SERVED JANUARY 26,2010 


,r t·~. "1 ~-. , t t ~ r1-) 

, ; 

UNITED STATES DEPARTMENT OF TRANSPORTATION 


OFFICE OF HEARINGS 


WASHINGTON, D.C. 


) 

FEDERAL AVIATION ADMINISTRATION, ) 

) 

Complainant, 	 ) FAA DOCKET No. CP08WP0004 

) 

v. 	 ) (Civil Penalty Action) 


) 


SUN QUEST EXECUTIVE AIR CHARTER, INC. ) 


) 

Respondent. ) DMS No. FAA-2008-0238 

--------------------------------------------------------------------------) 

INITIAL DECISION 


OF ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN 


Found: 1) Respondent violated 14 CFR §135.63(a)(4)(vii) on two counts; and 

2) Respondent is assessed a civil penalty of $5,000. 

I. Background 

Flight and duty times for pilots operating under Part ISS of the Federal 

Aviation Regulations ("FARs") are circumscribed. Section IS5.267(b), 14 C.F.R. 

§lS5.267(b), generally limits one-pilot flight crews during any 24 consecutive hours to 8 

hours of total flight time "when added to any other commercial flying by that flight 

crewmember"; for flight crews of two pilots, the regulation caps flight time at 10 hours 

of total flight time (including "other commercial flying"). 

Respondent Sun Quest Executive Air Charter, Inc. ("Respondent" or "Sun 

Ques!") is an air carrier certificated under Part ISS. Certificate holders are required to 

keep records of pilots' flight time in sufficient detail to determine compliance with the 

described limitations. The issue in this case is whether Sun Quest did so. 

This matter originated in a records inspection carried out by agency inspectors 

on March 18, 2005. The inspectors noted several discrepancies in Respondent's 

records. The Complaint of the Federal Aviation Administration ("FAA," "Complainant," 

or "the agency") followed. 

The Complaint, as amended, asserts that Sun Quest violated 14 C.F.R. 

§IS5.6S(a)(4)(vii). This FAR requires certificate holders to "make available for 
2 


inspection by the Administrator ... [tJhe pilot's flight time in sufficient detail to 

determine compliance with the flight time limitations of this part." Complainant 

charges four violations of this FAR. The agency asks for a total civil penalty until 49 

U.S.c. §46301(a)(2) of $25,000. 

Charge one is that Respondent's pilot records themselves are not sufficiently ..... 

detailed to determine compliance with relevant limitations on flight time. Charges two 

and three assert that Sun Quest President and chief pilot Mark Smith failed to comply 

with flight and duty time limitations in providing (a) flight training on January 24, 2005 

(charge two), and (b) a check ride on March 9, 2005 (charge three). The fourth charge 

alleges that Sun Quest records failed to reflect Captain Smith's flight time for the Los 

Angeles Police Department ("LAPD"). Because Smith's piloting for the LAPD 

constitutes "other commercial flying" under § 135.267(b) according to the Complaint, 

Sun Quest should have tracked it. 

Respondent denied the charges. It contends that no discrepancies were noted or 

in fact existed (Stip. ,-r 11 ). 

The parties met for hearing on January 26, 2009. Since nearly all the facts of the 

case were undisputed (Tr. 4), the parties agreed, with the Court's approval, to file a joint 

stipulation and then to submit briefs arguing their respective positions. The 

stipulations and briefs have now been filed and the case is ready for decision. I 

The agency has the burden ofproof . To prevail it must prove its case by a 


preponderance of the reliable, probative, and substantial evidence (14 C.F.R. §13.223). 


II. Discussion 

A. The Nature of Respondent's Pilot Logs Violates the Regulation 

Sun Quest records its flight time and duty time records for its pilots in a 

document it calls "Duty and Flight Time Log Sheet" ("Log Sheet"). See, e.g., CompI. Br., 

Exh. B. The document has column entries for duty beginning time (called "Time On 

Duty"), duty end time ("Time Off Duty"), total duty time, and total flight time ("Flight 

Time"). 

Flight time limitations are calculated on a rolling 24-hour basis (14 C.F.R. 

§135.'267). The FAA determines compliance by counting back 24 hours from the 

scheduled end of a shift. So, for example, if a pilot's shift is scheduled to end at 9:00 p.m. 

on September 2, and the pilot is limited under FAR §IS5.267(b) to 8 hours offlight 

time, that pilot.may not accumulate more than 8 hours of flight time between 9:00p.m. 

, Complainant's briefs, entitled Complainant's Trial Brief Based on Stipulated Statement of Facts, 

Complainant's Reply to Respondent's Trial Brief, and Complainant's Supplemental Brief, will be referred 

to as "Compl. Br.," "Compl. Reply," and "Compl. Suppl.," respectively; Respondent's briefs, entitled 

Respondent's Brief, Respondent's Reply Brief, and Respondent'sSupplemental Brief, will be referred to as 

"Resp. Br.," "Resp. Reply,~' and "Resp. Suppl." respectively. (The supplemental briefs were filed at the 

behest ofthe Court by Order served September 1,2009). Citations to Stipulated Facts will be noted as 

"Stip." followed by the paragraph number. 

till. 
3 


September 1 (counting back 24 hours from the scheduled end ofthe shift) and 9:00 p.m. 

September 2 (the scheduled end ofthe shift). 

Sun Quest's Log Sheet does not record when flight time (as opposed to duty 


time) begins and ends. It is Complainant's contention that because of this omission, 


Respondent's records are insufficient to determine compliance with flig,ht time 


limitations, thus making out the alleged violation of§135.63(a)(4)(vii). 


I find the violation. Complainant has shown that Sun Quest's records for its 

pilots do not provide the information necessary to determine compliance with the FAR's 

limitations on flight time. 

In failing to record the time a flight begins and ends, the Log Sheet does not 

enable a determination of whether regulatory standards have been met.. If~pilot 

operates for six consecutive hours on two consecutive days, for example, the data Sun 

Quest enters permit a conclusion that the pilot gained sufficient rest, thereby complying 

with the regulations - but the data, or lack of it, also permit the opposite conclusion. 

Sun Quest's failure to record the times that the flights begin and end make it impossible 

to know which. 

The following example illustrates why: 

Scenario One: 

September 1 

12-hour shift, 10:00 a.m.-1O:00 p.rn. 

6-hour flight, 10:30 a.m.-4:30 p.m. 

September 2, 

12-hour shift, 10:00 a.m.-1O:00 p.m. 

6-hour flight, 3:30 p.rn.-9:30 p.m. 

Scenario Two: 

September 1 

12-hour shift, 10:00 a.m.-1O:00 p.m. 

6-hour flight, 3:30 p.m.-9:30 p.rn. 

September 2 

12-hour shift, 10:00 a.m.-1O:00 p.m. 

6-hour flight, 10:30 a.m.-4:30 p.m. 

The scenarios span identical duty times, 10:00 a.m. to 10:00 p.m. on consecutive, 

days. Scenario One is legal - the pilot has flown the aircraft within limits, 6 hours in a 
4 

24-hour period.2 But Scenario Two is not. In Scenario Two, the pilot has flown 11 hours 

in a 24-hour period. 3 That situation constitutes a violation of §135.267. 

The point is that Sun Quest's records do not enable a records examiner to 

determine which scenario has occurred. Respondent's failure to document when a pilot',~ 

flight time begins and ends is inadequate to the task. The express purpose of 

§ 135.63(a)( 4)(vii) -- to set out the pilot's flight time "in sufficient detail to determine 

compliance with the flight time limitations ofthis part" is not fulfilled. Sun Quest's 

pilot records thus fall short of compliance. 

Respondent counters that its Log Sheet "does not stand alone." The FAA 

inspector should have compared it with Sun Quest's flight manifest, the carrier states 

(Resp. Suppl. Br., p. 2). This argument is rejected. A form entitled "Duty and Flight 

Time Log Sheet" is self-evidently intended to address duty and flight time.'An FAA 

representative, therefore, should look to such a document to ascertain if flight-time 

limitations have been respected -- and need look no further. The document's title plainly 

indicates its intended function. It points to only one source for duty and flight time data -­

itself. An inspector is under no duty in such circumstances to search elsewhere. 

Moreover, the regulations contemplate that inspectors be able to draw conclusions 

"readily." South Aero, FAA Order No. 96-4 (February 13, 1996), pp. 8, 10. But placing a 

duty on inspectors to rummage for other documents, as Respondent apparently would, 

does not in any sense suggest "readily." It would place on the agency a burden not 

warranted by the sense ofthe regulations. 

The agency was justified in basing its determination that the pertinent regulation 

had been violated on Sun Quest's Duty and FlightTime Log Sheet. 

B. Other Flying 

1. Flight Training and Check Ride 

On January 24, 2005, Mark Smith of Sun Quest provided 1.3 hours of flight 

training to a company pilot. On March 9, 2005, Captain Smith gave a company pilot a 

check ride lasting 1.5 hours. These actions were included in Smith's duty time records 

but not in his flight time records (Stips. ~~12, 13, 17,22). Complainant contends that 

Sun Quest should have recorded these flights as flight time under the category of "other 

commercial flying." Respondent demurs. 

2 For instance, between J0:00 a.m. on September J and J0:00 a.m. on September 2, a 24-hour period, the 

pilot has flown 6 hours (10:30 a.m. September J to 4:30 p.m. September J); or between J0:00 p.m. 

September 1 and 10:00 p.m. September 2, likewise a 24-hour period, the pilot also has flown 6 hours (3:30 

p.m. September 2 to 9:30 p.m. September 2). 

Between 3:30 p.m. on September 1 and 3:30 p.m. on September 2, a 24-hour period, the pilot has flown 

from 3:30 p~m. to 9:30 p.m. on September I (6 hours) plus between 10:30 a.m. and 3:30 p.m. on September 

2 (5 hours). See also Compl. Br., pp. 6-7, for another illustration oftwo scenarios which span identical 

duty times, but result in flight times on either side ofthe law. . 
5 


In support of its position, the FAA argues that the January 24 training flight lists 

Captain Smith as the check airman. He also was acting as the pilot-in-command ("PIC"). 

'Regarding the check ride of March 9, Complainant argues that Respondent·records show 

Smith as the assigned captain. Additionally, during at least part ofthe check ride, Smith . 

would have been the sole pilot observing traffic because the trainee would have been ."" 

"under the hood" (that is, using a vision-restricting device). As such, Smith would have 

been a required crewmember. Finally, Complainant notes that Captain Smith was paid 

for these tasks. 

In sum, because Smith was a paid, and required, crewmember, Complainant 

states, these flights must be considered "other commercial flying" under FAR §135 .267. 

Both the training flight ofJanuary 24 and the check ride ofMarch 9 should have been 

added to Smith's assigned flight time in calculating his flight time limitations. Because 

Sun Quest did not do so, the company stands in violation ofthe regulation (Compl. Br., 

pp. 8-9; Compl. Reply, pp. 1-2). 

Respondent counters that the January 24 flight was in an aircraft certified for 

single-pilot operation. Captain Smith could not be the pilot-in-command of a single pilot 

flight,nor could he record the flight as such, Sun Quest contends. The trainee could have 

logged the flight as PIC. Nor could Smith have logged the flight as a second-incommand -- not on a flight with one pilot. He was a check airman. Sun Quest concludes, 

contrary to Complainant, that Smith was not a required crewmember under Part 91 (under 

which the training took place). As to the March 9 check ride, the aircraft used also was 

certificated for single pilot flight. As in the January 24 flight, Smith could nothave 

logged his service as second-in-command in a one-person crew. He was a check airman 

on this flight too, Sun Quest contends. The check airman's function is to oversee the 

operation ofthe pilot; he is not a member ofthe crew (Resp. Br., pp. 2-3; Resp. Reply, 

pp.6-7). 

I find and conclude that the January 24 training flight cannot be considered "other 

commercial flying" under §135 .267. The March 9 check ride, on the other hand, must be 

considered "other commercial flying" and should have been counted toward flight time. 

On the January 24 flight, Sun Quest's flight training record shows that Captain 

Smith served as check airman (Compl. Br., Exh. C). He did not fly the aircraft. Since the 

trainee-pilot did not wear a view-limiting device, Smith was never required to assume 

any responsibilities of a sole pilot. As such, he was not a required crewmember. While 

the flight training record lists the trainee as "SIC" (second-in-command), Smith did not 

thereby assume the role of PIC. In sum, Captain Smith did not act as a crewmember with 

responsibility for the safe operation of the aircraft. The critical concerns underlying the 

idea that flight time must be recorded - promotionofsafety in air transportation by 

reducing pilot fatigue (South Aero, FAA Order No. 96-4 (February 13, 1996), p. 7) -_ 

were not in this instance directly or substantially implicated. I conclude for these reasons 
'. 


6 

that Smith's actions in giving a company pilot flight training on January 24,2009 counts 

as duty time but not as flight time.4 

The circumstances ofthe March 9 check ride lead to the opposite conclusion. A 

key difference is that Captain Smith on this flight was a required crewmember. He was...,. 

the assigned captain (CompL Br., Exh. D). Another critical factor is that check rides 

require the trainee pilot to have vision-restricting devices in place. Smith would have had 

to observe traffic while the trainee was "under the hood." Smith thus attained the status 

of a required crewmember (Compl. Br., pp. 8-9). Captain Smith was compensated for 

serving as a crewmember. The check ride should have been logged as flight time. 

2. L.A.P.D. Flying 

During February of2005, Captain Smith served as a pilot for the Los Angeles 


Police Department. He piloted a helicopter owned and operated by the LAPD on 14 


occasions for a total flight time of 50.4 hours (Compl. Br., Exh. A; Stip., ,-r24). Smith's 


duty and flight time records for Sun Quest did not reflect any of this activity (Stip., ,-r23). 


Complainant argues that Captain Smith's LAPD flying constituted "other 

commercial flying" which should have been recorded by Sun Quest for the purpose of 

calculating his flight time limitations. Smith was a required crewmember and received 

payment. . Since Respondent did not record Smith's LAPD operations, its records were 

"deficient," the agency contends. This omission constitutes another violation of 

§135.63(a)(4)(vii) (CompL Br., p. 9; CompL Reply, p. 2). Respondent counters that 

Smith's flying was performed as a police officer. The LAPD-owned and -operated 

helicopter was properly considered a "public aircraft" exempt from the agency's reach.s 

I conclude that Complainant has failed to prove a violation. 

I fin4 that the helicopter was a statutory "public aircraft," and, as such, is not 

subject toFAA jurisdiction. The governing statute defines a "public aircraft" as an 

aircraft used exclusively for the service of any government which is not carrying persons 

or property for commercial purposes. 49 U.S.C. §40102 (a)(41)(D). The helicopter 

piloted by Captain Smith was owned and operated by the LAPD, a governmental unit. 

There is no evidence that it performed any activities other than police work. The plain 

words of the statute compel me to conclude that under these circumstances the helicopter 

must be considered a "public aircraft." The agency does not have jurisdiction over public 

aircraft. 49 U.S.C. §40102; Us. v. Aero Spacelines, Inc. 361 F.2d 916,921 (9th Cir. 

1966). Respondent must prevail on this issue.6 

4 That Smith was compensated is not determinative. He was not compensated for serving as a 

crewmember. See generally FAA Legal Interpretation 1990~21 (August 9, 1990), 1990 WL 10519417. 

S Resp. B~., pp. 7-8. Respondent's Brief, p. 4, states that "[i]t has been stipulated that the helicopter which 

;;"ark Smith fl~w ~or th~ L.A.P.D. was a 'public aircraft.'" This is not correct. Stipulation ,25 reads, 

Legal determmatlOn will have to be made as to whether the helicopter in question was a "public aircraft" 

within the meaning of[the statute]." 

6 Complain?nt contends that a .finding for Respondent, by allowing pilots to add flight hours within a 

defined period, would undermme the safety concerns undergirding the regulatory limitations on flight time 
7 


All arguments have been considered. Those not explicitly addressed in this Initial 

Decision are denied as without merit. Further, Respondent's request for oral argument 

(Resp. Suppl. Br., p. 1) is denied. 

III. Penalty 

I will assess against Respondent a civil penalty of $5,000. 

An appropriate civil penalty must reflect the totality ofthe circumstances 

surrounding the violations. Eastern Air Center, Inc., FAA Order No. 2008-3 (January 28, 

2008)). The penalty should provide sufficient incentive to deter the respondent and 

similarly-situated entities from future violations. Folsom's Air Service, Inc., FAA Order 

No. 2008-11 (November 6,2008), p. 12. ' . 

The rules limiting the hours pilots may operate aircraft serve critical safety 

purposes. They ensure that pilots gain sufficient rest and minimize the risk of pilot 

fatigue. The safety implications ofinadequate rest are well-known. Pilot fatigue can 

have catastrophic results. See South Aero, FAA 6rder No. 96-4 (February 13, 1996), p. 

7. 

The FAA's mandate to insure safety would ring hollow without a concomitant 

ability to monitor limitations compliance through examination of flight and duty time 

records. Premier Jets, Inc., FAA Order No. 99-7 (August 31, 1999); p. 5. The FARs 

require that flight and duty time records be sufficiently detailed to enable a determination 

of compliance. Sun Quest's pilot records fell short ofthat standard. The agency's 

mandate to insure safety in the air was thereby compromised. The risk that pilots would 

operate aircraft without sufficient rest was unacceptably increased as a result. 

Respondent's failure to count a check ride toward restrictions on pilot time also was in 

derogation ofthe agency's duty to promote safety. Sun Quest's practices merit a 

significant assessment. 

Yet it also must be recognized that Respondent's forms for logging pilot flight 

time were accepted for years by FAA inspectors assigned to supervise the carrier's 

practices. They were incorporated into Sun Quest's Operations Manual (Stip., ~8). This 

circl]ll1stance does not allow Respondent to escape liability;' but it must be considered as 

(CompL Br., p. 10; Compl. Reply, p. 3), This is essentially a policy argument. It cannot trump the clear 

meaning ofthe statute. Moreover, an air carrier which permits, or a pilot who undertakes, any flying under 

conditions which may endanger others risks a violation of 14 C.F.R. §91.13. That provision warns that 

aircraft may not operate "in a careless or reckless manner so as to endanger the life or property of another." 

See FAA Legal Interpretation 1989-23, 1989 WL 1631930 (August 9, 1989). 

7 This argument amounts to a claim of an equitable estoppel. Estoppel against a government will not lie, at 

least absent a shciwing ofafflrmative misconduct by a government representative. See, e.g., Siu de Puerto 

Rico, Caribe Y Latino America v. Virgin Island Port Authority, 42 F.3d 801,803 (3rd Cir. 1994). No 

showing ofsuch conduct was made here. 

It sho~ld be noted that our sister agency the National Transportation Safety Board, whose decisions are 

persuasIve, has stated that estoppel will never lie where the public interest and safety in air commerce and 

transportation are implicated. Ronald G. Fisher, EA-2986, 6 NTSB 1292, 1294 (1989), affdsub. nom. 
8 

a mitigating factor in the determination of penalty. The fact that Respondent's 

recordkeeping practices passed muster several times understandably could have 

suggested to it that these practices were acceptable and consistent with applicable F ARs. 

Against this background, Sun Quest had no evident reason to change them to conform to 

what the agency deems acceptable today. ''I> 

I conclude that a civil penalty of $5,000 is appropriate. It is commensurate with 

the nature and context of the violations while appropriately promoting the agency's 

policies of compliance and deterrence. It suitably accounts for the totality ofthe 

circumstances ofth\s case. 

Sun Quest Executive Air Charter, Inc. is hereby assessed a civil penalty of $5,000 

for two violations of FAR § 14 C.F.R. §135.63(a)(4)(vii), as discussed herein.s 

~ .. Administrative Law Judge 

Attachment - service list 

Fisher v. Department o/Transportation, 917 F:2d 27 (9 Cir. 1990); Erik Milton Poole, EA-4425, 1996 

NTSB Lexis 11 (February 7, 1996).· . 


8 This decision may be appealed to the Administrator ofthe FAA. The notice of appeal must conform to 


sections 13.210, 13.211(e) and 13.233 ofthe Rules of Practice, which require that a notice of appeal I) be 


filed not later than 10 days (plus an additional five days ifmailed) from the service date of this decision, 


and 2) be perfected with a written brief or memorandum not later than 50 days (plus an additional five, if 

mailed) from the service date ofthis decision. The notice of appeal and briefor memorandum must either 

be a) mailed to the Federal AviationAdmini~tration, 800 Independence Avenue, S.W., Washington, DC 

20591, Attn: Hearing Docket Clerk, AGC·430, Wilbur Wright Building-Suite 2W1000, or b) delivered 

personally or via expedited courier service to the Federal Aviation Administration, 600 Independence 

Avenue, S.W., Wilbur Wright Building-Suite 2WI000, Washington, D.C. 20591, Attn: Hearing Docket 

Clerk, AGC-430. A copy ofthe notice of appeal and briefor memorandum also must be sent to agency 

counsel. Service upon the presiding judge is optional. 
FAADocket No. CP08WP0004 

(Civil Penalty Action) 

SERVICE LIST 

ORIGINAL & ONE COpy 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 


Attention: 	 Hearing Docket Clerk, AGC-430, 


Wilbur Wright Bullding-Suite 2WlOOOI 


ONE COpy 

Sun Quest Executive Air Charter, Inc. 


Attn: Mark Charles Smith, Chief Pilot 


7436 Hayvenhurst Ave. 


Van Nuys, CA 91406 


Arthur Wasserman, Esq. 


Law Offices of Wasserman & Miller 


16380 Roscoe Blvd., Suite 120 


Van Nuys, CA 91406-1221 


TEL: (818) 895-8234 


FAX: (818) 895-0675 


Naomi Tsuda, Regional Counsel 


Federal Aviation Administration 


Office ofthe Regional Counsel 


Western-Pacific Region, AWP-7 


P.O. Box 92007 


Los Angeles, CA 90009-2007 


TEL: (310) 725-7101 


FAX: (310) 725-6816 


The Honorable Richard C. Goodwin 


Administrative Law Judge 


Office of Hearings, M-20 


U.S. DeRartment ofTransportation 


1200 New Jersey Avenue, S.B. 


East Building, Ground Floor 


Room E12-320 


Washington, DC 20590 


TEL: Attorney-Advisor (202) 366-2139; Legal Assistant 6-5121 


FAX: (202) 366-7536 


I Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 609Independence Avenue, S.W., Wilbur Wright Building-Suite 2WIOOO, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC430.