U.S. Department of Transportation Federal Aviation Administration 

### APR 2 7 2015

VIA FEDERAL EXPRESS Ronnie Adili, 

### PA 5645 Coral Ridge Drive, #292 Coral Springs, FL 33076 Robert A. Sweetapple Sweetapple, Broeker & Vargas, P.L. 165 East Boca Raton Road BocaRaton, FL 33432 Office ofAirport Compliance and Management Analysis

David Arthur, Esq. Assistant County, Attorney Broward County Attorney's Office 115 S. Andrews Avenue, Suite 423 Ft. Lauderdale, FL 33301 DearMessrs. Adili, Sweetapple, and Arthur: 800 Independence Ave., SW. Washington, DC 20591

Re: Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida, FAA Docket No. 16-12-15 Enclosed is a copy ofthe determination ofthe Federal Aviation Administration (FAA) with**r~spect** to the above-referenced matter finding Broward County, Florida, not inviolation ofits federal obligations with respect to this complaint. The reasons for the finding ofcompliance are set forth in the enclosed Director's Determination. The Director's Determination does not constitute a Final Agency Decision and order subject to judicial review. [14 CFR § 16.247(b)(2)] A party adversely affected by the Director's Determination once issued may appeal the initial determination to the FAA Associate Administrator for Airports pursuant to 14 CFR § 16.33(c) within 30 days after the service ofthe Director's Determination. Sincerely,

Randall S. Fiertz Director ofAirport Compliance

and Management Analysis Enclosure

### CERTIFICATE OF SERVICE

I HEREBY CERTIFY that onApril

# n, 2015, I caused to be placed in the United States mail (first class mail, postage paid) a true copy!ftteFAA's Request for Additional Information andNotice of Extension ofTime, addressed to: For Complainant Ronnie Adili, P.A. 5645 Coral Ridge Drive, #292 Coral Springs, FL 33076 Robert 

### A. Sweetapple Sweetapple, Broeker & Vargas, P.L. 165 East Boca Raton Road Boca Raton, FL 33432 For Respondent David Arthur, Esq. Assistant County Attorney Broward County Attorney's Office 115 S. Andrews Avenue, Suite 423 Ft. Lauderdale, FL 33301 Copy to: FAA Part 16 Airport Proceedings Docket FAA Airport Compliance and Management Analysis, AC0-100

# f~d~ Claudia Roberts Office ofAirport Compliance andUNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC

TropicalAviation Ground Services, Inc., and Air Sunshine, Inc., Complainant,



### v. Broward County, Florida Respondent. FAA Docket No. 16-12-15

DIRECTOR'S DETERMINATION I. INTRODUCTION Tropical Aviation Ground Services, Inc., eta!. (Complainant/Tropical) brings tbis complaint pursuant to 14 CFR Part 16 against Broward County, FL (Respondent/County/Airport), the owner and operator ofFort Lauderdale-Hollywood International Airport (FLL). The complaint alleges violations ofGrant Assurance 22, EconomicNondiscrimination; Grant Assurance 23, Exclusive Rights; Grant Assurance 24, Fee and Rental Structure; Grant Assurance 30, Civil Rights; Grant Assurance 37, DisadvantagedBusiness Enterprises; and Grant Assurance 39, CompetitiveAccess. 1 The Complaint seeks a "writ ofmandamus compelling Broward County to honor its legal obligations pursuant to its Federal Grant Assurances and grant the Tropical a long-term lease" and "any further reliefas the court deemsjust and proper."2 Inresponse, the County states "ithas complied with the applicable Federal law and Federal Aviation Administration (FAA) Grant Assurances." 3 The County also states that Complainanthad derelict aircraft on leased property that were not removed as required by .ordinance, and that Complainant failed to vacate the premises within 180 days as required by a settlement agreement entered into bythe parties. The County further states that this alleged breach ofthe settlement agreement relieved itofany duty to provide the consent required for Tropical orits subsidiary to obtain a sublease at FLL. 4 The Director finds thatthe Airport is not in violation ofits Federal obligations with respect to Grant Assurances 22, Economic Nondiscrimination; Grant Assurance 23, Exclusive Rights; Grant Assurance 24 Fee andRental Structure; GrantAssurance 30, CivilRights; Grant Assurance 37DisadvantagedBusiness Enterprises; and Grant Assurance 39 CompetitiveAccess.

1FAA Exhibit I, Item I, pages 9-25. 2 FAA Exhibit I, Item 1, pages 25-29. 3 FAAExhibit 3B, p. I3. Page ITropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAA DocketNo. 16-12-15 

### II. PARTIES A. Airport FLL is a public-use commercial service airport owned and operated by Broward County, Florida. The airport is located approximately 3 miles southwest ofFort Lauderdale and 21 miles nortb ofMiami. The airport encompasses 1,380 acres and has 2 runways. 5 There were 96,204 operations at the Airport in 2011 and 138 aircraftbased on its grounds, according to the 2011 FAA Terminal Area Forecast. FLL serves more than 23 million passengers annually. FLL offers 268 daily flights to the U.S., Canada, Caribbean, and Latin Arnerica. 6 The Airport has 4 terminals, one of which is dedicated to commuter airline service (See Figure 1). The development ofthe Airport was financed, in part, withAirport and Improvement Program (AIP) funding. This funding is authorized bythe Airport and Airway ImprovementAct of 1982, as amended, 49 U.S.C. §47101, et seq. According to the provisions ofthis Act, the County is obligated to comply with the FAA sponsor grant assurances and related Federal law, 49 U.S.C. §47107. Since 1982, the Board has accepted $343.3 million inAIP financing for the runway extension and an additional $5.6 millioninAmerican RecoveryandReinvestmentAct (2009) funding. The Airport was also provided Federal assistance in the form ofsurplus property conveyances. In 1942, itwas developed as a U.S. Navy Naval Air Station. The military facilities closed in 1946, and in January of 1948, Broward County assumed control ofthe facility. 

### In 1953, the County formally took ownership. 7 The United States Government conveyed the airfield and its facilities to Broward County as a civil airport. As a result, the County has incurred obligations in the form ofrestrictive deed covenants arising from conveyances ofland executed under the powers and authority contained in the provisions ofthe Surplus Property Act (SPA) of 1944, as amended, 49 U.S.C. §47151-153. 8 The Instrument ofTransfer is the means by which the United States Government transferred its interests inthe Airport to Broward County and, in conjunction with the AIP grants, imposes certain obligations on the airport sponsor. 

### B. Complainant Complainant, Tropical Aviation, is a Florida corporation that leased hangar and ramp space at 3940 SW 12 Terrace, Fort Lauderdale, Florida 33315 at FLL. Complainant, Air Sunshine, a Florida corporation, is an affiliate ofTropical. According to the complaint, thetwo companies share the same officers and "have a common identity for purposes ofownership."9 Complainant states that Air Sunshine, as an air carrier, 10 provides air services (passengers and cargo), and sub-leases Tropical's lease space at FLL and uses the leasehold at FLL primarily for maintenance ofthe aircraft used in its operations. 11 Complainant canbe

5 FLL FAA Form 5010 at**ht1p://www.gcrl.com/5010WEB/airport.cfm?Site=oFLL&CFID~II926194&CFTOKEN~59432747.** 6 ht1p://www.broward.org/AirporVAbout!Pages/History.aspx. 7 http://www.broward.org/AirporV About!Pages/history2.aspx. 8 Surplus Property Agreement under Public Law 80-289. In addition, the Airport records indicate that anon-surplus conveyance under Section 16 or Section 23 was made as part ofthe transfer to the County. However, the Director finds that additional details on this conveyance, as it differs from the surplus conveyance under the SPA mentioned above, are not necessary for the present Complaint. See FAA Order 5190.2R List of

PublicAirportsAffectedbyAgreements with The Federal Government, April 30, 1990. 9 FAAExhibit I, Item I, pages 1-2. 10 Air Carrier- A person who undertakes directly by lease, or other arrangement, to engage in air transportation. This includes an individual, firm, partnership, corporation, company, association,joint-stock association, governmental entity, and atrustee, receiver, assignee, or similar representative ofsuch entities. See 14 CFR Part 1.1, GeneralDefinitions. 11 FAA Exhibit I, Item I, page 4. Page2Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAA DocketNo. 16-12-15 represented as a single-serviceprovider (Part 135 service provider), and not a full-service fixed-base operator (FB0). 12 Air Sunshine was initially certificated in 1982 by the Miami FSDO.



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Figure 1 -Fort Lauderdale-Hollywood International Airport diagram dated September 2014. It depicts the general airfield configuration but also the 4 tenninals. Terminal 4, encircled in red, is the terminal used by commuter airlines. Source: FAA.

12 See 1996 Lease Agreement and Background section below. Single service providers are common and are permitted by FAA policies. See Advisory Circular AC 150/5190-7 Minimum Standards for CommercialAeronauticalActivities, August 28, 2006, pages 4 and 6. Page3Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAA DocketNo. 16-12-15
As ofOctober 1, 2014, a review oftheFAA'srecords on 14 CPRPart 135 operators lists Air Sunshine, Inc., withthe certificate designator RSHA311A (Licensedto fly US,MX,SA,CB,PR) and three Cessna402 aircraft, N347AB, N441TT, N477RS, andN603AB (See Figure 2). 13 Its IATA14 code is YI while its ICA0 15 code is RSI. 16 Currently, the airline's Web site identifies the following destinations: San Juan (Puerto Rico), St. Thomas, St. Maarten, Tortola, St. Kitts, Nevis, Dominica, and Antigua, all inthe Caribbean. 17 The airline also publishes schedules and rates for bothpassenger and cargo services. 18 The airline employs approximately 45 people (2011). 19 

### III. PROCEDURAL HISTORY According to the Complaint, onJanuary 26,2012, Complainant and the County metto resolve outstanding issues through an informalprocess, butwere unable to find resolutions to the issues.20 On September 28, 2012, Complainant filed a formal Part 16 Complaint. On October 22, 2012, the FAA issued theNotice of Docketing 21 OnNovember 8, 2012, a Notice of Parties' Election to File RemainingPleadings Electronically, was filed with the FAA.22 OnNovember 14, 2012, the County filled a set ofthree pleadings: (1) RespondentBroward County'sMotion to Dismiss Complainant's Complaintwith Prejudice for Failure to State a Claim upon Relief May be GrantedPursuant to 14 CFR 

### § 16.19 and F.R.C.P. 12(b)(6); 23 (2) RespondentBroward County'sAnswer andAffirmative Defenses;24 and (3) RespondentBroward County'sMemorandum of Points andAuthorities in Support of its Motion to Dismiss Complainant's Complaintwith Prejudice for Failure to State a Claim upon Relief May be GrantedPursuantto 14CFR 

### § 16.19andF.R.C.P. 12(b)(6)25 OnApril15, 2013, the FAA issued a Notice of Extension of Time. This extension was followed by several additional extensions dated June 11, 2013; August 15, 2013; October 16, 2013; February 11, 2014; October 17, 2014; andJanuary 29, 2015.26

13 Title 14 CFRPart 135 Operators and Aircraft, FAA, October 1, 2014 at**https://www.faagov/search/?omni~MainSearch&q~Part+135+operators.** Title 14 CFRPart 135 Operators and Aircraft [MS EXCEL]. According to FAA Registry data, other aircraft may have been on Air Sunshine certificate in the past including: 122TA, 123HY, 206RH, 220RS, 251RS, 314AB, 318AB, 327AB, 347AB, 351AB, 36915, 744BA, 792BA, 793BA, 900MX, and 403RM. Some ofthese aircraft were EMB-110, Beech 1900C, and Saab 340 aircraft, not Cessna 402C aircraft. which compose the airline's fleet today.
15 International Civil Aviation Organization. 16 http://www.airlines-inform.com/world _airlines/**Air~**Sunshine.html. 17 http://www.airsunshine.com/Flight-Schedule.htm. Date: December 17, 2014. 18 http://www.airsunshine.com/STX-VQS.htm and http:/ /www.airsunshine.com/ Air-Freight.htm. 19 http://www.aviationsupport.cornfmisc/AirOperators/ AirOperavieW.asp?ID=2339. 2

### °FAA Exhibit 1, Item 1, page 30. 21 FAA Exhibit 1, Item 2. 22 FAA Exhibit 1, Item 5. 23 FAA Exhibit I, Item 3A. 24 FAA Exhibit 1, Hem 3B. 25 FAA Exhibit 1, Item 4. 26 FAA Exhibit 1, Items 6-12. Page4Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAADocketNo. 16-12-15 

### IV. BACKGROUND On January 2, 1996, Tropical and the County entered into a month-to-month lease agreement. The lease stated that "it is understood and agreed that ifby December 31, 1996,**[Com~lainant]** has not entered into a long-term lease agreement for the area depicted on the attached Exhibit C, 7 or such area atthe airport agreed to bybothparties, which includes a full development plan for the site and a financial plan describing the funding strategy for the development ofthe site, thenthis lease Agreement shall terminate on December 31, 1996, and the [Complainant] shall vacate the premises leased under this Lease Agreement no later than December 31, 1996."28 According to the 1996, lease, Complainant's services were limitedto "the maintenance, storage and operation ofLessee's affiliate Air Sunshine, Inc., regularly scheduled Federal Aviation Regulations (FAR) Part 135 commuter operation." The same lease statedthat Complainant was not entitled to provide several services including terminal facilities for passenger operations, otherthan those coveredby FAR Part 135, sale ofnonaviation products, retail sale ofaviation fuel and aviation lubricating oils," "engaging inthe public offering ofaircraft or structural maintenance, or the public sale ofaircraft tie-down, storage, or fueling ofany private or corporate aircraft, or any other aspect ofservice which normally consists ofthe rights and privileges ofa fixed-base operator, and such uses are not permitted ofthe Premises." 29 In addition, under the lease, Complainant could not store derelict aircraft.30 It also stated that "Lessee [Complainant] shall notbe entitledto provide any aviation-related services pursuant to this subparagraph

... unless it has first received the written consent ofthe Aviation Department." 31 Onthe issue ofderelict aircraft, the lease stated "Lessee [Complainant] and all sub-lessees shall not permit the temporary orpermanent storage and shall not allow the arrival atthe premises or the presence atthe premises at any time ofany derelict aircraft." The lease defines "derelict aircraft" as one ofthe following: (1) an aircraft that does nothold a current and valid airworthiness certificate issued by the FAA, together with necessary aircraft registration and maintenance records with a current endorsement by an appropriately rated certificate holder that the aircraft is in an airworthy condition; (2) an aircraft which has been issued a condition notice by the FAA that specifies that the aircraft has one ormore conditions whichrender it un-airworthy, and (3) an aircraft which has had major components, accessories, flight controls, portions ofthe airframe or engines removed so as to render the aircraft un-flyable.32 OnJanuary 30, 1996, Complainant sent a letterto the County raising several problems and issues with its lease, including negotiations to secure a long-term lease, signing the lease agreement under duress, and difficulty in correcting code violations and other issues by the previous tenant.33 Complainant also stated that its expansion plans have been dealt a serious blowbecause ofthese lengthy negotiations, but it could

27 Site diagram attached to the lease. The reproduction provided to the FAA is very poor in terms ofquality and not very helpful in visualizing the leased premises. 28 FAA Exhibit 1, Item 1, ExhibitA, Lease Agreement section 4.1. 29 See FAA Exhibit I, Item I, ExhibitA(Scope ofLease), pages 1.3 -1.4. 30 See FAA Exhibit I, Item I, Exhibit A (Scope ofLease), pages 1.3 -1.4. 31 See FAA Exhibit 1, Item 1, Exhibit A (Scope ofLease), page 1.2. 32 See FAA Exhibit I, Item 1, Exhibit A (Scope ofLease), page 1.4. 33 FAA Exhibit 1, Item 1, Exhibit B. Page 5Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAA Docket No. 16-12-15
not wait any longer. Complainant expresses the need to enter a long-term lease as soon as possible, and asked for a lease similar to whatthe County offeredto other tenants.34 On December 10, 1996, Complainant and the County signed an

### AmendmentNo. I to Short Term Lease Agreement. The agreement extended, on a month-to-month basis, beginningJanuary 1, 1997, the Complainant's leasehold atthe Airport.35 Among its provisions, the Amendment stated that "this Agreement shall terminate upon thirty (30) days written notice, withor without cause, by eitherparty." 36 In November 1999,theCounty enacted Ordinance §2-30(f) 

### Removal of DerelictAircraft orDerelictMotor Vehicles. This ordinance defmes a derelict aircraft andrequires such aircraftto be removed within 90 days following notice bythe County Aviation Department. 37 According to the Complaint, on March 8, 2010, the County notified Tropical thatit was in violation of Ordinance §2-30(f), and thatthe county would move forward to terminate Tropical's lease at the March 23, 2010 meeting ofthe County Commission. 38 On March 23,2010, the County sought the Commission's permissionto evict Tropical inninety days [90] based onthepresence ofderelict aircraft?9 TheCommission approved the request. On or around July 2010, by letterto Complainant, the County announced the termination ofthe short-term lease onAugust 5, 2010. 40

34 See FAA Exhibit 1, Item 1, Exhibit B. 35 FAA Exhibit 1, Item 1, Exhibit C. 36 FAA Exhibit 1, Item 1, Exhibit C, Section 2. 37 According to the Complaint, the Ordinance states, inrelevant part: (1) Derelict aircraft is defined as an aircraft stored, in the open, to which one or more ofthe following applies:

a. An aircraft that does not hold a current and valid airworthiness certificate issued by the Federal Aviation Administration, orother appropriate aircraft certificating authority, together 'Nith necessary aircraft registration and maintenance records with a current endorsementby an appropriately rated certificate holder that the aircraft is in an airworthy condition; or b. An aircraft which has been issued a condition notice bythe Federal Aviation Administration that specifies that the aircraft has one or more conditions which causes itto be not airworthy; or
c. An aircraft which has had major components, accessories, flight controls, portions ofthe airframe, or engines removed so as to render the aircraft not airworthy, or d. An un-hangared aircraft located on the Airport, whether on a tenant leasehold orpublic area, which has been continuously parked or stored on the AOA, and has not landed ortaken off:from the Airport for a period ofsixty (60) days ormore, unless the owner ofsuch aircraft has obtainedtheprior written consent ofthe Aviation Department. (2) Any derelict aircraft shall beremoved from the Airport within a period ofninety (90) calendar days after written notice from the Department. Notwithstanding theforegoing, the Department may make written request to the ownerto demonstrate that an open work order is being actively pursued. Ifthe owner fails to provide the Department with satisfactory evidence that such an open work order is being actively pursued within three (3) calendar days ofthe date requested, then such derelict aircraft shall be removed from the Airport within ninety (90) calendar days from the date the Department makes its written request tothe owner for proofthat an open work order is being actively pursued." FAA Exhibit 1, Item 1, pages 5-6.
38 FAA Exhibit I, Item 1, pages 6-7. 39 FAA Exhibit 1, Item I, page 7. 4

### °

FAA Exhibit 1, Item 1, pages 6-7. Page6Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAA Docket No. 16-12-15
On August 6, 2010, the County filed an eviction complaint against Tropical in state court In response, Tropical filed a counterclaim alleging the County had discriminated against Tropical in attempting to evict Tropical and not entering into a long term lease withTropical for the leased premises.41 On December 22,2010, the County filed a second complaint against Tropical for "eviction, breach oflease, and double rent."42 The County's eviction and double rent claims were set forjury trial on March 22, 2011.43 However, on March 22,2011, the parties engaged in discussions in an effort to resolve the County's eviction and double rent claims. The parties agreed to a SettlementAgreement.44 As part ofthat agreement, theparties agreed, inpart, to the following:

• Tropical Aviation will vacate the Leased Premises within 180 calendar days from the date the County's Board ofCounty Commissioners approves this Settlement (the 180 Days' and in vacating the Leased Premises, Tropical Aviation will remove all items not affixed to the Leased Premises and not owned by the County, including but not limited to aircraft, equipment, .and vehicles, including without limitation, all operable and inoperable aircraft, equipment and vehicles located at the Leased Premises

...
• IfTropical Aviation is prevented by reason ofhurricane or othercasualty caused by nature from vacating the Leased Premises, the County agrees to extend the 180 Days by the amount oftime Tropical Aviation is prevented from continuing its efforts to vacate the Leased Premises

...
• To the extent not prohibited or prevented bythe Fire Marshal, the County will allow Tropical Aviation to locate moving container(s) on the Leased Premises to allow for the removal ofthe aforesaid items, and Tropical Aviationwill immediately remove all containers from the Leased Premises and from Airport property when the containers are 

### full. No containers shall remain on the Leased Premises or on Airport property afterthe last day ofthe 180 Days

...
• The County will not object to Air Sunshine, Inc. entering into a sublease with a prime tenant of the County at the Airport, providedthat any such subleaseby Air Sunshine, Inc., with certain conditions

...
• The Parties will enter into an agreed orderto be filed with the Court dismissing County's eviction and double rent claims and Tropical Aviation's and its affiliate Air Sunshine, Inc.'s claim for temporary injunctive reliefand abuse ofprocess and ordering that ifTropical Aviation fails to vacate the premises within the 180 Days, the Court, on County's motion, shall enter its order requiring the issuance ofthe writ ofpossession to the Broward County Sheriff's Office or appropriate law enforcement agency for Broward County to take immediate possession ofthe Leased Premises.

• Tropical Aviation will continue to pay monthly rent during the 180 Days.45

41 FAA Exhibit 1, Item 3B, Exhibit 1, Exhibit A, page 1. 42 FAA Exhibit 1, Item 3B, Exhibit 1, Exhibit A, page 2. 43 FAA Exhibit 1, Item 3B, Exhibit 1, Exhibit A, page 2. 44 FAA Exhibit 1, Item 3B, Exhibit 1, Exhibit A. 45 FAA Exhibit 1, Item 3B, Exhibit A, pages 2-3. Page 7Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAA DocketNo. 16-12-15
On May 10, 2011, the Broward County Board ofCounty Commissioners approved the settlement agreement negotiated between Tropical and the County. 46 This effective date for the writ ofpossession, ifTropical failed to vacate, was ordered to be byNovember 6, 2011.47 OnNovember 18,2011,the court issued a writ ofpossession against Tropical. 48 According to the Complaint, onDecember 23,2011, the County "refusedto give consent to the sublease between AIR and FLL-AIR [aprime tenant atthe Airport]."49 According to the County, ithadno obligation to consent to a sublease because Complainanthadbreached the settlement agreement.50 According to the Complaint, on January 26, 2012, Complainant and the County met to resolve outstanding issues through an informal process. The parties were unable to find resolutions to the issues between them.51 On September 28,2012, Complainant filed a formal Part 16 Complaint with the FAA's Office of Airports Compliance Division.52 V. 

### ISSUES The complaintraises the following six issues:



### Issue 1 -Whetherthe County is inviolation ofGrant Assurance 22 Economic Nondiscrimination, by (1) not entering into a long-term lease with Complainant, (2) by enacting the derelict aircraft ordinance and then applying it withrespect to Complainant in a manner different from how applied to others. 

### Issue 2

- Whether the County is in violation ofGrant Assurance 23 Exclusive Rights by denying Complainant a long-term lease while granting other similarly situated tenants such leases. 

### Issue 3- Whether the County is in violation ofGrant Assurance 24 Fee andRental Structure by failing to maintain a uniform fee and rental structure for the facilities and services atthe airport, and by failing to provide Complainant a long-term lease or otherlease options available to similarly situated tenants at the airport. 

### Issue 4- Whether the County's denial ofeither ofthe Complainant's requests for a long-term lease request or to improve their leased property, while other similarly situated tenants were offered such conditions, violated Grant Assurance 30, CivilRights. 

### Issue 5- Whether the County's denial ofthe Complainant's long-term lease request, while granting other tenants such leases, violated Grant Assurance 37, DisadvantagedBusiness Enterprises. 

### Issue 6- Whether the County's denial ofthe Complainant's long-term lease request, while granting other tenants such leases, violated Grant Assurance 39, CompetitiveAccess.

46 FAA Exhibit I, Item 3B, Exhibit A, pages 2-3. 47 FAA Exhibit I, Item 3B, Exhibit A, Exhibit 2, page 5. 48 FAA Exhibit I, Item 3B. ExhibitA, Exhibit 2, page 5. 49 FAA Exhibit I, Item I, page 9. 5

### °FAA Exhibit, Item 3B, page 5. 51 FAA Exhibit I, Item I, page 30. 52 FAAExhibit I, Item I, pages 9-I7, I7-I9, I9-20, 20-22, 22-23, and 23-25. Page 8Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAA DocketNo. 16-12-15
VI. APPLICABLE FEDERAL LAW AND FAAPOLICY The Federal role in civil aviation has been augmented by various legislative actions that authorize programs for providing Federal funds and other assistance to local communities for the development of airport facilities. In each suchprogram, the airport sponsor assumes certain obligations, either by contract orby restrictive covenants in property deeds and conveyance instruments, to maintain and operate its airport facilities safely and efficiently and in accordance with specified conditions. Commitments assumed by airport sponsors inproperty conveyance or grant agreements are important factors in maintaining a high degree ofsafety and efficiencyin airport design, construction, operation and maintenance, as well as ensuring the public fair and reasonable access to the airport. 

### A. The Airport Improvement Program (AlP) Title 49 U.S.C., 

### § 47101, etseq., provides for Federal airport financial assistance for the development of public-use airports under AlP established by the Airport and Airway Improvement Act of 1982, (AAlA) as amended. Title 49 U.S.C., § 47107, etseq., sets forth assurances to which an airport sponsor agrees as a condition ofreceiving Federal financial assistance. Upon acceptance ofan AlP grant, the assurances become a binding contractual obligation between the airport sponsor and the Federal Government. The assurances made by airport sponsors in AlP grant agreements are important factors in maintaining a viable national airport system. 

### B. Airport Sponsor Assurances As a condition precedent to providing airport development assistance under AlP, 49 U.S.C., § 47107, et seq., the Secretary ofTransportation and, by extension, the FAA mustreceive certain assurances from the airport sponsor. Title 49 U.S.C., § 47107(a) sets forth the sponsorship requirements to which an airport sponsor receiving Federal financial assistance must agree. The FAA has a statutory mandate to ensure that airport owners comply with these sponsor assurances.53 FAA Order 5190.6B, FAAAirport Compliance Manual (Order), issued on September 30, 2009, provides the policies and procedures to be followed bythe FAAin carrying out its legislatively mandated functions related to compliance with Federal obligations of airport sponsors. The FAA considers itinappropriate to provide Federal assistance for improvements to airports where the benefits ofsuch improvements will not be fully realized due to restrictions on aeronautical activities. The FAA grant assurances that applyto the circumstances set forth inthis Complaint are as follows: Grant Assurances 22, EconomicNondiscrimination; Grant Assurance 23, Exclusive Rights; Grant Assurance 24 Fee andRentalStructure; Grant Assurance 30, Civil Rights; GrantAssurance 37 DisadvantagedBusiness Enterprises; and Grant Assurance 39 CompetitiveAccess. 1. Grant Assurance 22. Economic Nondiscrimination Grant Assurance 22 ofthe prescribed sponsor assurances implementrequires, in pertinentpart, that the sponsor ofa federally obligated airport assure: "a. Itwill make the airport available as an airport for public use onreasonable terms and without unjust discrimination to all types, kinds and classes ofaeronautical activities, including commercial aeronautical activities offering services to thepublic at the airport.

53 See. e.g .. the FederalAviationAct of 1958, as amended and re-codified, Title 49 USC,§§ 40101,40113, 40114,46101,46104,46105,46106, 46110; and the Airport and Airway Improvement Act of 1982, as amended and re-codified, Title 49 USC,§§ 47105(d), 47106(d), 47107(k), 47107(1), 47111(d), 47122. Page 9Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAA DocketNo. 16-12-15 b. In any agreement, contract, lease or other arrangement under which a right orprivilege atthe airport is granted to any person, firm, or corporationto conduct or engage in any aeronautical activity for furnishing services to the public atthe airport, the sponsor will insert and enforce provisions requiring the contractorto: 1

....furnish said services ona reasonable, and notunjustly discriminatory, basis to all users thereof, and 2

....charge reasonable, and not unjustly discriminatory, prices for each unit or service, provided that the contractor maybe allowed to makereasonable and nondiscriminatory discounts, rebates, or other similar types ofprice reductions to volume purchases.

c. Each FBO at the airport shall be subject to the same rates, fees, rentals, and other charges as are uniformly applicable to all otherFBOs making the same or similar uses ofsuch airport and utilizing the same or sinlllar facilities

...
e. Each air carrier using such airport (whether as a tenant, non-tenant, or subtenant ofanother air carriertenant) shall be subject to such nondiscriminatory and substantially comparable rules, regulations, conditions, rates, fees, rentals, and other charges withrespect to facilities directly and substantiallyrelated to providing airtransportation as are applicable to all such air carriers which make similar use ofsuch airport and utilize similar facilities, subject to reasonable classifications such as tenants ornon-tenants and signatory carriers and non-signatory carriers. Classification or status as tenant or signatory shall notbe unreasonablywithheldby any airport provided an air carrier assumes obligations substantially similar to those already imposed on air carriers in such classification or status
... h. The sponsormayestablish suchreasonable, and notunjustly discriminatory, conditions to be met byall users ofthe airport as maybe necessary for the safe and efficient operation ofthe airport

...
1. The sponsor mayprohibit or limit any giventype, kind or class ofaeronautical use ofthe airport if such action is necessary for the safe operation ofthe airport ornecessaryto serve the civil aviation needs ofthe public." Subsection (h) qualifies subsection (a) and subsection (i) represents an exception to subsection (a) to permit the sponsorto exercise control ofthe airport sufficient to preclude unsafe and inefficient conditions that would be detrimental to the civil aviation needs ofthepublic. The owner ofan airport developed with Federal assistance is requiredto operate the airport for the use and benefit ofthe public andto make it available to all types, kinds, and classes ofaeronautical activity onreasonableterms, and without unjust

• . • . 54 Grant Assurance 22, Economic Nondiscrimination, deals with boththe reasonableness ofairport access and the prohibition ofadopting unjustly discriminatory conditions as a potential for limiting access. 

### In all cases involving restrictions on airport use imposed byairport owners for safety and efficiency reasons, the FAA will make the final determination on thereasonableness ofsuchrestrictions whenthose restrictions appear to deny or limit access to, oruse of, the airport.55 ·

54 FAA Order 5190.68, Section 9.1(a). 55 FAA Order 5190.68, Section 14.3. Page 10Tropical Aviation Ground Services, Inc., and-Air Sunshine, Inc., v. Broward County, Florida FAA DocketNo. 16-12-15
FAA Order 5190.6B describes the responsibilities under Assurance 22 assumedby the owners or sponsor of public use airports developed with Federal assistance.· Among these is the obligationto treat in a uniform manner those users making the same or similar use ofthe airport andto make all airport facilities and services available on reasonable terms without unjust discrimination.56 2. Grant Assurance 23, Exclusive Rights Title 49 U.S.C. §40103(e), provides, in relevant part, that "there shall be no exclusive right for the use of any landing area or air navigation facility upon whichFederal funds have been expended." Title 49 U.S.C. §47107(a)(4), similarly provides, in pertinent part, that "there will beno exclusive right for the use ofthe airport by any personproviding, or intending to provide, aeronautical services to the public." Grant Assurance 23, Exclusive Rights, ofthe prescribed sponsor assurances implements both statutory provisions requiring, inpertinent part, thatthe sponsor ofa federally obligated airport "It will permit no exclusive right for the use ofthe airport by any personproviding, or intending to provide, aeronautical services to the public. Forpurposes ofthis paragraph, the providing of the services at an airport by a single fixed-based operator shall notbe construed as anexclusive right ifboth ofthe following apply:

a. It would beunreasonably costly, burdensome, or impractical for more than one fixed-based operatorto provide such services, and b. Ifallowing more than one fixed-based operatorto provide such services would require the reduction ofspace leased pursuant to an existing agreement between such single fixed-based operator and such airport. It further agrees that itwill not, either directly or indirectly, grant orpermit any person, firm, or corporation, the exclusive right atthe airport to conduct any aeronautical activities, including, butnot limitedto charter flights, pilottraining, aircraft rental and sightseeing, aerial photography, crop dusting, aerial advertising and surveying, air carrier operations, aircraft sales and services, sale ofaviationpetroleum products whether or not conducted in conjunction with other aeronautical activity, repair and maintenance of aircraft, sale ofaircraft parts, and any other activities which because oftheir direct relationship to the operation ofaircraft canberegarded as an aeronautical activity, and that it will terminate any exclusive right to conduct an aeronautical activity now existing at such an airport before the grant ofany assistance under Title 49, United States Code." An exclusive right is defined as a power, privilege, or otherright excluding or debarring another from enjoying or exercising a like power, privilege, orright. An exclusive right canbe conferred eitherby express agreement, bythe imposition ofunreasonable standards or requirements, orby any othermeans. 

### Such aright conferred on one or nrore parties, but excluding otlmrs frorn enjoying or exercising asimilar right orrights, wouldbe an exclusive right.57 Compliance with Grant Assurance 23 and 49 U.S.C. §47107(a)(4) mustbe balanced with other considerations. For example, an airport sponsor is also bound by its obligation to operate the airport in a safe and efficient manner [Grant Assurance 22(h), Economic Nondiscrimination]. Clearly, the sponsor maybe compelled to make a fiduciary orbusiness decision to restrict certainrights to promote more fundamental userrights. When a tenant's activity orrights interfere

56 FAA Order 5190.6B at Chapter 9. 57 See FAA Advisory Circular 5190-6 Exclusive Rights andMinimum Standards for CommercialAeronauticalActivities, January 4, 2007. Page 11Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAA DocketNo. 16-12-15 with an airport's ability to operate safely or disrupts aeronautical activities on the airport, it is incumbent on the sponsor to ensure the best interests ofthe airport, the user community, and the airport system. Therefore, it is FAA's policy that the sponsor ofa federally obligated airport will permitno exclusive right for the use ofthe airport by any personproviding, orintending toprovide, aeronautical services to the public and will not, eitherdirectly or indirectly, grant orpermit any person, firm, orcorporation, the exclusive right atthe airport to conduct any aeronautical activities. The Order clarifies the applicability, extent, and duration oftheprohibition against exclusive rights under 49 U.S.C. 

### §40103(e) with regard to airports developed with FAA-administered grant assistance and Federal property conveyances. The exclusive rights prohibition remains in effect as long as the airport is operated as an airport. FAA takes the positionthat the grant ofan exclusive right for the conduct ofany aeronautical activity on such airports is regarded as contrarytothe requirements ofthe applicable laws, whether suchexclusiveright results from an express agreement, from the imposition ofunreasonable standards orrequirements, orby any other means. FAA Order 5190.6B provides additional guidance onthe application ofthe statutoryprohibition against exclusive rights and FAA policyregarding exclusive rights at public-use airports.58 3. Grant Assurance 24, Fee andRental Structure Grant Assurance 24 Fee andRentalStructure, implements the provisions ofthe AAIA, 49 U.S.C. § 47107(a)(l3), and requires, inpertinentpart, that the sponsor ofa federally obligated airport assure: "It will maintain a fee andrental structure for the facilities and services atthe airport which will makethe airport as self-sustaining as possible under the circumstances existing at the particular airport, taking into account such factors as thevolume oftraffic and economy ofcollection." Grant Assurance 24Fee andRental Structure addresses fees the owner or sponsorlevies on airport users in exchange for the services the airport provides and satisfies the requirements of§ 47107(a)(13) by addressing self-sustainability. The intent ofthis assurance is for the airport operatorto charge fees that are sufficient to cover as much ofthe airport's costs as is feasible while maintaining a fee and rental structure consistent with the sponsor's other Federal obligations. 

### In addition, FAA Order 5190.6B states that "to aid in establishing uniform rates and charges applied to aeronautical activities on the airport, the sponsor should establish minimum standards to be met as a condition for the right to conduct an aeronautical activity onthe airport."59 4. Grant Assurance 30. 

### CivilRights The Secretary ofTransportation, through the FAA, must ensure openparticipation inactivities carried out with Federal fimding covered under 49 U.S.C. §47123, regardless ofphysical characteristics, heritage, or beliefs. This subchapter is supported by and is similar to the regulations provided under Title VI ofthe 

### Civil Rights Actof 1

**~62.** Gmnt Assrnance 30, 

### Civil !l:zghzs states, inpartthat llie airport sponsor: "

...will promptlytake any measures necessary to ensure that no person inthe United States shall, onthe grounds ofrace, creed, color, national origin, sex, age, or disability be excluded from participation in, be denied the benefits of, orbe otherwise subjected to discrimination in any activity conducted with, orbenefiting from, fimds received from this grant.

58 FAA Order5190.6B, Chapter 8. 59 FAA Order5190.6B at Section 9.6(e). Page 12Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAA Docket No. 16-12-15

a. Using the definitions ofactivity, facility and program as found and defined in §§ 21.23(b) and 21.23 (e) of49 CFR § 21, the sponsorwill facilitate all programs, operate all facilities, or conduct all programs incompliance with all non-discrimination requirements imposed by, or pursuant to these assurances.60 [Grant Assurance 30]. The Director coordinates closely withthe Office ofCivil Rights, ACR, and relies on their expertise when evaluating Grant Assurance 30 allegations 61 5. GrantAssurance 3 7 DisadvantagedBusiness Enterprises Grant Assurance 37 states that: The sponsor shall not discriminate on the basis ofrace, color, national origin or sex inthe award and performance ofany DOT-assisted contract coveredby 49 CFRPart 26, orin the award and performance ofany concession activity contract coveredby 49 CFRPart 23. In addition, the sponsor shall not discriminate on the basis ofrace, color, national origin or sex in the administration ofits DBE and ACDBEprograms ortherequirements of49 CFRParts 23 and 26. 62 The sponsor shall take all necessary and reasonable steps under 49 CFR Parts 23 and 26 to ensure nondiscrimination in the award and administration ofDOT-assisted contracts, and/or concession contracts. The sponsor's DBE andACD BEprograms, as required by49 CFRParts 26 and 23, and as approved byDOT, are incorporated by reference inthis agreement. Implementation ofthese programs is a legal obligation and failure to carry outits terms shall be treated as a violation of this agreement. Uponnotificationto the sponsor ofits failure to carry out its approved program, the Department may impose sanctions as provided for underParts 26 and 23 andmay, in appropriate cases, refer

60 49 CFR, Subpart 21.3(b) states, in pertinent part: In any program receivingFederal financial assistance in the form, or for the acquisition, of real property oran interest in realproperty, to the extent that rights to space on, over, or under anysuchpropertyare includedaspart of theprogram receiving that assistance, the nondiscrimination requirement of thispartshall extendto any faCility locatedwholly or inpart in thatspace. The RegionalAirports Offices, AirportsDistrict Offices, andthe FAA's Office of CivilRights are responsible for enforcing Grant Assurance30, Civil Rights. More information is available at49 Code of FederalRegulations (CFR) Part 21 Nondiscrimination in FederallyAssistedPrograms of the Department ofTransportation, and 150/5100-15, Civil Rights Requirements/ortheAirport Improvement Program.
61 FAA Airport Compliance Manual, Order 5190.6b, Section 9.9. The Office ofCivil Rights (ACR) advises, represents, and assists the FAA Administrator on civil rights. diversity, and equal opportunity matters that ensure the elimination ofunlawful discrimination on the basis of t=aee, eeleF, a:atieaal erigia, SffiE, age, Feligiel'l:, eFeeB, an8 ia:8:i.i8:1:1:als

..ith Bisabilities in fe8era:l1) e{'etttted l:l:ltd fed:etttll) assisted hanspottatioa £rograms. 2 49 CPR Part 26.13 provides, in relevant part: The recipient [sic Jshallnot discriminate on the basis of race, color, national origin or sex in the awardand performance of anyDOTassistedcontract or in the administration of its DEE program orthe requirements of 49 CFR Part 26. The Recipient shall take allnecessary andreasonable steps under49 CFR Part 26to ensure nondiscrimination in the awardandadministration of DOT-assistedcontracts. The recipient's DBE program, as required by 49 CFR Part26, andas approvedbyDOT, is incorporatedby reference in this agreement. Implementation of thisprogram is a legal obligation and failure to carry out its terms shall be treatedas a violation of this agreement. Upon notification to the recipient of its

failure to carry out its approved program, the Department may impose sanctions asprovided for underPart26andmay, in appropriate cases, refer the matter for enforcement under 18 USC 1001 and/or the Program Fraud Civil RemediesAct of 1986 (31 US.C. 3801). Page 13Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAADocketNo. 16-12-15 the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act ofl936 (31 U.S.C. 3801). [Grant Assurance 37] The FAA Office ofCivil Rights (ACR) handles alleged violations oflaws relating to disadvantaged business enterprises (DBE), persons with disabilities at airports, Access and civil rights.63 The Director coordinates closely with ACR and relies ontheir expertise when evaluating Grant Assurance 37 allegations. The criteria for qualification as a DBE is outlined in49 USC §47107(e) and §47113 6. Grant Assurance 39, CompetitiveAccess Grant Assurance 39, CompetitiveAccess, requires operators oflarge andmedium hub airports to report to the Secretary any denial ofa request by an air carrier for access to the airport. A report is due on February 1 or August 1 ifthere has been any denial ofaccess in the preceding six-month period. 64 Grant Assurance 39, CompetitiveAccess states that:

a. Ifthe airport owner oroperator ofa medium orlarge hub airport (as defined in section 47102 oftitle49, U.S.C.) has beenunable to accommodate one ormore requests by an air carrier for access to gates or other facilities atthat airport in order to allowthe air carrierto provide service to the airport orto expand service atthe airport, the airport owner or operator shall transmit a report to the Secretarythat1) Describes the requests; 2) Provides an explanation as to why the requests could not be accommodated; and 3) Provides a time frame within which, ifany, the airport will be able to accommodate the requests. 

### b. Suchreport shall be due on either February 1 or August I ofeach year ifthe airport has been unable to accommodate the request(s) inthe six monthperiodpriorto the applicable due date. 

### C. Surplus Property Obligations Surplus property instruments ofdisposal are issued under the Surplus PropertyAct of 1944 (SPA). The Act authorizes conveyance ofproperty surplus to theneeds ofthe Federal Government. 65 Public Law 80- 289, approved July 30, 1947, amended Section 13 ofthe Surplus Property Act of 1944. These conveyances are subjectto the terms, conditions, reservations and restrictions prescribed therein. Surplus property instruments oftransfer are one ofthe means by which the Federal Government provides airport development assistance to public airport sponsors. The conveyance ofsurplus Federal land to public agencies for airportpurposes is administered bythe FAA pursuant to 49 U.S.C. § 47151, 47152, and, 47153. Public Law 81-311 specifically imposes upon the FAA the sole responsibility for determining and enforcing compliance with the terms and conditions ofall

63 FAA Airport Compliance Manual, Order 5190.6b, Section 5.3(a). 64 FAA Airport Compliance Manual, Order 5190.6b, section 9.8(b). Also seehttp://www.gpo.gov/fdsys/pkg/FR-2005-03-29/html/05-6072.htm. 65 FAA Order 5190.6B. Page 14Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAADocketNo. 16-12-15 instruments oftransfer bywhich surplus airport property is orhas been conveyed to non-Federal public agencies pursuant to the SPA In this case, under the provisions ofthe 

### Surplus PropertyAct of 1944, the Airport assumed certain obligations, reservations, and conditions. Upon acceptance ofsurplus property conveyance bythe City, the obligations in the instrument ofdisposal became a binding obligation between the City and the Federal Government. Commitments assumed bythe City inproperty conveyance are important factors inmaintaining a high degree ofsafety and efficiency inairport design, construction, operation, and maintenance as well as ensuring the public reasonable access to the airport.66 

### D. The FAA Airport Compliance Program The FAA discharges its responsibilities for ensuring airport owners' compliance withtheir Federal obligations through its Airport Compliance Program. The FAA's airport compliance efforts are based on the contractual obligations an airport owner accepts whenreceiving Federal grant funds orthe transfer of Federal property for airportpurposes. These obligations are incorporated ingrant agreements and instruments ofconveyance in order to protectthe public's interest in civil aviation and to ensure compliance with Federallaws.67 The FAA Airport Compliance Program is designed to ensure the availability ofa national system ofsafe and properly maintainedpublic-use airports operated in a manner consistent with the airport owners' Federal obligations and the public's investment in civil aviation. The Airport Compliance Program does not control or directthe operation ofairports. Rather, itmonitors the administration ofthe valuable rights pledged byairport sponsors to thepeople ofthe United States in exchange for monetary grants and donations ofFederal property to ensure thatthe public interest is being served. FAA Order 5190.6B sets forth policies and procedures for the FAA Airport Compliance Program.68 The Order establishes the policies andprocedures to be followed byFAApersonnel in carrying outthe FAA's responsibilities for ensuring airport compliance. Itprovidesbasic guidance for FAApersonnel in interpreting and administering the various continuing commitments madeto the United States by airport owners as a condition ofreceiving a grant ofFederal funds orthe conveyance ofFederal property for airport purposes. FAA Order 5190.6B analyzes the various obligations set forth in the standard airport sponsor assurances, addresses the nature ofthose assurances, addresses the application ofthose assurances in the operation of public-use airports, and facilitates interpretation ofthe assurances by FAA personnel. The FAA Compliance Program is designed to achieve voluntary compliance with Federal obligations accepted by owners and/or operators ofpublic-use airports developed with FAA-administered assistance. Therefore, in addressing allegations ofnoncompliance, the FAA will make a determination as to whether an airport sponsor is currently in compliance withthe applicable Federal obligations. Consequently, the FAA 

### will consider tire successfui action

### by the airport 

### to cure any alleged orpotential past vwlation of applicable Federal obligation to be grounds for dismissal ofsuch allegations.

66 Complainant has not pled a Surplus Property Act issue. The overview ofthe SPA is provided here in order to establish a complete record of the applicable Federal obligations affecting the Airport. 67 The Airport Compliance Program is administered by FAA's AC0-100 Airport Compliance and Management Analysis. The Airport Compliance Division oversees the Airport Compliance Program. The division holds primary responsibility for interpreting, recommending, and developing policies and resolving matters that involve the Federal obligations ofairport sponsors. Italso adjudicates formal complaints and FAA-initiated investigations under Title 14 Code ofFederal Regulations Part 16, Rules ofPractice for Federally Assisted Airport Enforcement Proceedings, and monitors airport sponsor compliance with limits on the use ofairport revenue. 68 See http://www.faa.gov/airportslresources/publicationslorders/compliance

_5190

_61. Page 15Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAADocketNo. 16-12-15 

### E. FAA Enforcement Responsibilities TheFederalAviationActof 1958, as amended, 49 U.S.C., 

### § 40101, et seq., assigns the FAA Administrator broad responsibilities for the regulation ofair commerceinthe interests ofsafety, security, and development ofcivi! aeronautics. TheFederal role in encouraging and developing civil aviation has been augmented by various legislative actions, which authorize programs forproviding funds and other assistance to local communities for the development ofairport facilities. Ineach suchprogram, the airport owner or sponsor assumes certain obligations, either by contract orbyrestrictive covenants inproperty deeds and conveyance instruments, to maintain and operate its airport facilities safely, efficiently, and inaccordance with specified conditions. Commitments assumed by airport owners or sponsors inproperty conveyance or grant agreements are important factors in maintaining a high degree ofsafety and efficiency in airport design, construction, operation and maintenance, as well as ensuring the public reasonable access to the airport. Pursuantto 49 U.S.C., 

### § 47122, the FAA has a statutory mandate to ensure that airport owners comply withtheir Federal grant assurances. 

### F. The Complaint Process Pursuant to 14 CFRPart 16.23, a person directly and substantially affected by any alleged noncompliance may file a complaint with the FAA. The complainant shall provide a concise but complete statement ofthe facts relied uponto substantiate each allegation. The complaint shall also describe howthe complainant was directly and substantially affected bythe things done or omitted by the respondents.69 If, based onthepleadings, there appears to be a reasonable basis for further investigation, the FAAwill investigate the subject matter ofthe complaint. Inrendering its initial determination, the FAAmayrely entirely on the complaint and the responsive pleadings provided. Eachparty shall file documents it considers sufficient to present all relevant facts and arguments necessary for the FAA to determine whetherthe sponsor is in compliance.70 The proponent ofa motion, request, or orderhas the burden ofproof. A party who has asserted an affirmative defense has the burden ofproving the affirmative defense. The complainant must submit all documents then available to support his orher complaint. 14 CFR §§ 16.23, 16.29. Title 14 CFR, 

### § 16.31(b-d) provides, in part, that "the Director's determination will set forth a concise explanation ofthe factual and legal basis for the Director's determination on each claim made bythe complainant. A party adversely affected bythe Director's determination may appeal the initial determination to the Associate Administrator as provided in §16.33." In accordance with 14 CFR, § 16.33(b) and (e), upon issuance ofa Director's determination, "aparty adversely affected bythe Director's determination may file an appeal withthe Associate Administrator within 30 days after the date ofservice ofthe initial determination;" however, "ifno appeal is filed within the time period specified inparagraph (b) ofthis section, the Director's Determinationbecomes the final decision and order ofthe FAA without further action." A Director's Determination that becomes final becausethere is no administrative appeal is notjudicially reviewable. Title 14 CFR, § 16.247(a)provides forjudicial review ofthe Associate Administrator's final

69 14 CFR Part 16, § 16.23(b) (3, 4). 70 J4CFR Part 16, § 16.29. Page 16Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAA DocketNo. 16-12-15 decision and order, as provided in 49 U.S.C., §46110 or section 519(b)(4) ofthe Airport and Airway Improvement Act of 1982, as amended, (AAIA), 49 USC,§ 47106(d) and 4711l(d). VII. ANALYSIS 

### A. Preliminary Issues L Motion to Dismiss The County's

### Motion to Dismiss asserts a 6-year statute oflimitationsthat it claims has run.71 We agree that ifthe 1996 lease is looked at in isolation, this case may very well have warranted dismissal. However, we decline to dismiss the complaint because it raises issues that fall withinthe limitations period. For instance, the complaintraises issues associated with an eviction that tookplace within 201 0 to 2011. The motion to dismiss is denied. 2. Writ ofMandamus and Other Prayers for Relief The Complainant seeks a "writ ofmandamus compelling Broward County to honor its legal obligations pursuant to its Federal Grant Assurances and grant the Tropical a long-term lease" and "any further reliefas the court [FAA] deemsjustand proper.',n Complainant also asks the FAAto:
a. Issue a permanentinjunction, pursuant to Fla. R. Civ. P. 1.610, preventing Broward County from continuing to violate Federal Grant Assurance 22; b. Issue a writ ofmandamus, pursuant to Fla. R. Civ. P. 1.1630, compelling Broward County to fulfill its legal duties pursuant to Federal Grant Assurance 22; c. Award Tropical damages caused by Broward County's violation ofFederal Grant Assurance 22, inthe maximum amount allowable by law; and d. Grant Tropical all other reliefthe Court73 deemsjust and proper. 74 The County responds that "ofa writ ofmandamus and for money damages" are "not within thejurisdiction ofthe FAA's Part 16 administrative proceedings."75 The Director concurs withthe County. The types of order that FAA issues under Part 16 are found at 14 CFR § 16.109, and do not include writs and injunctions pursuant to Florida Rules ofProcedure. 2. Burden ofProof The Complainant carries the burden-of-proofto establish the facts ofits allegations. 

### See RickAviation, Inc. v. 

### PeninsulaAirport Commission (FAA DocketNo. 16-05-18). The complainant mustinclude all documents then available to support the complaint.76 "Eachparty shall file documents that it considers

" FAA Exhibit I, Item 3A. Also, the County cites: Guy Heide, et al. v. MolnaU, 2006 WL 2029134, *43, FAA DocketNo. l6-04-11 (July 7, 2006), review dismissed 199 Fed. Appx. 582 (81 Cir. 2006); HillAir Co., Inc. v. BrowardCounty Board of County Commissioners, 2006 WL 325373, *25- *26, FAA Docket No. 13-93-7 (Jan 31, 2006). 72 FAA Exhibit I, Item I, pages 25-29. 73 The Director notes that many times throughoutthe Complaint, Complainant keeps referring to FAA as the '"'Court." The Director assumed that this was an un-intentional transposition, possibly due to the fact that some ofthe language used may have been used in aprevious legal action 74 FAA Exhibit I, Item I, pages 14-17. 75 FAA Exhibit 1, Item 3B, page 6. Also see FAA Exhibit 1, Item 3A. In support ofits motion, the County cites Larry L. Davis v. Jackson Municipal Airnort Authority, 2011 WL273404, *17, FAA Docket No. 16-10-01 (January 18, 2011); Long Island Jet Center Easb Inc. v. County ofSuffolk. 2005 WL 42889, *IO, FAA Docket No. 16-04-05 (January 21, 2005). 76 14 CFR §16.23. Page 17Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward Coun1y, Florida FAADocketNo. 16-12-15 sufficient to present all relevant facts and argument necessary for the FAAto determine whetherthe sponsor is in compliance."77 B. Issue 1 -Whether the Countyis in violation ofGrant Assurance 22 

### Economic Nondiscrimination, by (1) notentering into a long-term lease with Complainant, (2) by enacting the derelict aircraft ordinance and then enforcing it on Complainant in a manner which differed from that applied to other similarly situated tenants. Grant Assurance 22, Economic Nondiscrimination states in partthatthe Airport is to

...make the airport available as an airport for public use on reasonable terms and without unjust discrimination to all types, kinds and classes ofaeronautical activities, including commercial aeronautical activities offering services to the public atthe airport. Grant Assurance 22(e) deals with an airport's obligation to manage tenants through

...substantially comparablerules, regulations, conditions, rates, fees, rentals, and other charges withrespect to facilities directly and substantiallyrelated to providing airtransportation as are applicable to all such air carriers whichmake similaruse ofsuch airport and utilize similar facilities, subject to reasonable classifications

... Complainant states that in 1994, it first applied for a long-term lease at the Airport."78 Followingthe execution ofa short-term lease in 1996, Complainantraised concerns because it sought a long-term lease similar to that granted to other tenants" but thatthe "County refused itbut did approve "long-term leases for other similarly situated tenants."79 The Complaint alleges 3 counts ofviolation ofGrant Assurance 22. First, italleges that Tropical has beenharmed bythe County's failure to provide access and allow Tropical to "expand, grow, change or adapt." 8

# °Complainant also argues that the Coun1y "refusedto give consent to the sublease between AIR and FLL-AIR [prime tenant] on December 23, 2011."81 This alleged violation, from whatthe Director can discern, is not clearly tied to a particular occurrence orincident. Nevertheless, giving Complainantthe benefit ofthe doubt, the Directorinterprets this count as related to the County's failure to consent to the sublease. Second, the Complaint alleges thatthe County's ordinance violates Grant Assurance 22. 82 The Complainant argues that the ordinance is vague, violates the U.S. Constitution and discriminates against users such as it. Among otherthings, this count also cites

- with no specificity

-- to "undulyrestrictive lease covenants." Third, the ComElaint alleges that the County's application ofthe ordinance against Tropical was discriminatory. 3 Complainant adds that the County:

71 14 CFR § 16.29. " FAAExhibit I, Item I, pages 2, 3, 9, 15, 16, and 24. 79 FAA Exhibit 1, Item I, page 3. 8

## °

FAA Exhibit 1, Item I, pages II-12

**(~** 62). 81 FAA Exhibit I, Item 1, Page 9. 82 FAA Exhibit 1, Item I, pages 12-I5

**(1~** 63-72). 83 FAA Exhibit I, Item 1, pages I4-I7

**(,~** 73-86). Page 18Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAA DocketNo. 16-12-15

"has failed to apply and enforce nondiscriminatory and substantially comparablerules, regulations, conditions, rates, fees, rentals, and other charges with respect to facilities directly and substantially related to providing airtransportation as are applicable to all such air carriers which make similar use ofsuch airport and utilize similar facilities, subject to reasonable classifications such as tenants ornon-tenants and signatory carriers and non-signatory carriers." 84 These counts are addressed in turn. 1. Grant Assurance 22 and Access: Count 1 Although Count 1 is vague, the Director construes this to be a complaint regarding access. In particular we construe this to be a complaint that the County did notconsent to the sublease. The County has provided an executed settlementthat provides that the County will not object to a sublease.85 But, the Countyhas pledthat Tropical breached this agreement and therefore it had no obligation to consent.86 Tropical has the burden ofproofto show a violation ofGrant Assurance 22. Without more, we conclude that it is not unreasonable for the County to withhold its consent to a sublease where Tropical has breached a settlement agreement with the County- particularly when the very settlement agreement breached provided for the consent at issue.87 2. Grant Assurance 22 and the Ordinance: Count 2 In arguing a violation ofGrant Assurance 22, Complainant adds that the County "has created a discriminatory condition in the enactment ofthe derelict aircraft ordinance, §2-30(f)" and that the: "ordinancerestricts FLL'S availability for public use and discriminates against any aircraft owner orbusiness such as Tropical byplacing a restriction on access to the airport with a preset condition that he must complete any or all maintenance, repairs, teardowns orrestoration ofthe aircraft within a 60 day period or submitjustification and seek a written waiver authorization which is unduly burdensome, restrictive aiJ.d discriminately favors those individuals and or entities that have greater fmancial resources or access." 88 We note thatthe1996 lease, and subsequent leases, prohibited the storage ofderelict aircraft.89 The lease was executed in early 1996, (and extended since) andthe ordinance was passed in late 1999. We find it relevant, albeit not dispositive, thatprior to the ordinance, the Complainant had agreed to a provision similarto the one to which itnow objects. The FAA supports a local goverrunent's right to make and enforce their own laws, regulations, policies, and ordinances; provided these are applied in a reasonable manner and consistentwith Federal law. The Director does not find the ordinance at issue here to be unduly burdensome orimproperly vague.

84 FAA Exhibit I, Item I, page II. 85 FAA Exhibit I, Item 3B, Exhibit A, paragraph 2(D) 86 FAA Exhibit I, Item 38, page 5 (1 50). 87 FAA Exhibit I, Item 38, Exhibit I, section 2(d); paragraph 49. 88 FAA Exhibit I, Item I, page 12. "e.g., FAAExhibit I, Item I, Exhibit A, 1996 Lease, Section 1.4, page 4. Page 19Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAA DocketNo. 16-12-15 

### 3_ Grant Assurance 22 and the County's Application ofthe Ordinance: Count3 Complainant argues that the County "refrain[ed] from enforcing the Ordinance against the various tenants who have aircraft that remain un-hangared and un-flown for over 60 days, while selectively enforcing the Ordinance against Tropical." Complainant alleges unjust discrimination because "atthe time the Ordinance was enacted, Tropical's neighbor had various types ofaircraft on its property" and that "afterthe Ordinance went into effect, the neighbor's aircraft stayed on non-hangared space on the neighbor's leasehold property for at least two years without taking offorlanding, which is a violation of§ 2-30(t)

..." 90 Complainant summarizes the issue by stating that the County, "has established unreasonable, and unjustly discriminatory, conditions" 91 related to the operation ofthe airport "throughits application ofthe Ordinance has violated Federal Grant Assurance 22 (e) when it arbitrarily subjected Tropical to discriminatory and distinctrules from those appliedto other similarly situated tenants, including unduly restrictive lease covenants" and that the County "further violated Federal Grant Assurance 22(h) whenit arbitrarily enforced safety and efficiency regulations[§ 2-30(t)] solely against Tropical, despite visible violations committed by other similarly situated tenants."92 To these allegations, the County simply "denies" all allegations, with very little detail and supporting documentation. The County does note that "Tropical entered into a legally-binding lease"93 and asserts that "there were no other noncommercial carrier tenants that operated atFLL. The other general aviation aircraft operators have been subtenants, ofwhom some have had derelict aircraft and they either came into compliance or their subleases expired. The County admits it has not been compelled to evict other tenants for derelict aircraft, but denies there are "many tenants who house aircraftthat are not hangared and that have not flown for over 60 days."94 The Director notes that the County's identification ofTropical as the only "non-commercial carrier," indicates thatthe County considered the Complainant dissimilar from other airport tenants engaged in commercial air transportation, e.g., 14 CFR Part 135. Itfurther distinguishes Tropical as a "general aviation aircraft operator." The record contains no evidence showing that other entities at the Airport were permittedto store derelict aircraft past 60 days. Itis relevant, as part ofany review ofalleged unjust discrimination to analyze the alleged treatment ofthe Complainant, namely by comparing them to the treatment received by other similarly situated tenants. The Complainant's service category is especially important in the scope ofthe entire complaint analysis. The Complainant claims other similarly situated tenants were treated more favorably. The Complainantrelies on, throughout its complaint, comparison with "othertenants" or "similarly situated tenants" to establish discriminatory treatment or a granting ofexclusive rights. Consistent within all these allegations, the Complainantnever identifies a s ecific tenant in order to make a

9

## °

FAA Exhibit l, Item I. page 6. 91 FAA Exhibit l, Item l, pages 16-17. 92 FAA Exhibit I, Item I, pages 16-17. Enforcement ofsuch laws and standards, against only one tenant or business, provides no basis for a Federal law or, in this case, a grant assurance violation unto itself. However, under certain circumstances, such treatment may indicate a violation. 93 FAA Exhibit l, Item 3B, page 2. 94 FAA Exhibit I, Item 3B, page 5. 95 Had Complainant identified other tenants., the Director could have researched or attempted to acquire related leases or other documentation as part ofthis investigation. Page 20Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAADocketNo. 16-12-15
While neither the Complainant nor the County discusses howthe Complainant's tenancy was defined, the County's Minimum Standards Policy for GeneralAviation atBroward CountyAirports (Minimmn Standards) does describe various types oftenants, within its airport system. The lease outlines the services the Complainant was permitted to perform and some services from which they were prohibited to undertake. Complainant is an "air agency" (or air carrier) providing passenger and cargo transportation for hire. This holds true even when we take into account that Tropical was effectively supporting Air Sunshine's operations from the Airport. Thus, under one corporate entity for all intended purposes, Complainant canbe considered a Non-ScheduledandAir Charter Passengers, Cargo, andMail Services service (a SASO orSpecializedAviationService Operation). As described within the minimmn standards, a SASO offering nonscheduled and charterpassenger, cargo, and/or mail services shall: (1) Conduct all aircraft charter and air taxi operations in accordance with and certificated under FARPart 135 and amendments thereto and all other applicable rules and regulations, (2) Provide services and equipment for servicing passengers and for handling freight, luggage, and ticketing. Make available transportation for transient passengers and pilots, i.e. calling a taxi or shuttle service." Thus inthis case, a similarly situated user is one providing similartransportation for hire, not a full service FBO. A more relevant comparison would be with another commuter airline orPart 135 service provider. Specifically, one which was permittedto store nonflying aircraft orlarge components (e.g., fuselages) for several months at the Airport. But even these obvious distinctions cannot be made with any certainly in this case because ofthe lack ofdetails or information provided in the record. Storage ofderelict aircraft has been addressed by the FAA before. See Valley Aviation Services, LLP v. Citv ofGlendale, AZ, FAA Docket No. 16-09-06. InValley Aviation, the FAA stated that "enforcingthe Airport Rules and Regulations against the Complainantfor storing disabled aircraft while not enforcing these same Rules and Regulations against otherusers (without a reasonable explanation) is a violation of Grant Assurance 22, Economic Nondiscrimination." In this case, the Director found the airport sponsor was "in violation ofGrant Assurance 22, EconomicNondiscrimination, by failing to apply its Airport Rules and Regulations consistently among similarly situated tenants. The policy regarding storing

...disabled aircraft on the Airport has not been equitably applied to all tenants."96 There are crucial distinctions between Valley Aviation and the present case. In Valley Aviation, the record contained evidence ofinconsistentpractices. Inthe present case, Tropical, the party withthe burden ofproof, did not submit information indicating whether ornot other leases contained a derelict aircraft provision. For example, there is no record ofrelated enforcement or complaints by others, or any photos that show derelict aircraft in any leasehold atthe airport. 97 Part 16 requires a complainant to "provide a concise but complete statement ofthe facts relied upon to substantiate each allegation." 14 CFR 16.23(b)(3). The complaint atissue is ambiguous and lacks sufficient information, thus falling short ofthis requirement. The Directortherefore finds no violation ofGrant Assurance 22. Issue 2- Whether the County is in violation ofGrant Assurance 23 ExclusiveRights by denying Complainant a long-term lease while granting other similarly situated tenants such leases. Grant Assurance 23 states inpart, an airport sponsor "willpermitno exclusive right for the use ofthe airport by any person providing, orintending to provide, aeronautical services to the public." Similarly, Title 49

96 Valley Aviation Services LLP v. City ofGlendale. M, FAADocketNo. 16-09-06, page 47. 97 On this the Directorpoints to FAA Exhibit 2, Item 1and 2, which show.derelict aircraft atthe Airport, but it is not indicative that discrimination took place or that those aircraft were there past any lease limitation. Page 21Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAA DocketNo. 16-12-15 U.S.C. § 47107(a)(4) provides, in pertinent part, that"there will be no exclusive rightforthe use ofthe airport byany personproviding, or intending to provide, aeronautical services to the public."98 The Complainant asserts the County's "failure to provide Tropical a long term lease or other lease options available to similarly situated tenants at the airport while continuing to grant additional landto a select number oftenants forcing othertenants such as Tropical to become a sub-lessee ofthese select tenants is a violation Federal Grant Assurance 23." 99 Furthermore, Complainant states thatthe County "violated Federal Grant Assurance 23 whenit granted a limited number ofcompanies' long-term leases, and continued to award these tenants increasingly larger leaseholds, while continuallyrefusing to provide Tropical with a long-term lease." Complaint concludes that the County's "actions effectively [granted] other tenants with long-term leases and less restrictive clauses an exclusive right intheir operations and prevent Tropical from being competitive in its industry, is a violation ofFederal Grant Assurance 23." 100 In response, the County "denies" this allegation, and merely states that "Federal Grant Assurance 23 speaks for itseJf." 101 For all intendedpurposes, Complainant's arguments are very similarto those made under Grant Assurance 22 above. This similarity also exists with regards to the evidence submitted. As with the issue above, Complainant fails to identifY specific "similarly situated tenants," making difficult any comparison on which to establish an exclusive right. Evenifthe Complainant described another similarly situated tenant, any difference between two leases is insufficient to establish a violation ofGrant Assurance 23 on its own. 1 02 This is because in some cases, lease terms may change overtime to accommodate evolving economic, operational, or other airport conditions or needs ofthe airport. The fact is thatthe Complainant has provided no evidence or documentation to substantiate the allegation other similarly situated tenants at the airport were provided leases. Complainanthas failed to identifY a particularrejection or inaction onthe part ofthe County with respect to a request for a long term lease that falls within the limitations period. To consider such a claim, FAA must examine the particular transaction or negotiation between Tropical and the County. General allegations regarding trouble obtaining a desired lease are insufficient. FAA carmot determine when Tropical last requested a long term lease. It appears that the last time the County rejected Tropical's request for a long-term lease was some time before February 1, 1997. 103 The County very well may have denied a request for a long term lease at a time falling within the limitations period, but Complainant has provided no specifics regarding such an event. Complainant failed to provide any details such as what other companies, what parcels ofproperty were leased, orwhat other entities at the airporthave sub-leases and/or short-term leases. Withoutthis type ofinformation to support the allegation thatthe County granted additional land to "a select" number ofsimilarly situated tenants forcing other

os :Fedenrl statuWry law prolubits sponsors !rom grantmg an exclustve nght. Consequently, regardless offiow the sponsor granted the exclusive right- e.g. express agreement, unreasonable minimum standards, action ofaformer sponsor, or other means. See Advisory Circular 150/5190- 6d. 99 FAA Exhibit 1, Item 1, pages 18-19. 10

## ° FAA Exhibit 1, Item 1, pages 18-19. 101 FAA Exhibit 1, Item 3B, page 8. The Director believes the County's level ofresponse to the allegations, reflect poor communication with tenants and the FAA 102 Both minimum standards and lease terms may change over time. The FAA recognizes leases are legal documents, which may evolve from year to year. These agreements are rarely identical between users because ofdiffering circumstances ofthe leases, sites, users, negotiations, business plans, economic circumstances, and mar\(et conditions, etc. Additionally, the FAA cannot enforce lease provisions through the compliance program, but may interpret the application ofthe lease terms as discriminatory or a conveyance of an exclusive right. 103 FAA Exhibit 1, Item 1, at I2-l3. Page22Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAA DocketNo. 16-12-15
tenants such as Tropical to become sub-lessees, is unsupported. Simply, the claim lacks sufficient evidence for the Directorto make his owncomparison. Becausethere is no evidence demonstrating whatterms and conditions were offered to other similarly situated tenants, the FAA cannot determine whether the County's "actions effectively [granted] other tenants with long-term leases and less restrictive clauses an exclusiveright, as Complainant asserts. This is made more difficult by the fact the record also fails to provide much detail on the Complainant's own plans. Also, the Complainant does not identifY any precise need(s) for expansion oftheir leasehold orconversion oftheir short-term lease to a long-term agreement. Even basic information concerningthe level offinancial investment Complainant was willing to make, in terms of"full developmentplan for the site and a financial plan describing the funding strategy for the development" as the County mentioned in its lease, 104 is not provided. Therefore, any insights about the Complainant's initial intent for growing its business or otherplans for a larger leasehold space are absent, specifically any goals to repair inoperable or derelict aircraft. Since these aircraft and the length oftheir storage are the primary reason for the eviction, any plans related to repair or remove them are potentially pertinent to this case. Without evidence to establish the requests as reasonable, an assumption the County denied these requests in a discriminatory manner is problematic. For example, in its January 30, 1996, letterto the County, Complainant state thatit "need[s] to enter a long-term lease as soon as possible, a lease similar to what you offer to your other tenants. A lease without any restrictive clauses designed to protect other operators
..." 105 Yet, the record does not include any information ofwhat "those other leases" have been or are likely to be. 106 The Complainant also states that "on orabout 1997, Tropical began to request permission from Broward County to build a larger hangar in which to house the aircraft onwhich it continued to work, in order to minimize exposure ofthe aircraft to the South Florida elements." 107 The Complainant claims they, at some point, requested a larger hangar and permission to expand their overall leasehold. However, theyfail to explain the specific need for this expansion orprovide adequate evidence to demonstrate such a need. Any information demonstrating the mannerin which additional space would facilitate the repair and removal of the aircraft the County deemed derelict would be especially illustrative. As the Director found in the previous issue, the Complainant's failure to identifY a specific "other" or "similarly situated" tenant for comparison weakens the allegations within this issue. Complainant also fails to introduce any evidence showing differences betweenthe Complainant and other tenants. For example, another tenant's lease or list ofservices would be illustrative for purposes ofthis discussion. Absent evidence to prove otherwise, and given these considerations and a lack ofsufficient evidence, the Director finds the County has notviolated Grant Assurance 23 Exclusive Rights.

104 FAA Exhibit I, Item I, Exhibit A, Section 4.1. 105 FAA Exhibit I, Item I, Exhibit B. 106 The 1996 lease agreement describes the property leased to the Complainant states that ''the proposal oflessee for the lease from Broward County of 1.433 acres ofland, including 6,400 square feet ofhangar space, and 42,182 square feet ofpaved aircraft ramp and 9,025 square feet ofnon-airside asphalt space as depicted on the attached, Exhibit AlOcated at the Fort Lauderdale-Hollywood international Airport has been accepted by County.'" FAA Exhibit I, item 1, Exhibit A. The Complainant also states that "on or about 1997, Tropical began to request permission from Broward County to build a larger hangar in which to house the aircraft on which it continued to work, in order to minimize exposure ofthe aircraft to the South Florida elements." FAA Exhibit 1, Item I, page 3. The Complainant claims they, at some point, requested alarger hangar and permission to expand their overall leasehold. However, they fail to explain the specific need for this expansion or provide adequate evidence to demonstrate such aneed. Any information demonstrating the manner in which additional space would facilitate the reprur and removal ofthe aircraft the County deemed derelict would be especially illustrative. 107 FAA Exhibit I, Item I, page 3. Page 23Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAA Docket No. 16-12-15
Issue 3- Whetherthe County is inviolation ofGrant Assurance 24 Fee andRentalStructure by failing to maintain a uniform fee and rental structure for the facilities and services atthe airport, and by failing to provide Complainant a long-term lease or otherlease options available to similarly situated tenants atthe airport. Grant Assurance 24 Fee andRentalrequires, inpart, that the sponsor

...will maintain a fee and rental structure for the facilities and services at the airport which will make the airport as self-sustaining as possible under the circumstances existing atthe particular airport, taking into account such factors as the volume oftraffic and economy ofcollection. Complaint states that the County violated this assurance byfailing to maintain a uniform fee and rental structure and by failing to provide Tropical a long-term lease. 108 The exhibits filed during the proceedings provide no firm evidence to support this allegation. For example, other tenant lease rates, a general fee schedule applicable to similarly situated tenants, or other evidence ofdiscriminatory fee setting practices may have helped give a better foundation for this allegation. The record contains no information concerning either overall rates in affect atthe time, orany data concerning any other operator atthe airport. Nothing in the record questions that County's ability to maintain "afee and rental structure for the facilities and services at the airport which will make the airport as self-sustaining as possible." Nothing in the record points towards an action on the County's part that itpurposely failed to collect revenues or has changed lowerrates than it should change. 109 Infact, the argument can be made that by attempting to recover unpaid rents, as itdid incourt against Complainant, the County is infact complying with this grant assurance. Therefore, against this background, and given these considerations and a Jack ofsufficient evidence and supporting documentation, the Director finds the County has not violated Grant Assurance 24Fee and Rental Structure. Issue 4

- Whetherthe Country's denial ofeither ofthe Complainant's requests for a long-term lease request orto improve theirleased property, while other similarly situated tenantswere offered such conditions,violated Grant Assurance 30, CivilRights. Grant Assurance 30. CivilRights states, inpart, thatthe Aimort Itwill promptlytake any measures necessary to ensure that no person in the United States shall, onthe grounds ofrace, creed, color, national origin, sex, age, or disability be excluded from participation in, be denied the benefits of, orbe otherwise subjected to discrimination in any activity conducted with, or benefiting from, funds received from this grant. The Complainant argues that the County is obligated to comply withfederal law and related FAA Sponsor Assurances (49 U.S.C. § 47107), including Federal Grant Assurance 30.no [The] "County breached

108 FAA Exhibit I, Item!, page 20. 109 In Valley Aviation Services. LLP v. Citv ofGlendale AZ FAA DocketNo. 16-09-06, the Director found that ·'the Respondent is not currently in violation ofGrant Assurance 24, Fee and Rental Structure

...by failing to collect taxes and fees_for commercial aeronautical and non-aeronautical businesses operating on the Airport. Even though the Respondent may ormay notbe administering its lease agreements in accordance with its own Airport Rules and Regulations, the administrative record contains no evidence that the Respondentdid not establish a reasonable fee and rental structure.'' DD at 60. 11

### °FAAExhibit I, Item I, page 20. Page 24Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAADocketNo.\6-12-15
Federal GrantAssurance 30 whenit prevented Tropical from obtaining a long-term lease and making improvements to the property based on Tropical's Middle Eastern race, Muslim creed, and/or Iranian origin."111 Complainant also argues thatthe County "failedto comply with the Sponsor Assurance 30 in several material respects including

...." (1) selective and unjustly enforced§ 2-30, (2) failure to treat Tropical as other similar situated tenants atthe airport, (3) intentionally mistreated Tropical and its owners based on their national origins and religious beliefs, and have deniedthem opportunities and options that it has afforded other similarly situated tenants at the airport." 112 As with otherissues above, the County denies this allegation, without further detail. 113 Complainant makes a general allegation in the complaint documents alleging it was discriminated against because at least one ifits principals is of"Middle Easternrace, Muslim creed, and/or Iranian origin." 114 The Civil Rights GrantAssurance requires sponsors to comply with rules promulgated to assure that no person shall, onthe grounds ofrace, creed, color, national origin, sex, age orhandicap be excluded from participating in any activity conducted with or benefiting from funds received from Federal grants. To prove a claim ofintentional discrimination, one must show that a challenged action was motivated by an intent to discriminate. 115 Itdoes notrequire evidence of"bad faith, 

### ill will or any evil motive onthe part ofthe [recipient]." 116 Intentional discrimination claims may be analyzed using the Title VII burden shifting analytic framework established bythe Supreme Court in McDonnell Douglas Com. v. Green, 411 U.S. 792, 802 (1973). 117 Alternatively, under a disparate impact theory ofdiscrimination, an allegation would be made that an airport sponsor uses criteria or methods ofadministration that have the effect ofdefeating or substantially impairing the accomplishment ofthe objectives ofthe program with respectto individuals ofa particular race or sex. The theory would support an allegation that an airport sponsor, inviolation ofagency regulations, uses a neutral procedure orpractice thathas a disparate impact onprotected individuals, and such practice lacks a substantial legitimatejustification. 118 In Henrihetta and Lindsay Tullochv. Citv ofHarlingen, Texas, FAA Docket 16-05-07, the Director found that to prove a claim ofintentional discrimination, one must showthat "a challenged action was motivated by an intent to discriminate." 119 In Docket 16-05-07, the FAA also determinedthat the Complainanthad failed to meet the burden to properly proffer allegations ofthe Civil Rights Grant Assurance under both an intentional discrimination claim and a disparate impact claim. The allegations raised by the Complainant were vague and unclear. The Complainant inthat case was unable to showthe airport sponsor or one ofits agents discriminated against Complainantbecause [Complainant] was ofthe female gender. 120

FAA Exhibit 1, Item 1, page 28. 112 FAA Exhibit 1, Item 1, page 21. Although Complainant makes the same references to "selective and unjustly enforced §2-30" and "f<iilure to treat Tropical as other similar situated tenants at the airport," these issue are addressed in the discussions concerning the allegations of violation ofGrant Assurance 22 and Grant Assurance 23, not Grant Assurance 30. 113 FAA Exhibit 1, Item 3B, page 13. 1" FAA Exhibit 1, Item 1, pages 21 and 28. 115 Elston v. Talladega Board ofEducation, 997 F2d 1394, 1406 (11 Cir., 1993). 116 Elston, 997 F.2d, 1406 (quoting Williams v. City ofDothan. 745 F.2d 1406, 1414 (11 Cir., 1984). 117 Henrihetta and Lindsay Tulloch v. City ofHarlingen. Texas FAA Docket 16-05-07 at 22-23. Docket No. 16-00-10 (Apri126, 2001) and reference to Morris Waller and M & MTransportation v. WichitaAirnort Authoritv. FAA Docket No. 16-98-13 (March 12, 1999). 118 Henrihetta and Lindsay Tulloch v. Citv ofHarlingen. Texas. FAA Docket 16-05-07 at 23. 119 See DD at 22 and Elston v. Talladega Board ofEducation, 997 F2d 1394, 1406 (11 Cir., 1993) as a reference. 120 DD at 23. Page 25Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAA DocketNo. 16-12-15
In the present case, Tropical has failed to meet the burden to properly proffer allegations ofthe Civil Rights Grant Assurance under both an intentional discrimination claim and a disparate impact claim. The allegations raised by Complainant are vague and unclear. No showing has been made that the County or one ofits agents discriminated against Complainantbased onthe fact that one ofTropical's principals is of Middle Easternrace, ofMuslim creed, and/or ofIranian origin. The fact remains that as with other allegations madebythe Complainant; this allegation is unsubstantiated by reasonable evidence. The Complaint fails to describe similarly situated tenants and provide any comparison with the owners or operators ofthese businesses. This allegation alleges discrimination based on race, creed, and national origin. The preponderance ofevidence suggests the Complainant was never denied an opportunity to participate in any airport activity due to race, creed, or national origin. The FAA's Office ofCivil Rights also reviewed this complaint and affmnedthis conclusion. Therefore, the Director finds the County is compliant withtheir obligation as outlined under Grant Assurance 30. FAA finds no basis for the Complainant's allegations and finds thatthe City actions are consistent with its Federal obligations. Issue 5- Whether the County's denial ofthe Complainant's long-term lease request, while granting othertenants such leases, is in ofGrantAssurance Grant Assurance 37,

### Disadvantaged Business Enterprises. Grant Assurance 37 DisadvantagedBusiness Enterprises states that: The sponsor shall not discriminate onthe basis ofrace, color, national origin or sexinthe award and performance ofany DOT -assisted contract covered by49 CPRPart 26, orinthe award and performance ofany concession activity contract coveredby 49 CPRPart 23. In addition, the sponsor shall not discriminate onthe basis ofrace, color, national origin or sex inthe administration ofits DBE andACDBE programs orthe requirements of49 CPRParts 23 and 26.121 The sponsor shall take all necessary andreasonable steps under 49 CFRParts 23 and 26 to ensure nondiscrimination inthe award and administration ofDOT-assisted contracts, and/or concession contracts. The sponsor's DBE and ACDBEprograms, as required by49 CFRParts 26 and 23, and as approved byDOT, are incorporated by reference inthis agreement. Implementation ofthese programs is a legal obligation and failure to carry outits terms shall be treated as a violation of this agreement. Upon notification to the sponsor ofIts tmlure to carry outrts approved program, the Department mayimpose sanctions as provided for under Parts 26 and 23 and may, in appropriate cases, refer

121 49 CFR Part 26.13 provides, in relevantpart: "The recipient[sic} shall notdiscriminate on the basis of race, color, national origin orsex in the awardand performance of any DOT-assistedcontract or in the administration of its DBE program orthe requirements of 49 CFR Part 26. The Recipientshall take allnecessaryandreasonable steps under49 CFR Part26to ensure nondiscrimination in the awardandadministration of

DOT-assistedcontracts. The recipient's DBEprogram, as requiredby49 CFRPart26, andas approvedbyDOT, is incorporatedby reference in this agreement. Implementation of thisprogram is a legal obligation and failure to carry out its terms shallbe treatedas a violation of this agreement. Upon notification to the recipient of its

failure to carry out its approvedprogram, the Department may impose sanctions asprovided for underPart26andmay, in appropriate cases, refer the matter for enforcement under 18 US.C. 1001 and/or the Program Fraud Civil RemediesActof 1986 (31 US.C. 3801)." Page 26Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAA DocketNo. 16-12-15 the matter for enforcement under 18 U.S.C. 1001 and/orthe Program Fraud Civil Remedies Act of1936 (31 U.S.C. 3801). The Complainant alleges the County violated Grant Assurance 37, 

### DisadvantagedBusiness Enterprises (DBEs). Specifically, Complainant argues that the County "is obligated to comply with federal lawand related FAA Sponsor Assurances (49 U.S.C. §47107), including Federal Grant Assurance 37, which provides that therecipient shall not discriminate onthe basis ofrace, color, national origin or sex inthe award and performance ofany DOT-assisted contract," (2) that "GrantAssurance 37 further provides that the recipient shall take all necessary and reasonable steps under 49 CFRPart 26 to ensure nondiscrimination inthe award and administration ofDOT-assisted contracts" (emphasis added)," and(3) that "49 CFRPart 26 likewise requires

...that the recipient must never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection withthe award and performance ofany contract
...on the basis ofrace, color, sex, or national origin.',J22 In response, the County states that "Grant Assurance 37 speaks for itself," and denies the allegations. 123 Grant Assurance 37 has criteria for and definition ofDBE contracts. 49 U.S.C. § 26, which governs this section, protects DBEs from discrimination during the award and enforcement of"DOT-assisted contracts." There is no evidence showing the Complainantis now or has everparticipated in such a contract. Its tenancy on a federally funded airport is outside ofthe definition ofa DOT-assisted contract. Moreover, the Complainant also failed to demonstrate recognition or even qualification as a DBE, under the statutory guidance provided in section 26, Appendix E. 49 USC §47107(e)(7). 124 Consequently, the Directorfinds the County has not violated Grant Assurance 37, 

### Disadvantaged Business Enterprises.



### Issue 6- Whether the County's denial ofthe Complainant's long-term lease request,while granting othertenants such leases, violated Grant Assurance 39, CompetitiveAccess. Grant Assurance 39, 

### CompetitiveAccess, requires operators oflarge and medium hub airports to report to the Secretary any denial ofa request by an air carrier for access to the airport. Grant Assurance 39, 

### CompetitiveAccess states that: "Ifthe airport owner or operator ofa medium or large hub airport (as defined in section 47102 oftitle49, U.S.C.) has been unable to accommodate one or more requests by an air carrier for access to gates or other facilities at that airport in orderto allowthe air carrier to provide service to the airport or to expand service atthe airport, the airport owner or operator shall transmit a report to the Secretary that1) Describes the requests;

122 FAA Exhibit 1, Item 1, page 22. 123 FAA Exhibit 1, Item3B, page 10. 124 In Henrihetta and Lindsay Tulloch v. City ofHarlingen, Texas [FAA Docket 16-05-07], the Director discussed a Grant Assurance 37 allegation outside ofa federal contract: «The Complainant also references a violation of49 CFR Part 26. Again in this allegation, the Complainantfailed to proffer a sufficient claim. In terms ofa violation the DBE requirements, the first threshold is that an airport sponsor shall not discriminate on the basis ofrace, color, national origin or sex in the award and perfonnance ofany DOT-assisted contract or in the administration ofits DBE program or the requirements of49 CFR Part 26. The lease agreement between the Complainant and the County was not a federally-assisted contract and is not subject to the County's DBE program requirements. Norwas the Complainants' prior lease with the County's former tenant, Harlingen Jet Center. Moreover, the Complainanthas notprovided any evidence to substantiate a claim that the County or its agents acted in a discriminatory manner in the administration ofits DBE program." DD at 23. Page 27Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAA DocketNo. 16-12-15 

# ·--·------------------------------------------------------------------------ 2) Provides an explanation as to why the requests could notbe accommodated; and 3) Provides a time frame within which, ifany, the airport will be able to accommodate the requests." Complainant argues that the County is "obligatedto comply with federal law and related FAA Sponsor Assurances (49 U.S.C. §47107), including Federal Grant Assurance 39, which provides that [i]fthe airport owner oroperator hasbeenunable to accommodate one ormore requests by an air carrier for access to gates orother facilities in order to allow the air carrier

... to expand service atthe airport, the airport owner or operator shall transmit a report to the Secretarythat (a) describes the requests; (b) provides an explanation as to why the request could notbe accommodated; and (c) provides a time-frame within which, ifany, the airport will be able to accommodate the requests." 125 · The Complainant claims that "onor about 1997, Tropical beganto request permission from [the County] to build a larger hangar in which to house the aircraft on which it continued to work, in order to minimize exposure ofthe aircraft to the South Florida elements," and that over many years, has "repeatedly expressed to [the County] its desire for a long-term lease and larger leasehold at FLL and for permissionto further develop its leasehold, includingbuilding ahangar suitable to house its aircraft.' 126 The Complainant summarizes the alleged violation by stating that "although the record is replete with Tropical's requests for a long term lease, [the County] has failed to give Tropical a response as to why its request could not be accommodated in violation ofFederal Grant Assurance 39." Complainant also states that the County is in Violation ofGrantAssurance 39 because "itfailed to provide the [required] report to the Secretary." 127 The County denies the allegation but states that "FLL is a Large Hub because FLL accounts for more than 1% ofthe annual national hoardings (enplanements)." 128 The issue is whether the Countyhad to notify the FAAthat an air carrier operator had essentially been denied access "to gates or other facilities" at the Airport. The Director notes that this grant assurance was intended to ensure accommodation ofcarrier operations directly relatedto the movement and care of passengers, focusing on gate access and, to a lesser extent, otherterminal andbaggage processing areas. As discussed above, the record establishes is that the County terminated the complainant's lease for cause, and evicted it from its leasehold. The record contains no evidence thatthe County has taken steps to prevent Air Sunshine from accessing the Airport's terminal and gates, specifically the commuter gate area in Termina14. The Director cannot affirm that a lease termination concerning airport hangars and ramp space, is by itselfgrounds for a finding ofviolation ofGrant Assurance 39. This is especially true ifthe Airport has not prevented the operator from accessing its terminal areas orotherwiseprovide for aircraft and baggage access to those terminal areas and gates. Certainly, an air carrier does not need to have a land lease for hangar and ramp space in orderto serve the Airport. In addition, Grant Assurance 39 is not intended to reqmre an a:trport sponsor to file a report every time lease negotiations fail to meet all ofthe expectations of a tenant orprospective tenant. Therefore, the Director finds thatthe County is not i.n violation ofGrant Assurance 39 

### CompetitiveAccess because the County did not submit the report to the FAA.

125 FAA Exhibit 1. Item 38, pages 23-25. 126 FAA Exhibit 1, Item 1, Pages 3, 26. 127 FAA Exhibit I, Item 38, pages 23-25. 128 FAA Exhibit I, Item 38, pages 10-11. Page28Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAA Docket No. 16-12-15
VII. FINDINGS AND CONCLUSION Upon consideration ofthe submissions ofthe parties, and the entire record herein, and the applicable law and policy and for the reasons stated above, the Director finds and concludes: Issue 1

- The County is not in violation ofGrant Assurance 22 EconomicNondiscrimination. Issue 2- The County is not in violation ofGrant Assurance 23 Exclusive Rights. Issue 3 - The County is not inviolation ofGrant Assurance 24 Fee andRental Structure. Issue 4- The County is not in violation ofGrantAssurance 30, Civil Rights. Issue 5

- The County is not in violation ofGrant Assurance Grant Assurance 37, Disadvantaged Business Enterprises. Issue 6- The Countyis not inviolation ofGrant Assurance 39, CompetitiveAccess because it did not file the required report with the FAA. ORDER All Motions not expressly granted inthis Determination are denied. 

### RIGHT TO APPEAL This Director's Determination, FAA DocketNo. 16-12-15, is an initial agency determination and does not constitute a fmal agency decision and order subjecttojudicial review. [14 CFR § 16.247(b)(2)]. A party to this proceeding adversely affected bythe Director's Determination may appeal the initial determination pursuant to 14 CFR § 16.33(c) within thirty (30) days after service ofthe Director's Determination.

Randall S. Fiertz Director, Office ofAirport Compliance

and Management Analysis Date

Page 29Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAA DocketNo. 16-12-15 INDEX OF THE ADMINISTRATIVE RECORD The following items constitute the administrative record inthis proceeding: FAA Exhibit 1 

### Item 1 Part I6 Complaint dated September 28, 2012, including Exhibits A-C: ExhibitA ShortTerm Lease Agreement, dated January 2, 1996. Exhibit B Letter from Air Shun sine to Airport Director, dated January 10, 1996. Exhibit C AmendmentNo. 1to Short Terms lease Agreement, dated May 14, 1996. 

### Item2 FAA Notice of Docketing, October 22,2012. 

### Item3A RespondentBrowardCounty's Motion to Dismiss Complainant's Complaintwith Prejudice for Failure to State a Claim upon Relief May be GrantedPursuant to 14 CFR 

### § I6.I9 andF.R.C.P. I2(b)(6), dated November 14, 2012. 

### Item3B RespondentBroward County'sAnswerandAffirmative Defenses, dated November 14, 2012, including Exhibits 1-4: Exhibit 1 Plaintiff BrowardCounty'sAgreedMotion to Dismiss Counts I andIllof Plaintiff's SecondAmendedComplaint andto Dismiss Counts I and VIof Defondants 'Amended Counterclaim and for OrderRequiringDefendant TropicalAviation GroundServices, Inc. to Vacate the Premises byNovember 6, 2011, dated May 18,2011. (Includes Exhibit A Settlement Agreement, May 10, 2011). Case No. CACE 10041332(5), Inthe Circuit Court for the SeventeenthJudicial Circuit inand for Broward County, Florida. Exhibit 2 Agreed Order, dated May 18,2011. Case. No. CACE 10041332(5), In the Circuit Court for the SeventeenthJudicial Circuit in and for Broward County, Florida. Exhibit 3 Order, dated November 18,2011. Case. No. CACE 10041332(5), In the Circuit Court 

### for the 

### Sevell.teeRth 

### AlaiGial CirGmt iR 

### ana fer Brevfffi'G CeaRty, Fleriea. Exhibit4 Affidavitof Peter Corwin In Support of BrowardCounty's Motionfor Summary Judgment, dated September 20,2011. CACE 10041332(5), Inthe Circuit Court for the Seventeenth Judicial Circuitin and for Broward County, Florida 

### Item4 RespondentBroward County'sMemorandum of Points andAuthorities in Support of its Motion to Dismiss Complainant's Complaintwith Prejudice for Failure to State a Claim uponRelief May be GrantedPursuant to 14 CFR 

### § I6.I9 andF.R.C.P. I2(b)(6), datedNovember 14,2012. Page 30

### ItemS Tropical Aviation Ground Services, Inc., and Air Sunshine, Inc., v. Broward County, Florida FAA DocketNo. 16-12-15

Notice of Parties'Election to File RemainingPleadings Electronically, dated November 8, 2012. 

### Item6 Notice of Extension ofTime, Apri115, 2013. 

### Item 7 Notice of Extension of Time, June 11, 2013. 

### ItemS Notice of Extension ofTime, August 15,2013. 

### Item9 Notice of Extension ofTime, October 16,2013. 

### Item 10 Notice of Extension ofTime, February 11,2014. 

### Itemll Notice of Extension ofTime, October 17,2014. 

### Item 12 Notice of Extension of Time, January 29, 2015. 

### Item13 Minimum Standards Policy for GeneralAviationatBroward CountyAirports, 9/18/09.

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