SERVED: March 7, 2017 

U.S. DEPARTMENT OF TRANSPORTATION DEPARTMENT OF 

OFFICE OF HEARINGS TRANSPORTATION 

WASHINGTON, DC lUll MAR _1 p ): )S 

In The Matter Of: 

DOCKET OPERATIONS 

Docket No. FAA-2014-1116 

Pacific International Skydiving Center 

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Respondent ) 

1. Pertinent Procedural History 

Case Nos. 2014WP130012 & 

2014WP130023 

INITIAL DECISION 

On March 27,2014, the Complainant served the Respondent a Notice of Proposed Civil 

Penalty in the amount of$22,000 in Case No. 2014WP130012, followed by a second Notice of 

Proposed Civil Penalty on October 30, 2014, in the amount of$33,000 in Case No. 

2014WP130023. On December 18, 2014, the Complainant served the Respondent a Final Notice 

of Proposed Civil Penalty for both Case No. 2014WP130012 and Case No. 2014WP130023. 

On December 29, 2014, the Respondent filed a Request for Hearing in both cases. On 

January 7, 2015, the Complainant timely filed its complaint,1 to which the Respondent filed a 

timely answer on January 13, 2015. 

On January 22, 2015, Chief Administrative Law Judge Yoder assigned this case to an 

Administrative Law Judge and then subsequently reassigned it to the undersigned judge on 

March 26, 2016. A prehearing conference was held on May 17, 2016. 

On July 1, 2016, the undersigned judge provided notice that a hearing would be held in 

Honolulu, HI, beginning on December 13, 2016. 

On November 12, 2016, the Respondent requested that the undersigned judge issue 

subpoenas for ten witnesses. While the undersigned judge initially issued the requested 

subpoenas on November 16,2016, the subpoena for FAA Safety Inspector, Curtis Whaley, was 

subsequently quashed on December 1, 2016. 

1 The complaint sought a $55,000 civil penalty, comprised of$22,000 for Case No. 2014WP130012 and $33,000 for 

Case No. 2014WP130023. See Complairtt. 
The undersigned judge conducte4 a hearing from December 13 to 15,2016, in Honolulu, HI. 

Don Bobertz appeared on behalf of the Complainant; Robert L. Feldman appeared on behalf of 

the Respondent. 

At the start of the hearing, the Respondent orally moved to dismiss the case due to a lack of 

subject matter jurisdiction. After the hearing, the parties submitted briefs regarding this issue. 

On January 24,2017, the undersigned judge issued an Order Denying the Respondent's Motion 

to Dismiss. 2 

The parties submitted written posthearing briefs pursuant to 14 C.F .R. § 13.231 (c) on 

February 6, 2017. 

Based upon the evidence presented at the hearing and the applicable law, the undersigned 

judge has come to the following decision. 

2. Summary of Complainant's Allegations 

The Complainant alleges that the Respondent conducted parachute operations into or through 

clouds in violation of 14 C.F.R. § 105.17(a)3 in the vicinity of Dillingham Airfield, Waialua, 

Hawaii, on the following eight occasions: 

Date 12/08/2013 1/05/2014 3/22/2014 3/25/2014 

Number of Flights 1 1 3 3 

Airplane Civil Registration Number N900SA N989BW N989BW N989BW 

The Complainant further alleges these actions were careless or reckless, so as to endanger the life 

or property of others, in violation of 14 C.F.R. § 91.13(a). 

3. Standard of Proof 

The pertinent regulations at 14 C.F.R. § 13.224(a) and (c) place the burden of proof on the 

agency, except in the case of an affirmative defense, at which time the burden shifts to the party 

asserting the affirmative defense.4 In accordance with 14 C.F.R. § 13.223, the burden of proof in 

a civil penalty action is a "preponderance of reliable, probative, and substantial evidence." 

2 Also at the start of the hearing, the Complainant orally moved to amend the complaint.' In particular, 

Complainant's counsel stated that he ''wanted to issue an amended complaint to separate the cases back into their 

original form where there's two separate cases." Transcript Volume 1 at 13. The undersigned judge's Order 

Denying Respondent's Motion to Dismiss rendered the Complainant's motion to amend the complaint moot. 3 Notably, the Complainant did not allege a violation of 14 C.F.R. § 105.17(b), dealing with flight visibility and/or 

cloud clearance restrictions when conducting parachute operations. 

4 See 14 C.F.R. §§ 13.224(a) and (c). 

Docket No. FAA-2014-1116 Initial Decision, page 2 
4. Background 

The Respondent is the owner/operator of the two subject aircraft, N900SA and N989BW, 

which were used to conduct parachute operations at Dillingham Airfield. On the dates in 

question, the subject aircraft ascended into the skies with parachutists onboard who subsequently 

jumped from the aircraft and descended to the landing zone operated by Respondent at 

Dillingham Airfield. All personnel onboard the planes, to include the pilots, videographers and 

tandem instructors, were independent contractors affiliated with the Respondent or customers of 

the Respondent. At issue in this case is whether any of the parachutists descended into or 

through the clouds, and if so, whether the Respondent is liable for such activity. 

5. Did Individuals Descend Into or Through Clouds? 

Pursuant to 14 C.F.R. § 105.17(a), "No person may conduct a parachute operation ... into or 

through a cloud." To support its allegations that parachutists descended into or through clouds 

on each of the alleged dates, the Complainant presented testimony of two FAA inspectors, an 

expert in the area of skydiving, and an alleged eyewitness. The Complainant also submitted into 

evidence video footage filmed by the eyewitness, Frank "T.K." Hinshaw, on the four dates in 

question (hereinafter referred to collectively as the "Hinshaw videos")5 and in-person video 

footage obtained from the Respondent in the course of discovery (hereinafter referred to 

collectively as the "Go Pro videos"). 6 

Kyle Bartler, a principal operations inspector at the Honolulu Flight Standards District 

Office, investigated the alleged December 8, 2013 and January 5, 2014 violations. 7 Edward 

Santa Elena, who at the time served as a principal operations inspector at the Honolulu Flight 

Standards District Office, investigated the alleged March 22 and 25, 2014 violations.8 Both 

Mr. Bartler and Mr. Santa Elena admitted that they did not personally see any parachutists jump 

into or through a cloud on the dates in question, but instead relied solely upon the videos and 

declarations provided by T.K. Hinshaw as evidence to support the allegations.9 The question of 

whether the parachutists did indeed skydive into or through the clouds therefore can only be 

resolved by examining the credibility ofthe statements ofT.K. Hinshaw (the sole eyewitness), 

5 See Agency Exs. A-5, A-7, A-14 and Al5. 6 See id A-32 through 35 arid A-38. 7 See Transcript Volume 1 at 37-38. 8 Id at94. 9 /d. at 65 and 126. 

Docket No. FAA- 2014-1116 Initial Decision, page 3 
the Hinshaw videos, and the GoPro videos. 

a. Credibility ofT.K. Hinshaw's statements 

In support of the Complainant's allegations, T.K. Hinshaw testified that on each of the 

alleged dates he witnessed the Respondent's plane carry parachutists into the sky and then saw 

those parachutists descend through the clouds. T.K. Hinshaw further provided video footage 

from parachute jumps that occurred on the four dates in question, as well as declarations to 

authenticate the video footage. 10 

As background, T.K. Hinshaw testified that he has, in the past, helped his father's company, 

Skydive Hawaii, which also operates out of Dillingham Airfield. 11 While working with Skydive 

Hawaii, he claimed he observed parachutists affiliated with the Respondent violating safety 

regulations by violating the restrictions regarding parachuting through or near clouds. T.K. 

Hinshaw further testified that in 2013 he learned the FAA "wanted to crack down on skydivers 

jumping through clouds," and he explained that he began recording the Respondent's parachute 

activities after his complaints to the Honolulu Flight Standards District Office did not stop this 

behavior. 12 When probed, T.K. Hinshaw admitted that he based his conclusion that parachutists 

went into or through clouds on the fact that when looking up at the sky, he could not see the 

plane through the cloud cover, but he later saw the parachutists. 13 This conclusion, however, 

does not withstand scrutiny. As discussed more below, the Respondent's expert, Tom Sanders, 

provided detailed testimony regarding the flaws with the Hinshaw videos, many of which apply 

to T.K. Hinshaw;s view from the ground. The distance between the ground and the jumpers, the 

change in size of the subject jumper during freefall versus. after parachute deployment, the angle 

from the ground, and the multiple layers of clouds would all impact the reliability of what T .K. 

Hinshaw viewed from the ground. 

Regardless of the substance of his testimony, however, T;K. Hinshaw's bias against the 

Respondent eviscerates the credibility of his declarations provided to the FAA and his testimony 

10 See Agency Exs. A-6, A-8 and A-16. 11 Transcript Volume I at 140. 12 Jd at 143. 

13 See id. at 292-293 for the following exchange: Judge Rawald: "So it sounds to me the central assumption you 

were making as you were watching the parachutists was that, if you could not see the starting point, the plane, and 

then you could see the parachutists, they must have passed through a cloud, is that right?" The witness: "That's 

correct. If you're looking straight up and you can't see the aircraft and then a parachutist appears below the cloud, 

then to me that is indicative of ... " Judge Rawald: "So when I'm watching the video and I hear you say, he's 

through the cloud, the basis for that was because you c~uld not see the plane but you could see the parachutist at 

some point afterwards?" The witness: "Correct." 

Docket No. FAA- 2014-1116 Initial Decision, page 4 
at the hearing, as well as his statements as recorded in the Hinshaw videos. Most importantly, 

T.K. Hinshaw's father, Frank Hinshaw, is the owner and operator ofSkydive Hawaii, which is 

the Respondent's main competitor at Dillingham Airfield. This close familial relationship with 

the Respondent's direct competitor provides a significant impediment to the persuasiveness of 

his testimony. 14 Further, the competition created animosity between the two companies, which 

one of the FAA's investigators, Mr. Bartler, acknowledged. 15 Rather than address these 

concerns, T.K. Hinshaw instead refused to discuss his hostile relationship with the Respondent 

and its employees and independent contractors by asserting his Fifth Amendment right to refrain 

from answering questions regarding allegations of his threatening behavior. 

Guy Banal, the owner of Pacific International Skydiving Center, explained that individuals 

employed by the Respondent were compelled to file a police report after reading several 

Facebook posts in which T.K. Hinshaw threatened the employees' livelihood, as well as their 

safety.16 Mr. Banal's testimony was corroborated by several other witnesses and a police 

report. 17 

Darryl Green, an independent contractor for the Respondent, discussed an incident where· 

T.K. Hinshaw walked past the Respondent's building at Dillingham Airfield while making a 

throat-slashing gesture directed towards everyone in the office. 18 Feeling threatened, Mr. Green 

filed a report with the Honolulu Police Department.19 After reading threatening Facebook posts 

authored by T.K. Hinshaw, Greg Meyer, an independent contractor for the Respondent, filed a 

report with the Honolulu Police Department and Dillingham airport security.20 Mr. Meyer feared 

for his own safety, as well as the safety of his roommates and his dog, because T.K. Hinshaw 

knew he lived "across the street from the airport" at the time?1 

14 See In re Alphin Aircraft, Inc., FAA Order No. I997-9 at II (Decision and Order, Feb. 20, I997) (The 

Administrator noted that the Administrative Law Judge found a witness's "testimony 'inherently less persuasive' 

than that of other witnesses because he [was the Respondent's President]"). 15 See Transcript Volume I at 81. 16 See Transcript Volume 2 at 2I4-219. A July 31, 20I4 declaration signed by Mr. Banal, which accompanied a 

letter to the Honolulu Police Department, details not only the threatening Facebook posts authored by T.K. Hinshaw, 

but also an instance of physical violence by T.K. Hinshaw. See Respondent's Ex. R-I6. Excerpts from the subject 

Facebook posts were attached to the letter. See id 17 See Respondent Ex. R-16. 18 See Transcript Volume 2 at 244-46. 19 See id at246; see also Respondent's Ex. R-I6 at 31. 20 See Transcript Volume 2 at 253-254. 21 See id 

Docket No. FAA-2014-1116 Initial Decision, page 5 
Roxanne Stanley22 also provided testimony regarding T.K. Hinshaw's threatening Facebook 

posts, stating that in addition to multiple threats to shut the Respondent down, T.K. Hinshaw 

posted a message threatening to "break into our home and ... [k]ill us and our pets, anybody who 

worked for Pacific Skydiving Center.'m After witnessing the throat-slashing gesture discussed 

by Mr. Green, Mrs. Stanley filed a report with the Honolulu Police Department.24 Bryan Stanley 

testified that T.K. Hinshaw's Facebook posts made him feel unsafe because he viewed T.K. 

Hinshaw as "extremely unstable," detailing that he has seen him: 

go on tirades on the field, attack people over flying drones over our planes, flying drones at our 

skydivers, firing his own employees for being friends with other skydivers on Facebook, coming 

out on the deck at me as I'm leaving and screaming and yelling and flipping me off and yelling 

obscenities at my wife?5 

Regarding a Facebook post where T.K. Hinshaw referenced "already spill[ing] their blood once," I 

Mr. Stanley described an incident where both T.K. Hinshaw and his father physically pushed 

individuals associated with the Respondent to the ground. 26 

Given T.K. Hinshaw's bias against the Respondent as his father's main competitor, his 

history of threatening and aggressive behavior towards the Respondent and its personnel, his 

refusal to respond to questions regarding these allegations impacting his credibility, and his 

flawed basis for determining whether parachutists had descended through clouds, the 

undersigned judge gave no weight to T.K. Hinshaw's testimony, declarations, and statements as 

recorded within the Hinshaw videos. 27 

b. The Hinshaw videos 

T.K. Hinshaw explained that he filmed the Respondent's parachute operations on days it 

appeared they were going to "jump skydivers through poor conditions," stating that he filmed 

most of these videos from Skydive Hawaii's operations area at Dillingham Airfield.28 In filming 

the Hinshaw videos, T.K. Hinshaw testified that he used a Sony HDR CX-150, which he 

22 Following the completion of Mrs. Stanley's testimony, Mr. Frank Hinshaw, who up to this point had been seated 

in the courtroom listening to the proceedings, left the courtroom and directed verbal obscenities towards Mrs. 

Stanley. See id at 267-272. 23 Id at 257. 24 See id at 258-259. 

25 !d. at 274-275. 26 See id at 275-276. 27 In contrast, the key witness in the only other skydiving case addressed by the Administrator was found credible 

because he did not have an "axe to grind." In re Fedele, FAA Order No. 1998-3 at 4 (Decision and Order, Mar. 12, 

1998). 

28 Transcript Volume I at 144-148. The red "A" noted on Agency Ex. A-56 marks T.K. Hinshaw's location when 

filming the videos he submitted to the FAA. 

Docket No. FAA- 2014-1116 Initial Decision, page 6 
described as a small handheld camera, with a flip-out screen and a single record/stop button that 

records in 3.1 megapixel stills· up to 1080 resolution.29 T.K. Hinshaw acknowledged that he did 

not save the video footage on the original memory cards; instead, he copied the footage to his 

computer hard drive and then burned CDs to submit to the FAA investigators. 30 With respect to 

his filming technique, T.K. Hinshaw testified that he did not rely on the view finder/flip screen, 

instead looking up at the sky himself, with the camera in front of him. 31 

Little weight is afforded to the footage in the Hinshaw videos, as their value is limited in 

determining whether the parachutists actually descended into or through a cloud. In examining 

this evidence, it is important to keep in mind ·the Administrator's statement in Fedele that the 

evidence "must be examined in light of the safety regulations."32 To avoid committing a 

regulatory violation in Fedele, the skydivers needed a hole in the clouds of"at least 4,000 feet," 

which was wider than the 3,200 foot long airport runway.33 Examining the unbiased eye 

witness's testimony in Fedele that there were no patches of blue sky over the airport in light of 

the regulatory requirement for a skydiver to "be surrounded, at all times, by an opening in the 

clouds with a horizontal diameter of at least 4,000 feet," the Administrator found it more 

probable than not that a violation occurred. 34 In the case at hand, however, the evidence must 

establish that a parachutist more likely than not descended into or through a cloud, as opposed to 

failing to have the appropriate level of cloud clearance. This then requires a greater level of 

specificity that the videos fail to provide. 

In weighing the evidence, the undersigned judge first considered that the evidence itself was 

created by a person whose extreme bias has already been discussed. T.K. Hinshaw admitted that 

the CDs submitted to the FAA did not contain the original footage and that the original footage 

has since been recorded over. There is then no way to verify whether the footage, as submitted 

into evidence, was altered before it was provided to the FAA. 

More concerning, however, are the inherent limitations of this type of ground footage, even if 

29 Transcript Volume 1 at 148-149. 30 See id. at 156-157 and 161. The undersigned judge overruled the Respondent's objection to the admission of 

these videos under the best evidence rule, noting that while this may raise an issue as to the videos credibility, 

14 C.F.R § 13.222 states that an "Administrative Law Judge shall-- which is mandatory-- admit any or all 

documentary or demonstrative evidence introduced by a party but shall ... exclude irrelevant, immaterial or unduly 

repetitious evidence." Id at 163-164. 31 See id. at 173-174. 32 Fedele, FAA Order No. 1998-3 at 5. 

33 Id 

34 Id 

Docket No. FAA- 2014-1116 Initial Decision, page 7 
it was unaltered. Mr. Santa Elena discussed the sky conditions at the jumping altitude as 

recounted by one of the pilots, who reported that jumps were delayed until sky·conditions 

cleared.35 Further, the Respondent's expert, Mr. Sanders,36 provided detailed testimony 

regarding the flaws of the footage contained in the Hinshaw videos. In addition to holding an 

expert skydiving license and logging over 7,000 camera jumps, Mr. Sanders is familiar with 

Dillingham Airfield from flying out of there almost daily and is known for his freefall skydiving 

camera work, having shot feature film skydiving for 38 years.37 

Mr. Sanders described the Sony CX-150 camera used by T.K. Hinshaw as amateur and not 

adequate for accurately filming skydiving activities.38 Mr. Sanders discussed that the lowerquality lens and single chip contained in T.K. Hinshaw's camera would distort the image 

"giv[ing] you a look of not being sharp, as if it was out of focus or there was something 

obscuring it in between," thus negatively impacting the detail, color, contrast and clarity of the 

footage. 39 The use of auto-focus, given the distance between the camera and the objects being 

filmed, also affected the quality of the Hinshaw videos, resulting in blurry, as opposed to sharp, 

images.40 Mr. Sanders discussed the effect a camera lens zoom would have on the image 

portrayed and indicated that the inability to see a parachutist could be due to the fact that the 

parachutist was not in the frame.41 

According to Mr. Sanders, the moisture, salt spray and volcanic ash present in the air at 

Dillingham Airfield would also negatively impact the quality of footage contained in the 

Hinshaw videos.42 Mr. Sanders explained that a careful look at the Hinshaw video footage 

35 Recalling his investigation, Mr. Santa Elena stated the following: "I recall Randy saying that it -- the weather, it 

was cloudy over the field but he waited until it wasn't-- he waited until it was clear before he released the jumpers." 

Transcript Volume I at 127. 36 Mr. Sanders was admitted as an expert in the area of skydiving, as well as videography of and during skydiving. 

See Transcript Volume 2 at 287. 37 See id at 282, 284 and 286. The extent of Mr. Sanders's credentials can be found in his resume, which was 

admitted as Respondent Ex. R-24. 38 See Transcript Volume 2 at 298 and 304. 

39 Id. at 303-304 and 307-308. 40 See id. at 344-345. 41 For an example, see the following exchange from Mr. Feldman's examination of Mr. Sanders regarding exhibit 

A-5 at time mark 5:48: Q: "Do you see a jumper there?" A: "I see a black dot, which could be a jumper under a 

parachute, but I can't confirm that it is just a skydiver in freefall." Q: "Well, let's back up here. Okay. At 5:47, you 

don't see him, do you?" A: "no." Q: "Why not?" A: "He is out of :frame." Q: "He is out of :frame? What does 

frame mean?" A: "He is down below and he has to tilt the camera down to pick him up. There he is." Jd at 317-

318. 

42 See id at 323. 

Docket No. FAA- 2014-1116 Initial Decision, page 8 
reveals "a lot of blue" sky that "is not being shown as clearly" due to the poor camera quality,43 

explaining that the camera "miss[ ed] a lot of detail" and did not pick up all the blue sky present 

during filming.44 With respect to the blue sky, Mr. Sanders also noted that the inferior quality of 

the video monitor at the courthouse displayed more grey than when compared to what he saw 

when he viewed the same footage on a higher resolution monitor at home. 45 

The distance between the videographer on the ground and the jumpers, as well as the change 

in size of the subject jumper during freefall versus after parachute deployment, also decreased 

the reliability of the Hinshaw videos. Mr. Sanders explained: 

if you exit at 14,000 feet, that's almost 3 miles, you can't just look up at 3 miles and see a solo 

skydiver falling. You just don't see him. They are falling 200 feet a second. They get bigger and 

bigger and bigger and bigger for a minute, but they don't get really big until they open a 

parachute. And that's when-- that's the only time in all of the ground angle view videos that I see 

anything is when the parachute opens. 46 

With respect to the angle and resulting visibility of a parachutist during parachute deployment, 

Mr. Sanders stated: 

the fact that it is happening so high in the sky, that a skydiver in freefall shot from an angle, might 

only be a 2 foot high object. But during deployment, the skydiver gets pulled upright, which is 

going to be 5, 6 to 6 foot tall with 12 to 15 foot lines and a 300 square foot parachute. So now all 

of a sudden we have something that is, you know, a mile and a half to 3 miles up in the sky and 

now we can see it because it has grown in size, because the parachute got opened.47 

The reliability of the Hinshaw videos is also decreased as a result of the camera angle and 

zoom utilized, as well as the multiple layers of clouds present during the subject jumps. 

Mr. Sanders generally opined that the Hinshaw videos appeared to be filmed from a 30-degree 

angle, as opposed to straight up (which would have provided a more accurate depiction of the 

parachutists' activities). He explained that with multiple cloud layers, ground footage could 

seem to portray an individual parachuting into or through a cloud, when in reality the cloud was 

between the parachutist and the camera. Regarding cloud coverage at Dillingham Airfield, 

Mr. Sanders noted that on a typical day there are "clouds at every layer and they are blowing at 

different speeds at every layer,"48 and explained that when filming from the ground looking up: 

you can't tell where the clouds are. They are stacked together from an angle. If he is zooming in, 

it's not a sufficient angle to judge when somebody is falling downward if they are going through 

43 Id at 331. 44 Jd at 307. 

45 See id at 309-310. 46 Id at 330. 47 Id at 313. 

48 /d. at 311. 

Docket No. FAA- 2014-1116 Initial Decision, page 9 
[a cloud] or not ... They are opening their parachute a mile high in the sky and they start at almost 

3 miles high in the sky and all we are seeing is a black dot out here. I don't know what is straight 

above him. I don't know if there is a cloud in front and they are falling behind the wall in the 

back. I have no idea from the ground what is going on. 49 

Mr. Sanders went on to emphasize that when reviewing the Hinshaw videos: 

There is no way to know that they have gone through a cloud from this kind of a shot. There isn't 

even any way to know that this is all the blue that is out there. This is only from this one point of 

view on the ground at whatever focal length lens he has zoomed out to. It doesn't mean 

anything. 50 

Overall, Mr. Sanders concluded that "[n]one of the ground camera angles would be accurate 

... [n]one of them are looking straight down and that's what we are trying to find is where they 

are falling," and that, in his opinion, none of the videos shot from the ground depict a skydiver 

going into or through a cloud. 51 

Mr. Sanders's testimony regarding the unreliability of the Hinshaw videos, is supported by 

the Go Pro videos. Comparing jumps filmed in the Go Pro videos to the same jumps filmed in the 

Hinshaw videos revealed patches of blue skies, while the Hirtshaw videos appeared to depict 

much more cloud coverage. 52 The Go Pro videos vividly exhibit the limitations in using the 

Hinshaw videos to determine whether a particular parachutist went into or through a cloud. 

Admissions ofT.K. Hinshaw and the government's expert, Mr. McCowan, also support the 

testimony of Mr. Sanders. T.K. Hinshaw admitted that weather conditions can change in the five 

to seven minutes it takes to ascend to the altitude for skydiving, and that the angle of a camera 

can make it appear that a parachutist is descending into or through a cloud, when in reality they 

are not. 53 After viewing video footage that appeared to depict parachutists descending into or 

through clouds, both T.K. Hinshaw and Mr. McCowan were able to deny any descent through 

49 /d. at 320. 50 /d. at 321. 51 /d at 310 and 3I2. 52 For example, comparing the Hinshaw video depiction of the first flight and subsequent parachute jump in A-14 

with GoPro video footage of the same jump in A-3.2 reveals patches of blue sky amongst the clouds that was not 

visible in the ground footage. Compare Agency Ex. A-14 and A-32, Similarly, ground footage from A-I5 depicts 

jumpers that may be descending through the clouds beginning at the I :07 time mark. Go Pro video footage of the 

same jump depicted in A-33 reveals several patches of blue skies that are not visible from the ground footage in 

A-15. Compare Agency Ex. A-15 and A-33. 53 See Transcript Volume I at 260-26I; see id at 245-246 for the following exchange: Judge Rawald: "depending on 

where you're standing and the angle you're looking at, is it possible that you could look up and think that someone's 

going through a cloud when, in fact, they could be going through an opening, if your angle was such that it could 

allow that? Is that possible?" The witness: "It's possible ... " 

Docket No. FAA- 2014-1116 Initial Decision, page 10 
clouds on those occasions, based upon personal knowledge. 54 

In evaluating Mr. Sanders's testimony, the undersigned judge considered its "logic, depth, 

and persuasiveness."55 In addition to Mr. Sanders's extensive knowledge of the weather and 

parachuting conditions at Dillingham Airfield and his experience as a videographer, he provided 

an in-depth and logical analysis of the flaws with respect to the Hinshaw videos. He 

comprehensively discussed numerous factors that decrease the reliability of the Hinshaw videos. 

Additionally, his analysis was supported by footage from the GoPro videos, as well as 

admissions from T.K. Hinshaw and Mr. McCowan. Mr. Sanders's persuasiveness was 

negatively impacted by his long-term friendship with Mr. Banal, as well as the fact that he has 

skydived for free with the Respondent for 14 years and received compensation of $500 an hour 

for his testimony. However, with regard to the Hinshaw videos, any limitation in Mr. Sanders's 

persuasiveness is far outweighed by the detailed and logical analysis he provided regarding the 

flaws of the Hinshaw videos. 

In contrast, the testimony of the government expert, Mr. McCowan, does not provide a 

sufficient basis to accord the Hinshaw videos additional weight. While Mr. McCowan has a 

great deal of skydiving experience and was recognized as an expert in the field of skydiving, he 

has not conducted a lot of camera jumps nor does he have expertise in the area of filming 

skydiving operations. 56 J]pon viewing the Hinshaw videos, Mr. McCowan testified that based 

upon his years of experience, he concluded parachutists descended into or through the clouds on 

the eight occasions alleged by the complainant. 57 His opinion, however, was based upon the fact 

that the video depicts images of parachutists below the clouds, who were not visible prior to 

that. 58 . The flaws in this analysis were highlighted by the testimony of Mr. Sanders and 

54 See id. at 268-275 for T.K. Hinshaw's explanation of why the parachutists in exhibit R-12 did not jump into or 

through clouds, despite the appearance they did. See Transcript Volume 2 at 108-115 for Mr. McCowan's 

explanation that while video footage in R-25 appeared to depict him and his fellow jumpers descending through a 

cloud, none of the jumpers actually went through a cloud. 

55 Alphin, FAA Order No. 1997-9 at 12 (citing In re Valley Air Services, Inc., FAA Order No. 1996-15 at 7 (Order 

Denying Reconsideration, May 3, 1996) )(stating that logic, depth, and persuasiveness are the criteria for evaluating 

expert testimony). 56 See Transcript Volume 2 at 5-15. In addition to owning a parachute operating center in Wilmington, OH for ten 

years from the mid-70s to mid-80s and logging about 10,240 parachute jumps, Mr. McCowan holds a commercial 

muiti-engine pilot rating, with about 3,500 flight hours. Mr. McCowan began skydiving in 1967 as a member of the 

Army airborne unit, and continues to skydive today, primarily·performing exhibition jumps. He has never, however 

~arachuted at Dillingham Airfield. 7 See id. at 16-22; 24-26; 33-37; 39-40; 45-48 and 52-55. 

58 An example of this admission can be found in the following exchange: Judge Rawald: "So what characteristic do 

you see that has them coming out of the clouds? The fact that they were there when they weren't there before?" 

Docket No. FAA- 2014-1116 Initial Decision, page 11 
unrebutted by Mr. McCowan. 

c. The GoPro videos 

The Complainant submitted video footage obtained from the Respondent in discovery that 

was filmed with Go Pro cameras worn by its videographers during some of the parachute jumps 

in question. 59 Great weight is afforded to the Go Pro videos with respect to the videographers 

wearing the cameras, because the footage accurately portrays what occurred with respect to the 

videographers.60 With respect to filming skydiving, Mr. Sanders stated that "[y]ou really need to 

get in the sky,"61 and specified that "you can't tell what somebody is falling through accurately 

unless you are the person doing it or you are right above them," later clarifying that "[ s ]traight 

below would work."62 Footage from three of the GoPro videos provide reliable, probative and 

substantial evidence to conclude that, more likely than not, the videographer in each video 

parachuted into or through a cloud. 

The GoPro video provided for the March 25, 2014 jump of Joel Galino depicts the 

videographer descending into .a cloud beginning at the 00:54 mark.63 The GoPro camera depicts 

nothing but clouds at the 00:54 mark until the 00:58 mark, with moisture collecting on the lens at 

the 00:56 mark. While the videographer is looking out towards the tandem jumpers for the 

beginning of the video, he appears to shift his view more downwards at the 00:50 time mark, at 

which time a large cloud is visible below him. After viewing this footage, Mr. McCowan, the 

government's expert in skydiving, opined that the videographer went through a cloud, stating: 

The video photographer did go through the cloud. You can see the moisture on the lens. You can 

see the cloud through his camera as he is going through the cloud. And he is deploying his canopy 

as he is coming out ofthe bottom ofit.64 

Mr. McCowan testified further that "[t]hat's typical on a lens of going through moisture, you will 

get condensation on the lens," and stated that he was basing his opinion on "multiple videos ... 

The Witness: "Again, yes, sir. They are pretty much in full flight now, so the canopies are opening and they are 

coming through the cloud now." Judge Rawald: "Okay. Once again, you are saying coming through the cloud, but I 

want to understand what characteristic are you seeing in the image that tells you they are coming through the· 

cloud?" The Witness: "Again, they were not there prior." Judge Rawald: "Okay." The Witness: "Now they are." 

See id at48. 

59 Agency Exs. A-32 through 35 and A-38. 60 Because the tandem parachutists were not wearing the GoPro cameras, the angle, distance and cloud coverage 

issues raised regarding the reliability of the ground footage remain, thus rendering the GoPro footage of less value 

when ascertaining whether or not any of the tandem parachutists descended into or through a cloud. 61 Transcript Volume 2 at 286. 62 Jd at 322 and 324. 63 Agency Ex. A-38. 64 Transcript Volume 2 at 64. 

Docket No. FAA- 2014-1116 Initial Decision, page 12 
[he had] seen before. "65 

The GoPro video provided for Bei Wu's March 25, 2014 jump also depicts the videographer 

descending into a cloud.66 The GoPro video depicts nothing but clouds beginning at the 00:53 

mark until approximately the 1 :01 mark. The videographer glances down at the 00:51 time mark 

revealing the clouds below him. While the videographer glances back up at the tandem jumpers 

quickly, he redirects his view back downward at the 00:53 time mark, at which point the ground 

is blocked by clouds. The footage continues to show nothing but clouds until the 1 :05 time 

mark. After viewing this footage, Mr. McCowan opined that "[t]he video photographer did go 

through the clouds," explaining that "there is a cloud below him as he is in freefall and as he gets 

to the cloud, he opens his main parachute, which stands him up and he continues to go through 

the'cloud as his main parachute is opening."67 

GoPro footage from Liyun Liu's March 25, 2014 jump also depicts the videographer 

descending into a cloud.68 The videographer looks straight down at the 00:48 mark based upon 

the view of the ocean and ground. At this point a cloud is in view, and as the video continues to 

the 00:50 mark, the videographer appears to descend through the cloud. In addition to opining 

that the videographer in this video went into or through a cloud, Mr. McCowan stated that at the 

00:51 mark you "can't see the ground."69 

Although the GoPro video from Jonathan Fenell's jump displayed some clouds in the sky, 

the footage does not depict either the videographer or tandem parachutists being filmed going 

into or through a cloud. 70 While Mr. McCowan testified that the footage depicted the 

videographer "going ... through a cloud,"71 he admittedly relied upon ''the haze" in the footage, 

explaining that it is "part of the cloud.',n Mr. McCowan went on to testify that at the 00:47 mark 

"you can see the cloud all around [the videographer]," explaining that the tandem master starts 

"to disappear as the cameraman is going through the cloud."73 However, a review of the footage 

indicates that the videographer appears to be looking out towards the tandem jumpers until the 

65 Id at 65. 66 Agency Ex. A-33. 67 Transcript Volume 2 at 43-44. 

68 Agency Ex. A-35. 69 Transcript Volume 2 at 150-151. 70 Agency Ex. A-32. 71 Transcript Volume 2 at 96. 

72 Id at 97. 73 Id at 100-101. 

Docket No. FAA- 2014-1116 Initial Decision, page 13 
00:48 time mark, at which point the ground and ocean are visible. Given the fact that the 

videographer filming Mr. Fenell appears to first look down at the 00:48 mark, at which time the 

ground and ocean are visible, the preponderance of the reliable, probative and substantial 

evidence does not support a finding that the videographer descended into or through a cloud in 

this video. 

Mr. Sanders's testimony that the videographers depicted in exhibits A-33, A-35, and A-38 

did not descend into or through the clouds is not convincing. When initially asked whether the 

jumper in exhibit A-33 went into or through a cloud, Mr. Sanders responded "[n]ot a cloud that 

would obscure your view of the ground with your eyes, no." 74 When questioned about the caveat 

contained in his answer regarding obscuring the view of the ground, Mr. Sanders subsequently 

opined that ·the jumper did not go through a cloud, but his explanation regarding moisture in the 

air was not convincing. 75 

Mr. Sanders opined that the videographer in exhibit A-35 did not descend through a cloud, 

stating: 

There's no time that the camera looks straight down. It's always looking out in front. It's always 

looking out in front. It's also the tandems are clearly opening up in the drier air and they're open 

above. The-- the camerapeople here are opening at cloud level. So, there's lots of moisture on 

the lens as well. 76 

Despite Mr. Sanders assertion that the videographer never looked down, footage indicates 

that he looked down around the 00:49 time mark. The footage at this point depicts mostly 

clouds, with some ground and ocean to the right; as the footage continues, the view is 

·completely obscured by clouds, indicating the videographer went into a cloud. With respect to 

the videographer in exhibit A-38, Mr. Sanders opined "I believe they did not go through a cloud, 

that their lens fogged as they hit the moisture layer."77 

With respect to the GoPro videos, Mr. Sanders's testimony is not logical, deep or 

74 Transcript Volume 3 at 64. 75 See id. at 65-66 for the following exchange: Judge Rawald: "So, he could be going through a cloud, but it 

wouldn't be enough to obscure his vision?" The Witness: "No, I think there is ... there's moisture in the air." Judge 

Rawald: "Okay." The Witness: "And I also think that the camera is nowhere near what our eyes are." Judge 

Rawald: "Okay." The Witness: "And so, I think and I've had this happen to me many times where my ringsight will 

fog up, my lens will fog up, but I can see through it and there's water vapor, but I've never lost sight of the ground." 

Judge Rawald: "So, in your opinion, did he go through a cloud, or did he not go through a cloud?" The Witness: 

"No." 

76 Id at 66. 77 /d. at 67. 

Docket No. FAA- 2014-1116 Initial Decision, page 14 
persuasive. 78 Compared to the detailed explanation of flaws with the Hinshaw videos, 

Mr. Sanders appeared to stretch to find reasons to explain why the footage did not depict 

parachutists descending into or through clouds, relying primarily on the theory that moisture in 

the air can cause a camera lens to fog up and including caveats in his testimony. This attempt to 

stretch logic appears in large part due to Mr. Sanders's bias in favor of the Respondent. As 

previously mentioned, Mr. Sanders is a longtime friend of Mr. Banal and has been allowed to 

skydive for free with the Respondent for the past 14 years. He was also compensated at a rate of 

$500 an hour for his testimony. In the case of the GoPro videos, then, Mr. Sanders's bias 

combined with the lack of depth or logic to his testimony limit the credibility of his testimony. 

Accordingly, the undersigned judge finds that a preponderance ofthe reliable, probative, and 

substantial evidence supports a finding that on March 25, 2014, three parachutists affiliated with . 

the Respondent descended into or through clouds. 79 

6. Is the Respondent a Responsible Party Under the Applicable Regulations? 

A violation of 14 C.P.R.§ 105.17(a) occurs, inter alia, when a person, including a 

corporation, 80 conducts a parachute operation "into or through a cloud." A parachute operation 

is defined as: 

the performance of all activity for the purpose of, or in support of, a parachute jump or a parachute 

drop. This parachute operation can involve, but is not limited to, the following persons: 

parachutist, parachutist in command and passenger in tandem parachute operations, drop zone or 

owner or operator, jump master, certificated parachute rigger, or pilot. 81 

The definition of parachute operation contained in 14 C.P.R.§ 105.3 appears to contain a 

typographical error, and was intended to read, "drop zone owner or operator," as opposed to 

"drop zone or owner or operator."82 

78 Alphin, FAA Order No. 1997-9 at 12. 79 See Agency Ex. A-33; A35 and A-38. 80 See 14 C.F.R § 1.1. 81 14 C.F.R. § 105.3. 82 A notice of proposed rulemaking dated April 13, 1999 proposed, inter alia, to defme previously undefined terms, 

including "parachute operation." Parachute Operations, 64 FR 18302 (Proposed Apr. 13, 1999) (to be codified at 

14 C.F.R. Parts 65, 91, 105, 119). A brief discussion of the proposal indicated that the "term 'parachute operation' 

would be added and defined as any activity involving the use of a parachute for a controlled descent to the surface," 

with the actual proposed amendment defining parachute operation as: "any activity that includes a parachute jump or 

a parachute drop. This activity involves, but is not limited to, the following persons: parachutist, tandem parachute 

operation, drop zone owner or operator, certificated parachute rigger, pilot, or appropriate FAA personnel." See id. 

The undersigned judge recommends that this typographical error be corrected in a future ru1emaking by removing 

the ·"or" between "drop zone" and "owner," so that it reads "drop zone owner or operator." 

Docket No. FAA- 2014-1116 Initial Decision, page 15 
The Respondent is a drop zone operator at Dillingham Airfield. 83 In support of this fmding, 

the Respondent authored a letter to the Honolulu Control Facility declaring its intent to "conduct 

a series of parachute operations at Dillingham Airfield ... from January 16, 2014 through 

December 16, 2015."84 When discussing his ten years as a drop zone operator, Mr. McCowan 

explained that he controlled all business operations at the drop zone, including the pilots' 

actions.85 Similarly, in maintaining an onsite office at Dillingham Airfield, where either Mr. 

Banal or a manger was present during all parachute activities, the Respondent controlled the drop 

zone, as well as communication with its pilots.86 

As a drop zone operator, the Respondent is independently liable for ensuring parachute 

operations are conducted in accordance with the clear language of the regulation. In its 

posthearing brief, the Respondent pointed to a National Transportation Safety Board (NTSB) 

case, Administrator v. Foss, for the proposition that liability is limited to the parachutist and the 

pilot in command.87 Importantly, NTSB cases "are not binding on the Administrator."88 

Additionally, the NTSB's reliance upon the FAA Administrator's brief in that case, which 

described a theory of "dual responsibility'' for both the pilot and the parachutists during 

skydiving operations, did not discuss the role or responsibility of the other parties referenced in 

the current regulations. Of note, Foss dealt with 14 C.F.R. §105.29,89 which prohibited making a 

"parachute jump," and has since been replaced with 14 C.F.R. § 105.17, which, as previously 

discussed, prohibits conducting a "parachute operation," an act that was defmed to include the 

actions of a drop zone operator. Because Foss did not address the role of other parties and in 

light of the change in the regulations since Foss, the NTSB's decision cannot be interpreted to 

83 A "drop zone" is a pre-determined area where parachutists land after making an intentional parachute jump. See 

14 C.F.R. § 105.3. 84 Agency Ex. A-4. 

85 When asked "did you control the pilot in any way once he took off for a flight to drop skydivers?" Mr. McCowan 

replied: "Yes, we had radio communication with the pilot, with the aircraft. If something were to change on the 

ground, as clouds moving in or wind picking up, and mainly the wind picking up, we could call the pilot and tell him 

to not drop the jumpers." Transcript Volume 2 at 173-174. 86 See id at 232 for the following exchange with Mr. Banal: Q: "And I think you mentioned that you frequently talk 

to the pilots on the radio?" A: "Not frequently. Only when the manager is not around. He is in charge for that now. 

But, yes, I do sometimes. I take the radio to see if there is any information, I will give the information what I can 

see from the ground, but--" Q: "And you mentioned if you are not arolind, there is a manager there that could--" A: 

"Yes, there is a manager, yes." Q: "-- and that mai:lager, assistant manager is speaking frequently to the aircraft 

when you are not there?" A: "They will. We need to have a radio to communicate to the plane all the time." 87 Administrator v. Foss, NTSB Order No. EA-4631 (Opinion and Order, Feb. 17, 1998). 

88 In re Wendt, FAA Order No. 1993-9 at 2 (Decision and Order, Mar. 24, 1993} (citing In re Terry & Menne, FAA 

Order No. 1991-12 at 3 n.6 (Decision and Order, Apr. 10, 1991)). 

89 See 14 C.F.R. § 105.29 (1998). 

Docket No. FAA- 2014-1116 lnitial Decision, page 16 
stand for the proposition that pilots and parachutists currently have "exclusive responsibility" for 

violations committed during a parachute operation. A look at the relevant regulatory language 

governing parachute operations directs that drop zone operators, among others, have a role and 

responsibility to ensure regulatory compliance during parachute operations.90 

Accordingly, the undersigned judge finds that a drop zone operator, such as the Respondent, 

can be held liable for parachute operations that result in a parachutist descending into or through 

a cloud in violation of 14 C.F.R. § 105.17(a). 

7. AtTmnative Defense: Personnel Were Independent Contractors 

In addition to denying any violations occurred, the Respondent asserted that it cannot be held 

liable for the actions of its independent contractors. Under 14 C.F.R. § 13.224(c), the burden of 

proof shifts to the party asserting an affirmative defense.91 

It is not disputed that the pilots, tandem instructors and videographers that participated in the 

subject parachute activities were independent contractors. 92 In support of its argument, the 

Respondent relied upon the Administrator's holding in Federal Express that: 

The general rule encompasses the notion that employers should not be held responsible for 

activities they do not control and, in many instances, lack the knowledge and resources to direct ... 

The exceptions, in the main, reflect special situations where the employer is in the best position to 

identify, minimize, and administer the risks involved in the contractor's activities.93 

However, the Respondent's reliance is misplaced, as Federal Express is distinguishable from 

this case. In applying an agency theory ofliability in Federal Express, the key question was 

''whether Federal Express offered or accepted hazardous materials," or whether they ''were 

responsible for Scharff's improper offer or acceptance of hazardous materials in air 

transportation. "94 In comparison, the key question in the case at hand is whether the Respondent 

conducted parachute operations during any of the alleged violations, as opposed to whether the 

Respondent controlled the actions of its independent contractors. As the drop zone operator, the 

Respondent conducted parachute operations during each of the alleged violations, thus rendering 

90 See 14 C.F.R. §§ 105.3 and 105.17(a). 

91 See 14 C.F.R. § 13.224(c). 92 Mr. Banal's testimony to this fact was supported by 1099s, contracts and waivers. See Transcript Volume 2 at 

191-192; see also Agency Exs. A-41 through A~51. 

93 See In re Federal Express Corp., FAA Order No. 2002-20 at 6 (Decision and Order, Aug. 5, 2002) (finding the 

Respondent was not liable for the actions of its independent contractors because an exception to the general rule of 

non-liability for independent contractors was not presented) (citing Mini Mart v. Direct Sales Tire Co., 889 F.2d 

182, 184 (8th Cir. 1989)). 

94 Federal Express Corp., FAA Order No. 2002-20 at 5. 

Docket No. FAA- 2014-1116 Initial Decision, page 17 
it independently liable under the regulations. No evidence or testimony presented indicates that 

the Respondent delegated any of its duties as a drop zone operator to any independent 

contractors. In fact, Mr. Banal admitted that either himself, or a manager, were present during 

parachute activities, maintaining communication with the pilots.95 

Accordingly, the Respondent was not absolved from its liability under the applicable 

regulations by the fact that the pilots in command and the parachutists affiliated with the 

Respondent were independent contractors. 

8. Alleged Violations of 14 C.F.R. § 91.13(a) 

The Complainant also alleged the Respondent committed residual violations of 14 C.F .R 

§ 91.13(a), which prohibits the operation of "an aircraft in a careless or reckless manner so as to 

endanger the life or property of another."96 While the Complainant's expert, Mr. McCowan, 

testified regarding the hazards of parachuting into or through clouds, the undersigned judge notes 

that the issue at hand involves Part 105 violations for parachute operations, as opposed to Part 91 

violations dealing with the operation of an aircraft. Despite the inherent dangers associated with 

the reckless behavior of parachuting into or through clouds, there is no evidence that the aircraft 

involved in this case were operated in a careless or reckless manner. Unlike the case at hand, 

cases in which the Administrator has upheld violations of 14 C.F.R § 91.13(a) have involved 

clear instances of careless or reckless aircraft operation.97 Accordingly, the undersigned judge 

finds the Complainant failed to prove by a preponderance of the reliable, probative, and 

substantial evidence that the Respondent committed any violations of 14 C.F.R § 91.13(a). 

9. Civil Penalty Amount 

As previously explained, the undersigned judge has determined that the Respondent 

committed three violations of 14 C.F.R § 105.17(a) on March 25, 2014. The remaining issue is 

. the appropriate civil penalty to be assessed against the Respondent for these violations. 

95 See Transcript Volume 2 at 232. 96 The Complainant stated that it did not consider these residual violations when assessing the proposed civil penalty 

amount. See May 19,2016 Prehearing Conference Report. 97 See In re Fenner, FAA Order No. 1996-17 (Decision and Order, May 3, 1996) (upholding a violation of 14 C.F.R. 

§ 91.13(a) when an airplane flew too close to a helicopter, resulting in a near mid-air collision). See also In re 

Rushmore Helicopters, Inc., FAA Order No. 2012-8 (Decision and Order, Oct. 11, 2012) (upholding a violation of 

14 C.F.R. § 91.13(a) when a helicopter flew with duct tape covering the fuel filler port, leading to the risk of fuel 

contamination and fire); In re GoJet Airlines, LLC, FAA Order No. 2012-5 (Decision and Order, May 22, 2012) 

(upholding a residual violation of 14 C.F.R. § 91.13(a) after the complainant established the Respondent operated an 

unworthy aircraft). 

Docket No. FAA- 2014-1116 Initial Decision, page 18 
In its posthearing brief, the Complainant explained that it sought $11,000 per violation in 

Case No. 2014WP130012 and $5,500 per violation in Case No. 2014WP130023.98 The 

Complainant argued for the lower ciV:il penalty assessment for the alleged violations in Case No. 

2014WP130023 because it viewed these violations, which allegedly occurred on March 22 and 

25, 2014, as less egregious and dangerous than the alleged violations in Case No. 

2014WP130012 due to the decreased cloud cover.99 Applying the Complainant's proposed civil 

penalty of$5,500 per violation for the three established March 25, 2014 violations would result 

in a civil penalty of$16,500. 

The burden of justifying the proposed civil penalty falls upon the Complainant.100 In 

attempting to meet this burden, the Complainant did not, however, provide testimonial evidence 

about how the proposed civil penalty amount was assessed. The Complainant did submit into 

evidence FAA Order No. 2150.3B, which, in Paragraph 4 of Chapter 7, provides mitigating and 

aggravating factors to consider when assessing a civil penalty. 101 Other than describing the 

alleged violations as operational, reckless and possibly intentional, 102 the Complainant never 

explained how it considered these factors in assessing its proposed civil penalty. Therefore, the 

Complainant's requested civil penalty deserves no deference, but does set the ceiling for 

considering the appropriate penalty in this case. 

A civil penalty of $5,500 per violation would fall within the maximum range as described in 

the sanction guidance. 103 In its posthearing brief, the Complainant stated that the civil penalty 

assessment focused on the degree of hazard associated with conducting parachute operations into 

or through clouds.104 Relying upon testimony provided by T.K. Hinshaw and Mr. McCowan, the 

Complainant contended that parachuting into or through a cloud poses several hazards, including 

colliding into another parachutist, glider or plane, or landing in the nearby mountains or oceans, 

98 Pursuant to 49 U.S.C. § 4630l(a)(5) and 14 C.F.R. § 13.305(a)(3), the Respondent is subject to a civil penalty not 

to exceed $11,000 for each of the alleged violations. 99 Complainant's Closing Argument at 15. 100 See In re Northwest Airlines, Inc., FAA Order No. 1990-37 at 7 (Decision and Order, Nov. 7, 1990) (finding the 

FAA bore the burden ofjustifying the amount ofthe civil penalty it sought). 101 See Agency Ex. A-1 at 9-14. 102 Complainant's Closing Argument at 15. 103 The civil penalty ranges contained in Appendix B of FAA Order No. 2150.3B contain three different proposed 

ranges for minimum, moderate or maximum violations, and specifically notes that ''the middle of each 

recommended sanction range would be for a single violation without aggravating or mitigating factors." Agency 

Ex. A-1 at 33. The sanction range dealing with small businesses that do not hold a certificate, such as the 

Respondent, details a civil penalty range of $550-$2,199 for minimum violations, $2,200-$4,399 for moderate 

violations and $4,400-$11,000 for maximum violations. See id at 37. 

104 Complainant's Closing Argument at 15. 

Docket No. FAA- 2014-1116 Initial Decision, page 19 
instead of the designated drop zone. 105 While acknowledging that a midair collision is unlikely, 

the Complainant emphasized the high risk of death or serious injury if a collision occurred. 

Conversely, the Respondent argued in its posthearing brief that the civil penalty sought by 

the Complainant is excessive and not supported by the relevant guidance, because the 

Respondent did not act in a careless or reckless manner. 106 The Respondent asserts that if any 

pe~ty is assessed, it should be $550 per violation, which, in light of the undersigned judge's 

findings, would result in a total civil penalty of$1,650. 107 To support its position, the 

Respondent notes its clean history, with no violations of 14 C.F.R. § 105.17(a), as well as its 

compliance with the Complainant's investigation. The Respondent cited to the portion of FAA 

Order No. 2150.3B dealing with multiple violations that states: 

[ o ]f particular importance in determining an appropriate sanction for numerous multiple violations 

is the degree of the alleged violator's culpability for the multiple violations. A lower degree of 

culpability is present when the alleged violator neither knew nor was likely to discover the 

continuing violations. 108 

The Respondent focused on the fact that it was not the pilot or parachutist during any of the 

alleged violations, reiterating the difficulties of ascertaining whether or not a parachutist 

descended through the clouds from the.ground. During the hearing,.Mr. Banal stated that due to 

the variable weather at Dillingham Airfield, an aircraft needs to ascend to the jump point altitude 

in order to determine ''whether or not to drop itsjumpers."109 In addition to reminQing the pilots 

of the prohibition of jumping into or through clouds, both verbally and through signage in the 

planes, Mr. Banal testified that he has threatened to terminate the contracts of any individuals 

that break the rules. 110 While Mr. Banal testified that he supports a pilot's decision to call off a 

run, stating that his aircraft have descended with loads of jumpers on board "because it was too 

cloudy to conduct parachute jumping operations," he reiterated his contention that the final 

decision of whether or not to jump is between the pilot and the parachutist, more so with the 

latter.m 

An appropriate civil penalty must reflect the totality of the circumstances surrounding the 

105 See Transcript Volume I at 183 and 224 and Transcript Volume 2 at 69-70. 106 Respondent's Closing Argument at 12. . 107 A $550 civil penalty is the bare minimum contained in the FAA's Sanction Table. See Agency Ex. A-1 at 37. 

108 /d. at 16. 109 Transcript Volume 2 at 192-193. 110 See id at 194-195; 204-206. 111 See id, at 206-207; 209-210. 

Docket No. FAA- 2014-1116 Initial Decision, page 20 
violation, 112 while providing enough "bite" to serve as a deterrent to both the current violator and 

the industry as a whole in order to promote the goal of safety. 113 Paragraph 4 of Chapter 7 of 

FAA Order No. 2150.3B provides a non-exhaustive list of mitigating or aggravating factors and 

elements that may be considered: . 

a. nature of the violation; b. whether the violation was inadvertent or not deliberate; c. certificate 

holder's level of experience; d. attitude of the violator; e. degree of hazard; f. action taken by 

employer or other authority; g. use of a certificate; h. violation history; i. decisional law; j. ability 

to absorb sanction; k. consistency of sanction; I. whether the violation was reported voluntarily; 

and m. corrective action. 114 

While the undersigned judge is not expressly required to follow the provisions ofF AA Order No. 

2150.3B, 115 it does provide guidance. 116 Further, the Administrator has stated that "similar 

criteria should be considered in assessing civil penalties in non-hazardous materials types of 

cases"117 to the following statutorily required factors in considering a civil penalty involving 

hazardous materials violations: 

(1) the nature, circumstances, extent, and gravity of the violation; (2) with respect to the violator, 

the degree of culpability, any history of prior violations, the ability to pay, and any effect on the 

ability to continue to do business; and (3) other matters as justice may require. 118 

The undersigned judge considered all the pertinent factors to assess a civil penalty that will 

deter future violations by the Respondent and the parachuting industry as a whole. In 

considering the relevant factors, it is important to note that the Respondent did not raise an 

affirmative defense of financial hardship regarding its ability to absorb a sanction. Also, while 

the Respondent emphasized its violation free history and compliance with the FAA's 

investigation, these behaviors are considered normal, and as such, are not mitigating factors. 119 

112 See In re Ventura Air Services, Inc., FAA Order No. 2012-12 at 26 (Decision and Order, Nov. 1, 2012); In re 

Folsom's Air Service, Inc., FAA Order No. 2008-11 at 14 (Decision and Order, Nov. 6, 2008). 113 In re Toyota Motor Sales, USA, Inc., FAA Order No. 1994-28 at II (Order and Decision, Sept. 30, I994); In re 

Charter Airlines, Inc., FAA Order No. I995-8 at 28 (Decision and Order, May 9, 1995). 114 See Agency Ex. A-1 at 9-14. 

115 Folsom's Air Service, Inc., FAA Order No. 2008-11 at 14 (finding that because administrative law judges are not 

agency personnel, they are not expressly required to follow the guidance provided in FAA Order No. 2I50.3A). 116 In re Air Carrier, FAA Order No. I996-I9 at 7 (Decision and Order, June 4, I996)(citing Northwest Airlines, 

Inc., FAA Order No. I990-37 at 8). 117 In re Luxemburg, FAA Order No. 1994-I8 at 6(0rder and Decision, June 22, I994) (citing Northwest Airlines, 

Inc., FAA Order No. I990-37 at I2 n. 9). 118 49 U.S.C. § 4630I(e). See also 14 C.F.R. § 13.16(c). 119 See Toyota Motor Sales, USA, Inc., FAA Order No. I994-28 at 7-8 (citing In re TCI Corp., FAA Order No. 

I992-77 at 20 (Decision and Order, Dec. 22, 1992) (fmding a violation free history to be the ''norm" that will not 

mitigate an otherwise reasonable civil penalty)). When discussing the "Attitude of the Violator," FAA Order No. 

2I50.3B states: "[a] good compliance attitude is the norm and does not warrant a reduction in sanction." See 

Agency Ex. A-I at 10. 

Docket No. FAA- 2014-1116 Initial Decision, page 21 
Relying on decisional law to ensure consistent sanctions, the undersigned judge looked to 

Fedele, where the Administrator assessed a $500 civil penalty against an individual parachutist 

who violated the regulatory imposed cloud clearance requirements. 120 This holding supports a 

finding that the civil penalty assessed in this case should fall within the applicable minimum 

sanction range of$550-$2,199 for each established violation, as opposed to the Complainant's 

request that it be within the maximum range. 121 · To establish the appropriate civil penalty 

amount within the minimum sanction range, the undersigned judge weighed the relevant 

mitigating and aggravating factors. 

While the Respondent is liable under the regulations as the drop zone operator, and 

admittedly always had personnel present at Dillingham Airfield during parachute operations, all 

personnel on the plane were independent contractors. The Respondent could communicate with 

the pilot and parachutists via radio, but could not forcibly prevent an illegal skydiving operation 

once the plane was in the air. This then lessens the Respondent's culpability. 

The Respondent took steps to minimize the possibility that the parachutists would descend 

through the clouds by posting copies of the pertinent regulations in its aircraft and holding 

meetings to discuss regulatory compliance. Further, Mr. Banal threatened to suspend or fire any 

violators. However, Mr. Banal admittedly never fired or suspended anyone related to the 

violations that occurred on March 25, 2014. 122 Notably, case law directs that "[s]imply 

reviewing procedures and preexisting responsibilities with employees after an incident does not 

justify a reduction of a reasonable civil penalty." 123 

The violations in the subject case were not self-reported by the Respondent. Further, the 

Respondent in fact advertised this type of illegal activity as the Respondent's website contained a 

client testimonial that referenced parachuting through a cloud. 124 This thereby increases the 

12° Fedele, FAA Order No, 1998-3 at 1. 121 See Agency Ex. A-1 at 37. Notably, the Sanction Guidance Tables in FAA Order No. 2150.3B do not specify 

which range would apply to parachuting cases. See Ex. A-1 generally. · 122 See Transcript Volume 2 at 224-225. 123 Air Carrier, FAA Order No. 1996-19 at 12 (citing In re Airport Operator, FAA Order No. 1991-41 at 7 

(Decision and Order, Oct. 31, 1991) (holding that the action of reminding tenants of their existing responsibilities 

alone does not warrant a reduction in sanction)); cf In re Detroit Metropolitan-Wayne County Airport, FAA Order 

No. 1997-23 at 5 (Decision and Order, June 5, 1997) (noting that the "Administrator has indicated that a civil 

penalty may be reduced on the basis of corrective action, but only where there is sufficient, specific evidence of 

swift or comprehensive action that is positive in nature, such as sending employees to special training, or instituting 

programs to ensure compliance with the safety regulations"). 124 A customer review from Johnny Z. on the Respondent's website included the following statement: "The coolest 

part was falling through the cloud ... " Agency Ex. A -19 at 5. 

Docket No. FAA- 2014-1116 Initial Decision, page 22 
Respondent's culpability. 

In considering the degree of hazard or nature of the violation, the undersigned judge notes 

that while the probability of harm resulting from parachuting into or through a cloud is low, if 

harm did occur, it would most certainly result in death or serious injury. 125 With respect to the 

extent of the violation, by committing multiple violations, the Respondent increased the 

probability of this danger occurring. 

In sum, the violations in the case at hand fall within the minimum civil penalty sanction 

range. Aggravating factors such as the risk of death or serious harm, the fact that this conduct 

occurred on multiple occasions, and the use of the illegal activity as a marketing tool, support a 

civil penalty towards the higher end of the minimum range. However, the mitigating factors, in 

particular the Respondent's decreased degree of control and culpability, support a civil penalty 

towards the lower end ofthe minimum range. Accordingly, in light of all the circumstances, a 

civil penalty in the middle of the minimum range, in the amount of $1 ,3 7 5 per violation, is 

appropriate. 

Therefore, pursuant to 14 C.F.R. § 13.205(a)(9), IT IS HEREBY FOUND: 126 

1. On March 25, 2014, the Respondent committed three violations of 14 C.F.R. 

§ 105.17(a) by conducting parachute operations into or through the clouds. 

2. The Complainant failed to prove by a preponderance of reliable and probative 

evidence the remaining violations alleged within the complaint. 

125 Similar to the testimony offered in this case, the Administrator previously stated "fj]umping through or too near 

clouds is dangerous ... [s]kydivers could collide with each other or with aircraft in the area; they could also land in 

water and drown." Fedele, FAA Order No. 1998-3 at 5. 126 Pursuant to 14 C.F.R. § 13.233(a), "A party may appeal the initial decision, and any decision not previously 

appealed pursuant to § 13 .219, by filing a notice of appeal with the FAA decisionmaker. A party must file the notice 

of appeal in the FAA Hearing Docket using the appropriate address listed in §13.210(a). A party shall file the notice 

of appeal not later than 10 days after entry of the oral initial decision on the record or service of the written initial 

decision on the parties and shall serve a copy ofthe notice of appeal on each party." 

Docket No. FAA- 2014-1116 Initial Decision, page 23 
AND ORDERED: 

The Respondent shall pay a civil penalty in the amount of$4,125. 127 

Attachments: 

1. Service List 

2. Appendix A: Complainant's Exhibits 

3. Appendix B: Respondent's Exhibits 

--~ ' 

DOUGLAS M. RAW ALD 

Administrative Law Judge 

127 14.C.F.R. § 13.232(d), governing an order assessing a civil penalty states: "Unless appealed pursuant to §13.233 

of this subpart, the initial decision issued by the administrative law judge shall be considered an order assessing civil 

penalty if the administrative law judge finds that an alleged violation occurred and determines that a civil penalty, in 

an amm;mt found appropriate by the administrative law judge, is warranted." 

Docket No. FAA- 2014-1116 Initial Decision, page 24 
SERVICE LIST - BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 . 

Wilbur Wright Building-Suite 2W1 000128 

ONE COPY 

Robert L. Feldman, Respondent's Counsel 

8900 SW 107th Avenue, Suite 203 

Miami, FL 33176 

TEL: 305-598-4841 

FAX: 305-598-4842 

Don Bobertz, Complainant's Counsel 

Office of the Regional Counsel, A WP-7 

Federal Aviation Administration 

Western-Pacific Region 

P. 0. Box 92007 

Los Angeles, CA 90009-2007 

TEL: 310-725-3454 

FAX: 310-725-6816 

The Honorable Douglas M. Rawald, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200New Jersey Avenue, S.E. (Ell-310) 

Washington, DC 20590 

TEL: 202-366-5121 Staff Assistant 

FAX: 202-366-7536 

Docket No. FAA-2014-1116 

(Civil Penalty Action) 

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

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2WIOOO, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430. 
Docket No. FAA-2014-1116 

(Civil Penalty Action) 

Appendix A: Complainant's Exhibits 

A-1: FAA Order 2150.B 

A-2: · N900SA Aircraft Records, Blue Ribbon Copy 

A-3: N989BW Aircraft Records, Blue Ribbon Copy 

A..;4: Pacific FAR 105.25 Notification to FAA 2-16-14 

A-5: TK Hinshaw Videos, 12-8-13 

A-6: TK Hinshaw Declaration Re 12-8-13 

A-7: TK Hinshaw Videos, 1-5-14 

A-8: TK Hinshaw Declaration Re 1-5-14 

A-9: N900SA In-Flight Worksheet 12-8-13 

A-10: N900SA Aircraft Flight Record 12-8-13 

A-11: N989BW In-Flight Worksheet 1-5-14 

A-12: N989BW Aircraft Flight Record 1-5-14 

A-13: Hinshaw email Transmittal of3-25-14 YouTube Video to HNL FSDO 

A-14: TK Hinshaw Videos, 3-22-14 

A-15: TK Hinshaw Videos, 3-25-14 

A-16: TK Hinshaw Declaration Re 3-22-14 & 3-25-14 Flights 

A-17: N989BW In-Flight Worksheet 3-22-14 

A-18: N989BW In-Flight Worksheet 3-25-14 

A-19: Pacific Skydiving Website 

A-20: Discovery, Complainant's First Set of Discovery to Respondent served 3-13-15 

A-21: Discovery, Respondent's Answers to Interrogatories served 4-13-15 

A-22: Discovery, Complainant's Second Set of Discovery to Respondent served 5-21-15 

A-23: Discovery, Response to Complainant's Second Set of Discovery to Respondent served 

6-4-15 

A-24: Subpoena & Cover Letter to Respondent dated 8-21-14 

A-25: Respondent's Response to Subpoena Duces Tecum faxed 9-15-14 

A-26: Respondent's Supplemental Response to Subpoena Duces Tecum, 11-5-14 

A-27: Pacific Jumper Lists, 1-5-14 

A-28: Pacific Jumper Lists, 12-8-13 

A-29: Jumper Lists & Waivers, 3-22-14 

A-30: Jumper Lists & Waivers, 3-25-14 

A-31: DSC06244 (3-22-14 Pacific Photo of Jonathan Fenell) 

A-32: 3-22-14 Pacific Video of Jonathan Fenell Jump 

A-33: 3-25-14 Pacific Video ofBei Wu Jump 

A-34: 3-25-14 Pacific Video ofBei Wu Landing 
A-35: 3-25-14 Pacific Video ofLiyun Liu Jump 

A-36: GOPR2143 (3-25 Pacific Photo from Liyun Liu Photos) 

A-37: G0025877 (3-25-14 Pacific Photo ofGalino 1) 

A-38: 3-25-14 Pacific Video of Joel Galino Jump 

A-39: G0065943 (3-25-14 Pacific Photo ofGalino 2) 

A-40: G0075952 (3-25;.14 Pacific Photo ofGalino3) 

A-41: Pacific 1099s 

A-42: Dasilva, Marcelo, Waiver, Contracts, 1099 

A-43: Maynard, James, Waiver, Contract, 1099 

A-44: Meyer, Greg (Colorado), Waiver, Contracts, 1099 

A-45: Nascimento, Manuel Antonio (Tony), Waiver, Contracts, 1099 

A-46: Pacheco, Randy, Waiver, Contracts, 1099 

A-47: Rewa, Piri, Waiver, Contracts 1099 

A-48: Richards, Gerry, Pilot Contract, 1099 

A-49: Sovems, Reno, Waiver, Contract, 1099 

A-50: Suvosrov, Victor, Waiver, Contracts, 1099 

A-51: Wolfaardt, Johann, Waiver, Contracts, 1099 

A-52: Resume, Expert W Paul McCowan 

A-53: AirNav_PHDH- Dillingham Airfield 

A-54: Hawaiian Islands Sectional Chart 

A-55: AC 105-2E 

A-56: Google Earth Overview of Dillingham Field 
Docket No. FAA-2014-1116 

(Civil Penalty Action) 

Appendix B: Respondent's Exhibits 

R-1: [Withdrawn] 

R-2: [Withdrawn] 

R-3: FAA Order 8900.1 

R-4: [Withdrawn] 

R-5: [Withdrawn] 

R-6: Jump Recap Sheets 

R-7: [Not Offeredj 

R-8: [Not OfferedJ 

R-9: [Not OffiredJ 

R-10: [Not OfferedJ 

R-11: [Not Offiredj 

R-12: Video from SD HI Aircraft POV Cam 

R-13: [Withdrawn] 

R-14: Deposition ofDanny Billman 

R-15: AWP-1-20140911-01-Deely King Pang- Dennis King- Final Response_2014_09_26 

R-16: Dennis King letter to HPD 

R-17: EIR 2014WP130012- 2013-12-08-2014-01-05 

R-18: EIR 2014WP130023- 2014-03-22-2014-03-25 

R-19: Facebook Posting as of2015-05-04- See p.22 

R-20: IMG 3970- Cloud Clearance Notice in Aircraft 1 

R-21: IMG 3872- Cloud Clearance Notice in Aircraft 2 

R-22: [Withdrawn] 

R-23: Skydive Hawaii_Old_Skydiving_First time Jumpers- IKORS 

R-24: Tom Sanders Resume 

R-25: Paul McCowan Skydiving video 

R-26: Video camera manual excerpt