## SERVED JANUARY 26,2010

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, ; 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) Respondentis assessed a civil penalty of$5,000.


### I. Background Flight and duty times for pilots operating under Part ISS ofthe 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 oftotal flight time "when added to any other commercial flying by that flight crewmember"; for flight crews oftwo pilots, the regulation caps flight time at 10 hours oftotal 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 ofpilots' 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 outby agency inspectors on March 18, 2005. The inspectors noted several discrepancies in Respondent's records. The Complaint ofthe 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 FARrequires certificate holders to "make available for2


### inspection by the Administrator

... [tJhepilot's flight time in sufficient detail to determine compliance with the flight time limitations ofthis part." Complainant charges four violations ofthis 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 chiefpilot 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, SunQuest should have tracked it. Respondent denied the charges. 

### Itcontends that no discrepancies were noted or in fact existed (Stip. 

### ,-r 11). Theparties met for hearing on January 26, 2009. Since nearly all the facts ofthe case were undisputed (Tr. 4), the parties agreed, with the Court's approval, to file ajoint 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

.Toprevail it must prove its case by a preponderance ofthe reliable, probative, and substantial evidence (14 C.F.R. §13.223).


### II. Discussion
A. The Nature ofRespondent'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 FlightTime 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 OffDuty"), 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 countingback 24 hours from the scheduled end ofa shift. So, for example, ifa 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 offlight time between 9:00p.m.

,Complainant's briefs, entitled Complainant's Trial BriefBased on Stipulated Statement ofFacts, 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 byOrder 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 Sheetdoes not record when flight time (as opposed to duty time) begins and ends. Itis Complainant's contention that because ofthis 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 flightbegins and ends, the Log Sheet does not enable a determination ofwhether 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 ofit, 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, 10:00a.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 a4

24-hourperiod.2 But Scenario Two is not. In Scenario Two, thepilot has flown 11 hours in a 24-hourperiod. 3 That situationconstitutes a violation of

### §135.267.
Thepoint 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 outthe pilot's flight time "in sufficient detail to determine compliance with the flight time limitations ofthis part" is not fulfilled. Sun Quest's pilotrecords thus fall short ofcompliance. 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 ifflight-time limitations have beenrespected

-- and need look no further. The document's title plainly indicates its intended function. 

### Itpoints 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."SouthAero, FAA Order No. 96-4 (February 13, 1996), pp. 8, 10. Butplacing a duty oninspectors to rummage for other documents, as Respondent apparently would, does not in any sense suggest "readily." Itwouldplace onthe agency a burden not warranted by the sense oftheregulations.
Theagency wasjustified 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 ofSun Questprovided 1.3 hours offlight training to a company pilot. On March 9, 2005, Captain Smith gave a companypilot a check ride lasting 1.5 hours. Theseactions were included in Smith's duty time records but notin his flight time records (Stips.**~~12,** 13, 17,22). Complainantcontends 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 Jand J0:00 a.m. on September2, a24-hour period, the pilot has flown 6 hours (10:30 a.m. September J to 4:30 p.m. September J); orbetween J0:00 p.m. September 1and 10:00 p.m. September2, likewise a24-hourperiod, the pilot also has flown 6 hours (3:30 p.m. September 2to 9:30 p.m. September2).

Between 3:30 p.m. on September 1and 3:30 p.m. on September 2, a24-hourperiod, the pilothas 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 ofits 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 ofMarch 9, Complainant argues that Respondent·records show Smith as the assigned captain. Additionally, during at leastpartofthe checkride, Smith

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

### §135.267. Both the training flight ofJanuary 24 and the checkride ofMarch 9 should have been added to Smith's assigned flight time incalculating his flight time limitations. Because Sun Quest did not do so, the company stands in violation oftheregulation (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 ofa single pilot flight,nor could herecord the flight as such, Sun Quest contends. The trainee could have logged the flight as PIC. Norcould Smithhave logged the flight as a second-incommand

-- noton a flight with one pilot. He was a check airman. Sun Questconcludes, contrary to Complainant, that Smith was not a required crewmember under Part 91 (under which the training took place). As to the March 9 checkride, the aircraftused also was certificated for single pilot flight. As inthe January 24 flight, Smith could nothave logged his service as second-in-command in a one-person crew. He was a check airman onthis flight too, Sun Questcontends. The check airman's function is to oversee the operation ofthe pilot; he is nota 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 checkride, onthe other hand, mustbe considered "othercommercial flying" and should have been countedtoward 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). Hedid not fly the aircraft. Sincethe trainee-pilot did not wear a view-limiting device, Smith was never required to assume any responsibilities ofa sole pilot. As such, he was nota required crewmember. While the flight training record lists the trainee as "SIC" (second-in-command), Smith did not thereby assume the role ofPIC. In sum, Captain Smith did not act as a crewmember with responsibility for the safe operation ofthe aircraft. The critical concerns underlying the ideathat flight time must be recorded

- promotionofsafety in airtransportation by reducing pilot fatigue (SouthAero, FAA OrderNo. 96-4 (February 13, 1996), p. 7) -_ were not in this instance directly or substantially implicated. I concludefor 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 checkride lead to the opposite conclusion. A key difference is that Captain Smithonthis flight was a required crewmember. He was...,. the assigned captain (CompL Br., Exh. D). Another critical factor is that checkrides require the trainee pilot to have vision-restricting devices in place. Smith would have had to observe traffic while the trainee was "underthe hood." Smith thus attained the status ofa 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 pilotfor the Los Angeles Police Department. He piloted a helicopter owned andoperated by the LAPD on 14 occasions for a total flight time of50.4 hours (Compl. Br., Exh. A; Stip., ,-r24). Smith's duty and flight time records for SunQuest did notreflect any ofthis activity (Stip., ,-r23). Complainantargues that Captain Smith'sLAPD 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'sLAPD 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 Complainanthas failed toprove a violation.
I fin4 that the helicopter was a statutory "public aircraft," and, as such, is not subject toFAAjurisdiction. The governing statute defines a "public aircraft" as an aircraft used exclusively for the service ofany 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 bythe LAPD, a governmental unit. There is no evidence that it performed any activities otherthan police work. The plain words ofthe statute compel me to conclude that underthese circumstances the helicopter mustbe considered a "public aircraft." The agency doesnot havejurisdiction overpublic aircraft. 49 U.S.C. §40102; Us. v. Aero Spacelines, Inc. 361 F.2d 916,921 (9th Cir. 1966). Respondent mustprevail onthis 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 ,25reads,

Legal determmatlOn will have to be made as to whetherthe helicopterin 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 time7

All arguments have been considered. Those notexplicitly 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 mustreflect the totality ofthe circumstances surroundingthe violations. EasternAir Center, Inc., FAA OrderNo. 2008-3 (January 28, 2008)). Thepenalty should provide sufficient incentive to deter the respondent and similarly-situated entities from future violations. Folsom'sAirService, 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 andminimizethe risk ofpilot fatigue. The safety implications ofinadequate rest are well-known. Pilot fatigue can have catastrophic results. See SouthAero, FAA 6rderNo. 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 offlight and duty time records. PremierJets, 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 ofcompliance. Sun Quest's pilotrecords fell short ofthat standard. The agency's mandate to insure safety in the airwas thereby compromised. Therisk thatpilots would operate aircraft without sufficientrest was unacceptably increased as a result. Respondent's failure to count a check ride towardrestrictions onpilot time also was in derogation ofthe agency's duty to promote safety. Sun Quest's practices merit a significant assessment.
Yet it also mustberecognized that Respondent's forms for loggingpilot 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 allowRespondent to escape liability;' but it mustbeconsidered as (CompL Br., p. 10; Compl. Reply, p. 3), This is essentially a policy argument. Itcannot trump the clear meaning ofthe statute. Moreover, an aircarrier which permits, or a pilot who undertakes, any flying under conditions which may endangerothers risks a violation of 14 C.F.R. §91.13. Thatprovision warns that aircraft may not operate "in a careless orreckless manner so as to endangerthe life orproperty ofanother." See FAA Legal Interpretation 1989-23, 1989 WL 1631930 (August 9, 1989). 7 This argument amounts to a claim ofan 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 YLatinoAmerica v. Virgin IslandPortAuthority, 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. RonaldG. Fisher, EA-2986, 6 NTSB 1292, 1294 (1989), affdsub. nom.8

a mitigating factor inthe determination ofpenalty. The fact that Respondent's recordkeepingpractices passed muster several times understandably could have suggested to itthat these practices were acceptable and consistent with applicable FARs. Againstthis background, Sun Questhad no evident reason to change them to conformto whatthe agency deems acceptable today. ''I> I conclude that a civil penalty of$5,000 is appropriate. 

### Itis commensurate with the nature and context ofthe violations while appropriately promotingthe agency's policies ofcompliance and deterrence. 

### It suitably accounts for the totality ofthe circumstances ofth\s case. Sun QuestExecutive Air Charter, Inc. is hereby assessed a civil penalty of$5,000 for two violations ofFAR § 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); ErikMilton Poole, EA-4425, 1996 NTSB Lexis 11 (February 7, 1996).·

. 8 This decision may be appealed to the Administrator ofthe FAA. The notice ofappeal must conform to sections 13.210, 13.211(e) and 13.233 ofthe Rules ofPractice, which require that a notice ofappeal I)be filed not laterthan 10 days (plus an additionalfive days ifmailed) from the service date ofthis decision, and 2) be perfected with a written brieformemorandum not laterthan 50 days (plus an additional five, if mailed) from the servicedate ofthis decision. The notice ofappeal and brieformemorandum 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-Suite2W1000, orb) delivered personally or via expeditedcourier service to the Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite2WI000, Washington, D.C. 20591, Attn: Hearing Docket Clerk, AGC-430. A copy ofthe notice ofappeal and brieformemorandum also mustbe sentto agency counsel. Service upon the presidingjudge is optional.FAADocketNo. 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-Suite2WlOOOI
ONE COpy
Sun QuestExecutive Air Charter, Inc. Attn: Mark Charles Smith, ChiefPilot 7436 HayvenhurstAve. Van Nuys, CA 91406
Arthur Wasserman, Esq. Law Offices ofWasserman & 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. Box92007 Los Angeles, CA 90009-2007 TEL: (310) 725-7101 FAX: (310) 725-6816
The Honorable Richard C. Goodwin Administrative LawJudge Office ofHearings, M-20 U.S. DeRartmentofTransportation 1200 NewJersey Avenue, S.B. EastBuilding, 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, 60

### 9Independence Avenue, S.W., Wilbur Wright Building-Suite2WIOOO, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC430.