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UNITED TC* STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

In the Matter of: HELICOPTER FLITE, INC. ' ' ^ ' ^ 

FAA Order No. 2011-6 

DocketNo. CP09EA0015 

FDMS No. FAA-2009-0579' 

Served: June 13,2011 

DECISION AND ORDERS 

Respondent Helicopter Flite, Inc., has appealed from the initial decision written 

by Administrative Law Judge ("ALJ") Isaac D. Benkin, holding that Helicopter Flite 

violated 14 C.F.R. § 135.25(by by failing to have exclusive use of the only aircraft that it 

was authorized to operate under its operations specifications. The ALJ assessed an 

$11,000 penalty. Helicopter Flite argues on appeal that: (1) its Sixth Amendment rights 

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

security cases) are also available for viewing at http://www.regulations.gov. 14 CF.R. 

§ 13.210(e)(1). 

The Administrator's civil penalty decisions, along with indexes of the decisions, the 

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

www.faa. gov/about/ofice_org/headquarters_o^ices/agc/pol_adjudication/A GC400/Civ il 

_Penalty/. See 14 C.F.R. § 13.210(eX2). In addition, Thomson Reuters/West Publishing 

publishes Federal Aviation Decisions. Finally, the decisions are available through LEXIS 

(TRANS library) and WestLaw (FTRAN-FAA database). For additional information, see the 

Web site. 

^ The regulation, in pertinent part, provides: 

Each certificate holder must have the exclusive use of at least one aircraft that 

meets the requirements for at least one kind of operation authorized in the 

certificate holder's operations specifications. In addition, for each kind of 

operation for which the certificate holder does not have the exclusive use of an 

aircraft, the certificate holder must have available for use under a written 

agreement (including arrangements for performing required maintenance) at least 

one aircraft that meets the requirements for that kind of operation. 

14 C.F.R. § 135.25(b) (2008). 
were violated when the ALJ denied its request for a continuance of the hearing after 

granting its counsers motion to withdraw; (2) its Fourteenth Amendment rights were 

violated by being precluded from introducing evidence; (3) there was no violation; and 

(4) the $ n ,000 penalty was excessive. Helicopter Flite requests that the Administrator 

remand the case for a new hearing, or, in the alternative, reduce the civil penalty. 

The FAA, in its reply brief, argues that the ALJ acted appropriately when he 

denied the motion for a continuance and granted the motion barring Helicopter Flite fi-om 

introducing evidence at the hearing. The FAA argues further that the $11,000 civil 

penalty is consistent with sanction guidance. Regardless, the FAA submits, "remand of 

the case for a re-hearing, to give Appellant the opportunity for ftjrther preparation of the 

case ... would be appropriate." (Reply Brief at 9.) 

After consideration of the record and the briefs, it is held that in the absence of 

evidence of operation, a certificate holder cannot be found to have violated Section 

135.25(b). Consequently, the FAA failed to prove that Helicopter Flite violated Section 

135.25(b) because the FAA did not introduce any evidence that Helicopter Flite or any 

other entity operated the helicopter in question after the helicopter was sold. 

I. Case History 

Helicopter Flite, based in Weatherly, Pennsylvania, holds an air carrier certificate 

and operates an on-demand helicopter transportation service** under Parts 119 and 135 of 

the Federal Aviation Regulations (FAR).^ Floyd Hoffman is Helicopter Flite's chief 

pilot. 

^ Under its operations specifications, Helicopter Flite is authorized to conduct on demand 

Part 135 operations in common carriage. 

^ I4C.F.R. §§ I19.I-lI9.71,and I35.M35.443. 
The FAA alleged in its Second Amended Complaint that between February 12, 

2008, and September 15, 2008, Helicopter Flight did not have exclusive use of a Bell 

helicopter, identification number N407Z, which was the only aircraft that it was 

authorized to operate under its operations specifications.* The FAA alleged that 

Helicopter Flite violated 14 C.F.R. § 135.25(b), which provides that "[e]ach certificate 

holder must have the exclusive use of at least one aircraft that meets the requirements for 

at least one kind of operation authorized in the certificate holder's operations 

specifications." The term "exclusive use" is defined in 14 C.F.R. § 135.25(c) as follows: 

For the purposes of paragraph (b) of this section a person has exclusive use of an 

aircraft if that person has the sole possession, control, and use of it for flight, as 

owner, or has a written agreement (including arrangements for performing 

required maintenance), in effect when the aircraft is operated, giving the person 

that possession, control, and use for at least 6 consecutive months. 

The FAA sought an $11,000 civil penalty for this violation. Helicopter Flight denied the 

allegations in its Answer to the Second Complaint. 

The ALJ initially ordered the parties to exchange proposed exhibits and witness 

lists by December 8, 2009, and scheduled the hearing for December 22, 2009. After the 

FAA moved for a continuance, the ALJ postponed the hearing until January 26, 2010, 

and ordered the parties to exchange proposed exhibits and witness lists by January 12, 

2010. 

The FAA served its proposed exhibits and its witness list in a timely fashion, but 

Helicopter Flite failed to serve a witness list or any proposed exhibits. On January 19, 

^ The FAA filed the original Complaint on June 30, 2009, alleging that Helicopter Flite 

violated 14 C.F.R. § 135.25(b) because it did not have exclusive use of a different aircraft, 

N407JG (which was the only aircraft listed on its operations specifications) after it was sold on 

July 9, 2008. The FAA filed its Amended Complaint on September 29, 2009, substituting N407Z 

forN409JG. 
2010, one week before the hearing, the FAA filed a motion in limine seeking to preclude 

Helicopter Flite from offering into evidence any exhibits or testimony due to its failure to 

comply with the ALJ's order. Helicopter Flite did not reply to that motion. 

On January 20, 2010, Helicopter Flite's attorney filed a motion seeking leave to 

withdraw as counsel. The motion stated that Helicopter Flite's principal, Floyd C. 

Hoffrnan, no longer desired for this attorney to represent the company. 

At the hearing held in Allentown, Pennsylvania on January 26, 2010, the ALJ 

granted Helicopter Flite's attorney's request to withdraw as counsel. (Tr. 4-5.) 

Mr. Hoffman, as the company's representative, then requested a postponement, but the 

ALJ denied the request. (Tr. 8-10.) 

The agency attorney renewed the motion in limine at the hearing. (Tr. 11-12.) 

The ALJ granted the FAA's motion in limine, precluding Helicopter Flite from "put[ting] 

on a case in chief," and limited it to cross-examination of the FAA's witnesses. (Tr. 12.) 

Two witnesses testified for the FAA, and Mr. Hoffman cross-exeimined both of them. 

After the FAA put on its case-in-chief, both Mr. Hoffman and the agency attorney 

presented oral closing arguments, and the hearing was adjourned. On February 4, 2010, 

the ALJ issued his written initial decision, holding that the FAA had proven by the 

preponderance of the evidence that Helicopter Flite violated Section 135.25(b). 

II. Evidence 

On November 12, 2007, Air Chopper, LLC, a holding company controlled by 

Mr. Hoffman, leased N407Z to Helicopter Flite for a three-year period beginning on 

November 12, 2007.' The lease provided that "both parties understand and agree that in 

The lease was signed by Mr. Hoffman for Air Chopper and by Marion Hoffman for 

Helicopter Flite. 
the event the said helicopter is sold by Air Chopper, LLC, then this Lease shall 

automatically terminate."* (Exhibit A-6.) 

Helicopter Flite's operations specifications provided, at paragraph A008, as 

follows: 

Exclusive Aircraft Use Requirements for Part 135 Operations. At least one 

aircraft that meets the requirements for at least one kind of operation authorized in 

the certificate holder's operations specifications must remain in the certificate 

holder's exclusive legal possession and actual possession (directly or through the 

certificate holder's employees and agents) as specified in Section 135.25. This 

aircraft cannot be listed on any other Part 119 certificate holder's operations 

specification during the term of the exclusive use lease. 

On January 30, 2008, the FAA approved operations specifications paragraph 

D085, authorizing Helicopter Flite to operate N407Z in commercial operations. N407Z 

was the only aircraft listed on Helicopter Flite's operations specifications at this time. 

Less than two weeks later, on February 12, 2008, Air Chopper sold N407Z to 

Pumpco, Inc., a company based in Texas. (Exhibit A-5; Tr. 64-65.) Mr. Hofftnan signed 

the bill of sale on behalf of Air Chopper. 

On March 11, 2008, Mr. Hoffman sent via facsimile a copy of the lease dated 

November 12, 2007, to the Allentown Flight Standards District Office (FSDO), in 

response to an earlier request by the FSDO for documentation establishing that 

Helicopter Flite had operational control over the aircraft that it used. The FSDO had 

made similar requests for documentation to all the Part 135 certificate holders over which 

it had jurisdiction. (Tr. 70.) 

^ It may fairly be questioned whether a lease with a provision like this one satisfies 

Section 135.25(c)'s requirement for a written agreement giving the certificate holder sole 

possession, control and use for flight/or at least 6 consecutive months. 
On May 30, 2008, Roberts Ranch Investments, LLC, another Texas-based 

company, purchased N407Z from Pumpco. 

In September 2008, Hoffman contacted the FSDO to request a conformity 

inspection of another helicopter, N407JG, which Mr. Hoffman wanted to add to 

Helicopter Flite's operations specifications. (Tr. 42-43; Initial Decision at 2.) FAA 

Inspectors Eugene McCoy and William Rush inspected N407JG at Helicopter Flite's 

hangar on September 15, 2008.^ (Tr. 44-46; Initial Decision at 2.) After inspecting 

N407JG, the inspectors, who were unaware that N407Z had been sold, asked 

Mr. Hoffman if they could inspect N407Z or examine its records. (Tr. 47.) Inspector 

McCoy testified that Mr. Hoffman replied that he had sold the aircraft recently and that 

he did not have the aircraft or the records. (Tr. 47-48.) Inspector McCoy wrote in his 

statement, dated September 18, 2008, that Mr. Hoffman explained that he "needed to get 

[N407JG] on the FAR 135 certificate as soon as possible." (Exhibit A-3.) According to 

the inspector's statement, Mr. Hoffman answered "that's correct" after being asked, "you 

mean that you don't have an aircraft for 135 at this time?" (Exhibit A-3; Tr. 54.) 

The inspectors subsequently explained the situation to Frank Alotta, the principal 

operations inspector. (Exhibit A-3; Initial Decision at 2.)"^ Inspector Alotta sent a letter 

of investigation to Helicopter Flite on October 7, 2008, stating that "[y]our company's 

aircraft, the exclusive use aircraft, was sold ... leaving the company without an aircraft." 

(Exhibit A-7.) The inspector requested Mr. Hoffman's pilot logbooks for inspection 

Due to certain discrepancies found during the conformity inspection, N407JG was not 

added to the Helicopter Flite's operations specifications until October 2008. (Tr. 45.) 

Inspector Alotta then researched N407Z's status on the FAA's electronic database, and 

found records indicating that N407Z had been sold on February 12, 2008, and again on May 30, 

2008. (Exhibits A-3, A-4, A-5; Tr. 61-64; hiitial Decision at 2-3.) 
"along with any evidence or statements you might care to make regarding this matter." 

(Exhibit A-7.) 

Mr. Hoffman responded by letter dated October 10, 2008. He wrote that he had 

told the inspector that negotiations were underway for the sale of N407Z, and that he 

plarmed to replace N407Z with a new helicopter. He also wrote that he had left the 

inspector a voice message after N407Z was sold. (Exhibit A-8.) Mr. Hoffman explained 

that the inspector should schedule an appointment to inspect his pilot logbook at the 

hangar in Weatherly. (Exhibit A-8). 

III. Initial Decision 

In his initial decision, the ALJ held that the FAA proved by a preponderance of 

the evidence that from at least February 12, 2008, until September 15, 2008, Helicopter 

Flite lacked exclusive use and possession of the only aircraft listed in its operations 

specifications in violation of 14 C.F.R. § 135.25(b). (Initial Decision at 5.) 

Although the ALJ had ruled that Helicopter Flite could not put on a case-in-chief, 

the ALJ found that Mr. Hoffman's allusions at the hearing (during cross-examination and 

argument) to an oral lease giving Helicopter Flite exclusive use of N407Z after its sale" 

"strained credibility." The ALJ explained, "prudent businessmen do not transfer 

exclusive use and possession of such valuable assets on the basis of a handshake or an 

'oral lease.'" (Initial Decision at 5.) Furthermore, even if such an oral lease existed, the 

ALJ held, Helicopter Flite violated the regulation because "if a Part 135 operator seeks to 

satisfy the 'exclusive use' requirement by leasing an aircraft, the arrangement must take 

" For example, in his opening statement, Mr. Hoffman asserted, "We had an oral contract 

that that aircraft would remain on the certificate until the Allentown FSDO was able to put 

[N407JG] on the certificate." (Tr. 26.) He claimed that Helicopter Flite still retained control of 

N407Z despite the fact that it had been sold and was in Texas. (Tr. 26.) 
place under a written agreement." (Initial Decision at 5.) The ALJ also found that 

Hoffman "knowingly and deliberately tried to mislead" the FAA by providing a "false 

and fictitious" written lease for N407Z ft:om Air Chopper to Helicopter Flite.'^ (Initial 

Decision at 8.) 

In determining an appropriate civil penalty, the ALJ discussed the FAA sanction 

guidance set forth in FAA Order No. 2150.3B, entitled "FAA Compliance and 

Enforcement Program" ("FAA Order") and the testimony of Inspector Alotta regarding 

the application of the guidance to the facts of this case. The ALJ noted that the FAA 

sought an $11,000 civil penalty, which, under the guidance, is the highest penalty that 

should be assessed against a small business concern like Helicopter Flite for noncompliance with operations specifications resulting in the "likely potential or actual 

adverse effect on safe operation." (Initial Decision at 8, quoting FAA Order No. 2150.3B 

Appx. B, at B-I2.) The ALJ wrote that he "would normally reduce this figure to take 

account of mitigating factors and the technical nature of the violations, as well as the 

realization that the Respondent is, after all, a small businessman." (Initial Decision at 8.) 

However, according to the ALJ, Hoffman's "reprehensible" attempt to mislead the FAA 

^^ The evidence does not support the ALJ's finding that Helicopter Flite "had provided 

the FAA with h false and fictitious lease of the aircraft from Air Chopper to Helicopters Flites 

(sic) dated a month after the purported lessor had sold the aircraft." (Initial Decision at 6) 

(emphasis added). The lease agreement was signed on November 12, 2007, 3 months before Air 

Chopper, the lessor, sold N407Z to Pumpco on February 12, 2008. Consequently, there is also no 

support for the ALJ's finding that "when asked to submit his lease or other papers containing 

evidence of his right to exclusive use and possession, the Respondent cooked up a purported lease 

from another entity controlled by Mr. Hoffman." (Initial Decision at 8) (emphasis added.) 

Nonetheless, it does appear that Mr. Hoffman was trying to mislead the FAA when he sent the 

FAA a lease that he must have known was no longer in effect, because under its terms, the lease 

terminated when Air Chopper sold N407Z to Pumpco. 
was an aggravating factor, that "warrant[ed] assessment of the maximum civil penalty," 

and as a result, he assessed an $11,000 civil penalty. (Initial Decision at 8-9.) 

III. Discussion 

Helicopter Flite argues in its appeal brief that the FAA sanction guidance 

pertaining to violations by air carriers and commercial operators does not specifically 

refer to situations in which the carrier or operator does not have exclusive use of an 

aircraft.'^ He concludes, as a result, that "in fact according to [the guidance] NO 

violation occurred." 

Certificate holders authorized to conduct operations under Part 135 must comply 

with the requirements set forth in Part 135 of the Federal Aviation Regulations, 14 C.F.R. 

§§ 135.1 -135.507. Section 135.25(b) requires that a certificate holder have exclusive 

use of at least one aircraft that meets the requirements for at least one kind of operation 

authorized in its operations specifications. The FAA did prove that Helicopter Flite did 

not have exclusive use of the only aircraft listed on its operations specifications between 

February 12, 2008, and September 15, 2008. 

However, it makes no sense to enforce this requirement by imposing a civil 

penalty unless there is evidence that the certificate holder continued to operate during the 

time period that it did not have exclusive use of at least one aircraft. If there is no 

implicit operation requirement, then, for example, the FAA could assess a civil penalty 

'^ The FAA has published the Administrator'.s guidance regarding sanctions for 

violations of those requirements in FAA Order No. 2150.3B, FAA Compliance and Enforcement 

Program. The pertinent sanction guidance, set forth in Figure B-l-c of FAA Order No. 2150.3B, 

provides that a minimum civil penalty is appropriate when an air carrier's operation constitutes a 

technical violation of its operations specifications. It also provides that a moderate or maximum 

civil penalty is appropriate for a violation involving an operation contrary to operations 

specifications involving "likely potential or actual adverse effect on safe operation." 
10 

once a certificate holder's exclusive use aircraft was destroyed by fire or natural disaster. 

Likewise, a certificate holder would not be able to sell its exclusive use aircraft and use 

the proceeds to purchase another aircraft without being in violation of Section 135.25(b). 

The FAA did not introduce any evidence to show that Helicopter Flite operated 

any aircraft after the sale of N407Z. The evidence in the record shows only that: 

• Helicopter Flite leased N407Z from Air Chopper on November 12, 2007, 

• N407Z was added to Helicopter Flite's operations specifications on 

January 30, 2008; 

• Air Chopper sold N407Z to Pumpco on February 12, 2008; 

• Pumpco sold N407Z to Roberts Ranch Investments, LLC, on May 30, 2008. 

Simply not having an exclusive use aircraft will not be considered as constituting a 

violation of Section 135.25(b), warranting the assessment of a civil penalty, absent 

evidence of operation under Part 135.''' Hence, no civil penalty is warranted in this case. 

IV. Conclusion 

For the foregoing reasons, the ALJ's decision is reversed, and no civil penalty is 

assessed. 

J. RANDOLPH BABBITT 

ADMINISTRATOR 

Federal Aviation Administration 

'* In light of this determination, there is no need to address Respondent's other arguments 

pertaining to violations of constitutional rights or regarding an excessive civil penalty. 
SERVED FEBRUARY 4, 2010 

U.S. DEPARTMENT OF TRANSPORTATI(J>j''' '-'•' , '' ' 

OFFICE OF HEARINGS 

WASHINGTON, DC ' '^ ' • 

IN THE MATTER OF 

HELICOPTERS FLITE, INC., 

Respondent. 

FAA DOCKET NO. CP09EA00015 

(Civil Penalty Proceeding) 

DMS NO. FAA-2009-0579 

ADMINISTRATI VE LAW JUDGE'S INITIAL DECISION 

ASSESSING AN $11,000 CIVIL PENALTY 

The question for decision in this civil penalty case is whether, during the 

period from February 12, 2008 to September 15, 2008, the Respondent had 

exclusive use and control of the only aircraft listed in its operations specifications, 

a Bell Model 407 helicopter bearing identification number N407Z. 

The Respondent is Helicopters Flite, Inc. It operates a for-hire helicopter 

transportation service from the airport at Weatherly, Pennsylvania. It is a Part 135 

carrier, so-called because regulations governing its activities are found in Part 135 

ofthe Federal Aviation Regulations (FAR), 14 C.F.R. §§ 135.1-135.443. As a Part 

135 carrier, the Respondent is obligated to observe the terms of its operations 

specifications, w^hich were issued by the Federal Aviation Administration (FAA) 

and accepted on its behalf by its principal, Floyd Hof&nan. Operations 

specifications include a listing ofthe specific aircraft that a Part 135 operator may 

fly. They require that "[a]t least one aircraft that meets the requirements for at 

least one kind of operation authorized in the certificate holder*s specifications must 

remain in the certificate holder's exclusive legal possession and actual possession . 

..", The "exclusive use" requirement is re-enforced by § 135.25(b) ofthe FAR, 

which states that each certificate holder must have the exclusive use of at least one 

aircraft that meets the requirements for at least one kind of operation authorized in 

the certificate holder's operations specifications.. 
At all relevant times, the operations specifications of Helicopters Flite listed 

only one aircraft: a Bell model 407 helicopter bearing registration number N407Z. 

As we have noted, Helicopters Flite*s principal and point of contact for the FAA's 

Allentown, Pennsylvania Flight Standards District Office (FSDO) was Floyd 

Hoffman. The Allentown FSDO had surveillance and approval authority over the 

Respondent. Hoffrnan had spent many years in the aviation business and, in 

addition to being the pilot for Helicopters Flite, dealt in the purchase and sale of 

used helicopters. Mr. Hoffman had a practice of purchasing helicopters and 

applying to the FAA to add them to his firm's Part 135 operations specifications. 

Then, after the machine was on the operations specifications, it would be sold at a 

profit. When a Part 135 operator seeks to add an aircraft to its operations 

specifications, the FAA will perform a very thorough "conformity inspection" of 

the machine, requiring it to be in first-class operating condition before approval 

will be granted. This practice is said to have resulted in an increase in the value of 

the machine on the used-aircraft market. 

In September 2008, Eugene McCoy, then an avionics inspector at the 

Allentown FSDO,' received a request from the Respondent to perform a 

conformity inspection of a helicopter, N407JG, that was in its hangar and that Mr. 

Hoffrnan wished to add to his company's operations specifications. Inspector 

McCoy arranged to inspect the machine on September 12, 2008. In company with 

another Inspector, William Rush, he went to Respondent's facility. When they 

arrived, they noted that helicopter N407Z was missing. When asked about its 

whereabouts, Mr. Hoffrnan replied that the aircraft had been sold "recently.'' He 

also said that he could not produce the logbooks for the aircraft because they were 

with the helicopter. Inspector McCoy said to Mr. Hoffman, "you mean you don't 

have an aircraft for 135 at this time?" Hoffman said that was correct but that the 

deal had been completed in the last few weeks. McCoy reminded Hoffman that his 

operations specifications required him to have an exclusive-use aircraft. (The 

conversation is reported in Ex. 3.) McCoy and Rush inspected the "new" 

helicopter and pointed out several discrepancies requiring attention before it could 

be added to the certificate. Then they left and returned to their office. 

When they arrived, McCoy told one of his colleagues, FAA Inspector Frank 

Alotta, about his conversation with Hoffrnan. Alotta then researched the status of 

N407Z in the FAA's electronic data base. He found that the aircraft had been sold 

several times prior to the date of McCoy's visit, and that the first transaction, far 

from being "recent" or "in the last few weeks," had taken place on February 12, 

' McCoy hiw since been promoted to the position of Assistant Manager ofthe Allentown FSDO. 

2 
2008, more than seven months earlier. (See Ex. A-5.) On that date, according to 

the FAA's records, a firm called Pumpco, Inc., of Gittings, Texas had purchased 

the helicopter from Air Chopper, LLC, This was significant because on March 11, 

2008, Respondent had answered an FAA request for its lease agreement by sending 

the Allentown FSDO a copy of a lease (Ex. A-6), under which the Respondent^ 

represented it had leased die same aircraft from Air Chopper, LLC.^ In other 

words, it appeared to the FAA inspectors that Helicopters Flite had represented to 

the agency ^a t it had exclusive use ofthe machine under lease from an owner who 

had sold the helicopter a month earlier! In addition, the lease contained a clause 

stating that it would automatically terminate in the event the helicopter was sold by 

Air Chopper. Through their research, the FAA's inspectors learned that in fact the 

machine had been sold by Air Chopper before the date on which the Respondent 

had sent the document to the FSDO, representing that it was a current lease under 

which Helicopters Flite had "exclusive use" ofthe Bell Model 407. Further 

research into the status ofthe helicopter indicated that Pumpco, the party that had 

bought it from Air Chopper, had itself sold the aircraft to another party, Roberts 

Ranch and Investments, LLC, in May of 2008. See Ex. A-4. (Both Roberts Ranch 

and Pumpco list addresses in Gittings, Texas; however, the record does not 

disclose what relationship, if any, they may have had to one another.) 

At that point, it appeared to the FAA's investigators that the Respondent was 

out of compliance with the "exclusive-use-and-possession" requirements in § 

135.25(b) ofthe FAR and the co-ordinate provisions in its operations 

specifications. A Letter of Investigation (LOI) was prepared and sent to the 

Respondent. See Ex. A-7. The letter suggested that the sale of N407Z to a Texas 

firm had left the Respondent without an aircraft. It invited the Respondent to 

provide the FAA with any evidence it might care to submit, showing the contrary, 

and specifically asked Mr. Hoffrnan to provide his pilot's logbooks for inspection. 

Mr. Hof&nan's reply, dated October 10, 2008 (Ex. A-8) conceded that the Bell 407 

had been sold and asserted that he planned to replace it with a newer machine and 

place the new one (presumably N407JG) on the company's operations 

specifications."* Mr. Hoffinan's response to the request for his logbooks was to 

invite the investigators to inspect diem by appointment at Respondent's Weatherly, 

Pennsylvania hangar. What is most significant about the response to the LOI is 

that the Respondent at no time claimed that helicopter N407Z remained imder 

^ At some earlier time, there had been a serious aviation accident at Tcterboro Airport in New Jersey. Investigation 

ofthe accident showed that one ofthe involved aircraft had been leased, and it was virtually impossible to ascertain 

who was the real operator ofthe aircraft and responsible for its maintenance. As a result, the FAA ordered its 

FSDOs to contact lessees and to ask them to produce for inspection copies of their leases. 

^ So far as the record shows, No. N407JG was never placed on the Respondent's operations specifications. Its fate is 

undisclosed. 
lease to it, nor was a copy of a lease to Helicopters Flite enclosed with the letter. If 

such a document had existed, it would have made the Respondent's problems with 

the FAA instantly go away, as it is well-established that the "exclusive use" 

requirement may be satisfied by leasing an aircraft to the holder ofthe Part 135 

certificate. 

On June 30, 2009, the FAA filed a complaint against the Respondent, 

seeking an $11,000 civil penalty for violation of § 135.25(b) ofthe FAR, failure to 

have exclusive use of at least one aircraft cited in its operations specifications. The 

Respondent's answer asserted that it had exclusive use of an aircraft which it had 

leased and continued to lease. The Respondent, through counsel, also requested a 

hearing. The case was assigned to me for the conduct ofthe hearing under Part 13 

ofthe FAA's regulations. At a later date, the FAA amended its complaint twice to 

specify that the aircraft, the status of which was at issue was Bell No. N407Z, not 

N407JG, as its original complaint had alleged, and to assert specifically that during 

the period fi-om February 12, 2008 until September 15, 2008, the Respondent did 

not have exclusive use ofthe only aircraft listed in its operations specifications. 

In a prehearing order served on July 28, 2009,1 set the case for hearing in 

Allentown on December 22, 2009. The order also required the parties to exchange 

proposed exhibits and lists of intended witnesses two weeks before the date ofthe 

hearing. On motion ofthe Complainant, I postponed the date ofthe hearing until 

January 26, 2010 and the date for exchange of witness lists and proposed exhibits 

to January 12, 2010. On the latter date, the Complainant submitted its proposed 

exhibits and a list of its witnesses, but nothing was heard fi-om the Respondent. On 

January 21, 2010, five days before the hearing was scheduled to begin, I received a 

motion from counsel for the Respondent seeking leave to withdraw as attorney for 

Helicopters Flite. The motion stated that "Helicopters Flite, Inc., through it's Csicl 

principal, Floyd C. Hoffinan no longer wishes me to act as his attorney in the 

matter." At the outset ofthe January 26, 2010 hearing, I granted Respondent's 

former.counsel's request and was advised that Mr. Hoffinan himself would 

represent the Respondent. I also granted a motion in limine, submitted by counsel 

for the Complainant, precluding the Respondent from offering in evidence 

documents not disclosed in advance or the testimony of a witness whose identity 

had not been disclosed in accordance with my prehearing order. 

At the hearing, the Complainant sponsored the testimony of two witnesses. 

Inspectors McCoy and Alotta. Mr. McCoy testified generally about his meeting 

with Mr. Hof&nan in September 2008, while Mr. Alotta testified about the results 

of his research into the status of N407Z. Mr. Hoffinan cross-examined both of 
them vigorously. His cross-examination was aimed at showing that both ofthe 

FAA investigators shared a personal animus against him because his practice of 

"flipping" helicopters on to his operations specifications and then promptly selling 

them resulted in an increase workload for the inspectors who would have to 

perform a detailed inspection ofthe machine each time it was added to the 

certificate. In general, it appeared to me that the effort to show personal bias was a 

failure. Though it was clear that neither Mr. Hof&nan, on the one hand, nor 

Inspectors McCoy and Alotta, on the other, could accurately be described as 

"bosom buddies," there is no evidence that these FAA employees were engaged in 

anything more than their legitimate duties to detect violations ofthe FAR and to 

take enforcement action when warranted. Indeed, it appears that Mr. Hoffinan has 

failed to "perceive the beam in his own eye." If there were a legitimate lease of 

N407Z to Respondent, all he had to do was to exhibit a copy of that lease, and the 

case would be over. The fact that he did not do so when twice given the 

opportunity (and has not done so to this day) speaks volumes. During the hearing, 

Mr. Hoffinan adverted to the existence of an "oral lease." That strains credulity. 

N407Z was, and is, a top-of-the-line machine worth about one million dollars in 

the marketplace. Prudent businessmen do not transfer exclusive use and 

possession of such valuable assets on the basis of a handshake or an "oral lease." 

Moreover, the regulations specify that if a Part 135 operator seeks to satisfy the 

"exclusive use" requirement by leasing an aircraft, the arrangement must take 

place under a written agreement. 49 C.F.R § 135.25(b). 

At the hearing, the Respondent made much ofthe fact that neither Inspector 

McCoy nor Inspector Alotto had asked the purchasers ofthe aircraft whether it was 

subject to Respondent's exclusive use, even though it was located in Texas. They 

might have done so. The question raised by the Respondent, however, is not 

whether they should have conducted a more thorough investigation. The critical 

question is whether the FAA's failure to inquire ofthe new owners about the status 

ofthe helicopter vitiates the evidence that they did find to the point where it can be 

said that the FAA has failed to sustain its burden of coming forward with proof that 

the Respondent was in violation of § 135.25(b) ofthe FAR. I am unable to find 

that it did so. The FAA's representatives at the Allentown FSDO had found 

enough evidence, which they presented at the hearing, to establish by a 

preponderance ofthe evidence that Helicopters Flite, from at least February 12, 

2008 on, and especially on September 15, 2008, did not have exclusive use and 

possession ofthe only aircraft listed in its operations specifications. 

At the time these charges were prepared, the FAA investigators had 

evidence indicating that the Respondent no longer had exclusive use of that 
machine. The most significant piece of evidence was Mr. Hoffinan's statement to 

Mr. McCoy on September 15, 2008 that the aircraft was no longer on his premises 

because it had been sold "recently" and Mr. Hof&nan's failure to demur when 

McCoy said, "you mean you don't have an aircraft for 135 [service] at this time." 

During the same meeting, Hoffman declined to allow the investigators to examine 

N407Z's logs, presumably because they were in the hands ofthe new owner. To 

add verisimilitude to their suspicions, the inspectors then learned that FAA records 

showed that the aircraft in question had been sold—not once but twice—^to parties 

in Texas, and the first ofthe sales had taken place in February 2008, more than 

seven months earlier. This evidence contradicted Mr. Hoffinan's story about a sale 

that had occurred "recently." The records check also showed that in March the 

Respondent had provided the FAA with a false and fictitious lease ofthe aircraft 

from Air Chopper to Helicopters Flite dated a month after the purported lessor had 

sold the machine. Finally, in response to the LOI, the Respondent had said not a 

word about its entitlement to exclusive use of N407Z. Instead, it spoke about its 

efforts to add a different helicopter, N407JG, to its operations certificate. 

In these circumstances, it is little wonder why the FAA's investigators 

concluded that they did not have to persevere any further with their inquiries. 

They believed they had a clear case of violation ofthe "exclusive-use" requirement 

against Helicopters Flite. And they were right. 

When we add to this combination of events the Respondent's inability or 

unwillingness to show the investigation team, or provide for the record in this case, 

any bona fide written lease or other agreement giving it exclusive use and 

possession ofthe only aircraft on its operations specifications, the conclusion 

becomes irresistible that, during the period in question, February 12, 2008 through 

September 15, 2008 (and perhaps thereafter), the Respondent did not have 

exclusive use of any aircraft that met the requirements for the kind of operation 

authorized under its operations specifications. This means that, throughout that 

period,, the Respondent was in violation of § 135.25(b) ofthe FAR, and 1 so find. 

It is worth inquiring at this point why the FAA would concern itself with the 

right to exclusive use and possession of an aircraft on the part of a Part 135 

operator. The reason, it appears, is that the relationship between the FAA and a 

Part 135 operator is one of special trust and confidence. By authorizing the 

operator to use the aircraft to transport passengers for hire, Le^ the general public, 

the FAA is in effect representing to the public that the operation of that machine by 

that operator meets its most stringent safety regulations. That is why the agency 

puts an aircraft listed on the operations specifications through such an onerous 
•^ series of checks and inspections before it will permit the listing. That is also why 

\ the FAA carefully vets the Part 135 operator before it grants the authority to 

operate a for-hire service: the grant of authority is a representation on the part of 

the government agency that this'operator is fully qualified to maintain the aircraft 

in tip-top condition and to fly it safely. If the aircraft is listed on a Part 135 

operator's certificate and yet is not subject to the Part 135 operator's exclusive use 

and control, the FAA's promise may be illusory: someone who has not 

successfully completed the inspection-and-investigation process is now in charge 

ofthe maintenance and operation ofthe aircraft, and the public is subject to the 

risk that that operator may not come up to the high standards expected of a genuine 

Part 135 operator. 

This, at least, was the explanation given by Mr. McCoy and Inspector Alotta 

when, at the hearing, they were asked whether the Respondent's violation of § 

135.25(b) had the potential to impair aviation safety. The hypothesis that a 

potential passenger would inquire about the operator's Part 135 status before 

boarding an aircraft may, at first glance, seem rather far-fetched — particularly to 

those of us who are accustomed to fly on aircraft operated by the likes of American 

Airlines or U.S. Airways. Nevertheless, there is some merit to it. By failing to 

maintain exclusive use and control of at least one aircraft listed on its operations 

specifications, the Part 135 opera.tor has betrayed the special confidence that the 

FAA vested in it at the time it certificated the carrier as a Part 135 operator. It 

causes one to doubt the overall integrity ofthe carrier; for if it has failed to comply 

with the exclusive-use requirement, the question that arises is: What other 

regulatory requirements is the carrier violating? 

So there is some sense to the notion that a carrier, such as the Respondent, 

who is in violation of § 135.25(b) should pay a substantial civil penalty. Under the 

statutory authority found in 49 U.S.C. § 46301(a)(5), the Respondent, as a small 

business, is liable for a civil penalty of not more than $10,000 for violation of an 

FAA regulation. The ceiling on liability was increased to $11,000 by the Federal 

Civil Penalty Inflation Adjustment Act of 1990, 28 U.S.C. § 1461 (note). See also 

14 C.F.R, § 13.305(d). In this case, the FAA has sought the maximum penalty, 

even though it has not sought to give effect to its theory that each day the violation 

continues may warrant a separate, and additional, penalty. 

At the hearing, the Complainant placed in evidence excerpts from FAA 

Order No. 2150.3B as of October 10, 2007, which sets forth the agency's policy on 

the calculation of civil penalties for various types of violations ofthe FAR. Mr. 

McCoy testified that, by using the Order, he and his colleagues had arrived at the 
conclusion that a penalty of $11,000 was warranted in this case. The analysis t 

starts with a table called "Figure B-l-c" listing types of violations pertaining to / 

operations specifications of domestic air carriers. Failure to have exclusive use 

and/or possession of an aircraft is not specifically listed, but "Operation contrary to 

ops specs" is listed twice. The first listing deals with "technical noncompliance" 

and provides that a "Minimum" civil penalty is warranted. The second listing 

speaks to "likely potential or actual adverse effect on safe operation" arising out of 

non-compliance with operations specifications. It calls for a "Moderate to 

Maximum" civil penalty for such violations. According to Mr. McCoy's 

testimony, the Respondent's non-compliance fell into the second of these two 

categories, though he acknowledged that this was a judgment call. Having decided 

that a "Moderate to Maximum" penalty was appropriate, the enforcement staff then 

turned to pages B-3, B-4 and B-5 ofthe regulation, which categorized the violators 

by their size and the nature ofthe offense. He testified that Helicopters Flite fell 

into Group FV, a small business concern that had committed a violation covered by 

49 U.S.C. § 46301(a)(5)(A). For such a firm the amounts listed are as follows: 

Maximum $4,400-$ 11,000 

Moderate $2,200-54,399 

Minimum $ 550-$2,199 

So it can be seen that the FAA's enforcement staff selected the highest 

amount that Order No. 2150.3B would allow (absent a daily penalty) for the 

violation committed by the Respondent. I would normally reduce this figure to 

take account of mitigating factors and the technical nature ofthe violation, as well 

as the realization that the Respondent is, after all, a small businessman. There is, 

however, a powerful consideration that cuts the other way. 

The fact is, as the evidence clearly shows, that the Respondent's principal 

knowingly and deliberately tried to mislead the local FSDO, and the agency as a 

whole, .about the provenance of his asserted exclusive right to the use and 

possession of N407Z. When asked to submit his lease or other papers containing 

evidence of his right to exclusive use and possession, the Respondent cooked up a 

purported lease from another entity controlled by Mr. Hof&nan, Air Chopper. The 

document appears to have been completely spurious because Air Chopper had sold 

the machine some time previously and, in any event, the lease by its terms 

terminated when and if such a sale took place. Yet, Mr. Hoffinan, acting on behalf 

of Helicopters Flite, furnished it to the FAA knowing that the agency would rely 

upon it to establish his bona fides under the exclusive-use provisions ofthe FAR. 

This was reprehensible. In my judgment, it is an aggravating circumstances that 
warrants assessment ofthe maximum civil penalty that can lawfully be imposed. 

That is what the FAA's enforcement staff has recommended, and I agree with them 

that this is an appropriate occasion on which to impose it. 

One final word before this decision can be concluded. Throughout the 

hearing, Mr. Hoffinan protested mightily about my refusal to postpone the hearing 

to allow him to replace his counsel, whom he had discharged a few days earlier. 

He first asked for the postponement after the hearing had begun, when there were 

assembled FAA witnesses and counsel, as well as the reporter and administrative 

law judge, several of whom had come great distances to Allentown, a location 

chosen to suit Mr. Hoffinan's convenience. The discharge of an attorney on the 

eve ofthe hearing is an often-attempted gambit on the part of parties who want to 

protract the proceeding as long as possible. In the U.S. District Courts, the judges 

deal with this tactic by simply refusing the allow the party's retained counsel to 

withdraw his or her representation ofthe client. See, e.g.. United States v. Castro, 

972F.2d 1107, 1109-10 (9^ Cir. 1992): Dan River. Inc. v. Humik Fabrics Corp.. 

I979U.S.Dist. LEXIS 11051 (S.D.N.Y. 1979). But administrative law judges 

have no such authority. So it becomes evident that the remedy for the dilatory 

tactic of discharging an attorney within days ofthe scheduled start of a hearing is 

simply to require the hearing to go forward and the Respondent to be represented 

by a designated representative. That is what occurred in this case. In the 

circumstances, I cannot agree that the conduct ofthe proceeding deprived the 

Respondent of even a soup9on of due process. 

WHEREFORE, IT IS ORDERED, subject to appeal to Uie Administrator as 

provided in § 13.233 ofthe Rules of Practice and Procedure, 14 C.F.R. § 13.233, 

or review on the Administrator's own motion, that -

1. The Respondent, Helicopters Flite, Inc., is liable to the United States of 

America, as represented by the Federal Aviation Administration, for a 

civil penalty in the amount of eleven thousand dollars ($11,000.00); and 

2. The amount for which the Respondent has been held liable herein shall 

be paid to the Federal Aviation Administration forthwith. 

Isaac D. Benkin 

Administrative Law Judge 
[Note: This decision may be appealed to the Administrator ofthe FAA. The 

Notice of Appeal must be filed not later than 10 days after service of this 

decision (plus five additional days, if this decision is served by mail). 14 

C.F.R. §§ 13.233(a), 13.211(e). The appeal must be perfected with a written 

brief or memorandum not later than 50 days after service of this decision 

(plus five additional days, if this decision is served by mail). 14 C.F.R. 

§§ 13.233(c), 13.211(e). The Notice of Appeal and briefer memorandum must 

be either (a) mailed to the Federal Aviation Administration, 800 Independence 

Avenue, S.W,, Washington^DC 20591; Attention: Hearing Docket Clerk, 

AGC-430, Wilbur Wright Building—Suite 2WJ000, or (b) delivered 

personally or via expedited courier service to the Federal Aviation 

Administration, 600 Independence Ave., S.W., Wilbur Wright Building— 

Suite 2W1000, Washington, DC 20591, Attention: Hearing Docket Clerk, 

AGC-430. 14 C.F.R. §§ 13.233(a), 13.210(a)(2), (1). A copy ofthe Notice of 

Appeal and brief or memorandum should also be sent to counsel for the FAA 

in this proceeding. 14 C.F.R. § 13.233(a).] 

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