05/22/2015 09:23 4252271007 ANM7 PAGE 02/10 

### U.s. Department ot Transportation

**Feder~:~l** Aviation Administration Northwest Mountain Region Office of Regional Counsel Colorado, Idaho, Montana, Oregon, Utah, Washington, Wyoming 1601 Lind Avenue S.W. Renton, Washington 98057 Tel: (425) 227-2165 

### June 22, 2015 Fax: (425) 227-1007 david.f.shayne@tae.gov 

### VIA FACSIMILE M'D CERTIFJED 

### J:v'IAIL- RETIJRN RECEIPT REQUESTED Attn: Hearing Docket 

### Clerk, AGCA30 

### Hearing Docket 

### Federal Aviation Administration (Wilbur Wright 

### Bldg --Room

### 2Wl000) 800 

### Independence Avenue S.W. 

### Washington, D.C. 20591 Re: In theAircal, 

### Inc.- FAA No. 20l4WP910129 

### Enclosed is an 

### original and 

### one copy ofarequest forhearing and Complaintfor the 

### abovereferencedproceeding. The Federal Aviation Administration 

### (FAA) requests thatthe 

### hearing inthis 

### matterbe held in Portland, Oregon, and 

### expects thatthe hearing will last 

### one (l) day. For 

### schedulingpurposes counsel for

### the 

### FMis 

### unavailable the following dates 

### in 2015: June 24 through July

### 2, 2015; July 

### 13 and 14, 2015; August 3through August 7, 2015; August 17 through August 21, 2015;

### August 22, throughAugust 27, 2015; 

### September 14, 15, 23, 28 and 29, 2015; October 5 and 6, 

### 2015. Plea.se address 

### all communications 

### for the 

### FAA to 

### the undersigned at: Federal 

### Aviation Administration Northwest Mountain Region, ANM-7 1601 Lind 

### Avenue S.W. Renton, Washington 98057 

### Telephone: (425) 227-1847 

### FAX: (425)

**227~1007** ./----



# /~ely----~

**~avrc{Shayne** FAAAttomey DFS/tek Enclosures: Request for Hearing 

### (Appeal) Complaint05/22/2015 0g:23 4252271007
DAVID F. SHAYNE 

### P

AA OFFlCE OFREGIONAL COUNSEL 

### 1601 LIND AVE., SW RENTON, WA.SH!NGTON98057 TELEPHONE: (425)

### 227·2165 FACSIMILE: (425) 227·1007 ANM7



## UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C. In the Matter of: Aircal, Inc. FAA Case No. 20l4WP910129 Judge NotAssigned 

### COMPLAINT PAGE 03/10

The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, pursuant to Rule 208 ofthe Rules ofPractice (14 Code ofFederal Regulations (C.P.R.) Section 13.208), and states as follows: L On June 3, 2015, Aircal, Inc., was advised through a Final Notice ofProposed Civil Penaltythat the FAAproposed to assess a civil penalty in the amount of$12,350. On June 18, 2015, Aircal, Inc. submitted a writtenrequest for s hearing. 

### II. 1. Aircal, Inc. (Aircal) is now, and at all times relevantherein was, the holder ofFederal AviationAdministration (FAA) Air Carrier Certificate 62CA222N, and conducts its operations pursuant to Part 119 ofthe FederalAviation Regulations, 14 Code of Federal Regulations (C.P.R.) Chapter I.

COMPLAlNT FAA v. Aircal, Inc. FAACase No.

**~014-WP91** 0129 P•gc 2 of8 DAVIDF. SHAYNE,FAAATTORNEV TE.!.: (425) 227·2165; FAX: (425) 227-100705/22/2015 0g:23

3. 4. 

### 5. 6.


### 7. 4252271007 ANM7 PAGE 04/10
At



### ~II **tim~s** relevant herein,Aircal held appropriate Operations


### Specific~tions certtfYmg 1t would comply with the requirements of 14 C.P.R. Part 120 and 49 

### C.F.RPart 40 for its Antidrug andAlcohol Misuse PreventionProgram. At 

### all times relevantherein,Ai.rcai was authorized to operate N227EC, a Piper PA-31- 350 aircraft, pursuantto 14 C,F.R. Part 135. On o:r about February 26, 201.4, a mechanic employed by BakerAero Electric perfonned m:lln,tenance on the engine installedonto 

### N227EC. At the time ofmaintenance referenced in paragraph 

### 4, BakerAero Electric di.d not have a drug 

### and alcohol testing program. At no time relevant herein, didAircal test

### the personnel identified inparagraph 4 for 

### drugs oralcohol misuse in accordance with is operations specifications identified in paragraph

### 2. On or about March 25, 2013, Aircal hired Edras Guevara as a mechanic, a safety sensitiveposition and: a) Prior to his employment withAircal, he had been employed within two years preceding with anotherDepartment ofTransportation (DOI)-regulated employer. b) At no time since his hiring had Ai.rcal requested all ofthe infom1ation listed in 49 C.F.R. Section 40.25(b) from the employer referenced above. 8. On or about June 8, 2013, Aircal hired Ivan Hyland as apilot, a safety sensitive position and: a) Priorto his employment with AJrcal, he had been employed withintwo (2) years precedingw)th another DOT-regulated employer, b) At no time since his hiring had Aircal requested all ofthe infonnationlisted in 49 C.P.R. Section 40.25(b) from the employer referenced above. 9. On or about April 8, 2013, Aircal hired Michael Underwood as a mechanic, a safety sensitiveposition and: a) Prior to his employment with Aircal, he had been employed within two (2) years precedingwith anotherDOT-regulated employer. b) At no time since his h.iting had Aircal requested all ofthe infon:nation listed in 49 C.P.R. Section 40.25(b) from the employerreferenced above. COMPLAINt FAA v. Aircal, Inc. FAACa_<ONo, 20I4WP910!Z9 Pagd ofS bA.VIDF. SHAYNE, FAAATtORNEY TEL: (425) 2<7,2165; FAX: (425) 227-100705/22/2015 09:23 4252271007 ANM7 PAGE 05/10 

### 10.



### ~nor about May 3, 2?13, Aircal selected an employee for random alcohol testing but d1d notactually testhim for alcohol; rather, the employee was subjected to a druo- test for whichhewas not selected. Airoal thereby failed to follow a scientifically valld method for testing. ll. On or about December 30, 2013, Aircal selected an employee for random alcohol testing but didnot actually test himfor alcohol; rather, the employee was subjected to a drug test for which he was not selected. Aircal thereby failed to follow a scientifically valid method for

### selection for testing. 12. On orabout December 23, 2013, Aircal selected an employee for random alcohol testing but did not actuallytest him for alcohol; rather, the employee was subjected 

### to a drug test for which he was not selected. Aircal therebyfailed to follow a scientifically valid method for selection for testing. 13. Investigation showed thatAircal failed to maintain documentation related to the testingprocess and training. 14. Investigation showed thatAircal failed to maintain documentation showing compliatlce with 14 C.P.R. 120.223(a). 

### JII. I. Byreason ofthe foregoing facts and **circum.st~nces,** 

### Aircal violated the following sections ofthe Federal Aviation Regulations (14 C.P.R.): a. Section 120.35(b), in 

### that 

### itused a contractor to perform a function listed in SubpartE of 14 

### C.F.R Part 120 when that contractordid not test each employee performing such a function for the certificate holder or operator; b. Sectiol:l 120.39(b) inthat itused an individual who metthe definition ofcovered employee in Subpart A of 14 C.P.R. Part 120 to perform a safety-sensitivefunction, whenthat individual. was not subject to testing for alcohol misuse; c. Section 120.105, inthat anemployeeperforming safety-sensitive functions was not subjectto a drug testingprogram implemented in accordance with 14 C.F.R. Part 120, SubpartE. d.. .. Section 120.115(c)(5), 

### inthatits EmployeeAssistan.ce Educationtrainingprogram did not include documentation oftraining given to employees and employer's supervisory personnel. COMPLAINT FAA v. Aircal. Inc. FAA Case No. 2014WP910129 Page 4 of8 DAVID F. SRAYNE. FAA ATTORNEY TEl,: (425) 227-2165; FAX: (425) 227·100705/22/2015 09:23 4252271007 ANM7 PAGE 05/10

e. Section 120.215(a), in that employees performing safety-sensitive functions were not subjectto an alcohol testingprogram implemented in accordance with 14 C.P.R. Part 120, Subpart 

### F. 

### f. Section 120.217(c)(5), inthat it failed to make the selection ofemployees forrandom alcohol testingby a scientifically valid method, such as arandom-number table or a computer-based random number generator that is matched with employees' Social Security numbers, payroll identificationnumbers, or other comparable
**id~;ntifying numb~;rs.**  g. Section !20.219(a)(2) (ii) (F),(!) Inthat it failed to retain documentation of compliance with the requirements ofSection 120.223(a). Additionally, it appears Aircal violated the following sections of49 C.F.R.: a. Section 40.25(a), inthat it failed to request information about a new safety-sensitive employee from previous DOT-regulated employers who employed that employee within the two years preceding that employees application. b. Section 40.25(b), inthat it failed to request 

### all ofthe information about anew safetysensitive employee from previous DOT-regulated employers who employedthat employee

**~Nithin** thetwo years preceding that employees application which includes: (I) Alcohol tests with a result of0.04 orhigher alcohol concentration; (2) Verifiedpositive drug tests; (3) Refusals to be tested (including verified adulterated or substituted drugtest results); (4) Oth<:r violations ofDOT agency drug and alcohol testing regulations; and (5) With respect to any employ<:e who violated a DOT drug and alcohol regulation, documentation ofthe employee's successful completion ofDOT return-to-duty requirements (including follow-up tests). Iftheprevious employer does nothave information about the return-do-duty process (e.g., an employer who didnot hire an employee -wno tested positive on a preemployment test), you must seek to obtainthis informationfrom the employee,

COMPLAINT FAA v, Alrcal, Inc, FAA Case No. 2014WP910!29 PageS of8 DAVIDF. SHAYNJ!, FAA ATTORNEY TI:L; (425) 227-2165; FAX: (425) 227·100705/22/2015 09:23 4252271007 ANM7 PAGE 07/10 2. In 

### accordance with Sections 4630l(a) 

### and (d) ofTitle 49 ofthe United Slates Code (U.S.C-) (Transpor1ation) [49 U.S.C. Sections 46301(a) and (d)), Aircal is liable for a civil penalty not to exceed $11,000 for 

### each ofthe violations noted. 3. Under the facts and circumstances of

### this case, a civil penalty of

### $12,350 is appropriate. 

### WHEREFORE, the Agency, 

### by counsel, 

### respectfullyrequests that the Admillistrative LawJudge enter an orderthatAircal be assessed a civil peualty in

### the amount of$12,350. 

### Respectfully submittedthis 

### 22"d day ofJune, 

### 2015. 

# /_..--...._)



# ~~ David\Fnla:Yhe 

### FAA Attorney

COMPLAINT FAAv, Aircal, Tnc. FAACase No. 20T4WP910129 P•gc 6of8 DAVID F. SHAYNE,FAA.AITORNE'( TEJ.: (425) 227-2165; FAX: (425) 227-100705/22/2015 09:23 4252271007 

### ANM7 PAGE 08/10 

### ANSWER In accordan.ce with Section 1,3.209 ofthe Federal AviationRegulations, Aircal, must answer this Complaint not later

### than thirty (30) days from the time it is served on it. Failure to file an Answer withinthirty (30) days without good cause shall be deemed au adm.ission ofthe truth ofeach allegation containedin the Complaint [!4.C.F.R. 

### § 13.209(f)].

COMPLA1NT FAA v. Alrcal. Inc. FAA Case No. Z0!4WP910129 Page 7 ofS DAVIn F. SHAYNl', FAAATTOl<NEY TEL: (425) :127,2!65; !'AX: {425) 227-100705/22/2015 09:23 4252271007 ANM7 PAGE 09/10 

### CERTIFICATE OF SERVICE I hereby certifY thatthe foregoing Complaint has been se.rved viafacsimile snd certified mail
- Return Receipt Requested this date, to the following:

COMPLAINT FAA. v, Airca.t. Inc. Federal AviationAdministration (Original and one copy) 800 Independence Avenue 

### SW Washington, D.C. 20591 Attn: Bearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl000 

### Fa'{: (202) 267-1293 Leonardo Concepcion President Aircal, Inc. 

### 6411 West Imperial Highway Los Angeles, CA 90045 FAX: (503) 

### 678-3374 Dated this 

### 22"d day ofJune 2015.



## . .i

..· I



# ~~-?f:~ Tterri Kirk Office ofRegionat Counsel (ANM-7) Federal AviationAdministration 1601 Lin,d Ave. SW Renton, WA 

### 98057 (425) 227-2007

DAVID F. SHAYNE. FAAAITDRNllY TEL: (425) 227·2165; FAX: (4;lo) 227-1007 FAA Case No. 2014\VP9!0129 Page8of805/22/2015 0g:23 4252271007
From: Kevin Sullivan [mailto:krsSOO@msn.com] 

### Sent: Thursday, June 18, 2015 12:16 AM To: Shayne, David F(FAA) Subject: RE: Air Cal Financial Submission Dear Mr. Shayne, ANM7 PAGE 10/10

As per your Final Notice of Proposed Civil Penalty, dated June 3, 2015 and received on a date later via Certified Mail, Air Cal is requesting a Hearing on the Matters contained in that Final Notice. This notice and request for hearing is also beingforwarded tothe following addresses: Federal Aviation Administration Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2W10DO 800 /ndepende nee Avenue SW Washington, DC 20591 Federal Aviation Administration Attention: Office ofthe Regional Counsel- ANM-7 Northwest Mountein Region 1601 Lind Avenue, SW Renton, WA 98057 Please note that Air Cal will request Judicial Notice ofthe financial report prepared by Air Cal and supplied via emeil toyour office, and the communications indic'lting time constraints regarding vacation time off, out ofcountry travel to areas resulting in extended out ofcommunication areas and unexpected and unarmounced trip extensions by the client. It is myintent to settle this matter in the most expeditious, efficient and cost effective manner possible. As reflected in the financial report supplied to you, Air Cal is not in a position to pay a$12,350.00 fine. Proceeding in this process without at least some dialogue regarding the financial condition ofthis small business Air Carrier is not in compliance with the guidance or the intent ofthe 2150.38 (Change 8) particularly where such a fine will result in the ability ofthe Air Carrier to continue in business. Ifyou wish to contact me to meet and confer (discuss) this matter, I am available at the following numbers: (714) 337-6912 cell (714) 844-2520 office Sincerely, Kevin Sullivan05/22/2015 09:23 4252271007 ANM7



### FACSIMILE MESSAGE DAVID F. SHAYNE FEDERAL AVIATION ADMINISTRATION OFFICE OF REGIONAL COUNSF..L ANM-7 1601 LIND AVENUE S.W. RENTON, WASHINGTON 98057 PAGE 01/10



### The information contained in this facsimile message is legally privileged and confidential information and is intended only for the use ofthe individual named on this cover sheet. Ifthe reader ofthis mc;:ssage is not the intended recipient, you are hereby notified that any use, dissemination, distribution, orcopy ofthis facsimile is strictly prohibited. lfyou have received this facsimile in error, please immediately notifY us by telephone at 425-227-2007. 

### DATE: TO: 

## .June 22, 2015 

# FAA HearingDocket Clerk 

## FAX NO.: (202) 267-1293 PHONE NO.: RE: AIRCAL 

### Email: 2014WP910l29

__...___ ! ---·--- --- 

# COMPLAINT NO. PAGES: 

## 10 including cover FROM: David F. Shayne FAX NO.: 425-227-2165 PHONE NO.: 425-227-2160 

# ___ j