U.S. Department of Transportation Federal Aviation Administration 

### March 11, 2014 CERTIFIED Hearing Docket Office of the Chief Counsel Enforcement Division



### Federal Aviation Administration 800 Independence Avenue, S. W. Washington, DC 20591 Attn: Hearing Docket Clerk AGC-430, Wilber Wright Building Suite 2Wl000 BOO lndependencEl Ave., SW. Washington, DC 20591 

### Area Code 202 267-7100 

# RECEIVED MAR I4 2014 HEARING DOCKET

Re: Executive Fliteways LO \**·~** .. \ :J'l, 

### FAA Case No.: 2012S0950377 Enclosed herewithplease find a copy ofa request for hearing and the original <md one copy of the Complaint inthe above-referenced proceeding. The FAA requests that the hearing inthis matter be held in New York, NY, and expects that the hearing will last one day. Please address all communications for the FAA to the undersigned at: Office ofthe ChiefCounsel 800 Independence Avenue, S.W. Washington, D.C. 20591 Ph: 202-267-7100 Fax: 202-267-5106 E-mail: michael.f.mckinley@faa.gov

Enclosures: Request for Hearing Complaint
cc: Respondent (w/copy ofComplaint)

# Since:;y?(~

# ~a~KinkJ~ Senior AttorneyU.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

IN THE MATTER OF EXECUTIVE FLITEWAYS, INC. 

# RECEIVED

FAADOCKETNO. (notassigned}LJi') 

## iu'£J4AR 14 2014 (Civil Penalty Action)



## . HEARING DOCKET FDMS NO. (not assigned), 

### 20 1?::>
. 

### I 

# i5 FAA CASE NO. 201280950377

COMPLAINT The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, pursuantto Rule 208 ofthe Ru1es ofPractice (14 C.F.R. 13.208), and states as follows: I 

### 1. OnFebruary 27,2014, Executive Fliteways, Inc. (Respondent) was advised bya Final Notice ofProposed Civil Penaltythat the FAAproposedto assess a civil penalty inthe amount of$15,400. OnMarch 3, 2014, Respondent submitted a written request for a hearing.
2. On all relevant dates herein, Executive Fliteways, Inc. (Fliteways) was the holder ofAir Carrier Certificate Number AOQA201C.

3. On all relevant dates herein, Fliteways was requiredto comply withthe requirements of 14 C.F.R. part 120 and 49 C.F.R. part40 for its drug and alcohol testing program.2 

### 4. Fliteways failed to conduct random drug and alcohol testing in accordance with the procedures set forth in 14 C.F.R. part 120 whenthey did not include mechanic Leon Parra inthe randomtestingpool. Parrawas hired on January 10, 2011, but was only added to the randomtesting pool in August, 2012, at the earliest. During this time, Parra performednumerous safety-sensitive functions on aircraft which were subsequently utilized in several covered operations/flights.

5. Fliteways failed to conduct a drug and alcohol records check onMichael Martinez, Peter Schouwenaars, and LeonParraprior to hiring themto perform safety-sensitive functions. Michael Martinez and Leon Parraperformed actual safety-sensitive functions subsequent to hiring.

6. Fliteways violated14 C.F.R. part 120 when they included the following non-safetysensitive employees inthe same random drug and alcohol testing pool as DOT covered safety-sensitive employees: Non-DOT Covered Date(s) in Random Employee Position Hire Date Testing Period 

### Larry Domnitz Parts Manager 1/04112 Feb.- Aug. (2012) PatriciaLuden Aircraft Hostess 4/21/11 May(2011)-Aug. (2012) Robert Spalma MX Cleaner 3/15/12 Apr.- Aug. (2012) Travis Nardella MXCleaner 4/25111 May(2011)-Aug. (2012) JordanZollinger Cleaner 8/16112 Sept. (2012) by admission Byreason ofthe foregoing, Respondent violated the following Federal Aviation Regulations:
a. 

### 14 C.F.R 

### § 120.105(e)- Which states that each employee, including any assistant, helper, or individual in a training status, who performs a safety-sensitive function

### 3 listed inthis section directly orby contract (including by subcontract at any tier) for an employer as defined inthis subpartmustbe subject to drug testing under a drug testing programimplemented in accordance withthis subpart. This includes full-time, parttime, temporary, and intermittent employees regardless ofthe degree ofsupervision. The safety-sensitive functions are: Aircraft maintenance andpreventive maintenance duties. b. 

### 14 C.F.R § 120.109(b)(6)- Which states, the selection ofemployees for random drug testing shall be made by a scientificallyvalid method, such as a random-number table
or a computer-based random number generator that is matched with employees' Social Security numbers, payroll identification numbers, or other comparable identifYing numbers. Underthe selectionprocess used, each covered employee shall have an equal chance ofbeing tested each time selections are made.

c. 

### 14 C.F.R § 120.215(a)(S)- Which states, each employee, including any assistant, helper, or individual in a training status, who performs a safety-sensitive function listed inthis section directly or bycontract (including by subcontract at anytier) for an employer as defmed in this subpart mustbe subjectto alcohol testing under an alcohol testing program implemented in accordance withthis subpart. This includes full-time, part-time, temporary, and intermittent employees regardless ofthe degree of supervision. The safety-sensitive functions include aircraft maintenance and preventive maintenance duties.4 d. 

### 49 C.F.R § 

### 40.25(a)- Which states, as an employer, you must, after obtaining an employee's written consent, requestthe information about the employee listed in paragraph (b) ofthis section. This requirement applies only to employees seeking to beginperforming safety-sensitive duties for you for the first time (i.e., a newhire, an employee transfers into a safety-sensitive position). Ifthe employee refuses to provide this written consent, youmustnotpermitthe employee to perform safety-sensitive functions.

e. 

### 49 C.F.R § 

### 40.347(b)(2)- Which states employees notcoveredby DOT agency regulations may notbe part ofthe same randompool withDOT covered employees.
Pursuantto Title 49 ofthe United States Code, Section 46301, Respondent is subjectto a civil penalty notto exceed $11,000 for each violation alleged. Under the facts and circumstances ofthis case, a civil penalty of$15,400 is appropriate. WHEREFORE, the Agency, bycounsel, respectfully requests thatthe Administrative Law Judge enter an Orderthat Respondent be assessed a civil penalty inthe amount of$15,400. Respectfully submittedthis 

### llth day ofMarch, 2014.

Michael F. McKinley 

### I Senior Attorney Office ofthe ChiefCounsel 800 Independence Avenue, S.W. Washington, D.C. 20591 Ph: 202-267-7100 Fax: 202-267-5106 E-mail: michael.f.mckinley@faa.gov5 CERTIFICATE OF SERVICE I hereby certifY that the foregoing Complaint has beenmailed this date by Certified Mail, Return ReceiptRequested, to: Original and One Copy:

One Copy: Hearing Docket Federal AviationAdministration 800 Independence Avenue, S. W. Washington, DC 20591 Attn: Hearing Docket Clerk AGC-430, Wilber Wright Building Suite 2W1000

John W. Gallo, President Executive Fliteways, Inc. One ClarkDrive Ronkonkoma, NY 11779

Datedthis 11th day ofMarch, 2014

# E ECUTIVE FL!TEWAVS March 3, 2014 VIA CERTIFIED MAIL Federal Aviation Administration ONE CLARK DRIVE, RONKONKOMA, NY 11779 (631) 588-3480 ext. 128 fax: (631) 588-5527

600 Independence Avenue, SW Wilbur Wright Building- Suite 2W1 000 Washington, DC 20591 Attn: Hearing Docket Clerk, AGC- 430 RE: File Number 2012S0950377 To Whom It May Concern: Please be advised that this letter constitutes written notification 1/ANV 14 CFR 

### § 13.16 that Executive Fliteways, Inc. hereby requests a hearing regarding the proposed civil penalty of$15,400.00 in reference to the above File Number. Please forward to me the location, date and time of the hearing. Thank you for your attention to this very important matter. Sincerely,

Kennet S. Gray Director of Operations Cc: · John W. Grillo, President Michael F. McKinley