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DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

DOCKET 

In the Matter of Flying High, LLC. 

Respondent 

FAA Docket No. CPlOWPOOll 

DMS No.: FAA 2010-0785 

FAA Region: Western Pacific 

Judge: Richard C. Goodwin 

COMPLAINANT'S MOTION TO DEEM ALLEGATIONS ADMITTED AND 

MOTION FOR DECISION OR, IN THE ALTERNATIVE, MOTION TO LIMIT THE 

ISSUES AT HEARING TO SANCTION 

To; Hon. Richard C. Goodwin, Administrative Law Judge, and to Flying High, LLC. 

("Respondent"): 

COMES NOW, the Regional Counsel of the Western-Pacific Region of the Federal 

Aviation Administration (FAA), by counsel, and files this Motion to Deem Allegations 

Admitted and Motion for Decision to issue an order assessing civil penalty, or in the 

alternative, to deem allegations admitted and to limit the hearing to the amount of the 

sanction pursuant to sections 13.218(a) and (f)(5), and 13.209(1) of Title 14 of the Code of 

Federal Regulations. This motion is based on the fact no answer has been filed by 

Respondent. 

Section 13.209(0 ofihe Rules of Practice [14 C.F.R. Section 13.209(0] states: "A 

person's failure to file an answer without good cause shall be deemed an admission to the 

truth of each allegation contained in the complaint." The Complaint and accompanying cover 

letter in this case were sent to Respondent on December 9, 2011. The Complaint alleged: 
1. Flying High is now, and at all (imes mentioned herein, was the owner of a Cessna 

C-150F aircraft, Civil Registration No. N8087S. 

2. At all relevant times Sean Cooke was the manager of Flying High. 

3. On or about June 1, 2010, Anthony Bell made an entry in the maintenance record 

of N8087S stating that he had performed an annua! inspection and that the total 

time in service for the propeller on N8087S was unknown. 

4. On or about January 21, 2011, the FAA sent a letter to Mr. Cooke stating that the 

maintenance log entry for an annual inspection perfonned on June 1, 2010, did not 

have an entry for the propeller total time in service. 

5. On January 31, 2011, the SDL FSDO received a letter from Mr. Cooke. In his 

letter he stated that "there is no annotation as to...how many hours are on the 

propeller." In his letter he also stated that "[t]hese items will be corrected as soon 

as possible, but no later than 60 days from today's date. The aircraft will not be 

flown before these items have been accomph'shed." 

6. On or about February 16, 2011, Mr. Bell made an entr>' in the maintenance record 

of N8087S stating that ''Total Airframe Time and Propeller times have been 

researched and found to be in error." The entr>' also stated that the total time in 

service for the propeller on N8087S was unknown. 

7. On or about February 16, 2011, Flying High operated N8087S by authorizing a 

flight from Stellar Airpark (PI 9) near Chandler, Arizona, to Falcon Field Airjiort 

(FFZ) near Mesa, Arizona. 

8. Mr. Cooke was infonned by a letter sent by the FAA, dated April 11, 2011, that 

the maintenance records forN8087S did not have the total time in service for the 

listed propeller. 

9. On or about April 21, 2011, the SDL FSDO received a letter from Mr. Cooke. He 

again acknowledged that "[n]o record of the total time in service or time since 

overhaul was made in the current logbook or any logbook thereafter." 

10. Flying High has failed to keep records establishing the total time in service of the 

propeller installed on N8087S. 

Respondent was advised of the requirement to file an answer in the cover letter that 

accompanied the Complaint. Respondent was also advised of this requirement in the 
Administrative Law Judge's January 9, 2012, Procedural Order served upon all parties at 

their addresses of record. 

Section 13.209(a) of Title 14 of the Code of Federal Regulations [14 C.F.R. section 

13.209(a)l requires a respondent to file an answer no later than thirty (30) days after service. 

Pursuant to section 13.211, the date of service is the date on the proof of service, and after 

service by mail, an additional five (5) days is added to the prescribed period for a response. 

Accordingly, an answer was due on January 13, 2012, which is thirty-five (35) days after 

December 9, 2011 (the date the Complaint was served). To date, no answer has been 

received by Complainant from Respondent, nor has there been a request for an extension of 

time in which to t1le an answer, hi view of the above, Complainant moves that the 

allegations in the complaint be deemed admitted. As a result, there is no genuine issue of 

material fact and the Complainant is entitled to a decision as a matter of law. 

Respondent failed to keep a record of the propeller total time of N8087S in violation 

of 14 CFR § 91.4l7(a)(2)(i). Respondent's subsequent operation of N8087S resulted in a 

violation of 14 CFR § 91.203(a)(1), since the aircraft's airworthiness certificate was 

ineffective at the time of the flight. Under 14 CFR § 21.181(a)(1) a standard airworthiness 

certificate is "effective as long as the maintenance, preventative maintenance, and alterations 

are performed in accordance with Parts 43 and 91 of this chapter..." The requirement to 

keep a record of propeller total time under § 9l.417(a)(2)(i) is located in Part 91, Subpart EMaintenancc, Preventative Maintenance, and Alterations. The applicability regulation for 

Subpart E, 14 CFR § 91.401(a), states: "This subpart prescribes rules governing the 

maintenance, preventative maintenance, and alterations of U.S.- registered civil aircraft 

operating within or outside of the United States." Therefore, a failure to keep the records 
required under § 91.417(a)(2)(i) is a failure to maintain the aircraft in accordance with Part 

91 rendering the aircraft's airworthiness certificate ineffective pursuant to § 21.181(a)(1). 

Complainant requests that the Judge issue an Order Assessing Civil Penalty in the 

amount of $6,200.00. Alternatively, it is moved that the allegations be deemed admitted and 

the hearing be limited to the issue of the amount of the sanction. 

The sanction requested in this case is reasonable. The FAA's publicly available 

sanction guidance table is contained in Appendix B of FAA Order 2150.3B. For 

individual aircraft owners and others, the sanction guidance table, Figure B-3-a.(3), lists a 

minimum to moderate civil penalty for a "[fjailure to make proper entry in aircraft log," 

corresponding with the § 91.4l7(a)(2)(i) violation. The sanction guidance table, Figure 

B-3-h.(2), lists a 30 to 90 day suspension for "[o]peration when a valid airworthiness 

certificate had not been issued," but does not list a civil penalty range. The sanction 

guidance table provides for certificate actions from 15 to 180 days (excluding indefinite 

suspension or revocation). Because 30 to 90 days is a minimum to moderate suspension 

period, then a minimum to moderate civil penalty would be appropriate for the § 

9L203(a)(l) violation. FAA Order 2150.3B, Appendix B paragraph 3.c.(7), states that for 

a small business concern that does not hold a certificate and has violated a regulation 

covered under 49 U.S.C. § 46301(a)(5)(A)", the minimum civil penalty range is $550 to 

$2,199 and the moderate civil penalty range is $2,200 to $4,399. 

' Respondent does not hold an air agency, air carrier or commercial operating certificate. 

' 49 U.S.C. § 46301(a)(5)(A) states: "An individual (except an ainnan serving as an ainnan) or small business 

concern is liable to the Government for a civil penalty of not more than $10,000 for violating— 

(i) chapter 401 (except sections 40103 (a) and (d), 40105. 40106 (b), 40116, and 40117). section 44502 (b) or 

(c), chapter 447section 44502 (b) or (c), chapter 447 (except sections 44717-44723). or chapter 449 (except 

sections 44902, 44903 (d), 44904, and 44907^4909) of ihis title; or (ii) a regulation prescribed or order issued 

under any provision to which clause (i) applies." The statutory authority for 14 CFR § 91.203(a)(1) is 49 U.S.C. 

§ 44711(a)(1), which states: "A person may not operate a civil aircraft in air commerce without an airworthiness 
Chapter 7 of FAA Order 2150.3B, which is also available to the public, provides 

guidance for applying the sanction ranges listed in Appendix B. An appropriate sanction 

is selected by beginning with an amount in the middle of the range listed in the sanction 

guidance table and increasing that amount for aggravating factors and decreasing the 

amount for mitigating factors listed in Chapter 7, paragraph 4."' Therefore, under the 

guidance in FAA Order 2150.3B an appropriate civil penally for the ^ 91.417(a)(2)(i) 

violation, which had no mitigating or aggravating factors, is the middle of the sanction 

range listed above, or $2,474.50. 

An aggravated sanction for the § 91.203(a)(1) violation is appropriate in this case 

since Respondent's violation was deliberate. FAA Order 2150.3B, Chapter 7, paragraph 

4.b.(l) states, in pertinent part, that: "Deliberate or intentional misconduct is an 

aggravating circumstance and includes deliberate conduct that leads to a violation as well 

as circumstances indicating intent to commit a violation." The circumstances of this case 

indicate Respondent acted in a deliberate manner that lead to the violation. As indicated 

in the Complaint, on or about January 21, 2011, the FAA informed Mr. Cooke, 

Respondent's manager, by letter that the maintenance log entiy for an annual inspection 

perfonned on June 1. 2010, did not have an entry for the propeller total time in service for 

N8087S. Onorabout January 31,2011, the Sconsdale Flight Standards District Office 

received a letter from Mr. Cooke acknowledging that "there is no annotation as to...how 

certificate in effect or in violation of a tenn of the certificate." The statutory authority for 14 CFR § 

91.417(a)(2)(i)is49 U.S.C. § 44701(a)(5), which states: "The Administrator of the Federal Aviation 

Administration shall promote safe flight of civil aircraft in air commerce by prescribing-...(5) regulations and 

minimum standards for other practices, methods, and procedure the Administrator finds nccessar>' for sarct>' in 

air commerce and national security." Thus, Respondent violated regulations prescribed under provisions to 

which clause (i) of § 46301(a)(5)(A) applies. 

^ FAA Order 2150.3B, paragraph 5.b.(3). 
many hours are on the propeller," and stating that "[t]he aircraft will not be Hown before 

these items have been accomplished." Mr. Cooke also acknowledged in a separate letter 

that "[n]o record of the total time in service or time since overhaul was made in the 

current logbook or any logbook thereafter." Despite knowing that the aircraft records did 

not contain an entry for the propeller total time as required by § 9i.417(a)(2)(i), on or 

about February 16, 2011, Respondent operated N8087S by authorizing a flight from 

Stellar Airpark (P19) near Chandler, Arizona, to Falcon Field Airport (FFZ) near Mesa, 

Arizona. Given the deliberate nature of the § 91.203(a)(1) violation an aggravated 

sanction of $4,000 is appropriate. When added to the $2,474.50 civil penalty for the § 

91.417(a)(2)(i) violation, Complainant would have been justified in seeking a total civil 

penalty of $6,474.50. 

Complainant's choice of sanction in this case as it is not arbitrary, capricious, or 

otherwise not according to law."* Complainant has selected a civil penalty well within the 

range indicated in the sanction guidance table of FAA Order 2150.3B. 

•* See, 49 U.S.C. § 44709(d)(3) 
Based on the foregoing, Complainant is entitled to a decision in its favor that 

Respondent committed the violations charged and should be assessed a civil penalty of 

$6,200.00. In the alternative, theoniy issue appropriate for the hearing is the amount of civil 

penally. 

Respectfully submitted, 

NAOMI TSUDA 

Regional Counsel 

Adam Runkel 

Attorney 

^'^^^'^- FEB 16 2012 
CERTIFICATE OF SERVICE 

1 hereby certify that on this date I sent via United States mail, postage prepaid, the 

executed original and one copy, as well as one copy by facsimile, of the COMPLAFNANT'S 

MOTION TO DEFM ALLEGATIONS ADMITTED AND MOTION FOR DECISION, OR 

IN THE ALTEI^ATIVE MOTION TO LIMIT ISSUES AT HEARING TO SANCTION, 

addressed as follows: 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

WilburVright Building—Suite 2W1000 

Facsimile: (202) 493-5142 

And by facsimile only to: 

Hon. Richard C. Goodwin 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave., S.E. 

East Building Ground Floor, Room E12-230 

Washington, D.C. 20590 

Facsimile: (202) 366-7536 

1 further certify that on this date 1 sent via United States mail, postage prepaid, a true 

copy of the COMPLAINANT'S MOTION TO DEEM ALLEGATIONS ADMITTED AND 

MOTION FOR DECISION, OR IN THE ALTERNATIVE MOTION TO LIMIT ISSUES AT 

HEARING TO SANCTION, addressed as follows: 

Flying High, LLC 

Attn: Sean Benjamin Cooke, Manager 

3309E. Milky Way 

Gilbert, AZ 85295 

^"^"^^ FEB 16-2012 

Jeff Kamber^ Legal Technician! / 

Office of the Regional Couns^K 

Federal Aviation Administration 

Western-Pacific Region 

Lawndale, California