UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC FAADOCKETNO. 16-15-07 WILLIAM ALFRED HICKS, JR. aile/a BILLY HICKS, Complainant

v. CITY OF MOUNT AIRY, NORTH CAROLINA; and THE COUNTY OF SURRY, NORTH CAROLINA; tlnough the MOUNT AIRY/SURRY COUNTY AIRPORT AUTHORITY, Respondent.

Submitted By: Randolph M. James, N.C. BarNo. 10,000 Attorney for Complainant RANDOLPH M. JAMES, P.C. P.O. Box 20069 Winston-Salem, NC 27120 Phone: (336) 724-7707 Facsimile: (336) 724-9722 Email: rmjames01,rmjameslaw.com ) ) ) ) ) ) ) ) ) ) ) ) COMPLAINANT'S REPLY TO RESPONDENTS' ANSWER



## RECEIVED OCT 

## 272015 PART 16 DOCKETS

Pursuantto 14 CPR, §16.23( e), WilliamAlfred Hicks, Jr., by and through counsel, herebyreplies to Respondent's Answer submitted by Respondent Mount Airy/Surry County Airport Authority and adopted bythe City ofMount Airy. CONCISE STATEMENT OF FACTS Complainant, WilliamAlfred Hicks, Jr. ("Billy" or "complainant"), a past member ofthe Mount Airy/Surry County Airport Authority and pasttenant at the Airport itself, filed a formal complaintpursuantto Title 14 CPR, Part 16, against the MountAiry/Surry County Airport Authority, the governing body ofthe MountAiry/Surry CountyAirport ("KMWK"), asdesignated bythe City ofMount Airy and the County ofSurry, both located in North Carolina, who are the Sponsors ofthe Airport. The Mount Airy/Surry County Airport Authority (herein "AirportAuthority") are appointed by the Sponsors and make the policy and procedure needed to operate the facility. Billy's Complaint arises from actions taken by the Mount Airy/Surry County Airport Authority ("Airport Authority) that Billy believes violate the Sponsor Assurances assumed by the Airport Authority when accepting funding grants. The Federal Aviation Administration ("FAA'') hasjurisdictionto determine compliance with obligations and assurances pertaining to the Airport Improvement Program through Title 49 U.S.C. §47101, et. seq., and Airport Sponsor Assurances through 49 U.S.C. §47107, etseq. Respondents have filed a Motionto Strike arising from Complainants Response to Respondents' Motionto Dismiss, or in the Alternative for Summary Judgment. SUMMARY OF THE CASE The matter before the FAAbased upon this Complaint arises from allegations the Respondent has violated Grant Assurance 4, Good Title; Assurance 5, PreservingRights and Powers; Assurance 19, Operations andMaintenance; Assurance 20, HazardRemovaland Mitigation; Assurance 22, EconomicNondiscrimination; Assurance 23, Exclusive Rights; Assurance 24, Fee andRentalStructure; and Assurance 25, AirportRevenue. Specifically, Complainanthas alleged the Respondent: 1. Engaged in a pattern ofdeliberate behavior to maintain and protect the airport's sole Fixed-Based Operator ("FBO''), Ra-Tech Aviation ofMount-Airy, Inc. ("Ra-Tech"), against competition or challenge, in violations ofGrant Assurance 5, Grant Assurance 22, Grant Assurance 23, and Grant Assurance 25. Actions include assigning the owner ofRa2Tech, John Spane ("Spane") the Airport Manager, refusing to investigate discrepancies in fuel usage and accountingby Ra-Tech, and removing competing flight training schooo which was in competitionwith the FBO. 2. Engaged in a pattern ofdeliberate behaviorto protectthe airport's sole Fixed-Based Operator ("FBO"), Ra-Tech Aviation ofMount-Airy, Inc. ("Ra-Tech"), against competition or challenge, including non-enforcement ofairport rules andregulations as well as retaliating against a board member who questions the relationship withthe FBO, inviolation ofGrant Assurance 19 and Grant Assurance 22. 3. Engaged in a pattern orpractice ofbehavior inunequal enforcement ofthe rules and regulations to protect special interests, including the FBO, inviolation ofGrant Assurance 22. 4. Engaged in a pattern orpractice ofbehavior which violate SponsorAssurance 4 in the Airport Expansion. Respondents have replied to the Complaint, making the same arguments that were in Respondent's Motion to Dismiss or inthe Alternative Motion For Summary Judgment. As such, Claimant incorporates his responses to the Respondent's priormotions, the Motionto Dismiss and inthe Alternative Motion for Summary Judgment ("Motionto Dismiss") as well as the Claimant's Response to Respondent's Motionto Strike. SHORT STATEMENT OF FACTS BillyHicks, a pilot, hangered his plane at the Mount Airy-Surry County Airport ("KMWK") since 2008. Billy was named a Board Member ofthe Airport Authority in 2010. As a Board Member, Billy became concerned about discrepancies in fuel accounting made bythe FBO and motioned for an audit. Airport Authority ChairmanJohn Springthorpe ("Springthorpe") changed

3the audit to an advisory report, even after discrepancies were found. In 2012, the FBO, supported by Springthorpe complained about a flight instructor, Michael Venable ("Venable"). Because the airport manager is also the owner ofthe FBO, the FBO was able to complain directly to the Airport Authority about Venable's competition. The Airport Authority Board Members prohibited Venable from pilottraining at KMWK. Billy opposedthe decision, supporting Venable's right to provide flight training out ofKMWK. After Billy opposed actions taken byDefendantBoardMembers, Billybegan experiencing problems: Plaintiffreceived pressure to resign from the Airport Authority; Billy's lease for hangar space was terminated; Billy's name was removed from the waiting list for future hangars; and an associate who plannedto buy a portion ofBilly'splane was also removed from the waiting list. The pretext for the termination ofBilly's lease and his removal from the waiting list was Billy painting a portion ofhis plane, an alleged violation offire code. Moreever, the Board Members voted to terminate Billy's lease priorto an investigation aboutthe alleged violations. The Airport Authority Board Members and attorney Joseph Williams ("Williams") contacted Surry County Fire Marshal Roger Jones('Jones"), and Jones issued a "Fire Prevention Inspection Report, Order to Comply" without a hangar inspection so Billy's lease could be terminated. Billy and the Airport Authority have been involved inlitigation over the lease tennination, including the declaratoryjudgment action and summary ejectment action relating to the hangar lease and a federal lawsuit arising from the retaliation Billy has faced for opposing the special treatment ofthe sole FBO at KMWK. Billy did eventually vacate the hangar, as he had been

4advised the Airport Authority was going to padlockthe hangar and forcibly remove his plane. (Complainant's Response to Motionto Dismiss, Ex. 1, '\[ 22, Affidavit ofBilly Hicks). Respondents continue intheir attempt to make this FAA Complaint about several discrete issues, includingthe mistaken allegationthis action is solely designed to require the Airport Authority to assign Mr. Hicks his old lease (an action not actually listed in the requests made by Billy in the Complaint). Billy filed his Complaintto ensure that the Airport Authority conducts itself in compliance withthe GrantAssurances and in the best interest ofthe Mount Airy/Surry County Airport, nottore-litigate issues

.. 

### REPLY Inthe Part 16 formal complaintprocess, eachparty must file documents sufficientto present all the relevant facts to determine ifan airport sponsor is in compliance. 14 CFRPart 16, §29. Here, Complainanthas filed documents with each pleading, showing Respondent has engaged in

a pattern orpractice ofbehaviorwhich violates the Sponsor Grant Assurances. 

### I. Jurisdiction Firstthe Respondent's Answer alleges the FAA does nothavejurisdiction over Billy's Complaint. The FAA Compliance program is designed to achieve the airport sponsor's voluntary compliance withthe Federal obligations the airport accepts when developed with FAA assistance. ScottMeyer v. City of Cincinnati, OH, FAA DocketNo. 16-12-14 (Director's Determination)(Aprill2, 2014), p. 10. In addressing allegations ofnon-compliance, the FAAis making a decision about whetherthe airport is currently 

### in compliance with applicable federal obligations. 

### !d. The FAAhas a statutory mandate to ensure airport owners comply withthe sponsor assurances. See, e.g., the FederalAviationAct of 1958, as amended and recodified, Title 49 U.S.C., §§ 40101, 40113, 40114, 46101, 46104, 46105, 46106, 46110; andthe Airport and

5Airway Improvement Act of 1982, as amended and recodified, Title 49 U.S.C.,§§ 47105(d), 47106(d), 47107(k), 47107(1), 47lll(d), 47122. Specifically, the FAA is empowered to investigate and adjudicate a complaintthat an airport proprietorhas violated the binding SponsorAssurances. 14 CFR §16.1(a). The FAAhas jurisdictionto determine compliance with obligations and assurances pertaining to the Airport ImprovementProgramthrough Title 49 U.S.C. §47101, 

### etseq., and Airport Sponsor Assurances through 49 U.S.C. §47107, 

### et seq. The MountAiry/Surry County Airport is a federally-obligated airport. As such, the Airport Authority must comply with the assurances for Airport Sponsors. Though KMWK's original obligations were onlypursuant to Title VI, Civil Rights Act and the Statutory Exclusive Rights Prohibition as the original grants had expired, KMWKhas been accepting new grants since at least 2010, which would impose newFederal Obligations tied into those grants and give the FAA thejurisdictionto investigate complaints about the Airport Authority's violation ofgrant

assurances. II. Attempts at Resolution Respondent argues inthe fact section ofits Answer that Billy is attempting to re-litigate issues whichhave been litigated in State court, then offers the contradictory allegation the Complainant did not attempt to resolve issues prior to filing the Part 16 Complaint. (Answer pp. 5, 9-10). The parties have been involved in informal dispute resolution and litigation, and a portion oftl1e resolution process involving litigation is detailed in Respondent's Answer (pp. 2- 5), and discussed in Claimant's response to the Respondent's Motionto Dismiss in Exhibit 1, the Affidavit ofBillyHicks. (Complainant's Response to Respondent's Motionto Dismiss, Ex. 1).



### 6III. Respondent's nse ofthe same arguments in its Answer as used in its Motion to Dismiss should be construed as an acceptance ofany fact not specifically denied in the Answer. In its Answer, Respondent re-states its argument from the Respondent's Motionto Dismiss: The Claimanthas maliciously submitted incomplete documents (Answer, p. 11 and 18 -TheHaynes Strand Documents, p. 16 -the "unnamed acquaintance" allegation) and is merely attempting tore-litigate issues already wonby the Respondent in State court (Ans. P. 5), in retaliation for the lease dispute. (Id.). The duplicate arguments ignore any fact or documents submitted with Claimant's response to Respondent's Motion to Dismiss and does not provide any new evidence. In fact, Respondent's Answer files no newexhibits, offers no new documentary evidence in support ofits denial ofspecific portions ofthe Complaint, but specificallyrelies onthe same arguments and allegations made in the Motion to Dismiss. See Resp. 'sAnswer, pp. 8, 10, 11, 12, 14, 15 and 18, where in answer to a specific allegation in the complaint, respondent refers to argument or allegation offact included in its motionto dismiss. Respondent states in its Answer that the Respondent did not remove any "unnamed acquaintance" from the waiting list. (Ans. pp. 6, 17). Respondent ignores the information provided by the Complainant in his Response to the Respondent's Motionto Dismiss, inwhich Billy names the acquaintance removed from the waiting list as Bobby Koehler. (Claimant's Response to Motion to Dismiss, Ex. l, Hicks Aff.,**~** 24). In addition, inthe Complainant's Response to Respondent's Motion to Dismiss, Billy attached an "Advanced Hangar Deposit List" to his affidavit, showing Mr. Koehler was onthe hangar waiting list right before Mark O'Neal. (Claimant's Response to Motion to Dismiss, Ex. 1-B, Advanced Hangar Deposit List). Billy is informed and believed that Mr. Koehler was not given Hangar 7 due to his association withBilly. (Ex. 1, Hicks Aff.,**~** 24). Respondent does not specifically deny that Bobby Koehler 7was removed from the waiting list, or provide documentation onwhy Mark O'Neal was given a lease priorto Bobby Koehler eventhough Mr. Koehler was first onthe waiting list. Respondent next argues Claimant did not provide the entire Haynes Strand Audit, stating that Claimant had "misleadingly limited" the audit documents submitted with the Complaint. (Ans. p. 11; and Resp. Motionto Dismiss, p. 34). However, as stated in Complainant's Response to Respondent's Motionto Dismiss, the full audit submitted by Respondent actually supports Complainant's contentinos therefore the allegedly misleadingly limited audit Billy shared was not limited by Billy or his counsel to mislead. (Complainant's Response to Motion to Dismiss, pp. 9-11). The meeting minutes showBilly made the motion to have the books audited, thenthe Authority goes into a closed session. (Resp. Mot., Ex. 1-B, Meeting Minutes November 14, 2011). Atthe end ofthe closed session, the group returns and direct Chairman John Springthorpe ("Springthorpe") to engage a bookkeeper to reconcile the records kept by Ra-Tech regarding the fuel transactions and hangar rents. (Id.). Chairman Springthorpe sends a description ofthe assigmnent to Hayes Strandby email onNovember 17, 2011. (Resp. Mot., Ex. 1-E). The Tasking for Review ofAirport Records lists the review to coverthe period ofJanuary 2009 through October 2011. (Comp., Ex. 1-1 and Resp. Mot., Ex. 1-F). In its Motion to Dismiss, Respondent included Exhibit 1-G, a letter from Haynes Strand agreeing uponthe procedures offered to review hangarrents and fuel transactions from July 2010 through October 2011. (Resp. Mot., Ex. 1-G). This wouldbe a change inwhatthe agreed upon dates for the review were, June 2009 through October 2011. (Comp., Ex. l-1 and Resp. Mot., Ex. 1-F ). Respondent enclosed the entire Haynes Strand report inExhibit 4-Btonthe Respondent's Motionto Dismiss, which notes Haynes Strand were not engaged to and did not conduct an audit

8and ifthey had performed additional procedures that other matters mighthave surfaced. (Resp. Mot., Ex. 4-B, p. 10). In response to Complainant's allegations about the private airstrip run by Board Member Kirkman, Respondent argues the Airport Authority does not use or authorize the use ofthe Kirkman strip. (Ans. p. 7). However, Respondent admits the Kirkman property has beenused as

an airstrip and ignores the fact the private individual who owns the strip at issue is a member of the Airport Authority, so Respondent, through inaction, ratifies the airstrip and the Board Member's actions

.. (Comp.'s Resp. to Motion to Dismiss, Ex. 1, Hicks Aff.

**~28,** Ex. 1-E, 1-F, 1- G, and Ex. 6). Though it is true the Airport Authority does nothave broad control over what every property

owner around KMWK does, the Airport Authority could enforce the rules and regulations and sponsor assurances in several different ways. Itcould direct a Board Memberto not endanger the approach to RWY 36, or atthe minimum, the Airport Authority, upon discovering the use ofthe Kirkman Airstrip, could have reported the field into the FAA suchthat the Kirkman Airstrip would appear on VFRMaps, like other private airfields. In the Part 16 formal complaintprocess, eachparty must file documents sufficientto present all the relevant facts to determine ifan airport sponsor is in compliance. 14 CFRPart 16, §29. Here, in its Answer, Respondent chooses to file no new exhibits or documents to reflect its admissions or denials. In the Part 16 formal complaintprocess, eachparty must file documents sufficient to present all the relevant facts to determine ifan airport sponsor is in compliance. 14 CFR Part 16, §29. "The proponent ofa motion, request, or order has the burden ofproof. A party who has asserted an affrrmative defense has the burden ofproving the affirmative defense. This standardburden ofproofis consistent with the Administrative Procedure Act (APA) and

9federal case law." Thermco Aviation, Inc. andA-26 Company v. City of LosAngelesBoard of Airport Commissioners, andLosAngeles WorldAirports, FAA Docket No. 16-06-07 (Final Agency Decision)(December 17, 2007), p. 16. Inrelying uponthe arguments made inits Motionto Dismiss, Respondent has chosen not to

answer the complaint with documentary evidence relevant to the substantive facts underlying the Complaint, but issue broad denials regarding those allegations. Inthe Complaint, Billy alleged continuing actions by the Airport Authority which violate the Sponsor Grant Assurances. Billy

uses the repeated actions made by Respondent BoardMembers to show a policy and practiceby the airport which violates the sponsor assurances. For each incident shown in the Complaint Respondent, in its Motionto Dismiss, argued the FAA had nojurisdiction due to the time period in which the allegation takes place, argued Billy had no standing, or that the facts were misconstrued. In its Answer, Respondent relies uponthe arguments made in its Motionto Dismiss. SeeAnswer, pp. 8, 10, 11, 12, 14, 15 and 18 where in

answer to a specific allegation in the complaint, respondent refers to its argument made in motionto dismiss and provides no new evidence in support ofthe denials. The FAA Compliance program is designed to achieve the airport sponsor's voluntary compliance with the Federal obligations the airport accepts when developed with FAA assistance. ScottMeyer v. City of Cincinnati, OH, FAA DocketNo. 16-12-14 (Director's Determination)(April12, 2014), p. 10. In addressing Billy's Complaint, the FAA is malcing a decision about whether the airport is currently in compliance with applicable federal obligations. 

### !d. Billy submittedhis Complaint in good faith, and provided supplementary facts and documentation inresponse to Respondent's priorMotionto Dismiss and Motionto Strike.

10Respondent chooses to repeat the arguments made inits prior motions withoutpresenting new documents or information to respond to the facts and documentation supplied by the Complainant. The FAAmayrender its initial determination based entirely onthe complaint andthe responsive pleadings, so each party is required for file the docmnents it considers sufficient to present all relevant facts and arguments necessary for the FAAto make a determination. 14 CPR §16.29(b )(1). As Respondents have relied upon their prior pleadings and introduce no new doclllllents intheir Answer, Respondent has chosen to rest the factual determination onthe doclllllents submitted with its Motionto Dismiss, or inthe Alternative Motion for Summary Judgment and Motion to Strike, and not respond to any supplemental informationprovidedby Complainant in Complainant's Responses to the Motion to Dismiss and Motion to Strike. CONCLUSION Baseduponthe information and doclllllents presented in the Complaint, and the Complainant's responses to Respondent's Motionto Dismiss, or in the Alternative Motion for Slllllmary Judgment and Motion to Strike, Claimant requests a determination by the FAA pursuantto 14 CPR §16.29 onwhether the Airport Sponsor is in violation ofthe Sponsor Assurances. This, the 19'h day ofOctober, 2015.

11 RA DOL M. JAMES, P.C.

Randolph M. James, N. Attorney for Complai nt P.O. Box 20069 Winston-Salem, NC 27120 Phone: (336) 724-7707 Facsimile: (336) 724-9722 Email: rmjames@rmjameslaw.comCERTIFICATE OF SERVICE I, Randolph M. James, certify on October 19, 2015, I filed and served this Complainant's Reply to Respondents' Answer (together with all the attachments and exhibits hereto), byplacing the original andthree copies addressed to the FAA in a prepaid, first-class envelope inthe custody ofthe United States mail as defined by Title 14 CPRPart 16, §16.3, and by mailing a copy to counsel ofrecord by depositing the foregoing inU.S. mail, addressed to:

FAAPart 16 Docket Clerk, AGC-600 Federal Aviation Administration 800 Independence Avenue SW Washington, DC 20591 (Original and Three Copies) Howard C. Jones, II 105 West Fourth Street, Suite 400-E Winston-Salem, NC 27101 Attorney for Mount Airy/Surry County Airport Authority

12 EdwinM. Woltz 119 Rawley Avenue Mount Airy, NC 27030 Attorney for the County ofSurry, NC HughB. Campbell, III 235 E. Independence Blvd. PO Box 1846 Mount Airy, NC 27030 Attorney for the City ofMountAiry, NC

. JAMES, P.C.

Winston-Salem, NC 27120 Phone: (336) 724-7707 Facsimile: (336) 724-9722 Email: rmjarnes@rmjameslaw.com