### SERVED: JUNE 18, 2012 

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UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

) FEDERAL AVIATION ADMINISTRATION, ) ) Complainant, ) FAA DOCKET No. CP1 OS00011 )
v. ) (Civil Penalty Action) ) M & R HELICOPTERS, LLC ) ) Respondent. ) FDMS No. FAA-2010-1211 ) 

# _____________________________)

INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN

Found: 1) Respondent violated 14 CFR §§135.251(a) and 135.255(b) as charged; and 2) Respondent is hereby assessed a civil penalty of$4,400.



### I. Background

The Omnibus Transportation Employee TestingAct of 1991, 49 U.S.C. §§45101-45107 ("the Act"), requires drug and alcohol testing of"safety-sensitive" transportation employees. Under theAct's authority, the Federal Aviation Administration issued detailed regulations mandatingpre-employment, random, and post-accident drug and alcohol tests for employees in aviation.!

1 While the agency set up separate testing programs for drugs and alcohol, alcohol in fact is a drug. See Fifth Special Report to the U.S. Congress on Alcohol and Health from the Secretary ofHealth and Human Services, xiii (1983) ("alcohol is undoubtedly the most widely used-- and abused-- drug in America"). On the other hand, in common parlance the term "drug" does not connote "alcohol," McCluskey v. Boardof Education o{Rogers, Ark.. 662 F.2d 1263. 1267 (8 Cir. 1981). The latter formulation u1.1doubtedly is the context in which the programs and rules were devised.2

The Federal Aviation Administration ("Complainant," "FAA," or "the agency") brought an action against M& RHelicopters, LLC ("Respondent" or "M & R"), charging certain infractions ofthose regulations. The agency's Complaint states that M&Rwas, during the period ofthe alleged violations, a certificated operator under Part 119 and authorized to conduct operations under Part 135 ofthe Federal Aviation Regulations ("FARs"). Part 119 carriers are obligated underthe agency's regulations to use an antidrug and alcohol misuse prevention program for their employees who perform safety-sensitive work. (The term "employees" includes prospective and contractemployees). The agency's Complaint, as amended, alleges that M&R, ofBethlehem, PA, violated certain program requirements and is liable for a civil penalty. It asks that M&Rbe found in violation and that the carrier be assessed a civil penaltyin the amount of$4,400 (Tr. 32).

More specifically, the Complaint alleges thatMr. Edward Baker III, identified
as an M& Remployee, performed safety-sensitive tasks forM & R, an employer, on oraboutJuly 24, 2008. At thattime, the drug and alcohol testing regulations applicable to Part 119 certificate holders were found in 14 C.F.R. Part 121 and in Part 121'sAppendices I (drug testing program) and J (alcohol misuse prevention program)-2 The following duties had been defined as safety-sensitive: flight crewmember, flight attendant, flight instruction, aircraft dispatcher, aircraft maintenance orpreventive maintenance, ground security coordinator, aviation screening, and airtraffic control. Part 121,Appendix I, §III (drugtesting program) and AppendixJ, §II (alcohol misuse prevention program); see also Tr. 108-09.

Mr. Baker had notbeen included in an antidrugprogram or alcohol misuse prevention program atthe time he assertedlyperformed these functions, the Complaint continues (see Tr. 29, 31). He had neitherbeen included in Respondent's random pool for required drugand alcohol testing nor had he setup his own drug and alcohol testingprogram. As such, the Complaint concludes, M& Rviolated FARs 14 C.F.R. §§135.251(a) and 135.255(b). Section 135.251(a) (now codified at 14 C.F.R. §120.35(a)) mandated drug testing in accordance with the provisions of then-applicable Part 121,f.}.ppendix Ifor each employee who performed,safetysensitive functions. Part 121,Appendix I, §V.B required each safety-sensitive employee to be subjectto random drug testing. Section 135.255(b) (now codified at 14 C.F.R. §120.39(a)) required alcohol testing in accordance with Part 121, Appendix Jfor each employee who performed safety-sensitive functions. Part 121, Appendix J, §III.C compelled each safety-sensitive employee to be subject to random alcohol misuse testing. Respondent, which appeared through its president and owner, Michael Selig ("Dr. Selig"), denied the charges and asked thatthe Complaint be dismissed.

2 Effective July 13, 2009, the drug and alcohol testing regulations for Part 119 carriers were recodified. No substantive changes were made. The regulations simply were consolidated in a new 14 C.F.R. Part 120, subparts E and F. See Final Rule, 74 Fed.Reg. 22563 (May 14, 2009). This Initial Decision ("I.D.") will

. refer to the provisions current at the time ofthe alleged infractio1.1s unless otherwise**st&t.~d.**3

Ahearing was held on January 26 and 27, 2012, in Easton, PA. Idetermined that a written decision was reasonable and appropriate under the circumstances (Tr. 351-52). The parties have filed briefs and the matter now is ready for decision.

Ihold thatthe facts and circumstances ofthis casejustify findings of violations ofeach count and warrant an assessment against Respondent ofthe full amount requested in the agency's Complaint, $4,400.



### II. The Proceeding

A. The Evidence and Findings Complainant showed that Respondent was a Part 119 certificate holder authorized byits operations specifications ("op specs") to conduct Part 135 operations (Tr. 78; Exh. A-1). The op specs specifically authorized M&Rto conduct operations using a Bell-206B helicopter, Registration No. N98CM (Exh. A-3; Tr. 83- 84).

Such authorizations carryconcomitant responsibilities. Acomparison with the responsibilities ofmotorists is apt. Motor vehicle license holders are required byvirtue oftheir licenses to obeythe rules ofthe road; these licensees also impliedly, and necessarily, consentto the governing authority's system of punishment for violating those rules. Just the same, everyair carrier in obtaining certification becomes duty-bound to respectthe agency's rules and consents to appropriate penalties ifit does not. Op specs explicitly restate-- and underscore-- these obligations. 

### M& R's op specs spelled outthe carrier's obligation to conduct operations in accordance with all requirements. The op specs also specificallybound M& Rto comply with the agency's drug and alcohol testing requirements. Op spec A449, paragraph a., states that "[t]he certificate holder who operates under [14 CFR Part 135] certifies that it will comply with the requirements of 14 CFR Part121 Appendices I andl and 49 CFR Part40 for its Antidrug and Alcohol Misuse Prevention Program." (Exhs. A-1 and A-2; Tr. 81,315-16, 328-29). Indeed, Part 119 certificate holders such as M&R must complywith their op specs even ifthey are not actually conducting Part 135 operations (Tr. 329). During a routine inspection conducted on July 21 and 23, 2009, FAA inspectors discovered that an airframe and powerplant ("A & P") mechanic, Edward Baker III, had on July 24, 2008, performed safety-sensitive duties- maintenance and preventive maintenance-- on"Respondent's aforementioned Bell 206B helicopter.3 M& R, as a Part 119 certificate holder authorized to perform Part 135 operations,

3 Tr. 228-29. Mr. Baker, who also is a pilot, testified that he had performed a vibration balance check, ensuring that the aircraft "was within normal safe operating limits for vibration**analysi_s.~'** .Tr. 227; see also Tr. 220-21.4

metthe regulations' definition ofemployer (Tr. 190). Mr. Baker was deemed an employee because he had performed safety-sensitive tasks under M& R's Part 135 certificate (Tr. 191-92). M&R, moreover, had hired him. Baker had been paid directly by Respondent's owner, Dr. Selig (Exh. A-10; Tr. 104-05).

Mr. Bakerwas neither a part ofRespondent's drug and alcohol testing program nor did he have his own testing program (Tr. 204). He had belonged neitherto M&R's random pool norhad he formed a random pool ofhis own (Exhs. A-4 and A-6; Tr. 86, 89,95-96, 109-110).

Mr. Baker atthis time had been employed byAir Methods, Inc. ("Air Methods"). He belonged to Air Methods' drug and alcohol testing program. ButAir Methods had forbade him from performing any outside maintenance (Exh. A-9; Tr. 102-03). Baker was a "moonlighter;" thatis, in performing tasks forM &R, he had operated on his own and outside the scope ofhis employmentwith Air Methods. This conduct, absent membership either in the employee's own drug and alcohol testing program or a program ofthe entityfor which Baker moonlighted

- Respondent-- was prohibited by the drug and alcohol testing regulations (Tr. 106- 07, 110, 162-63, 310).

It became a point ofcontroversythat, at one time, Baker's actions in performing safety-sensitive work for M& Rwould have been permissible under the FARs. Priorto February 11, 2004, employers such as M& Rhad onlyto ensure that employees performing safety-sensitive tasks were partofsome entity's drug and alcohol testing program. Mr. Baker's workforM & Rwould have been permissible since he had belonged to Air Methods' program. (Mr. Baker testified thathe also
was a member ofa drug abatementprogram underthe auspices ofthe National Guard). However, a regulation which became effective on February 11, 2004 changed the definition of"employer" to require an individual performing a safetysensitive function for an employer to be covered either by the employer's screening program orthe program ofthe contractor (in this case, Air Methods) when the individual is performing"'{.Ork for the employer within the scope of his employment for the contractor (Exh. A-11; 69 Fed.Reg. 1840, 1843 (January 12, 2004); Tr. 139,

197, 220-21, 317-18). Since Mr. Baker was not authorized under his employment with Air Methods to perform outside maintenance, he had been working outside the scope ofhis employment. As such, his workfor M& Rhad notbeen covered by an authorized drug or alcohol testing program.

B. Conclusion

Ifind and conclude that Respondent violated FARs 14C.F.R. §§135.251(a) and 135.255(b) as charged. Complainant proved each element ofits case. The agency showed that, as an aviation entityholding a Part 119 certificate and authorized to conduct operations under Part 135, M& Rwas required to adhere to the drug and alcohol testing5

regulations then effective. The agency further showed that Respondent was an · employer who had hired an employee to perform a safety-sensitive task. That employee, Mr. Baker, was notpart ofa random pool for drug oralcohol screening either ofhis own creation or sponsored by Respondent. Proofofthese elements demonstrated that Respondent violated 14 C.F.R. §§135.251(a) and 135.255(b) as charged.
Respondent raises several objections to a finding ofviolation. Seegenerally "Respondent's Post-Trial Briefto Dismiss Complaint," pps. 2-3, 6-13. They are each rejected.

M& Rstates thatit was unable to mount operations atthe time ofthe asserted infraction. Its pilot did nothave the credentials required to operate the helicopter; as such, the carderhad been effectively shut down (see Exh. R-6). Anonoperable entity cannotbe held in violation, Respondent contends.

The ability or inabilityto operate is not germane to the violations. Whatis relevant is the status ofM& R's flight certificate; that certificate was valid and active. The status ofthe carrier's pilot had no effect on the certificate's validity (Tr. 167-68). The evidence showed that M&R's certificate had been validated as recently as June 10, 2011 {Exh. A-15; Tr. 331). Respondent's op specs were current (Tr. 157, 164, 167-68, 314). As a carrierwith a valid certificate, M&Rwas required to abide bythe regulatory requirements ofthe drug and alcohol programs (Tr. 164).

M&Ralso asserts that it had undergone a name change. But any name change had no effect on its certificate number, which did not change. Respondent's requirementto abide bythe regulations flows from the validity ofits certificate (Tr. 174, 331).

M& Rstresses that it did notfly the Bell helicopter after the inspection which triggered this action. Ifthere are no operations, there can be no violations, Respondent asserts. But the scenario Respondent posits, assuming itstruth for the sake ofargument, is not relevant. It does not matterwhether the aircraft was flown afterward or not. Thatthe aircraftwas not operated is a fortuitous circumstance. It has no bearing on the violation. It is the risk to aviation safetytriggered bythe conduct ofRespondent's employee that constitutes the prohibited behavior (Tr. 207-08; see Exh. A-13). Respondent also protests that ithad no knowledge ofthe amendmentto the rule under scrutinywhich, after February 10, 2004, changed the requirements regarding drug and alcohol testing programs for certain employeesand, most importantly, allowed the instant charges to be brought. The agency made no effort to notify Dr. Selig or M& Rofthe rule change. Nor did the FAA postthe change on a web site or a similarly accessible platform. Respondent may notbe charged with a violation ofa rule ofwhich ithad no notice, it contends. Allegation b){**~urprise,** the argument continues, is unfair and illegal and may not stand.6

This argument also is rejected. It is the operator's dutyto acquire and maintain knowledge ofall applicable requirements (Tr. 144, 182). Certificate holders are responsible for keeping up to date on all matters affecting their certificate (Tr. 276, 281). Lack ofknowledge ofthe law simply does not excuse illegal conduct. 

### U.S. v. Cheesemen, 600 F.3d 270 (3 Cir. 2010). These expressions of
an operator's responsibilities, it should be recognized, are but a corollary ofthe old -and quite valid- axiom that ignorance ofthe law is no excuse.4
Moreover, the regulation complained ofwas duly promulgated under noticeand-comment rulemaking procedures. All phases ofthe rulemaking were published in the Federal Register. That process provides notice sufficient underthe Constitution to all interested parties. It affords all affected parties due process underthe law: "Publication in the Federal Register is legally sufficient notice to all interested oraffected persons regardless ofactual knowledge orhardship resulting from ignorance."

### jones v. United States, 121 F.3d 1327, 1330 (9 Cir. 1997), 

### cert. den. 523 

## u.s. 1121 (1998).

In view ofthe foregoing, Respondents' arguments are rejected.s



### III. Penalty

Iwill assess a civil penalty of$4,400.
Complainant urges a civil penalty of$4,400. Its recommendation is based on guidelines the agency has published for its employees to follow when suggesting an appropriate civil penalty. They are designed to assure greater national consistency in enforcing the FARs. The guidelines are contained in FAA Order 2150.38.

The guidelines assess all relevant statutory criteria, including mitigating and aggravating circumstances. They aid Complainant's penaltyrecommendation through a sanction guidance matrix. The sanction guidance matrix is intended to indicate theAdministrator:s general views aboutthe civil penalty ranges appropriate for different types ofviolations. The matrix sets out specific penalty ranges for each input, cross-referencing such factors as the nature and size ofthe respondent and the nature and extent ofthe harm produced bythe offending conduct.

The guidelines are notbinding on the agency. Each situation, being dependent on so manyvariables, is unique. "An appropriate civil penalty," the FAA

4 "[T]he maxim 'ignorantia legis neminem excusat,' applies. Every one is presumed to know the law, and is estopped from alleging ignorance ofit." Little v. Hasey, I2 Mass. 319 (1815). Ifignorance were a legitimate excuse, "law would be ofno effect, but might always be eluded with impunity." The Cotton Planter, I Paine 23,6 F.Cas. 620 (Cir.Ct.N.Y. I810), quotingBlackstone's Commentaries on the Laws of England(l753), vol. I, sec. II, 46. 5 All other arguments Respondent has made have been carefully considered and are rejec"ted without further comment. They do not merit discussion.7

has emphasized, "mustreflectthe totality ofthefacts and circumstances surroundingthe violations." 6

M & R, as an operator under Part 135 with no more than five pilots and five aircraft, is considered a "Group IV" entityunder the guidelines (Order 2150.3B, p. B3; Tr. 212). The guidelines also call for a civil penaltyin the maximum range for an entitywhich failed to include a safety-sensitive employee in a drug and alcohol testingprogram (Order 2150.3B, p. B-31, Fig. B-5-b; Tr. 213). Complainant additionally determined that Mr. Baker's performance on Respondent's helicopter constituted an aggravati11g factor (Tr. 215). Complainant's suggested civil penalty of $4,400 is the minimum amount suggested for a "Group IV" small-business entity whose violations are felt to belong in the maximum range (Tr. 215-16; see Order 2150.3B, p. B-4).

The plea ofinabilityto pay all or part ofa proposed civil penaltyis an affirmative defense. That is, itis Respondent's burden to plead and to prove it. See, e.g., AmericanAirNetwork, FAA Order No. 2006-5 (February 10, 2006), p. 9 n. 19. Respondent offered no evidence ofthis nature.

I find and concludethat a civil penalty of$4,400 isjust and appropriate. It fairly reflects the nature ofthe violations and the risk ofharm introduced into the air transportation system. The assessment also provides a proper deterrent effect. Allowing maintenance performance withoutproper drug and alcohol controls was a serious safetyissue. Itcould have had disastrous consequences for the aircraft, the crew, and the flying public (Tr. 107, 157).

M &R Helicopters, LLC, is herebyassessed a civil penalty of$4,400. for violations ofFAR 14 C.F.R. §§135.251(a) and 135.255(b) as described in this Initial Decision.7

Attachment

- Service List

6 Folsom'sAirService, FAA OrderNo. 2008-11 (November 6, 2008), p. 11. I did not admit Order 2150.3B, which had been proffered as Exhibit A-14, but instead tookjudicial notice ofit. Tr. 213-14. The guidelines may be found at the FAA's web site, www.faa.gov, or, more specifically, at www.faa.gov/documentLibrary/media/Order/ND/2150.3B.pdf. 7Any appeal from the Initial Decision to the Administrator must be in accordance with section 13.233 of the Rules ofPractice, which requires 1) that a notice ofappeal be filed no later than 10 days (plus an additional5 for mailing) from the date ofthis order and 2) that the appeal be perfected with a written brief
or memorandum not later than 50 days (plus 5 for mailing) from the date ofthis order. Each is to be sent to the Appellate Docket Clerk, Room 924-A, Federal Aviation Administration, 800**lndep_~IJ.dence** Avenue, S.W., Washington, DC 20591, and to agency counsel. Service upon the presidingjudgeis optional.REVISED SERVICE LIST

ORIGINAL & ONE COPY

Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2W1000 1

Michael Selig, MD, FACC, CFI-H,



### Respondent'sRepresentative 2816 Orefield Road Allentown, PA 18104 TEL: 610-360-3953 FAX: ONE COPY

Charles Raley, 

### Complainant's Counsel Attorney, Enforcement Division/AGC-300 Office ofthe ChiefCounsel Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 TEL: 202-267-3357 FAX: 202-267-5106

The Honorable Richard C. Goodwin, 

### Administrative Law Judge Office ofHearings, M-20 ,., U.S. Department ofTransportation 1200 New Jersey Avenue Washington, DC 20590 TEL: Attorney-Advisor 202-366-2139 Legal Assistant 202-366-5121 FAX: 202-366-7536 FAA Docket No. CP10S00011 (Civil Penalty Action)

1 Setvice was by U.S. Mail. For setvice inperson orby eXpedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-S,9ite 2WIOOO, Washington, , DC 20591; Attention: Hearing Docket Clerk, AGC-430. ··