SERVED: JUNE 18, 2012 ! G IZ AI:~ 1 g P I : lt I 

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 Testing Act of 1991, 49 U.S.C. 

§§45101-45107 ("the Act"), requires drug and alcohol testing of"safety-sensitive" 

transportation employees. Under the Act's authority, the Federal Aviation 

Administration issued detailed regulations mandating pre-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 of Health 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. Board of 

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 & R Helicopters, LLC ("Respondent" or "M & R"), 

charging certain infractions of those regulations. The agency's Complaint states that 

M & R was, during the period of the 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 under the 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 contract employees). The agency's Complaint, as amended, alleges 

that M & R, of Bethlehem, PA, violated certain program requirements and is liable 

for a civil penalty. It asks that M & R be found in violation and that the carrier be 

assessed a civil penalty in the amount of $4,400 (Tr. 32). 

More specifically, the Complaint alleges that Mr. Edward Baker III, identified 

as an M & R employee, performed safety-sensitive tasks forM & R, an employer, on 

or about July 24, 2008. At that time, 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's Appendices 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 or preventive maintenance, ground security coordinator, aviation 

screening, and air traffic control. Part 121, Appendix I, §III (drug testing program) 

and Appendix J, §II (alcohol misuse prevention program); see also Tr. 108-09. 

Mr. Baker had not been included in an antidrug program or alcohol misuse 

prevention program at the time he assertedly performed these functions, the 

Complaint continues (see Tr. 29, 31). He had neither been included in Respondent's 

random pool for required drug and alcohol testing nor had he set up his own drug 

and alcohol testing program. As such, the Complaint concludes, M & R violated 

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 I for each employee who performed,safetysensitive functions. Part 121, Appendix I, §V.B required each safety-sensitive 

employee to be subject to 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 J for 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 that the 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 of the alleged infractio1.1s unless otherwise st&t.~d. 
3 

A hearing was held on January 26 and 27, 2012, in Easton, PA. I determined 

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. 

I hold that the facts and circumstances of this case justify findings of 

violations of each count and warrant an assessment against Respondent of the 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 by its operations specifications ("op specs") to conduct Part 135 

operations (Tr. 78; Exh. A-1). The op specs specifically authorized M & R to conduct 

operations using a Bell-206B helicopter, Registration No. N98CM (Exh. A-3; Tr. 83-

84). 

Such authorizations carry concomitant responsibilities. A comparison with 

the responsibilities of motorists is apt. Motor vehicle license holders are required 

by virtue of their licenses to obey the rules of the road; these licensees also 

impliedly, and necessarily, consent to the governing authority's system of 

punishment for violating those rules. Just the same, every air carrier in obtaining 

certification becomes duty-bound to respect the agency's rules and consents to 

appropriate penalties if it does not. 

Op specs explicitly restate-- and underscore-- these obligations. M & R's op 

specs spelled out the carrier's obligation to conduct operations in accordance with 

all requirements. The op specs also specifically bound M & R to 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 Part 40 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 comply with their op specs even if they 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 

met the regulations' definition of employer (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. Baker was neither a part of Respondent's drug and alcohol testing 

program nor did he have his own testing program (Tr. 204). He had belonged 

neither to M & R's random pool nor had he formed a random pool of his own (Exhs. 

A-4 and A-6; Tr. 86, 89,95-96, 109-110). 

Mr. Baker at this time had been employed by Air Methods, Inc. ("Air 

Methods"). He belonged to Air Methods' drug and alcohol testing program. But Air 

Methods had forbade him from performing any outside maintenance (Exh. A-9; Tr. 

102-03). Baker was a "moonlighter;" that is, in performing tasks forM & R, he had 

operated on his own and outside the scope of his employment with Air Methods. 

This conduct, absent membership either in the employee's own drug and alcohol 

testing program or a program of the entity for which Baker moonlighted -

Respondent-- was prohibited by the drug and alcohol testing regulations (Tr. 106-

07, 110, 162-63, 310). 

It became a point of controversy that, at one time, Baker's actions in 

performing safety-sensitive work for M & R would have been permissible under the 

FARs. Prior to February 11, 2004, employers such as M & R had only to ensure that 

employees performing safety-sensitive tasks were part of some entity's drug and 

alcohol testing program. Mr. Baker's work forM & R would have been permissible 

since he had belonged to Air Methods' program. (Mr. Baker testified that he also 

was a member of a drug abatement program under the auspices of the 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 or the program of the 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 of his employment. As such, his work for M & R had not been covered by an 

authorized drug or alcohol testing program. 

B. Conclusion 

I find and conclude that Respondent violated FARs 14 C.F.R. §§135.251(a) 

and 135.255(b) as charged. 

Complainant proved each element of its case. The agency showed that, as an 

aviation entity holding a Part 119 certificate and authorized to conduct operations 

under Part 135, M & R was required to adhere to the drug and alcohol testing 
5 

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 not part of a random pool for drug or alcohol screening 

either of his own creation or sponsored by Respondent. Proof of these 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 of violation. See generally 

"Respondent's Post-Trial Brief to Dismiss Complaint," pps. 2-3, 6-13. They are each 

rejected. 

M & R states that it was unable to mount operations at the time of the 

asserted infraction. Its pilot did not have the credentials required to operate the 

helicopter; as such, the carder had been effectively shut down (see Exh. R-6). A nonoperable entity cannot be held in violation, Respondent contends. 

The ability or inability to operate is not germane to the violations. What is 

relevant is the status of M & R's flight certificate; that certificate was valid and 

active. The status of the 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 carrier with a valid certificate, M & R was required 

to abide by the regulatory requirements of the drug and alcohol programs (Tr. 164). 

M & R also 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 

requirement to abide by the regulations flows from the validity of its certificate (Tr. 

174, 331). 

M & R stresses that it did not fly the Bell helicopter after the inspection which 

triggered this action. If there are no operations, there can be no violations, 

Respondent asserts. But the scenario Respondent posits, assuming its truth for the 

sake of argument, is not relevant. It does not matter whether the aircraft was flown 

afterward or not. That the aircraft was not operated is a fortuitous circumstance. It 

has no bearing on the violation. It is the risk to aviation safety triggered by the 

conduct of Respondent's employee that constitutes the prohibited behavior (Tr. 

207 -08; see Exh. A-13). 

Respondent also protests that it had no knowledge of the amendment to the 

rule under scrutiny which, after February 10, 2004, changed the requirements 

regarding drug and alcohol testing programs for certain employees and, most 

importantly, allowed the instant charges to be brought. The agency made no effort 

to notify Dr. Selig or M & R of the rule change. Nor did the FAA post the change on a 

web site or a similarly accessible platform. Respondent may not be charged with a 

violation of a rule of which it had 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 duty to acquire and 

maintain knowledge of all applicable requirements (Tr. 144, 182). Certificate 

holders are responsible for keeping up to date on all matters affecting their 

certificate (Tr. 276, 281). Lack of knowledge of the 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 of the old 

-and quite valid- axiom that ignorance of the law is no excuse.4 

Moreover, the regulation complained of was duly promulgated under noticeand-comment rulemaking procedures. All phases of the rulemaking were published 

in the Federal Register. That process provides notice sufficient under the 

Constitution to all interested parties. It affords all affected parties due process 

under the law: "Publication in the Federal Register is legally sufficient notice to all 

interested or affected persons regardless of actual knowledge or hardship resulting 

from ignorance." jones v. United States, 121 F. 3d 1327, 1330 (9 Cir. 1997), cert. den. 

523 u.s. 1121 (1998). 

In view of the foregoing, Respondents' arguments are rejected.s 

III. Penalty 

I will 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 penalty recommendation 

through a sanction guidance matrix. The sanction guidance matrix is intended to 

indicate the Administrator:s general views about the civil penalty ranges 

appropriate for different types of violations. The matrix sets out specific penalty 

ranges for each input, cross-referencing such factors as the nature and size of the 

respondent and the nature and extent of the harm produced by the offending 

conduct. 

The guidelines are not binding on the agency. Each situation, being 

dependent on so many variables, 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 of it." Little v. Hasey, I2 Mass. 319 (1815). If ignorance were a 

legitimate excuse, "law would be of no effect, but might always be eluded with impunity." The Cotton 

Planter, I Paine 23,6 F.Cas. 620 (Cir.Ct.N.Y. I810), quoting Blackstone'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, "must reflect the totality of the facts and circumstances 

surrounding the violations."6 

M & R, as an operator under Part 135 with no more than five pilots and five 

aircraft, is considered a "Group IV" entity under the guidelines (Order 2150.3B, p. B3; Tr. 212). The guidelines also call for a civil penalty in the maximum range for an 

entity which failed to include a safety-sensitive employee in a drug and alcohol 

testing program (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 of inability to pay all or part of a proposed civil penalty is an 

affirmative defense. That is, it is Respondent's burden to plead and to prove it. See, 

e.g., American Air Network, FAA Order No. 2006-5 (February 10, 2006), p. 9 n. 19. 

Respondent offered no evidence of this nature. 

I find and conclude that a civil penalty of $4,400 is just and appropriate. It 

fairly reflects the nature of the violations and the risk of harm introduced into the 

air transportation system. The assessment also provides a proper deterrent effect. 

Allowing maintenance performance without proper drug and alcohol controls was a 

serious safety issue. It could have had disastrous consequences for the aircraft, the 

crew, and the flying public (Tr. 107, 157). 

M & R Helicopters, LLC, is hereby assessed a civil penalty of $4,400. for 

violations of FAR 14 C.F.R. §§135.251(a) and 135.255(b) as described in this Initial 

Decision.7 

Attachment - Service List 

6 Folsom's Air Service, FAA Order No. 2008-11 (November 6, 2008), p. 11. I did not admit Order 

2150.3B, which had been proffered as Exhibit A-14, but instead took judicial notice of it. 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. 

7

Any appeal from the Initial Decision to the Administrator must be in accordance with section 13.233 of 

the Rules of Practice, which requires 1) that a notice of appeal be filed no later than 10 days (plus an 

additional5 for mailing) from the date of this 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 of this 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 presiding judge is 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 2W1 0001 

Michael Selig, MD, FACC, CFI-H, 

Respondent's Representative 

2816 Orefield Road 

Allentown, P A 18104 

TEL: 610-360-3953 

FAX: 

ONE COPY 

Charles Raley, Complainant's Counsel 

Attorney, Enforcement Division/ AGC-300 

Office ofthe Chief Counsel 

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 of Hearings, M-20 ,., 

U.S. Department of Transportation 

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 in person or by 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. ··