I 

OCT - 1 2009 M 

UNITED STATES DEPARTMENT OF TRANSPCJRT^TION "y^i\tS^ 

FEDERAL AVIATION ADMINISTRATION •• AIRPORT/ENVIRONMENTAL 

WASHINGTON, DC L LAW, AGC-600 

Venice Jet Center, LLC 

Complainant, 

V. FAA Docket No. 16-09-05 

City of Venice, Florida 

Respondent. 

— J 

COMPLAINANT VENICE JET CENTER. LLC'S REPLY TO CITY OF VENICE'S^ 

ANSWER. AFFIRMATIVE DEFENSES AND MOTION TO DISMISS g 

Complainant Venice Jet Center, LLC ("the VJC"), by and through the undersigned 

counsel, hereby files its Reply pursuant to Title 14, Code of Federal Regulations, Part 

16.23(e) to the Respondent City of Venice's ("the City" or "Respondent") Answer and 

Affirmative Defenses and Motion to Dismiss ("Motion to Dismiss"), and in support thereof, 

states as follows': 

' All evidence submitted herewith is rebuttal evidence filed pursuant to 14 C.F.R. § 16.23(g). 

To the extent that matters herein are addressed for the first time, the FAA may properly 

consider them because the City will have an opportunity to respond. Aircraft Owners and 

Pilots Assoc. Members v. City of Pompano Beach, FAA docket No. 16-04-01, 2005 WL 

3722717, *30 ("While the Complainants did not raise ANCA or Part 161 noncompliance in 

their [ ] Complaint, they did so in their [ ] Reply. For reasons of administrative efficiency, 

the FAA will generally consider issues raised for the first time in a reply only if the opposing 

party has had an opportunity to respond."). 
I. Introduction 

The VJC initiated this Part 16 proceeding because the City has repeatedly engaged in 

discriminatory and anti-competitive behavior in attempts to abrogate the VJC's property 

rights. Specifically, the City has violated federal law and regulations in connection with its 

refiasal to allow the VJC to construct hangars on vacant Venice Municipal Airport (the 

"Airport") land leased by the VJC. 

On or about September 2, 2009, the City moved to dismiss the Complaint (the 

"Motion to Dismiss") contending the dispute is unripe, the VJC lacks standing and the 

claims are insufficiently pled.^ The factual background provided in support of the City's 

arguments is largely comprised of irrelevant information designed to distract the FAA's 

attention fi-om the true crux of this dispute: the City's expressed desire to prevent expansion 

of the Airport — and to actually constrict its activities — and the consequent unlawful 

treatment of the VJC. As discussed in the Complaint, and as the FAA's staff has already 

observed, the City has engaged in an on-going pattern of conduct which violates its federal 

obligations in order to reach its goal. In furtherance of its goal to prevent an increase of 

aeronautically-related activities at the Airport, the City has already: 

• openly opposed in local publications any airport classification that would encourage 

larger jet and plane traffic at the Airport {See Compl. Composite Exh 6); 

The City also asserted two affirmative defenses in response to the VJC's Complaint: lack of 

standing and failure to state a ripe claim. The burden of proving these affirmative defenses 

lies with the City. 14 C.F.R. § 16.229(c). 
• violated the Public Records Act and the Florida Govemment-In-The-Sunshine Law 

by destroying public records and using liaisons and private communications to 

surreptitiously discuss how to slow development of the Airport {See Compl. Exh 9); 

• dissolved the Airport Advisory Board ("AAB"), which was established to advise the 

City Council on issues pertaining to the Airport and which advocated that the Airport 

retain its current C-II ARC classification, contrary to the City's wishes to downgrade 

the Airport to a B-II classification^ {See Compl. \ 27); and 

• developed an alternative Airport Layout Plan ("ALP") consistent with a B-II, rather 

than the present C-II classification {See Compl. Exh 9). 

In the same vein and with the same goal in mind, the City is presently: 

• allowing cost-fi:ee, municipal use of airport property for non-aeronautical purposes 

according to a recent Land Use Inspection, which is attached hereto as Exhibit 1; 

• permitting the non-aeronautical usage of Airport property without prior FAA 

approval {See Compl. Exh. 18); 

• allowing "the majority of its runways and taxiways" to remain in "poor" condition 

according to the Airport's 2000 Master Plan attached hereto as Exhibit 2; 

• refusing federal funding (approximately $5 million) that the FAA previously 

allocated to repair runway 04-22 and allowing that runway to deteriorate into a poor 

condition that prevents larger aircraft firom utilizing it {See Exhibit 3, f 8); and 

• seeking approval of a Comprehensive Plan that would develop Airport land in the 

Southern Gateway corridor for non-aeronautical and non-revenue producing purposes 

without FAA approval {See Exhibit 4). 

3 The City seeks to downgrade the Airport's Airport Reference Code ("ARC") in order to 

limit the types of aircraft serviced. The reclassification from a C-II to a B-II Airport would 

diminish aviation services provided to the public at large but would benefit a small number 

of residents located in neighborhoods adjacent to the Airport, including Council Member 

Lang, Council Member Zavodnyik, and Mayor Martin. 
Against this backdrop of repeated and consistent conduct designed not only to hinder 

expansion, but also to actually reduce the Airport's ARC classification, the City has actively 

sought to prevent the VJC fi-om constructing hangars on its leasehold that are large enough to 

service medium-sized aircraft (the "hangars"). The City's delay tactics taken to prevent the 

VJC from building those hangars include: 

• denying the VJC's request to construct 4 box hangars in July 2008 even though the 

proposed construction complied with all applicable planning and building code 

provisions and met all Minimum Standards for the Venice Municipal Airport and 

Fixed Based Operations (the "minimum standards"); 

• denying the VJC's request to construct hangars in August 2008 and requiring the VJC 

to submit a "concept plan," even though the VJC had not previously been required to 

produce a concept plan when it built its first hangars on the leasehold; 

• misrepresenting to the FAA in September 2008 that the reason the VJC's request was 

denied was that the VJC it made no formal request to build the hangars; 

• seeking legal advice as to whether the City could terminate the VJC's lease; 

• ignoring three separate letters firom the FAA encouraging approval of the VJC's 

hangars project and warning that denying the request would be contrary to federal 

grant assurances; 

• ignoring advice received firom the City Attorney and its outside counsel, that warned 

the City would likely be exposed to liability if it continued to deny the VJC's request 

to build the hangars; 

• denying the VJC's written request dated February 2, 2009 to build the hangars; 

• asserting for the first time on February 4, 2009, that the current ALP prohibited 

construction in the area sought to be improved and then ignoring the FAA's 

communication indicating the ALP presented no such barrier to the project and again 

encouraging the City to approve construction; 

• denying the VJC's written request dated February 25, 2009 to build the hangars; 
• formally denying the VJC's request on March 10, 2009 at a City Council meeting and 

contending the VJC's lease was void because the company is in receivership; 

• seeking yet another legal opinion to determine whether the City could terminate the 

VJC's lease because the company is in receivership; 

• ignoring its outside counsel's opinion that the VJC's lease remains valid and 

enforceable and a reasonable construction of the lease permits additional hangars; and 

• denying the VJC's request to build hangars on the basis that the VJC's Receiver'' did 

not demonstrate financial capability despite the fact that: (1) the VJC had not 

previously been required to demonstrate financial capability to build hangars; (2) no 

other Airport tenants who have built hangars have been required to show financial 

capability; and (3) the VJC has satisfied the financial capability requirement. 

The outright refiisals of the proposed construction and stall tactics implemented by 

the City to prevent the construction are taken in derogation of federal obligations because the 

City is subjecting the VJC to unreasonable and discriminatory standards, denying it 

reasonable access to the public Airport to improve its leasehold, and preventing development 

that s necessary to meet aeronautical demand, all in furtherance of the City's goal to prevent 

expansion and to actually constrict aeronautical activity at the Airport. 

11. The VJC Is The True Party At Issue 

As an initial matter, the City attempts to distract the FAA from the merits of the 

VJC's Complaint by focusing on Arthur Nadel's activities and the Receiver's goal to sell the 

VJC. But the City fails to cite any law, regulation, or other cognizable basis that shows those 

Burton W. Wiand, was appointed on January 27, 2009 in the United States District Court, 

Middle District of Florida, Tampa Division to serve as the Receiver over a number of entities 

previously owned or controlled by Arthur Nadel ("Nadel"). Nadel utilized certain of these 

entities to perpetrate a fraudulent investment scheme, but the VJC was not one of them. The 

VJC was placed in receivership on January 29, 2009. 
items are relevant to a determination of the matters in the Complaint. The parties agree 

that the FAA's role in a Part 16 proceeding is to determine whether the Airport sponsor is 

currentiy violating its federal obligations. Accordingly, "[c]onjectures or statements about 

things that may or may not happen contingent on some future event are not germane to this 

investigation. " Thermco Aviation, Inc. v. County of Los Angeles, FAA Docket No. 16-06-

07, p. 22. It is, therefore, irrelevant whether the party that currently controls the VJC, the 

Receiver, sells the VJC for maximum profit or keeps the company in receivership and 

constructs the hangars.^ The Complainant is not the Receiver, but the VJC, an entity that is 

separate and apart from the Receiver (and that was separate and apart from Nadel). It is a 

fundamental tenet of law that a corporate entity possesses its own rights and stands separate 

and apart from its owners or operators. That fact that the VJC is part of a federal equity 

receivership does not affect its rights. See, e.g., Scholes v. Lehmann, 56 F.3d 750, 754 (7th 

Cir. 1995) (noting that even if a receivership entity is a "robotic tool" of the perpetrator of a 

Ponzi scheme, it nevertheless is a separate legal entity with its own rights).^ 

^ On multiple occasions, the VJC has communicated to the City that all potential purchasers 

of the VJC have stated approval of the hangars project and the ability to build the hangars are 

material to their determination of whether to purchase it. See e.g.. City's MTD Exh. 3. The 

VJC has received no interest from potential buyers who do not desire to build the hangars or 

who lack the financial means to do so. Regardless, until there is an agreement to sell the 

VJC, what a prospective purchaser may seek to do or not do is irrelevant to the FAA's 

determination. What is relevant is the City's improper interference with the VJC's 

continuing efforts to obtain permission to build hangars. 

^ See also In re Insilco Technologies. Inc., 351 B.R. 313, 322 (D. Del. 2006) ("It is an axiom 

of corporate law that the corporation is an entity, distinct from its stockholders . . . ."); 

American Capital Corp. v. Federal Deposit Insurance Corp., All F.3d 859 (Fed. Cir. 2006) 

("A basic tenet of American corporate law is that the corporation and its shareholders are 

distinct entities"); Dole Food Co. v. Patrickson, 538 U.S. 468, 474 (9th Cir. 2003)(same). 
Here, the VJC, not the Receiver, is the tenant who entered into a lease agreement with 

the City and has sought to build hangars on its leased space. Whether the Receiver sells the 

VJC to another party who will build the hangars or decides to keep the VJC in receivership 

for additional time and construct the hangars himself is completely irrelevant because the 

VJC's rights as a corporate entity are not affected; it has the right to construct hangars on its 

leasehold regardless of who controls it or who wants to buy is, and has solicited the City for 

approval to do so. 

Likewise, the City's lengthy discussion regarding Nadel's misconduct is irrelevant to 

this proceeding and a classic red-herring. Contrary to the City's assertions, the VJC was not 

used by Nadel to perpetrate his fraudulent investment scheme and was not Nadel's "alter 

ego." The City does not identify any evidence to the contrary. Rather, the VJC is in 

receivership because Nadel used the proceeds of his scheme to purchase the VJC. The City 

does not provide any authority even suggesting the VJC lost any rights as a result of that. 

The VJC is an independent commercial entity and its activities — as a full-service Fixed 

Base Operator — were and are entirely legitimate. The VJC at all times has "adhered to the 

highest ethical and aviation service community standards"^ and the City has provided no 

While Nadel's fraud caimot be condoned in any manner, the City's Motion to Dismiss 

ignores its own Council Members' questionable conduct in violating the Public Records Act 

and Florida Govemment-In-The Sunshine Law by purposefully holding private meetings to 

discuss Airport business and by desfroying documentary evidence of such meetings. 
evidence to the contrary. As is the case with any corporation with a rogue manager, 

employee or stakeholder, the rights of the corporation remain intact.^ 

Finally, the City's argument that it justifiably denied the VJC's request to build 

hangars because, in retrospect, the VJC allegedly would have used tainted funds for the 

project is a backwards, illogical and unsupported argument. Even assuming, arguendo, it 

was true, the City does not cite any authority suggesting that would have any bearing on this 

matter in light of the City's lack of knowledge. The City had no knowledge of Nadel's 

wrong-doing at the time the VJC's request was originally made well over a year ago — the 

very same request that is still on the table now. The City was presented with a proposal that 

met all minimum standards, would enhance aviation services to the public, and for which a 

need was shown. The City denied the request out of hand; it did so not because of any 

fraudulent activities by Nadel but because it did not want to facilitate hangar construction 

that would inevitably lead to more and larger planes on Airport property. And, in any event, 

the City has made no showing whatsoever that the construction of the hangars would not 

have been accomplished with "clean" proceeds of the VJC's operations, rather than money 

from Nadel's imrelated investment scheme. Indeed, the City has not pointed to any missed 

rental or other payments by the VJC or any other evidence that the VJC's operations do not 

generate cash flow. 

Likewise, any argument relating to "VJC/Nadel" or "VJC/Receiver" is intended as a 

distraction, a "shiny object" to turn the FAA's attention away from the true issue at hand, 

which is: the City's refusal to grant the VJC's request to build hangars involves violations of 

its federal obligations, its own minimum standards, and is just another tactic taken by the 

City to limit aeronautical activities at the Airport 
III. The VJC Has Standing To Bring This Action 

The City contends the Complaint should be dismissed because the VJC lacks standing 

to assert its claims. The City is wrong. Any entity that is directly and substantially affected 

by any alleged noncompliance by an airport sponsor may file a complaint with the FAA. 14 

C.F.R. § 16.23; Thermco Aviation. Inc., FAA Docket No. 16-06-07 at 27; United States 

Construction Corp. v. City of Pompano Beach, FAA Docket No. 16-00-14, p. 19 (Director's 

Determination), aff'd, FAA Docket No. 16-00-14 (Final Agency Decision July 10, 2002); 

Skydance Helicopters. Inc. v. Sedona Oak-Creek Airport Authority, FAA Docket No. 16-02-

02 (Mar. 7, 2003), 2003 WL 1524500, *28 ("[A] person directiy and substantially affected by 

any alleged noncompliance may file a complaint with the Administrator."). The VJC has 

alleged it is being directly and substantially affected by the City's infractions in that it has 

paid and continues to pay rent and other expenses to the Airport and has been: (1) denied 

reasonable access to a public-use airport for the purpose of improving its leasehold and 

providing aeronautical services to the public; (2) subjected to unreasonable and 

discriminatory standards; and (3) negatively affected and devalued by the City's 

anticompetitive and monopolistic activities designed to impede the Airport's growth. Indeed, 

the FAA suggested the VJC file a Part 16 Complaint if the City failed to "realize the 

importance of their federal obligations" and informal resolution was unattainable. In short, 

the VJC has adequately pled the "directly and substantially affected" standard and has 

standing to proceed with this matter. 
IV. The VJC's Claim For Relief Is Ripe For Adjudication 

A. The Current Proposal On The Table 

The City's Motion to Dismiss includes a lengthy but irrelevant discussion of the 

alterations made to the proposed hangar construction plan prior to the date the VJC sought 

City Council approval of the project. Regardless of whether the VJC's initial proposal to 

build hangars involved one, two, five, or ten hangars, the final proposal submitted to the City 

in July 2008 was for four hangars. This proposal (the current proposal) was submitted to the 

City departments with jurisdiction over construction and received all necessary approvals, 

including one from Nancy Woodley, the City's Engineer at the time, and one from Jack 

Stevenson, the Fire Marshall. See City's MTD Exh. 8. The proposed construction 

conformed to all minimum standards and applicable plarming and building code provisions. 

See City's MTD Exh. 9. Further, the Southwest Florida Water Management District had 

issued a construction permit for the hangars. See City's MTD Exh. 9. In short, the VJC had 

all approvals for proceeding with construction. The City Council, however, was determined 

to block the construction and demanded to review a concept plan prior to allowing the 

construction to proceed. According to the City Manager at the time, Martin Black, the 

concept plan would be reviewed for any "fatal technical flaws." See City's MTD Exh. 18. 

On August 26, 2008, the VJC, along with its architect and engineer, made a 

presentation of the concept plan at a meeting before the City Council. No discussion on the 

site plan followed the presentation and no vote was taken, although Council Member Lang 

indicated approval would not be given unless the VJC's lease was re-negotiated. See Compl. 

Tl 22; Exh. 10. It was clear the City had no intention of approving the construction, with or 

10 
without review of the concept plan or any "fatal technical flaws." Since that meeting, the 

City has invented one excuse after another to hinder the construction, going to great lengths 

to find some way to undermine the VJC's property rights, terminate the VJC's lease, or even 

purchase the VJC and close it altogether. See e.g., Compl. ^ 38, 40, 48, 49, 55, 56, 59, 63. 

As the record demonstrates, the FAA has already informally concluded that the City's actions 

are restricting aeronautical access to the Airport and run contrary to federal grant assurances 

and Surplus Property Deed restrictions. See Compl. Exh. 12, 14, 16. Regardless of whether 

the VJC is now in receivership, the circumstances have not changed since this informal 

determination was made.^ The VJC continues to seek approval and the City continues to 

unjustifiably deny it. 

B. The City's Is Applying Unreasonable Minimum Standards In A 

Discriminatory Manner And, Regardless, The VJC Has Complied With 

All Requirements 

In the City's latest iteration of its supposed reasons for denying approval, it asserts 

that it is justified in refusing to approve the hangar construction because the VJC has not 

^ Nor have the circumstances changed in any material respect since the City's counsel in this 

case previously opined that "[a]n airport sponsor's prime obligation is to operate the airport 

for aeronautical use, including the opportunity for leaseholders to develop airport property 

for aeronautical use" and "[t]he fact that the City has allowed other tenants to build and lease 

out hangars would make the City vulnerable to charges of unjust discrimination if it denied 

[the VJC] the right to build hangars." See Compl. Exh. 13. The City's Motion to Dismiss 

includes a lengthy purported explanation of why the City's counsel now asserts positions in 

litigation that are diametrically opposed to those asserted in its pre-litigation analysis. Their 

explanation that the opinion was based on circumstances other than the actual facts is 

unpersuasive because, as discussed herein, the VJC has a right to build hangars, the proposed 

construction meets all minimum standards and the current ALP does not operate to bar the 

construction. Accordingly, the City should be estopped from asserting the contradictory 

arguments. 

11 
demonstrated "financial capability." Notably, that is the only non-compliance with the 

minimum standards asserted by the City in its Motion to Dismiss."' The demand to show 

financial capability was made for the first time in approximately May or June 2009, after the 

City solicited a legal opinion as to whether: (1) the VJC's lease was valid and enforceable 

and permitted construction of additional hangars; (2) the City could terminate the lease 

because of Nadel's unrelated fraud; and (3) the City could require the VJC to provide 

evidence of its financial capability to construct the proposed hangars. See Compl. Exh. 19. 

After its counsel — the same counsel representing the City in this proceeding — advised the 

lease was indeed enforceable and valid and that it could not be terminated based on Nadel's 

actions, the City fell-back on its only possible pretext left to defeat the hangar project: 

financial capability. As discussed below, however, this pretext fails to support the City's 

refusal to permit hangar construction for three independent reasons: (1) under the plain 

language of the minimum standards, the City has no basis to make approval of the VJC's 

request conditional on the VJC's proof of financial capability; (2) even if it could, it is an 

unreasonable and discriminatory standard; and (3) even assuming that requirement is 

permitted by the lease and is not unreasonable and discriminatory, it has been satisfied by the 

VJC. 

The City does not assert, for example, that the VJC is in breach of its lease obligations or 

that the current plan for construction fails to meet applicable codes. 

12 
1. The requirement of demonstrating financial capability does not apply 

under the express language of the lease. 

The City asserts that it may require proof of financial capability pursuant to the 

minimum standards which are incorporated into the VJC's lease by reference. The only 

arguable support for that assertion is a minimum standards provision entitled "Lease 

Information," which states that a lessee must meet the minimum standards in order to 

"expand its operations or become an Operator," that any Operator "desiring to extend its 

operations into additional categories or discontinue operations" must provide a written 

request for authorization, and that the City may require "[e]vidence of past experience, 

financial capability and technical ability. . . ." In other words, at best for the City, the 

minimum standards authorize the City to request proof of financial capability only if the 

Operator seeks to extend its operations into additional categories. See Compl. Exh. 4, p. 6. 

The VJC is a current FBO that has already been permitted to build hangars in the past 

and currentiy leases hangar space to other parties." See Compl. ^17. Thus, its desire to 

construct additional hangars and to lease those to other parties as well is not an attempt to 

"extend its operations into additional categories." This is not a situation in which, for 

instance, an entity that sells aviation fuel is seeking to expand its services and operate a flight 

school or build hangars and lease them. Thus, under the plain language of the VJC's lease 

and the incorporated minimum standards, the City is not authorized to condition approval of 

" Indeed, the VJC entered into the lease agreement with the City and invested in the 

Airport's development relying on its right to continue development of its leased land. 

13 
the VJC's request to construct additional hangars on its demonstration (to the City's 

subjective and undefined satisfaction) of financial capability. 

2. The requirement of demonstrating financial capability is an 

uru-easonable standard that the City has applied in a discriminatory 

marmer. 

Even assuming the City had any basis for requesting proof of financial capability, it 

could not do so because the requirement is unreasonable and has been applied in a 

discriminatory manner. With respect to defining what constitutes "financial capability" or 

otherwise providing any guidance on the application of that requirement, the minimum 

standards merely note that the City "may" require evidence of financial capability to perform 

services and that: 

[t]he City of Venice shall be the sole judge of what constitutes adequate 

finances and the procedure to base financial information. If the Operator does 

not, in the opinion of the City of Venice, exhibit adequate financial 

responsibility to undertake the proposed services, the City of Venice may 

deny the requested activity. 

See Compl. Exh. 4, §8B at p. 7. This vague and arbifrary language, which does not define 

"adequate finances" and leaves approval to the sole discretion of the City renders that 

requirement unreasonable and discriminatory on its face.'^ 

Imposed minimum standards must "[b]e fair, reasonable and not unjustly 

discriminatory. They must be relevant to the proposed activity, reasonably attainable, and 

uniformly applied." Centennial Express Airlines v. Arapahoe County Public Airport 

Based on the language of Section 8B of the minimum standards, not even the FAA would 

have any parameters or other guidance for determining whether an applicant has "adequate 

finances" to undertake a project. 

14 
Authority, FAA Docket No. 13-95-03, 1998 WL 1083382, *6 (citing FAA Order 5190.1A, 

Para, lie.) (emphasis added). Further, "[m]anipulating the standards solely to protect [or 

undermine] the interest of an existing tenant, or tenants [ ] is unacceptable." Id. at *7. An 

"[u]nreasonable requirement, or any requirement applied in an unjustly discriminatory 

manner could constitute the grant of an exclusive right." Skydance Helicopters, Inc., 2003 

WL 1524500 at *17; Centennial Express Airlines, 1998 WL 1083382 at *6 (citing FAA 

Order 5190.1 A, Para. lie). 

Because the City may, in its sole discretion, decide to impose the financial capability 

requirement, on its face the standard is not "fair," "uniformly applicable," or "reasonably 

attainable" and is unreasonable. Indeed, the City has not uniformly applied the requirement 

of demonstrating financial capability, and instead has done so in a discriminatory fashion. In 

fact, the below evidence indicates that requirement has uniformly not been applied. As to the 

VJC, the City has never previously sought proof of financial capability before allowing it to 

proceed with an Airport development project. Even with respect to construction of the 

specific hangars at issue in this case, the City requested proof of financial capability for the 

first time only recently. 

The evidence indicates the VJC is the very first entity the City has ever required to 

demonstrate financial capability before pursuing an Airport development project. Exhibit 3, 

fif 4-6. Never once since 1960, when the first construction at the Airport occurred, has 

proposed construction required anything other than a building permit from the City Building 

Department. Exhibit 3, % 4. Until the VJC's request to build hangars, proposed construction 

did not even require the City Council to first give permission to the Building Department for 

15 
issuance of the building permit. Exhibit 3, % 4, 6. Indeed, the VJC was not required to 

demonstrate financial capability when it originally entered into its lease with the City, 

demolished then-existing facilities on the site, and constructed two 10,000 square foot box 

hangars. Exhibit 3, ^ 4, 5. 

None of the following Airport tenants were required to demonstrate financial 

capability, or even obtain City Council approval, to construct hangars on the Airport 

property: 

• A.C. Schmieler erected a 2,500 square-foot hangar on his leasehold at the Airport and 

was not required to demonstrate financial capability; 

• The Sarasota County Sherriff s Department constructed a 7,000 square-foot hangar in 

connection with its lease at the Airport and was not required to demonstrate financial 

capability; 

• Buzz Mills, whose leasehold is now owned by Lee Johnson, Ed Warrington and Peter 

Fous, built a 10,000 square-foot hangar and was not required to demonstrate financial 

capability; 

• Carl Burr built a 3,000 square-foot hangar and was not required to demonstrate 

financial capability; 

• Vincent Fette built two 10,000 square-foot hangars in connection with his FBO 

operations and was not required to demonsfrate financial capability; 

• Ame Kruethof' Technical Advance Group d/h/aJ Florida Flight Maintenance Center 

built a large hangar, which may exceed 10,000 square-feet, and was not required to 

demonstrate financial capability; 

• Duncan Enterprises, Inc. built two hangars two years apart and neither required a 

demonstration of financial capability; 

• Shamrock Enterprises, Inc./ NEC, Inc. built 12 hangars on its leasehold and was not 

required to demonstrate financial capability; 

16 
• Mountain Laurel, Inc./ Superior Aircraft Hangars, Inc. built 14 Hangars on its 

leasehold and was not required to demonstrate financial capability; and 

• Paul R. Theen, Inc./ Swift Group, Inc. built 14 Hangars on its leasehold and was not 

required to demonstrate financial capability. 

Exhibit 3, ^ 5; See also Exhibit 5. 

Builders of hangars were not the only Airport lessees who were not required to show 

financial capability. The following lists Airport lessees who were permitted to undertake 

some form of construction and were not required to either demonstrate financial capability or 

obtain City Council approval in advance of construction: 

Vincent Fette built an FBO building and radio shop; 

John Ingrim added a second floor to his FBO building (previously Vincent Fette's 

leasehold); 

Stanley Huffman made a construction improvement to his FBO building (previously 

John Ingrim's leasehold); 

The VJC tore down and completely reconstructed its FBO building; 

Harold Hagen/ Venice Flying Service, Inc. built an FBO building; 

The Flight Deck Restaurant was built next to Venice Flying Service, Inc.'s FBO 

building; 

Wass-Air, Inc. built an FBO building; 

Triple Diamond Enterprises, Inc. made construction improvements to its FBO 

building (previously Wass-Air, Inc.'s leasehold); 

The VJC made improvements to its FBO building (previously Triple Diamond 

Enterprises' leasehold); and 

Sharkey's Restaurant on the Gulf was built on its leasehold and subsequently made 

significant construction improvements. 

Exhibit 3, ^ 5; See also Exhibit 5. 

17 
As this abundant evidence indisputably establishes, the City has applied the financial 

capability "requirement" in an unreasonable and discriminatory fashion. The FAA may 

make an official determination regarding the relevance and/or reasonableness of minimum 

standards when the effect of a standard denies access to a public-use airport. Skydance 

Helicopters, Inc., 2003 WL 1524500 at *17; Centennial Express Airlines, 1998 WL 1083382 

at *6. As the City's unreasonable and discriminatory application of the financial capability 

requirement has resulted in preventing the VJC from improving its leasehold and offering 

much-needed hangar services to the public, the VJC is being denied access to a public-use 

airport. The FAA, therefore, should officially determine that: (1) the financial capability 

standard is unreasonable and results in an attempt to create an exclusive right, and (2) the 

VJC's alleged failure to demonstrate financial capability to the City's satisfaction may not 

serve as a basis for denial of the requested construction. See Skydance Helicopters, Inc., 

2003 WL 1524500 at "^17; Centennial Express Airlines, 1998 WL 1083382 at *6. 

3. The VJC's has demonsfrated financial capability. 

Finally, even assuming, arguendo, the financial capability requirement applies and 

the City has not applied it in an arbitrary, unreasonable, and discriminatory manner, the VJC 

has satisfied that requirement. The Receiver has provided the City two Interim Reports, 

which have been filed in court, that illusfrate the VJC, as part of a receivership estate, has 

ample funds available to construct the hangars. See City's MTD Exh. 3, 16. Indeed, the 

receivership fund has increased since the last Interim Report was provided to the City. 

Currentiy, the receivership has $3.3 million available in cash or cash equivalents and over a 

dozen separate real property holdings. These funds are not segregated, contrary to the City's 

18 
contentions, and are available to assist with construction of the VJC's hangars upon court 

petition. 

But even if the VJC did not have the financial capability to construct the hangars, the 

City's purported "concerns" would not materialize. If the VJC was seeking approval to 

construct the hangars but did not have the financial capability or the will to undertake the 

project, the hangars would not be constructed and the VJC's leasehold would remain as is. 

More critically, however, building the hangars is a fundamental component of the VJC's 

business plan and is an important part of the VJC's value in the active bidding process for its 

sale. See e.g.. City's MTD Exh. 3. As the City contends, it is true that the Receiver desires 

to sell the VJC to the highest bidder. But it is likewise true that all prospective bidders desire 

to construct the hangars and, indeed, will not purchase the VJC if the City continues to 

interfere with its right to improve its leasehold. In other words, what is hindering 

construction of the hangars is not a lack of financial capability but the clear will of the City 

Council to foil the project, fhisfrate the sale of the VJC and devalue its leasehold. 

C. The City's Attempt To Hide Behind The ALP Also Should Fail 

The City also contends that is was justified in refusing the VJC permission to build 

the hangars because the proposed area for their construction was designated for other 

aeronautical use on the current ALP. In this regard, the City disagrees with the position 

outlined in the Orlando Airport District Office's ("ADO") correspondence to City Attorney, 

Robert Anderson, dated February 23, 2009. See Compl. Exh. 16. In that correspondence, 

the FAA assures the City that the current ALP does not prevent the hangars from being 

constructed in the proposed area and reiterates that the City should forward plans for the 

19 
construction to the FAA without delay. Id. The City argues the FAA "does not build 

airports" or "tell sponsors how to run their airports" and "cannot force an airport to seek a 

revision to its ALP to allow construction of hangars."'^ City's MTD, p. 19. Accordingly, the 

City contends that permitting the construction on the VJC's leasehold would conflict with 

designations of the current ALP, which the City refuses to amend or alter even though there 

is a clear need for hangar space.''* See Exhibit 6. By placing the ALP designations ahead 

of the Airport's needs, the City clearly demonsfrates its disagreement with the FAA's 

pronouncement that a sponsor's primary concern should be operating the Airport for 

aeronautical use. See United States Construction, FAA Docket No. 16-00-14 at p. 21 

(emphasis added). 

In any event, the City misconstrues the ADO's letter as suggesting the City should 

permit construction that conflicts with the ALP. The letter, in fact, asks the City to forward 

the plan for the hangar construction so that the 2000 ALP can be amended and states that a 

"pen and ink" change to the ALP incorporating hangars in that vicinity has already been 

processed. See Compl. Exh. 16. Essentially, the letter communicates to the City that if the 

construction plans are sent to the FAA, the FAA will likely approve the construction and the 

ALP can be amended accordingly to comport with the approved construction. The City 

Of course, if the City is concerned that the FAA is attempting to "force" it to revise its 

ALP and permit the construction, this is not the proper proceeding to make such an 

argument. Part 16 "[i]s the appropriate forum for complaints against federally assisted 

airports, not against the FAA." See Boca Airport Inc. v. Boca Raton Airport Authority, FAA 

Docket No. 16-00-10, 2001 WL 438619, *23. 

''* According to the Airport's "T-Hangar Waiting List Policy," there are currentiy 73 people 

waiting to rent hangar space. 

20 
refused to send the plans and refused to seek approval of an amended ALP. This refusal runs 

contrary to FAA policy underlying the requirement of a current ALP. 

It is true that the City is required to keep an up-to-date ALP that reflects existing 

facilities as well as proposed structures. See Compl. Exh. 2, Grant Assurance No. 29. The 

policy supporting the maintenance of a current and accurate ALP demonstrates that ALPs are 

regularly subject to revision or modification and the amendment of an ALP, with FAA 

approval, is encouraged to promote the safety, utility, and efficiency of the airport. See Boca 

Airport Inc., 2001 WL 438619 at *24 ("[A]irport owners commonly request revisions to 

their ALPs to reflect more nearly the current development plans of the airport."). As the City 

is resisting plans to enhance the Airport and provide additional aeronautical services to the 

public, it is likewise resisting amendment of the ALP. The City's "1 don't want to, so I 

won't" attitude contravenes its primary responsibility to provide needed aeronautical services 

to the public. In short, the ALP must reflect and, if necessary, be amended to reflect the 

Airport's needs, so those needs must dictate the ALP. Instead, the City improperly seeks to 

reverse those priorities and use the ALP as a shield to stop the Airport from achieving its 

necessary development. 

V. The City's Contention That The VJC Has Not Sufficiently Stated A Claim Is 

Without Merit 

When initiating a Part 16 complaint, the VJC must provide a concise but complete 

statement of facts relied upon to substantiate the allegations and all supporting documents 

then available in the exercise of reasonable diHgence. See 14 C.F.R. § 16.23(b)(2), (3). The 

VJC has met this initial burden. The VJC has provided notice of the relevant timeframe of 

the alleged violations, the events and underlying facts constituting the alleged violations, the 

21 
relief sought, and a substantial documentary record, which is futher supplemented by the 

documents attached hereto. The VJC has set forth in detail the monopolistic, anticompetitive and discriminatory actions taken by the City to restrict aeronautical services to 

the public at the Airport and, therefore, has sufficiently stated a claim for the City's 

violations of its federal obligations. 

A. The VJC Has Stated A Claim For Violation Of Grant Assurance No. 22. 

Grant Assurance No. 22 implements the provisions of 49 U.S.C. § 47107(a)(l)-(6), 

and, in pertinent part, states as follows: 

[The sponsor] will make the airport available as an airport for public use on 

reasonable terms and without unjust discrimination to all types, kinds and 

classes of aeronautical activities, including commercial aeronautical activities 

offering services to the public at the airport. [Assurance 22(a)] 

The sponsor may establish such reasonable, and not unjustly discriminatory, 

conditions to be met by all users of the airport as may be necessary for the 

safe and efficient operation of the airport. [Assurance 22(h)] 

The sponsor may not prohibit or limit any given type, kind or class of 

aeronautical use unless such action "is necessary for the safe operation of the 

airport or necessary to serve the civil aviation needs of the public." 

[Assurance 22(i)]. 

The City is in violation of Grant Assurance No. 22(a) because, as discussed in Section 

I above, it is discriminating against a "kind or class of aeronautical activity" (medium-sized 

aircraft) by preventing the VJC from constructing hangars on its leasehold to provide 

aeronautical services to the public and by taking affirmative steps to downgrade the Airport's 

ARC classification. See e.g.. In re City of Santa Monica, FAA Docket No. 16-02-08, 2009 

Therefore, subsection (i) operates as en exception to the general rule that the sponsor must 

not discriminate. 

22 
WL 2152086, *2 ("Although airport owners may exercise authority in aviation regulation 

under their proprietary powers, that authority does not extend to a ban on classes of 

aircraft..."). 

Thw City is also violating Grant Assurance No. 22(h) by applying unreasonable 

minimum conditions (in the form of City Council approval of proposed construction and 

requirement of a showing of financial capability) in a discriminatory fashion against the VJC 

{See supra. Section 1V(B)). Further, the City has not demonstrated that its limitation on the 

kind or class of aeronautical use at issue here (building hangars to facilitate medium-sized 

aircraft) "is necessary for the safe operation of the airport or necessary to serve the civil 

aviation needs of the public." Id. ("In this case, the discriminatory restriction against 

operators of Categories C and D aircraft is unjust and not necessary for the same operation of 

the airport."). The VJC has, therefore, stated a claim for violation of Grant Assurance No. 

22. 

B. The VJC Has Stated A Claim For Violation Of Grant Assurances Nos. 23 

Andl. 

Grant Assurance No. 23 implements the provisions of 49 U.S.C. § 47107(a)(4) and 

states, a sponsor "[sjhall permit no exclusive right for the use of the airport by any person 

providing, or intending to provide, aeronautical services to the public." This Grant 

Assurance "[w]as intended to prohibit 'anti-competitive, monopolistic behavior at airports 

receiving Federal funds . . . ." Id. at *23. The provision is designed "[t]o prohibit 

monopolies and combinations in resfraint of frade or commerce and to promote and 

encourage competition in civil aeronautics . ... " Id. at *\\. (citing 40 U.S. Op. Atty Gen., at 

72 (1941)). The City has an affirmative obligation under Grant Assurance No. 23 to prevent 

23 
monopolistic results. Id. at *2. While an airport sponsor may impose minimum standards on 

those engaged in aeronautical activities, "[a]n unreasonable requirement, or any requirement 

applied in an unjustly discriminatory manner could constitute the grant of an exclusive right," 

Skydance Helicopters, Inc., 2003 WL 1524500 at *17; Centennial Express Airlines, 1998 

WL 1083382, at *6. 

The City is in violation of Grant Assurance No. 23 by imposing the minimum 

standards in an unjustly discriminatory manner against the VJC and denying it the right to 

improve its leasehold, as discussed above in subsection VI(B)(2). The record reflects that the 

VJC's hangars project is the first proposed construction that has ever required City Council 

approval in advance or proof of financial capacity. Exhibit 3, *^ 4-6. All other tenants 

discussed above in subsection 1V(B)(2) have been permitted to improve their leaseholds by 

constructing hangars or other facilities without demonstrating financial capacity or receiving 

prior City Council approval. Exhibit 3, ^^ 5-7. Further, the record reflects that the City is in 

the process of building additional hangars, which it will lease in competition with the VJC. 

Exhibit 3, \ 7. Such anti-competitive behavior amounts to an attempt to monopolize the 

market for providing hangar services and violates Section 2 of the Sherman Act and Grant 

Assurance No. 23. 

The City's reliance on Boca Airport, Inc. v. Boca Raton Airport Authority, FAA 

Docket No. 16-04-02, to contend that a violation of federal antitrust laws does not fall within 

the purview of the City's federal grant assurances is misplaced. In Boca Airport, Inc., the 

FAA clarified that the FAA has no jurisdiction to adjudicate claims of violations of criminal 

laws. Id. at p. 11. (Bribery case in which Complainant alleged the Authority's Chairman 

24 
accepted illegal gratuities) (emphasis added). Unlike Boca Airport, Inc., the VJC has not 

alleged any violation of criminal law but has alleged the City is engaging in monopolistic, 

anticompetitive, and discriminatory behavior in violation of the civil provisions of the 

Sherman Act, specifically 15 U.S.C. § 2. The list of authorities under Grant Assurance No. 

1, "General Federal Requirements," is explicitly non-exhaustive and the City is bound to 

comply with its assurances, some of which are clearly intended to prohibit anti-competitive 

and monopolistic behavior. The City is a recipient of federal funding and is operating and 

developing the Airport with the assistance of state and federal funding. As previously 

discussed, it is doing so in a discriminatory, anti-competitive, and monopolistic fashion. The 

FAA, therefore, may properly adjudicate the VJC's claim for violation of federal antitrust 

laws and Grant Assurance No. 1. 

The City's contention that it is immune from liability under the federal antitrust laws 

has no merit. That contention is based, in part, on the Local Government Antitrust Act. See 

15 U.S.C. §§ 35(a). The Local Government Antitrust Act only covers antitrust claims for 

damages, and not antitrust claims seeking injunctive relief' Here, the VJC is not asserting 

an antitrust claim for damages and, thus, the statute has no application. See Compl. ^ 107. 

Further, the City is not immune from the VJC's requested injunctive relief pursuant to 

the state action doctrine. Immunity pursuant to that doctrine does not apply to municipalities 

or other political state subdivisions unless: (1) the state has created a clearly articulated 

'^ "No damages, interest on damages, costs, or attorney's fees may be recovered under 

section 4, 4A or 4C of the Clayton Act (15 U.S.C. 15, 15a or 15c) from any local 

government, or official or employee thereof acting in an official capacity." See 15 U.S.C. §§ 

35(a). 

25 
system of regulation governing the restraint of trade; and (2) the regulatory scheme is 

affirmatively designed to displace antitrust laws. See City of Columbia v. Omni Outdoor 

Advertising, Inc., 499 U.S. 365, 370-72 (1990)(citing Hallie v. Eau Claire, 471 U.S. 40 

(1985)); Capital City Cab Service, Inc. v. Susquehanna Area Regional Airport Authority, 470 

F.Supp. 2d 462, 468 (M.D. Pa. 2006). If the regulatory scheme evinces the legislature's 

intent to permit the municipal authority to act in contravention of the antitrust laws, such that 

anticompetitive conduct is a foreseeable result of the legislation, the second prong of the state 

action doctrine is met. Capital City Cab Service, Inc., 470 F.Supp. 2d at 472. It is 

insufficient that the state's authorizing statute is neutral to the possibility of anticompetitive 

conduct. Id. 

Section 332.08, Florida Statutes, permits a municipality to establish airports and 

engage in the operation, construction, enlargement, and improvement of airports, as well as 

lease out airport land. Nothing in the statute contemplates a municipality's right to engage in 

anti-competitive behavior when undertaking those activities and "the mere delegation of 

operational authority is itself insufficient to support a finding that a state intended to displace 

the antitrust laws." Id. at 473. The statutory provision "is neutral to the possibility of 

anticompetitive conduct" and does not evince the requisite intent to permit anticompetitive 

conduct. Indeed, as a matter of law, such conduct cannot be foreseeable in light of the 

comprehensive federal aviation scheme designed to prevent discriminatory, anticompetitive 

and monopolistic conduct. 

Although an Airport sponsor may exclusively operate the Airport and provide services to 

the public, once it permits a private party to provide any of those services, it must treat all 

(footnote cont'd) 

26 
The state action doctrine also does not help the City here because it does not 

immunize a municipality that is operating as a private market participant. See City of 

Columbia, 499 U.S. at 380. By leasing out hangars in competition with other lessees at the 

Airport, including the VJC, the City is engaging in commercial conduct and participating in 

the market place. As a result of that conduct, it does not enjoy the immunities extended by 

the state action doctrine. 

C. The VJC Has Stated A Claim For Violation Of Grant Assurances No. 19. 

The City is currentiy also violating Grant Assurance No. 19 by failing to maintain 

runway 04-22 "in a safe and serviceable condition and in accordance with the minimum 

standards . . . ." The City has allowed the dilapidation of runway 04-22 despite the fact that 

the City had previously requested funding to repair the runway and the request was granted. 

Exhibit 3, ^ 8. The FAA allocated approximately $5 million to the City to re-construct the 

runway but after the current City Council was elected, it decided to refuse the funding and 

allow the runway to remain in poor condition. Exhibit 3, ^ 8; Exhibit 2. As a result, the 

runway is not usable by larger aircraft, against which the City is actively discriminating in 

other ways as well, including through its reftisal to allow the VJC to construct the hangars. 

Exhibit 3, ^ 8. By permitting one of the only two runways at the Airport to fall into 

disrepair, the City is directly limiting the amount and types of planes that can take off or land 

at the Airport. More importantly, the VJC is directly and adversely affected by the City's 

conduct because the runway dissuades potential clients of the VJC from utilizing the Airport. 

parties wishing to provide competing services in a fair and non-discriminatory manner 

(unless safety necessitates otherwise). 

27 
The City is disregarding the safety of the pilots and passengers who utilize that runway in 

order to limit aeronautical activity at the Airport and such conduct should not be tolerated by 

the FAA. 

VI. Conclusion 

By focusing on Nadel's criminal activities (which are distinct from the operations of 

the VJC) and the contemplated sale of the VJC by the Receiver, both of which are unrelated 

to the VJC's request for permission to build hangars, the City seeks to draw the FAA's 

attention away from the relevant facts. Those facts, which include the expressed and wellpublicized improper motive behind the City's refusal to grant the VJC permission to erect 

hangars, undisputedly establish the City has discriminated against the VJC and otherwise 

acted towards it in an unreasonable and anticompetitive manner in violation of federal 

regulations and laws. In short, the City has never had and still has no basis to stop the VJC's 

construction of hangars. For the foregoing reasons, the City's Motion to Dismiss should be 

denied. 

28 
CERTIFICATE OF SERVICE 

1 hereby certify that I have served the foregoing on the following persons at the 

following address by overnight mail on ^ / ^ 0 , 2009: 

Office of the Chief Counsel Jonathan Cross 

Attn: FAA Part 16 Airport Proceedings Manager 

Docket, AGC-610 Airports and Environmental Law division 

Room 925 Federal Aviation Administration 

Federal Aviation Administration 800 Independence Ave., S.W. 

800 Independence Ave., S.W. Washington, DC 20591 

Washington, DC 20591 Facsimile (202) 267-5769 

Original and 3 copies by overnight 1 Copy 

delivery 

I hereby further certify that I have served the foregoing on the following persons at 

the following address by electronic mail on '/^ , 2009: 

Elizabeth J. Head 

Senior Attorney 

Airports & Environmental Law Division 

Federal Aviation Administration 

Washington, D.C. 20591 

Elizabeth.Head@faa.gov 

I hereby further certify that I have served the foregoing on the following persons at 

the following address by overnight mail and electronic mail on ^f ^D , 2009: 

Thomas R. Devine 

Kaplan Kirsch & Rockwell LLP 

1001 Connecticut Ave. NW, Ste. 800 

Washington, DC 20036 

Telephone: (202) 955-5600 

Email: tdeyine@kaplankirsch.com 

1 hereby fiirther certify that I have served the foregoing on the following persons at 

the following address by United States mail on ^ b , 2009: 

29 
Robert C. Anderson 

Hall & Anderson, P.A 

1314 East Venice Avenue, Suite E 

Venice, Florida 34285 

Gianlu5a-Mt5rello, FBN 034997 

Gianluca.Morello@fowlerwhite.com 

Dominique Pearlman, FBN 0044135 

Dominique.Pearlman@fowlerwhite.com 

FOWLER WHITE BOGGS, P.A. 

501 E. Kennedy Blvd., Suite 1700 

Tampa, FL 33602 

Phone(813)228-7411 

Fax (813)229-8313 

Attorneys for the Complainant, Venice Jet 

Center, LLC 

42343997v2 

30 
1 
LAND USE INSPECTION REPORT 

Venice Municipal Airport (VNC) 

Venice, FL 

August 10, 2009 

Photo Courtesy of Google Eartli Pro 
L Report Prepared By: 

William C. Garrison 

Airport Programs Manager 

Airports Division, FAA Southern Region 

Atlanta, GA 

n . FAA Representatives Conducting the Inspection: 

William C. Garrison, Airport Programs Manager, Airports Division, Atlanta, GA 

Rebecca Henry, Program Manager, Orlando Airports District Office, Orlando, FL 

m . Inspection Date - Mav 20.2009 

IV. Airport Owner ReoresentativiF? Attending th&. Tgapection; 

Airport Manager - Mr. Fred Watts 

Airport Administrative Assistant - Ms. Heather LeDuc 

V. State Representatives Attending Hie Inspection; 

None 

VL Purpose of Land Use Inspection 

In response to a Get^ral Accounting OiSice report issued in May 1999 entitled 

"Unauthorized Lemd Use Highli^ s Need for Improved Oversight and 

Et^brc&nent" and language in Senate Report No. 106-55, also issued in May 

1999, the Federal Aviation Administration (FAA) adopted a program to conduct 

annual land-use inspections at various airports where land was acquired through 

Federal assistance programs. 

The data collected by these inq>ections is ocnnpiled and included in an Annual 

Airport Inq)rovNnent Program Rqpott to Congress. This report lists airports that 

are not in compliance with grant assurances or other requirements with respect to 

urport lands. 

The Venice Municipal Airport was selected by the FAA as one of the locations to 

be inspected in fiscal year 2009. 

VEL Airport Bafifg^y•«*« - Th*. f/^ii»iv;nf> ;t.f»rm«*;»n ,K»..* ir^-\r ^^ Uj.,^^ ^^ 

records and files maintained by the Federal Aviation Administration, Orlando 

(ORL) Airports District Office: 
A. Land History 

1. June 10,1947 - Quitclaim Deed betiveen the United States of America 

and the City of Venice. Some conditions of the agreement are: 

• City will use land for public airport purposes on reasonable terms and without 

unjust discrimination and without grant of an exclusive right. 

• City will maintain airport in good serviceable condition at all times. 

• Upon breach of any of the reservations or restrictions in the agreement, the 

U.S. Government has the option to demand reversion of the rights that were 

transferred to the City. 

• Approximately 728 - Acres 

2. July 7,1948 - Qaitclaim Deed between the United States of America and 

the City of Venice. 

• City will use land for pubUc airport purposes on reasonable terms and without 

unjust discrimination and without grant of an exclusive right. 

• City will maintain airport in good serviceable condition at all times. 

• Upon breach of any of the reservations or restrictions in the agreement, the 

U.S. Government has the option to demand reversion of the rights that were 

transferred to the City. 

• Approximately 30 - Acres 

3. March 9,1957 - Quitclaim Deed between the United States of 

America and the City of Venice. 

• City will use land for public airport purposes on reasonable terms and without 

unjust discrimination and without grant of an exclusive right. 

• City will maintain airport in good serviceable condition at all times. 

• Upon breach of any of the reservations or restrictions in the agreement, the 

U.S. Government has the option to demand reversion of the rights that were 

transferred to the City. 

• Approximately 144 - Acres 
o 

• :]; • • ' :• 

U.S. Department Orlando Airports District Office 

of TrorfiDOrtcjtton ^^2° Hazeltine National Dr., Suite 400 

KMT^j^,,^,^ , Orlando, FL 32822-5024 

Fodoroi Avloiion 

Adminhtration Phone. 407-812-6331 

August 11,2009 

Honorable Ed Martin, Mayor 

City of Venice 

410 West Venice Ave. 

Venice, Florida 34285 

RE: Land Use Inspection 

Dear Mr. Martin: 

On May 20, 2009, William Garrison and Rebecca Henry conducted a land-use 

compliance inspection at the Venice Municipal Airport, Venice, FL (VNC.) They were 

assisted by Mr. Fred Watts, Airport Manager and Ms. Heather LeDuc, Airport 

Administrative Assistant. 

We appreciate everyone's helpfulness and knowledge of airport matters during the visit. 

The purpose of this inspection was to renew awareness of federal obligations that the 

City has accepted through land agreements and Airport Improvement grant 

agreements. 

Pursuant to congressional directive, the FAA is conducting land use compliance 

inspections at a number of general aviation airports across the country. We are 

required to prepare a report to congress with findings and any actions that may be 

required. 

The existing airport facilities and development generally are consistent with the Airport 

Layout Plan. In the enclosed report, we note that: 

(a) Airport property maps do not appear to consistently define the limits of the 

parcels that were transferred from the U.S. Government via the quitclaim deeds 

or the current airport property boundary. 

(b)The City is allowing cost-free, municipal use of airport property for nonaeronautical purposes, 

(c) Some aeronautical tenants appear to be storing personal non-aeronautical 

property on their leaseholds. 
(d) There is a golf driving range in the approach to Runway 04 which may be within 

the runway safety area, 

(e) There are numerous compliance concerns related to the recently executed lease 

for Sharkey's restaurant. 

(f) There are some unapproved non-aeronautical uses of airport property. 

The following recommendations were made during our visit that would enhance .airport 

safety: 

(a) Repaint taxiway edge markings on TW-"A" and -"B." 

(b) Repair/replace runway intersection signs; lighted runway intersection signs are 

recommended. 

(c) Add a remark to the Airport Master Record, FAA Form 5010, that states standing 

water is present on RW-4/22 during and after periods of rainfall. 

(d) Repaint the centeriine of Repaint Centeriine of RW-4/22. 

(e) Repaint all Runway Hold Markings for RW-4/22. 

(f) Repaint Closed Runway Mari<ings on the Closed East - West Runway. 

In light of the above listed compliance concerns, we request that you provide a 

con'ective action plan that addresses the issues discussed in Section XII of the 

enclosed report, within 30 days. 

If you have any questions or need assistance with this request, please contact Rebecca 

Henry of my staff at 407-812-6331, ext. 122. 

Sincerely, 

Original Signed By 

Bart Vernace, P.E. 

Assistant Manager 

Enclosure 

Land Use Inspection Report 
cc: ACO-100 

Mr. William Garrison, Regional Program Manager, Federal Aviation Administration 

Jeff Leopold, FDOT/1 

Mr. Isaac Turner, City Manager, City of Venice 

Ms. Nancy Woodley, Assistant City Manager, City of Venice 

Mr. Fred Watts, Airport Manager, Venice Municipal Airport 

r I la n 

e IViunicipa l Airpor t 

"lorida 

r r « p ar o ci by . 

L/ufresne~rienry , I 

Montgomery Consulting Group, Inc 

y , Inc . 

til avitcialion with 

Dufrvkna-Hanry f Inc . 

I n BmBo«l*tla n MWHH 

Montaom»r y OonauNln a Or e 

Vanlc * Munlcip* ! Airpor t 

M....,P....-S.p.. 2000 
2.1.3 Aprons and Aircraft Parking Areas 

The apron areas for aircraft parking are all located on the north side of the 

airport. The aprons are primarily concrete pavement which have been 

resurfaced. There is approximately 91,600 square yards of paved area for 

aircraft parking. The City of Venice has 97 tie-down spaces for aircraft on 

the paved apron. There are 52 other paved tie-downs available from tenants 

at the airport. 

2.1.4 Pavement Management 

The Venice Municipal Airport, through a FDOT-fiinded project, has a 

pavement management system for its airfield pavements. The pavement 

management system is based, in part, on a pavement analysis performed by 

Eckrose/Green in July, 1998. The analysis provided information on the 

condition of the airfield pavement using a pavement condition index (PCI). 

The PCI is a measure of pavement condition based on a visual inspection of 

the pavement. Figure 2-1 illustrates the PCI of the existing pavement at the 

airport. 

As is evident from Figure 2-1, the majority of the airport's runways and 

taxiways are in poor condition. Major rehabilitation of airfield pavement is 

needed according to the PCI evaluation. The apron and the apron-edge 

taxiway coimecting Runways 22 and 13 are in fair condition. The taxilanes 

near the T-hangars were not included in the PCI evaluation; however, this 

pavement is in good condition. 

Pavement rehabilitation design is based on aircraft use and material testing. 

Runway 13-31 is severely cracked and has been deemed repairable only by 

replacement of all asphalt pavement. Rimway 4-22 will require a minimum 

of a pavement overlay to bring its PCI to a "good" level. 

2.1.5 Lighting and Signage 

Both Runway 13-3 1 and Runway 04-22 are equipped with medium 

intensity runway lights, and the taxiways supporting diese runways also 

have medium intensity taxiway lights. Runway End Identification Lights 

(REITs) are located at the end of all four runways. 

There are minimal guidance signs at the Venice Municipal Airport. Existing 

signs are typically unlit. In addition, there are no high-mast lights in the 

apron areas. Security lighting is available on the T-hangars and some of the 

buildings. The electrical vault is located on the east side of the midfield 

taxiway close to the rotating beacon tower. Electrical service is supplied by 

Florida Power and Light (FPL). 

2.1.6 Navigational Aids 

The airport has a rotating beacon located on the east side of the midfield 

taxiway adjacent to the T-hangar area. The airport has one (1) lighted 

Uufr s >n«-n*nry r Ino . 

I n a»»aalatio n x^ h 

Montg o r n ar y OonsuHIn g Ur c M....rP.., 

ilclpa l Alrpo n 

• S . p.. 2000 
Figure 2-1 

Pavement Condition Index 

20-40 

r oo r 

41-90 

Fa.r 

91 

loo d 

bourca l tckrosa/Oraan , Jul y i «7«70 

Durra«n«-n*n(y , Ino . 

iVIonlQamar y Oan«uNJrt B Uro u 

V*nlc « MuntclpB l Airpor t 

M».frPl.r, -S.pt. 2000 

UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

Venice Jet Center, LLC 

Complainant, 

V. FAA Docket No. 16-09-05 

City of Venice, Florida 

Respondent. 

/ 

DECLARATION OF E.G. BOONE 

E.G. "Dan" Boone, Esq. declares as follows: 

1. I am over the age of 18 and I have personal knowledge of the matters stated 

herein, and I am competent to testify thereto. 

2. I am a partner with the law firm of Boone, Boone, Boone, Koda, & Frook, P.A. I 

have been practicing law for nearly 55 years. 

3. My areas of practice include Corporate Law, General Litigation, Health Care Law 

and Litigation. Part of my Corporate Law practice since 1960 involves representing Airport 

clientele and more specifically, individuals and/or entities who desire to lease space and 

construct facilities at the Venice Municipal Airport. My representation of such clients involves 

but is not limited to drafting and negotiating lease agreements, forming corporate entities, and 

facilitating the FAA approval process. 

4. Until the Venice Jet Center, LLC applied for a building permit to construct the 

hangars that are the subject of this proceeding and was told the City Council had to first grant 

permission for issuance, no proposed construction on the Airport has ever required anything 

other than a building permit from the City Building Department. This is a first since 1960 when 
the original construction took place at the Airport until the present. No lessee has ever been 

required to demonstrate financial capability to undertake proposed construction. 

5. The below list represents Lessees who obtained building permits for construction 

on the airport. The City Council did not give advanced approval for any of the construction 

listed below: 

a) Carl Burr (hangar built, 2000) 

b) Vincent Fette (FBO building and radio shop constructed, I960) 

c) John Ingrim (second floor added to FBO building, 1978) 

d) Stanley Huffman (improvement to FBO building, 1991) 

e) Venice Jet Center, LLC (complete renovation to FBO building, 2007) 

f) Vincent Fette (two hangars built, 1960) 

g) Venice Jet Center, LLC (two hangars torn-down and reconstructed, 2007) 

h) Flight Deck Restaurant (two floors constructed, 1989) 

i) Venice Flying Service, Inc./ Harold Hagen (FBO building constructed, 1978) 

J) Wass-Air, Inc. (FBO building constructed, 1999) 

k) Triple Diamond Enterprises, Inc. (improvements made to FBO building, 

2002) 

1) Venice Jet Center (improvements made to FBO building, 2007) 

m) Arne Kruethof/ Technical Advance Group d/b/a/ Florida Flight Maintenance 

Center (hangar constructed, 1997) 

n) Buzz Mills (hangar constructed, 1999) 

o) Duncan Enterprises, Inc. (hangar #1 constructed, 1982) 

p) Duncan Enterprises, Inc. (hangar #2 constructed, 1984) 

q) A.C. Schmieler (hangar constructed), 2003. 

r) Shamrock Enterprises, Inc./ NEC, Inc. (12 T-hangars constructed, 1984) 

s) Sarasota County Sheriff (hangar constructed, 2008) 

t) Mountain Laurel, Inc./ Superior Aircraft Hangars, Inc. (14 T-hangars 

constructed, 1980) 

u) Paul R. Theen, Inc./ Swift Group, Inc. (14 T-hangars constructed, 1983) 

v) Sharkey's Restaurant on the Gulf (restaurant built, 1986) 

w) Sharkey's Restaurant (added construction, 1998) 

x) Lake Venice Golf Course (27 holes total) and Golf Course Clubhouse/ Cart 

Barn (built, 1960) 

6. The current Venice Jet Center, LLC hangar request is the first proposed 

construction on the Airport that has ever required approval by the City Council and/or a showing 

of financial capability. 
7. The City of Venice currently has 144 T-hangars that it rents at the Airport. The 

City is currently in the process of constructing additional T-hangars and is determining whether 

to build 12 or 14. This new construction has been discussed at official City Council meetings, as 

well as meetings with the former Airport Advisory Board, which I have attended. The building 

plans for these hangars are underway, if not finalized. What is holding up the letting of a 

contract is the master drainage plan, which is in final review at this time and should be done 

some time in October 2009. Once the master drainage plan is approved the contract can go 

forward so the construction can begin. 

8. The bid opening to reconstruct and repave Runway 04-22 was in May 2007 and 

the low bid was $4.7 million dollars. The City had every expectation to receive the federal 

funding until the current City Council was elected and decided to decline the funding. The $4.7 

million dollars was spent on other airports in Southwest Florida. As result of the action of the 

present City Council, Runway 04-22 has been permitted to remain in poor condition. 
I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true 

and correct to the best of my knowledge and belief 

Dated this Z- 7 day of September, 2009. 

E.G. Boone 

September 14,2009 

Secretary Tom Pelham 

Florida Department of Community Affairs 

2555 Shumard Oak Boulevard 

Tallahassee, FL 32399-2100 

Reference: City of Venice, Florida Comprehensive Plan submission of 25 August, 2009 

We are tenants and operators of aircraft at the Venice Airport (VNC). The City of 

Venice has proposed inclusion of policies in the recently transmitted comprehensive 

plans that are inconsistent with state and national policy. We assert standing as 

substantially effected and interested parties to the proposed comprehensive plan and ask 

the Department to formally object to these provisions. 

We have tried to engage in the process of the development of this plan. We made 

presentations to the City Planning Commission as well as submissions to the City seeking 

modifications. The Comprehensive Plan ignores the City's deed and grant obligations to 

the Airport. The Plan should outline comprehensive planning initiatives that would 

implement those obligations. Obligations to the Venice Municipal Airport derive from 

deed restrictions contained in the deeds of airport land from the U.S. Government to the 

City of Venice. Further the City has incurred additional obligations as a condition of 

Federal grants for airport improvements. Nothing has changed to alter the City's 

responsibilities to the Airport. The Comprehensive Plan should provide in the Capital 

Improvements Element provisions to match Capital needs and projects in the approved 

2000 Airport Master Plan for a five year period and then additional analysis for at least 

another five year period. There should be consistency between the approved 2000 Master 

Plan, the proposed Comprehensive Plan their respective capital improvement plans and 

the City and Airport budget. Rather than focusing on marginalizing the airport the Plan 

should outline constructive and measurable "planning steps" to modernize and maintain 

the airport. 

While the Plan notes an intention to comply with FAA regulations in actuality and to the 

contrary the Plan focuses more on steps inimical to the best interest of the airport. In 

addition to our comments and recommendations also included is a copy of the results of a 

recent FAA report on the City management of the airport to further support our 

recommendations. 

As an example and in particular, in the Future Land Use & Design section. Policy 15.6 

Southern Gateway Corridor Standards, Development in the Southern Gateway. Policy 

15.6, sub B, 1. Southern Gateway Corridor (page 45 of the Future Land Use and Design 

Element) provides that "...public lands shall not be developed for residential, commercial, 

office, or industrial purposes." The Venice City Council specifically reviewed these 

provisions during their transmittal hearing and took affirmative action to include these 

limits within the plan and has proposed applying them to publically owned property 

wholly within the boundary of the existing airport and existing airport master plan. 
No other publically owned lands by the City of Venice are included within the houndar) 

of the Southern Gateway so it is clear that these provisions are intended to specifically 

limit the use of airport property. In response to petitions by other community members 

during the transmittal hearing process, similar provisions within other infill and 

redevelopment areas proposed by the city were modified to eliminate or modify' these 

restrictions. 

The portions of the Venice Airport property included in the Southern Gateway along US 

Business 41 and Airport Boulevard are under lease by the airport to other tenants and in 

use for both aeronautical and non-aeronautical uses. Consequently upon the approval ol~ 

the Comprehensive Plan the city has de facto taken and separated this valuable airport 

property from the airport for non-aeronautical, non-revenue producing purposes without 

the approval or knowledge of the Federal Aviation Administration (FAA). This is a clear 

violation of the city's airport deed restrictions and grant obligations to the federal 

government. The city is currently seeking to resolve past issues of this nature with the 

FAA (see attached). Consequently this action is all the more grievous and is an illegal 

property and revenue diversion. 

Prohibiting all uses except for open space or recreational use renders these properties 

inconsistent with .state policies Intended to encourage economic development through use 

of regional transportation assets, limits the airport's future ability to serve as a staging 

area for emergency operations and creates internal inconsistencies with other provisions 

of the proposed comprehensive plan that are prohibited by Rule 9J-5, Florida 

Administrative Code. In addition, the city provided no surveys, studies, data or analysis 

to support this proposed change in future land use as required by Chapter 163, F.S. and 

Rule 9J-5, F.A.C. The proposed change is inconsistent with the provisions of HR 697 

that require all plan amendments transmitted after July 2008 to encourage energy 

efficiency and discourage urban sprawl. The proposed prohibitions of all economic uses 

of airport property within the Southern Gateway do not represent an efficient land use 

pattern. Principal point of contact for this submission is Paul Hollowell, 941-484-0718. 

Sincerely, 

. ^ / 

/ 

A.C. Schmieler, President 

Venice Airport Business Assoc. Inc. 

400 Airport Avenue 

Venice, FL 34285 

Nicholas Carlucci. President 

Venice Aviation Society, Inc. 

1335 Horizon Road 

Venice, FL 34293 

Attachments: 

Comprehensive Plan Comments and Recommendations 

FAA Report of Audit Results 

cc: FAA, FDOT, AOPA, Brenda Willingham - DCA 



T-Hanger Waiting List Policy Page 1 of 1 

T-Hanger Waiting List Policy 

T he following polic y applies t o applicant s for the t-hangar waiting 

list: 

The applicant will pay a non-refundable administrative fee of $25. This fee, if 

not voided, will be applied to the t-hangar rental at the signing of the 

hangar rental agreement. 

The applicant will complete a short form providing contact information 

for use by the airport administrative office. 

The applicant will keep the airport administrative office informed of any 

change in contact information. 

The airport administrative office will attempt to reach top name on the list 

on three (3) separate occasions when filling an available hangar. If 

unsuccessful, the next name on the list will be contacted. 

The unsuccessful applicant will be removed from the Venice Municipal 

Airport's t-hangar waiting list. 

Anyone declining a t-hangar when made available to them, will be removed 

from the list. 

The Venice Municipal Airport has 144 individual t-hangar units, all filled at 

this time, and has a waiting list of approximately 73 people. 

http://www.venicegov.com/Municipal_links/Airport/waifing_list.htm 9/18/2009