 

stretcher. Government’s Exhibit 5, which is Supplement No. 16 to Chapter 2.4 (Operator’s 

Option NB/M/915, Issue 4 and NB/M/1002, Issue 1 of the Britten-Norman Maintenance Manual) 

contains schematic drawings showing the installation of one stretcher, two stretchers or three 

stretchers on this aircraft. The drawing for the single stretcher installation does not show the 

safety belts, but the drawings for the three-stretcher installation clearly depicts how the safety 
5

belts should appear when buckled and how they should be installed. Copies of the threestretcher installation diagrams from Chapter 2.4/Supplement 16, included in Government’s 

Exhibit 5 are set forth below.
6

Detail A of these drawings shows that:

 There should be two safety belts on each stretcher.

 Each safety belt consists of two straps.

 One end of each strap should be bolted to the frame of the stretcher.

 When fastened correctly, a pair of straps (one safety belt) should extend diagonally 

across the stretcher and be buckled8together over the fabric of the stretcher.

 When both pairs of straps are fastened correctly, the two safety belts should crisscross over each other, making an X over the stretcher.

Hence, it may be concluded that if a patient was on the stretcher, the two safety belts, when 

fastened properly, should criss-cross over the patient’s body. 

Inspector Joel Rodas’s testimony concerning the approved configuration of the two safety 

belts is consistent with the above description based upon Government’s Exhibit 5. Inspector 

Rodas did not observe the stretcher or interview anyone about the stretcher. He relied upon the 

photographs and information that he received from Inspector Jestor as the factual predicate for 

his investigation. He contacted a Britten-Norman representative, who informed him by e-mail 

that “this stretcher comes with two safety belts which, as you rightly say, are crossed across the 

patient. These belts are TSO’d to TSO-C22f.”9 (Government Exhibit 16.) Inspector Rodas also 

testified that he had learned that each safety belt consisted of two straps. He testified “[t]he 

seatbelts are to be used two and two only.” (Tr. 125.) 

 

8 There is no evidence in the record regarding the operation of the buckles and the drawings are 

not detailed enough to make clear the type of buckles that should be on these safety belts. 

9 The Britten-Norman representative wrote further: “Unfortunately we do not have a 

modification for four belts directly traversing the body....” (Government Exhibit 16.) Inspector Rodas 

testified that the stretcher had “four seatbelts, one across the shins, one across the thighs, and maybe one 

across the waist and another one across the chest.” (Tr. 126-127.) Inspector Rodas, however, had no 

personal knowledge about that stretcher and there is no picture in the record that shows four safety belts 

on N906GD’s stretcher in that configuration. 
7

Contrary to Complainant’s argument, Inspector Jestor never testified that he observed 

four seat belts during his inspection of the stretcher at the airport on June 8, 2008. Neither 

counsel asked Inspector Jestor how many safety belts he observed during his inspection, and the 

ALJ did not ask that question. This is odd because Inspector Jestor was the only FAA witness 

who observed the stretcher to testify at the hearing, and the only witness who could have 

established in Complainant’s case in chief the number of safety belts on that stretcher. Inspector 

Jestor’s only testimony about his observation of the stretcher was that he did not observe TSO 

labels on the belts and that he did not know at the time of his inspection whether the stretcher 

had an adequate number of belts. (Tr. 58.) He did not otherwise describe the safety belts that he 

saw. He did not explain how many straps each safety belt consisted of, the types of buckles, how 

the straps were attached to the frame, or what type of safety belts this stretcher should have had.

Inspector Jestor looked at photograph 5 of Government’s Exhibit 3b, and testified that he 

could not determine from this photograph how many safety belts were on this stretcher. (Tr. 61.) 

On cross-examination, Inspector Jestor was asked to look at a photograph that Air Charter’s 

counsel referred to as “number five,” describing this photograph as depicting the inspector 

bending over the stretcher. Air Charter’s counsel asked the inspector how many seat belts could 

be seen “hanging” from the stretcher in photograph “number 5.” The inspector indicated that the 

photograph that he was being shown was not the same as photograph 5 in Government’s Exhibit 

3b. After apparently figuring out which photograph Air Charter’s counsel wanted him to look at, 

the inspector responded “four” without specifying whether he meant four straps or four safety 

belts (each consisting of two pairs of straps). (Tr. 62.) The inspector testified that “there should 

only be two belts” and that the stretcher “had two more than it should have had.” (Tr. 63.) 

Because each safety belt should consist of two straps, Inspector Jestor may have meant that he 
8

saw four straps, each one ending with a buckle, hanging from the stretcher. He never indicated 

in his testimony that he was aware that each safety belt consisted of two straps. 

As the Administrator wrote in FAA Order No. 2012-11, it cannot be determined from any 

of the photographs introduced into evidence how many safety belts were on this stretcher on 

June 8. The record does not contain a photograph “number 5” other than the photograph number 

5 in Government Exhibits 3a and 3b, which do not correspond with Inspector Jestor’s testimony. 

An examination of the pictures that are in the record provides no greater clarity. In some of the 

pictures in the record, the stretcher is obscured by the gurney which had straps hanging down, 

and someone looking at those photographs might count the gurney’s straps as straps hanging 

from the stretcher. 

Consequently, it is impossible to obtain any certainty from Inspector Jestor’s cryptic and 

conclusory statement which was based upon a photograph that is not in the record. There is 

simply no way to know on this record what he meant. 

Hence, Complainant’s argument that the Administrator had erred because he failed to 

consider Inspector Jestor’s testimony of his observation of the stretcher is rejected. The 

testimony that Complainant relies upon in its petition for reconsideration was based upon an 

inadequately identified photograph at the hearing – not upon a direct personal observation – and 

there is no photograph in the record to clarify or confirm his testimony about that photograph. 

III. Civil Penalty for Violation of Section 91.9(b)(1)

Complainant contends that the Administrator failed to consider its argument on appeal 

that the ALJ’s sanction analysis regarding the violation of Section 91.9(b)(1) was flawed. 

Complainant argues in its petition that a “sanction in the moderate range ($2,200 - $4,399) is 

supported by Respondent’s violation history.” (Petition at 2-3.) 
9

Preliminarily, Complainant did not argue specifically on appeal that the Administrator 

should assess a moderate range civil penalty between $2,200 and $4,399 for Air Charter’s 

violation of 14 C.F.R. § 91.9(b)(1). Instead Complainant argued in its appeal brief that the 

Administrator should assess an $11,000 civil penalty against Air Charter, as sought in the 

complaint, for all of the alleged violations. (Appeal Brief at 20.) As a result of Complainant’s 

failure to argue clearly in its appeal brief for a particular penalty for the violation of Section 

91.9(b)(1),10 the Administrator did not analyze the sanction for this violation alone in FAA Order 

No. 2012-11. Accordingly, Complainant’s petition that the Administrator examine the $550 civil 

penalty in light of agency sanction guidance is granted.

The Enforcement Sanction Guidance Table, set forth in FAA Order No. 2150.3B, 

Appendix B, recommends minimum, moderate or maximum civil penalty ranges for different 

types of violations. The penalty ranges reflect a variety of factors, including the nature of each 

violation and the violation’s potential effect on aviation safety. These ranges are based on the 

assumption that the violator has a violation-free history and that the violation was not deliberate 

or reckless. (FAA Order No. 2150.3B, Chapter 7 at 7-7 and 7-9.) 

The Table does not provide specific guidance pertaining to situations in which an air 

carrier failed to carry a current flight manual on board an aircraft during an operation. The Table 

does, however, provide guidance regarding a somewhat analogous violation, i.e., an air carrier’s 

failure to maintain a current maintenance manual, and recommends a minimum range civil 

penalty for such violations. (FAA Order No. 2150.3B, Appendix B, at B-12.) 

 

10 The closest that Complainant came in its appeal brief to challenging the sanction amount for 

the one violation was in a sentence near the end of the sanction argument in which Complainant wrote 

that the “$550 civil penalty is below the minimum amount in the sanction guidance for one violation 

($850.)” (Appeal Brief at 19.) 
10

The FAA sanction guidance sets forth proportional civil penalty ranges, depending upon 

the size of the carrier or operator, for minimum, moderate and maximum level violations. (FAA 

Order No. 2150.3B, Appendix B, at B-3-B-5.) The guidance divides air carriers and operators 

into four “groups,” with the largest entities in Group I and the smallest entities in Group IV. 

(Id.) The ALJ found that the record contained no evidence regarding Air Charter’s size, “either 

in terms of its gross annual revenues or the number of aircraft in its inventory or the number of 

employees on its staff.” (Initial Decision at 13-14.) The ALJ held, therefore, it would be 

appropriate to consider Air Charter as a Group IV operator for sanction purposes. However, the 

ALJ apparently overlooked the page in Air Charter’s operations specifications indicating that Air 

Charter was authorized to operate 8 aircraft in Part 135 operations. (Government’s Exhibit 4 at 

D085-1.) Group III air carriers and operators are defined in Appendix B as those air carriers and 

operators operating under 14 C.F.R. Part 135 with 6 to 49 pilots or 6 to 49 aircraft. (FAA Order 

No. 2150.3B, Appendix B at B-3.) Hence, Air Charter was a Group III carrier for civil penalty 

sanction purposes. 

Under FAA Order No. 2150.3B, a minimum civil penalty for an air carrier or commercial 

operator with 6 to 24 aircraft, like Air Charter, for violations arising under 49 U.S.C. 

§ 46301(a)(5)(A) would be between $825 and $3,299 per violation. 11 (FAA Order No. 2150.3B, 

Appendix B at B-4.) According to the guidance, the “middle of each recommended sanction 

range would be for a single violation without aggravating or mitigating factors.” (FAA Order 

 

11 Complainant argues in the petition for reconsideration that a penalty in the $2,200 to $4,399 

range – which is the moderate civil penalty range for Group IV operators for violations under 49 U.S.C. 

§ 46301(a)(5)(A) – would be appropriate. As explained above in the text, the only analogous violation in 

the Table calls for a minimum civil penalty. At most, Air Charter’s violation history warrants a penalty at 

the higher end of the minimum range for a Group III operator, and does not justify a moderate range civil 

penalty for any size carrier.
11

No. 2150.3B, Appendix B at B-2.)12 Consideration must be given to whether any mitigating or 

aggravating factors existed that warrant a penalty that is above or below the midpoint of the 

$825-3,299 minimum range.13 

In this case, the ALJ found that a penalty at the lower end of the range14 was appropriate 

for the flight manual violation because the aircraft had a “serviceable flight manual” on board. 

(Initial Decision at 14.) The preponderance of the evidence established that at the time of the 

investigation, Britten-Norman flight manual FM-7 was on board the aircraft. The current 

approved flight manual for this aircraft was the FM-20 version. The FM-7 was not appropriate 

for aircraft registered in the United States. After this incident, Air Charter ordered the 

appropriate version of the manual. (Tr. 239, 417-418.)

Fernando Otero, who testified on Air Charter’s behalf, testified that there was only a 

“slight difference” between the FM-7 and the FM-20. Air Charter’s president, Francisco Torres, 

testified that the only difference between the FM-7 and the FM-20 involved aircraft gross 

weight. (Tr. 416.) The FM-20 had performance data for this aircraft up to 6,200 lbs gross 

weight, (Respondent’s Exhibit 37), and the FM-7 had data for this aircraft up to 6,300 lbs gross 

weight. (Tr. 416.) Torres testified that under Section 3 of Air Charter’s operations manual, Air 

 

12 Also, it is stated in FAA Order No. 2150.3B as follows: “When determining a specific sanction 

amount within a range, FAA enforcement personnel begin with an amount in the middle of the range and 

increase that amount toward the higher end of the range for aggravating factors or decrease that amount 

toward the lower end of the range for mitigating factors.” (FAA Order No. 2150.3B, at 7-9.)

13 There may be circumstances in which mitigating or aggravating factors would justify the 

imposition of a civil penalty that is outside of the sanction range recommended in the guidance. Proof of 

inability to pay a sanction might justify a penalty below the sanction range, and proof of deliberate 

violations might warrant a penalty above the recommended range. FAA Order No. 2150.3B at 7-9 

through 7-10.)

14 The ALJ, as discussed previously, used the Group IV penalty range, rather than the Group III 

penalty range in making his determinations.
12

Charter does not fly aircraft any heavier than 6,200 lbs. (Tr. 416.) Hence, Air Charter 

contended, safety was not impaired by the failure to carry the FM-20. 

This factor, however, does not justify a sanction at the lower end of the minimum range. 

It is important that operators have current approved manuals on board their aircraft, and while it 

is fortunate that there were not greater differences between the two manuals, that “luck” does not 

warrant a lower sanction.

In its petition for reconsideration, as in its appeal brief, Complainant argues that the ALJ 

ignored Air Charter’s violation history. A violation-free history is the norm, and a respondent’s 

history of prior violations is an aggravating factor. Pinnacle Airlines, Inc., FAA Order No. 

2012-2 at 19 (May 22, 2012). “[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 No. 2150.3B at 7-

7. The evidence indicated that Air Charter had paid a $6,500 civil penalty for a violation of 

14 C.F.R. Part 135 three years earlier by using a pilot who did not have the minimum number of 

flight hours. (Tr. 230, 240-242.) However, the violation in the previous case is not factually 

similar with the flight manual violation in the present case and the two cases did not involve the 

same or similar regulations.15 Consequently, while a civil penalty that is somewhat higher than 

the mid-point is warranted due to Air Charter’s violation history, there is no need to assess a 

penalty at the top of the minimum range or in the moderate range.

In light of the above analysis, it is determined that the $550 civil penalty assessed by the 

ALJ is inconsistent with agency sanction policy. A $2,500 civil penalty is appropriate under the 

 

15 “In deciding whether a violation history justifies aggravating the sanction or changing the usual 

type of sanction, the FAA considers the length of time that has elapsed between violations, whether the 

violations involved the same or similar regulations, and whether the violations are factually similar.” 

FAA Order No. 2150.3B at 7-7.
13

policy, taking into consideration the nature of the violation, the size of the operator, and the 

operator’s violation history. 

IV. Conclusion

Based upon the foregoing, Complainant’s petition for reconsideration is granted in part 

and denied in part. A $2,500 civil penalty is assessed.16

[original signed by Michael P. Huerta]

MICHAEL P. HUERTA, ADMINISTRATOR

Federal Aviation Administration

 

16 Respondent may file a petition for review in the appropriate Federal court under 49 U.S.C. § 46110 and 

14 C.F.R. § 13.235.