UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

In re the Complaint of 

PENSACOLA AVIATION CENTER LLC

Complainant,

-against- DOCKET NO. 16-12-12

PENSACOLA INTERNATIONAL AIRPORT, 

A DIVISION OF THE CITY OF PENSACOLA

Respondent.

Pursuant to Part 16 of the Federal Aviation 

Regulations

MOTION TO ADMIT MATERIAL FACTS

1. COMES NOW THE COMPLAINANT, Pensacola Aviation Center LLC 

(“Complainant”), and files this Motion to Admit Material Facts. Pursuant to 14 CFR § 16.19, 

the Complainant may file an application for an order or ruling not otherwise specifically 

provided for by the Part 16 rules of procedure.

2. Complainant requests that the FAA admit and consider certain material 

information that are relevant to this Part 16 preceding. This information pertains to content 

and credibility of the Respondent’s most recent filing, dated April 20, 2015.

A. INFORMATION PROVIDED BY THE RESPONDENT IS MISLEADING AND 

ERRONOUS

3. On March 13, 2015, the FAA requested additional information from the 

Respondent regarding the matters at issue in this Part 16 proceeding (the “FAA Information 
2

Request”). The Respondent responded on April 20, 2015 (the “Reply to FAA Information 

Request”). 

4. Regarding “Primary and Secondary Aeronautical Services,” FAA requested 

that Respondent:

a. Provide documentary evidence to demonstrate that Innisfree is providing, or 

subcontracting, required airframe and powerplant maintenance services. Documentary 

evidence should identify the maintenance service provider(s) and demonstrate that 

required maintenance services are available to aeronautical users during the days and 

times specified by Section 5.7 of the 2012 revised Minimum Standards. Provide 

evidence that the maintenance provider has leased from the Respondent or Innisfree 

the minimum required ramp, hangar, and office space identified in Section 7.1.2 of the 

2012 revised Minimum Standards.

b. Provide documentary evidence identifying which secondary FBO services Innisfree

provides (or subcontracts) to aeronautical users in accordance with Sections 5.7 and 

5.8 of the 2012 revised Minimum Standards. Documentary evidence should identify 

the service provider(s) and demonstrate that the required services are available to 

aeronautical users during the days and times specified by Section 5.8 of the 2012 

revised Minimum Standards. Provide evidence that the service provider(s) have leased 

from the Respondent or Innisfree the minimum required ramp, hangar, and office 

space identified in Section 7.1.2 of the 2012 revised Minimum Standards.

5. The Respondent provided a “survey” that it says was filled out by Innisfree’s 

General Manager, Carl Braddock (included as “Exhibit 10” in Respondent’s Reply to FAA 

Information Request, hereinafter the “Innisfree Survey”). 

6. The Innisfree Survey is an undated, unverified, and unwitnessed document, 

which has been submitted by the Respondent to prove the fact of the matter; this is, whether 

Innisfree complies with the Airport’s Minimum Standards for primary and secondary 

aeronautical services. As such the Innisfree Survey is hearsay. Under the Rules of Procedure, 
3

hearsay evidence is admissible; however the weight of the evidence is affected by the fact that 

it is hearsay. 14 C.F.R. 16.223(e). The glaring deficiencies of the Innisfree Survey make it 

highly suspect.

7. No explanation is offered by either Innisfree or the Respondent as to when the 

survey was filled out. It could have been made in 2012 when Innisfree began operating as a 

FBO, or it could have been made recently, in response to the FAA’s information request. 

Furthermore, the Respondent has accepted the Innisfree Survey and the responses contained 

therein at face value – Respondent apparently made no attempt to independently verify or 

confirm compliance. Respondent’s response to this particular item of the FAA’s information 

request is carefully crafted so that the Respondent itself makes no representation as to the 

veracity or credibility of the information. 

8. Even if the Innisfree Survey is accepted at face value, along with its supporting 

documentation, and lack thereof, it shows plainly that Innisfree does not meet the Airport’s 

Minimum Standards for primary and secondary aeronautical services (discussed infra). 

Perhaps because of the glaring noncompliance and the lack of its own investigation, the 

Respondent avoids directly stating whether or not Innisfree is in compliance with the 

Minimum Standards.1

 

1 On page 5 of the Reply to the FAA Information Request, the Respondent states:

“Pensacola served upon Innisfree a survey of all primary and secondary FBO services that are being 

provided by or through it, including identification of the services, whether or not they are being 

provided, and how (i.e., directly or by a subcontractor). Copies of the completed survey, which has 

been executed by Innisfree’s General Manager, and supporting correspondence are attached hereto 

collectively as Exhibit 10.”

The Respondent’s self-serving response does not provide the documentation that the FAA requested. Further the 

Respondent does not attest to the veracity or accuracy of the Innisfree Survey.
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9. The plain fact that the Innisfree Survey itself confirms obvious noncompliance 

raises the question of when it was created. If it was created in 2012, then the Respondent has 

purposely ignored glaring noncompliance for three years, and has taken no steps to require 

compliance. If it was created recently for the Reply to FAA Information Request, then this 

means that the Respondent never undertook the most basic of measures to ensure that 

Innisfree was compliant with the Minimum Standards when it began operating an FBO.

Airframe and Powerplant Maintenance

10. The Innisfree Survey claims that airframe and powerplant maintenance, which 

is a required primary service of the Airport’s Minimum Standards, is provided by “Lifeguard 

Air Ambulance / Southern Sky Leasing LLC.” A copy of a letter, dated 2012, from Lifeguard 

Air Ambulance (“Lifeguard”) to Innisfree states that Lifeguard would provide “aircraft 

servicing and maintenance” on an “as needed basis” (see Exhibit 10 of the Reply to FAA 

Information Request). No other information about the maintenance services is provided. 

11. The Airport’s Minimum Standards require that maintenance services be 

available onsite, for a minimum of five days per week, eight hours per day. Clearly, services 

provided on an “as needed basis” do not meet the requirements of the Minimum Standards to 

make maintenance services available five days per week, eight hours per day.

12. The only reasonable conclusion is that the arrangement between Innisfree and 

Lifeguard never met the Minimum Standard requirements to provide airframe and powerplant 

services on site and during all normal business hours. 

13. Either the Respondent never before reviewed Innisfree’s compliance with the 

Minimum Standards maintenance requirement, or if the Respondent did, then it purposefully 
5

looked away from the glaring deficiency. In either case, the Respondent was obligated to 

uphold the Minimum Standards and it has intentionally avoided doing so.

14. Furthermore, upon information and belief, the owner of Lifeguard sold the 

company to new management in 2014, and Lifeguard no longer provides any maintenance 

services for, or on behalf of, Innisfree. Upon information and belief, Innisfree has not found 

any subcontractor to replace Lifeguard.

Avionics Maintenance and Sales

15. The Respondent states that “Avionics Solutions” provides subcontracted 

services of avionics maintenance and sales to Innisfree. Under the Minimum Standards, 

avionics maintenance and sales qualifies as a secondary FBO service only if a minimum 

amount of ramp, hangar, and office space is dedicated to it, and the services are provided five 

days a week for eight hours per day.

16. The Respondent has not provided any documentation to support the existence 

of an arrangement between Avionics Solutions and Innisfree. It also has not shown that any 

ramp, hangar, or office space is dedicated to Avionics Solutions. Neither has the Respondent 

provided any evidence that avionics maintenance and sales is provided for five days per week 

for eight hours for eight hours per day. 

17. The only reasonable conclusion is that any arrangement between Innisfree and 

Avionics Solutions never met the Minimum Standard requirements to provide avionics 

maintenance and sales on site and during all normal business hours. It is also reasonable to 

conclude that the Respondent never before reviewed Innisfree’s compliance with the 
6

Minimum Standards on this requirement because, if it had, based on the information that it 

has provided, the glaring failure would have been apparent. 

Aircraft Sales

18. The Respondent states that “Eric Evans Aviation LTD” (“Eric Evans”) 

provides subcontracted services of aircraft sales to Innisfree. Under the Minimum Standards, 

aircraft sales qualifies as a secondary FBO service if a minimum amount of ramp, hangar, and 

office space is dedicated to it, and it is open five days a week for eight hours per day. The 

Respondent has not provided any documentation to support the existence of an arrangement 

between Eric Evans and Innisfree. It also has not shown that any ramp, hangar, or office space 

is dedicated to Eric Evans. Neither has the Respondent provided any evidence that aircraft 

sales is provided for five days per week for eight hours per day. 

19. Furthermore, there is no “Eric Evans Aviation LTD” registered with the 

Florida Department of State, Division of Corporations. Ewalt Aff., 3. Without registration 

within the State of Florida, a company is not permitted to do business in Florida. There is an 

“Eric Evans Aviation” aircraft sales company based in Mt. Vernon, Illinois; however there is 

no evidence from the company’s website that it has any relationship with Innisfree, or does 

business in Florida. Ewalt Aff., 5.

20. The only reasonable conclusion is that any arrangement between Innisfree and 

Eric Evans never met the Minimum Standard requirements to provide aircraft sales on site 

and during all normal business hours. It is also reasonable to conclude that the Respondent 

never before reviewed Innisfree’s compliance with the Minimum Standards on this 
7

requirement because, if it had, based on the information that it has provided, the glaring 

failure would have been apparent. 

B. RESPONDENT SUSPENDED THE HANGAR CONSTRUCTION 

OBLIGATION BUT STILL GRANTED RENTAL CREDITS TO INNISFREE.

21. The FAA also asked Respondent to clarify the status of the 9,000 sq. ft. hangar 

that Innisfree was required to build on Leased Premises No. 2 within 24 months of the 

effective date of Amendment No. 2. The FAA also asked Respondent whether the rental 

credits, which were granted in exchange for construction of that hangar, were in effect. (FAA 

Request for Information, pg. 1-2.)

22. Astonishingly, the Respondent freely acknowledges that seventeen months 

after the lease became effective, it willingly suspended Innisfree’s requirement to build the 

hangar. But, even though Innisfree has not invested in a hangar as required by Amendedment

No. 2, and the deadline to do so is suspended, the Respondent allowed Innisfree to deduct 

$150,000 in rental credits anyway. 

23. The Respondent’s rationale for suspending the hangar construction 

requirement is that the Part 16 proceeding may make the use and viability of the hangar 

questionable. However both the Respondent and Innisfree were fully and completely aware 

that Complainant questioned the terms and conditions of the grant of FBO status to Innisfree. 

In fact, Amendment No. 2 to the lease makes quite clear that the parties were aware of the risk 

involved. Both the Respondant and Innisfree specifically considered the risk of a third party 

challenge and concluded that “the Operator has determined that it wishes to proceed, at its 

own risk, to initiate a full Fixed Base Operator (FBO) business at the Airport[.]” 
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24. Even more specifically, Innisfree agreed to build the hangar in spite of the risk 

and agreed not to see reimbursement in case the FAA nullified the agreement.

THIRD PARTY CHALLENGES

The City and the Operator agree, third parties could challenge this Amendment 

Number 2 to the Agreement. Therefore, the Operator understands that it is proceeding 

at its own risk concerning the planning, financing and constructing of facilities on the 

Exclusive Use Leased Premises. In the event that federal authorities or a court of 

competent jurisdiction nullify this Amendment Number 2 to the Agreement, the 

Operator agrees that it will not ask the City for reimbursement of costs and/or 

damages for development undertaken on Exclusive Use Leased Premises or business 

privileges changed or nullified. (Emphasis added)

Amendment No. 2, page 8.

25. Astonishingly, the Respondent acknowledged that it had willingly suspended 

Innisfree’s requirement to build a hangar, then permitted it to deduct rental credits for the 

hangar it never built. Now Respondent excuses its intentional reversal because of the risk of a 

third party challenge, the same risk that the parties were aware of all along.

26. Not only is the hangar required as a condition of Lease Amendment No. 2, it is 

also required by section 5.3.1 of the Airport’s Minimum Standards. The Respondent’s 

suspension of the hangar requirement is effectively a waiver of the Minimum Standards. 

However the Minimum Standards permit a waiver only when “it is determined that such 

waiver or modification is in the best interest of the public and will not result in unjust 

discrimination against other commercial operators at the Airport.” (Minimum Standards, 

Section 2.4.) 
9

27. The Minimum Standards require the FBO to request a waiver, describing it and 

providing the reason for which it is sought, and providing a rationale and duration. Id. Here, 

there is no evidence that Innisfree requested a waiver. Rather, the Respondent freely offered

the waiver to Innisfree, without anything in return, and without any showing that it has 

evaluated whether the waiver will result in unjust discrimination to the Complainant. (Reply 

to FAA Information Request, Exhibit 1.) In fact, suspending the hangar requirement does 

result in unjust discrimination to the Complainant, because Innisfree is relieved of yet another 

requirement that the Respondent’s Minimum Standards and Lease Amendment No. 2 

otherwise required.

C. RESPONDENT HAS PERMITTED ASTONISHINGLY UNEQUAL 

ECONOMIC CONDITIONS THAT GRANT SUBSTANTIAL BENEFITS TO 

INNISFREE.

28. The only reasonable conclusion is that the Respondent has willingly permitted 

Innisfree to be in FBO business primarily to sell fuel at the Airport, while allowing Innisfree 

to flagrantly defy the minimal requirements of its own Minimum Standards. These are the 

same Minimum Standards which were watered down to accommodate Innisfree. Further, the 

Respondent suspended the hangar construction requirement, while still allowing Innisfree to 

deduct rental credits which were the bargained-for consideration for that very hangar. The 

Respondent offers no rationale for such contradictory and discriminatory actions. 

29. The result of Respondent’s actions and inactions is to grant a significant 

financial advantage to Innisfree – a similarly-situated FBO – by permitting it to forego 

constructing a hangar, permitting it to reduce its ground lease rental rate without meeting the 

terms and conditions of the rental credit, and by not requiring it to provide the services 
10

required of the Minimum Standards or undertake the investments and overhead costs that 

correspond to those services. 

RELIEF SOUGHT

30. Complainant requests the FAA admit the material information contained in this 

Motion to its consideration of this Part 16 proceeding. Further, Complainant requests all other 

timely determinations, orders, and relief as requested and set forth in its prior submissions.

Dated: May 6, 2015

Jericho, New York

Respectfully submitted,

Leonard D. Kirsch, Esq.

Shelley A. Ewalt, Esq.

McBreen & Kopko

Attorneys for Complainant

500 North Broadway, Suite 129

Jericho, New York 11753

Tel: (516) 364-1095

Fax: (516) 364-0612
Certificate of Service

I hereby certify that I have today, the 6th day of May, 2015, caused the foregoing to 

Motion to Admit Material Facts to be served by electronic mail on the following:

Office of the Chief Counsel

Attn: FAA Part 16 Airport Proceedings Docket, AGC-610

Federal Aviation Administration

800 Independence Avenue, SW

Washington, DC 20591

1 copy via E-mail

9-AWA-AGC-Part-16@faa.gov

Attorney for Respondent

Robert J. Williams

Schnader Harrison Segal & Lewis LLP

120 Fifth Avenue, Suite 2700

Pittsburgh, PA 15222-3001

rwilliams@schnader.com

________________________________________

Shelley A. Ewalt