UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL 

AVIATION ADMINISTRATION WASHINGTON, DC 

J&B ENTERPRISES, INC., dba 

RHYTHM SHINE, Complainant, 

Docket No. 16-08-07 

METROPOLITAN NASHVILLE AIRPORT 1^21 

AUTHORITY, Respondent. ^^ 

FINAL AGENCY DECISION AND ORDER > 

•i 

,3 

I. INTRODUCTION 

This matter is before the Federal Aviation Administration (FAA) Assistant Administrator for 

Civil Rights and Diversity Advocate (Assistant Administrator) on an appeal filed by J& B Enterprises, 

Inc., dba. Rhythm Shine (Complainant) from the Director's Determination of May 5, 2009; issued by the 

Director of the Office of Airport Compliance and Field Operations (Director) pursuant to the Rules of 

Practice for Federally-Assisted Airport Enforcement Proceedings found in Title 14 Code of Federal 

Regulations Part 16 (14 CFR Part 16). The Complainant argues on appeal to the Assistant Administrator 

that the Director, in issuing the Director's Determination, erred in causing the FAA to dismiss the 

Complainant's complaint. 

Complainant filed a complaint pursuant to 14 CFR Part 16 against the Metropolitan Nashville Airport 

Authority (MNAA) (Respondent), alleging Respondent is in violation of 49 CFR Part 26, Participation 

by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs, 

and 49 CFR Part 23, Participation of Disadvantaged Business Enterprise in Airport Concessions.' The 

Complainant filed its complaint with the FAA on July 30, 2008, and it was docketed by the FAA on 

August 11,2008. 

The record herein reveals the following general facts. The Complainant is a certified Airport Concession 

Disadvantaged Business Enterprise (ACDBE) owned and operated by James and Betty Druett. The 

Complainant has operated at the Nashville Intemational Airport since 1992 under a direct lease with the 

Airport. In 2006, the Respondent implemented a new concessions plan which required the shoeshine 

operations to be subleased under a master concessionaire. In November 2006, the Respondent awarded 

master retail concession contracts to Airport Management Services, LLC (the Hudson Group), which 

FAA Exhibit 1, Item 1. FAA Exhibit 1 is attached hereto. 
included the award of two shoe-shine operations to the Complainant. As of October 31, 2008, the 

Complainant has been operating in two locations as a month-to-month tenant (one location near gate B-5 

inside the CNN store, and the other location in the C Concourse) at the Nashville Intemational Airport.^ 

The Complainant alleges that Respondent directly discriminated against it on the basis of its race (African 

American) in violation of 49 CFR § 26.7, and that Respondent further violated the regulation by 

administering its ACDBE program in a discriminatory manner. Specifically, Complainant alleges that 

Respondent awarded both of the News, Gifts and Specialty Retail master concession contracts to a single 

prime contractor who failed to meet the ACDBE contract goal of 15.7 percent.'' Complainant also alleged 

that Respondent breached its Concessions Agreement with Complainant when it sought to alter the layout 

and store locafion, without notifying Complainant, and ordered the closure of the J& B store in Concourse 

B-1 in July 2007 after Respondent awarded the prime contracts to the Hudson Group."* 

As a consequence of this alleged breach of the Concession Agreement, Complainant states that it was 

placed in the CNN store as opposed to the Hudson News store, which was a much less attractive location 

for a shoeshine operation, subjecting Complainant to be put at a distinct business disadvantage with 

resulting financial loss. According to Complainant, the sum of the above discriminatory acts violated 49 

CFR § 26.7(b) and 49 CFR § 23.1(e).^ 

Additionally, Complainant alleges that Respondent violated 49 CFR § 23.1(b) by not providing 

Complainant with a level playing field when Respondent chose not to intervene in the dispute between 

Complainant and the Hudson Group regarding the negotiation and completion of a sublease agreement.* 

The Part 16 complaint also states that Hudson discriminated against the Complainant on the basis of its 

race "by resorting to tactics of intimidation." The alleged acts of intimidation included being ordered to 

pay for a shoeshine booth that neither met the needs of its customers nor its operational requirements, and 

being threatened with removal from the premises by Respondent and Hudson in fiirtherance of an illegal 

conspiracy to force Complainant into signing a sublease agreement.^ 

Complainant further alleges "that Respondent violated 49 CFR § 26.7 and § 23.1 when it decided not to 

remove Complainant from the Hudson contracts, and when Respondent refused to move it from its CNN 

location to one of the two identified store locations of the Complainant's choosing.^ Complainant asserts 

that all of the above program administration decisions were rooted in racial bias implemented directly and 

through contractual and other arrangements, with the desired goal of erecting barriers in Complainant's 

path and causing it economic disadvantage and financial loss.. 

The FAA Director's Determination was served on May 6, 2009, and made the following findings: (1) 

The Respondent's Metropolitan Nashville Airport Authority complied with 49 CFR Part 23 in good faith 

in awarding the Hudson Group the two News, Gifts, and Specialty Retail concession contracts (NGSP-1 

^FAA, Exhibit 1, Item 6 at 2 and 4. 

^ FAA Exhibit 1 Item I, at 2-3. 

^Id. 

^ Id. at 2-3. 

«Id. 

'Id. 

^Id. 
and NGSP-2) at Nashville Intemational Airport; (2) The Respondent's administration of its new 

shoeshine concession leasing policy and procedure did not have a disparate impact on Complainant in 

violation of the provisions of 49 CFR § 23.9 and 49 CFR § 26.7(b); (3) The Respondent did not 

discriminate against the Complainant on the basis of its race in violation of 49 CFR § 23.9 and 49 CFR § 

26.7(a), and (4) The Respondent complied with the administrative, general and compliance requirements 

of 49 CFR Parts 23 and 26 and Grant Assurances No. 30 and No. 37. 

The Complainant appeals the Director's Determination, asserting that the Director erred in dismissing its 

complaint. The Complainant alleges that it has shown and established: (1) that Respondent's 

administration of its new shoeshine concession leasing policy and procedure discriminated against 

Complainant in violation of 49 C.F.R. §§ 23.9 and 26.7; (2) the Complainant was subjected to disparate 

treatment discriminadon in violation of 49 C.F.R. §§ 23.9 and 26.7(b); (3) the Hudson Group's joint 

venture proposal failed to meet Respondent's ACDBE goal requirement; (4) the Respondent's actions, or 

inaction, individually or cumulatively, were contrary to the administrative, general and compliance 

requirements of 49 C.F.R. Parts 23 and 26 and Federal Grant Assurances Nos. 30 and 37; and (5) that the 

Director failed completely to recognize, and to find on the basis of "undisputed facts", that Respondent 

intentionally discriminated against Complainant by retaliating against it for making a complaint that 

Respondent and Hudson were in violafion of the ACDBE regulations, specifically 49 C.F.R. §§ 23.11 and 

26.109. 

Upon an appeal of a Part 16 Director's Determination, the Assistant Administrator must determine 

whether: (1) the Findings of fact made by the Director are supported by a preponderance of reliable, 

probative, and substantial evidence: and (2) each conclusion of law is made in accordance with applicable 

law, precedent, and public policy. [See e.g. Ricks v. Millington Municipal Airport, FAA Docket No. 16-

98-19, p.21 (12/30/99) and 14 CFR Part 16, §16.227] 

A review of the Complainants' appeal from the Director's Determination raises the following issues for 

consideration by the Assistant Administrator: 

A. Whether the Director erred by failing to consider and find Respondent's decision to 

solicit public bids for the Shoeshine Services Concession upon expiration of the 

Complainant's agreement on August 31, 2008 as an unlawfiil discriminatory act of retaliation; 

B. Whether the Director erroneously concluded that Respondent's complied in good faith 

with the provisions of 49 C.F.R. Part 23 in awarding the Hudson Group the two News, Gifts, 

and Specialty Retail concession contracts (NGSP-1 and NGSP-2) at the Nashville 

Intemational Airport, and that Hudson Group met Respondent's ACDBE Contract Goal of 

15.7 percent; 

C. Whether the Director erred in finding that Respondent had not violated 49 C.F.R. 

§§23.9 and 26.7(b), nor discriminated against Complainant and operators of Complainant's 

race (African American), in the administration of its new shoeshine concession leasing policy 

and procedure; 
D. Whether the Director erroneously concluded that Complainant was not subjected to 

disparate treatment or discrimination because of its race (African American) in violation of 49 

C.F.R. 23.9 and 26.7(a); and 

E. Whether the Director erred in finding that the Respondent complied with the 

administrative, general and compliance requirements of 49 C.F. R. 23 and 26 and Grant 

Assurances No. 30 and No. 37. 

In arriving at a Final decision on this appeal, the FAA has examined the Director's 

Determination with the corresponding record, and the appeal and reply submitted by the parties 

in light of applicable law and policy. Based on this examination, the FAA affirms the 

Director's Determination. The FAA Assistant Administrator finds that the Director's 

Determination is supported by a preponderance of reliable, probative, and substantial evidence. 

The Complainants' appeal did not provide substantive facts, rationale or law sufficient to 

reverse any portion of the Director's Determination. This Decision constitutes the final 

decision of the Assistant Administrator pursuant to 14 CFR § 16.33(a). 

11. THE AIRPORT 

Nashville Intemational Airport is a public-use, medium-hub commercial-service airport in Nashville, 

Tennessee. The Metropolitan Nashville Airport Authority (MNAA) owns and operates Nashville 

Intemational Airport and one other airport. MNAA is the airport sponsor for the purposes of compliance 

with federal statutes, regulations, and grant assurances. In each of the fiscal years from 2006 through 

2008, MNAA received federal financial assistance under FAA's Airport Improvement Program (AIP) to 

finance in whole or in part the planning and development of Nashville Intemational Airport.' The AIP 

program is a grant program authorized by the Airport and Airway Improvement Act, 49 USC § 47101, e/ 

seq. As a recipient of Federal AIP fiinds, the Respondent is subject to all grant assurances, including the 

assurance to comply with the requirements of Title 49 CFR Parts 26 and 23, the DBE and ACDBE 

regulations of the U.S. Department of Transportation. 

III. (A) BACKGROUND 

From 1992 to 2006, the Complainant successfully operated a shoeshine concession under a direct lease 

with Respondent at Nashville Intemational Airport. The term of the Complainant's lease ran initially 

' FAA Exhibit 1, Item 11, FAA AIP Grant History for MNAA. 
from 1992 through 1997, when the parties renewed it for two more years. In December 1999, the 

Respondent and the Complainant agreed to renew the lease on a year-by-year basis, with each year to mn 

from September 1 through August 31.'° 

In 2005, Respondent began a $35 million renovation program for the terminal at Nashville Intemational 

Airport that would involve relocating concessions to areas beyond the security checkpoints within the 

concourses, and expanding the number of concessions to generate substantially greater revenues for the 

Airport. In preparation for the terminal upgrade project, the Authority's Board of Commissioners adopted 

a new Concessions Master Plan in October 2004 that, among other things, called for one master 

concessionaire for news, gift, and specialty retail concessions. The Master Plan in its descripfion of the 

news, gift, and specialty retail concepts specified that a "shoeshine stand would be incorporated into two 

of the news and convenience shops, 'either within or immediately adjacent to these stores." In Febmary . 

2006, Respondent issued a Request for Proposals (RFP) that reflected the Master Concession Plan 

requirements for the shoeshine services." The RFP included a 15.7 percent ACDBE contract goal.'^ 

According to Respondent, MNAA staff explained the upcoming changes in the lease arrangement for the 

shoeshine operation and the new solicitation requirements to the Complainant (Mr. James Dmett) prior to 

the development of MNAA's 2004 Concessions Master Plan and the February 6, 2006 issuance of the 

RFP. MNAA's Manager of Properties stated that "James Dmett and I had numerous conversations about 

locating the shoe shine concession in the newsstands as part of MNAA's new NG&S program. During 

these conversations, James indicted to me that he understood that the shoe shine services at the Airport 

would be provided as a subtenant of whoever was selected as the prime tenant as a result of the RFP 

process."'^ Additionally, Respondent reported that James Dmett attended a mandatory pre-proposal 

meeting on Febmary 24, 2006, where discussion of the requirements and objectives of the RFP, including 

the shoe shine component, took place.'"* 

The Complainant was included in two of the three proposals that were submitted to Respondent in 

response to the News, Gifts, and Specialty Retail RFP.'^ The RFP was to result in two awards, each 

reflecting a package of concession locations within the Airport. Each package contained a shoeshine 

location. The concession package labeled NGS-1 included the news store and shoeshine concession at 

area B-5, while the package labeled NGS-2 included a similar news store/shoeshine concession at C-2.'* 

On September 20, 2006, Respondent awarded both packages of the News, Gifts, and Specialty Retail 

concessions to the Hudson Group. The Complainant was included in both awards. On November 30, 

2006, the Hudson Group entered into a Master Lease and Concession Agreement with Respondent.'^ The 

'"FAAExhibit 1, Item 10 at8. 

"Id. at 9. 

'^ Id. at 10. 

'^ FAA Exhibit 1, Item 6 at 2. 

'Md. 

"Id. at3. 

"^ FAA Exhibit 1, Item 10 at 9. 

'"^ FAA Exhibit 1, Item 10 at 11, and Item 6 at 3. 
renovation of B Concourse began in 2006, and design and constmcdon of the newsstand at B-5 began in 

the spring of 2007.'^ 

According to MNAA's Airport Concessions Disadvantaged Business Enterprise Liaison Officer 

(ACDBELO), the Complainant (Ms. Betty Dmett) dropped by her office in May 2007, a month after she 

became ACDBELO, "to express her concem about the alleged lack of follow up and involvement from 

Hudson with regard to finalizing a sublease, build-out of the shoe shine stand in Space B5, and other 

issues."" The ACDBELO stated that she "then spoke with Rebecca Ramsey, MNAA Properties 

Manager, about the issues raised, [and] from there began a series of internal meetings as to how to 

accomplish a mutually acceptable agreement between complainant J&B and Hudson."'^" 

On July 27, 2007, the "B" Concourse Space B-5 CNN newsstand opened for business. According to 

Rebecca Ramsey, Manager of Properties, around this time, the Complainant "expressed his displeasure 

with the "B" Concourse location, the stand itself, the environment of being inside the newsstand rather 

than being in a stand alone operation, as it had been previously."^' The Complainant also raised an issue 

with the amount of rent they were being charged at the B-location. Previously, they had been required to 

pay four percent of gross sales under their direct lease with Respondent. Under the new Master Lease 

between the Airport and the Hudson Group, the Complainant was required to pay 13 percent of gross 

receipts. In response to Complainant's concem, "MNAA, in spite of being under no legal obligadon to 

do so, gave the Hudson Group approval to collect only 4 percent rent from J&B consistent with what they 

had been remitting to the Authority."^^ Although Hudson Group and Complainant at this time had not 

finalized a sublease, Hudson Group agreed to collect only 4 percent rent from J&B. (CITE IN FN) 

On August 20, 2007, the Complainant wrote to MNAA's Chief Executive Officer (CEO), informing him 

of numerous grievances with the Hudson Group, and "the demeaning level that J&B Enterprises has been 

reduced to in the outcome of this awarded contract."'^'' Among other things, the Complainant alleged a 

deteriorating gap in communication between both the Hudson Group and MNAA, a lack of 

responsiveness on the part of the Hudson Group to their request for documents to assist them in making 

business decisions, and their exclusion from design discussions of the shoe shine stand undl that product 

for Concourse B was completed and found to be unacceptable in appearance, uncomfortable for 

customers, and uncomfortable for the workers to perform their duties."^'' The Complainant requested the 

CEO's assistance in providing the Complainant with a number of documents and information, including 

the contract award documents, the Rhythm Shine drawings, and the Respondent's DBE policies. The 

Complainant asked "that a written response including requested documents be forwarded to J& B 

Enterprises, Inc. within 10 days to begin to openly and appropriately discuss our concems with only those 

'^ FAA Exhibit 1, Item 10 at 12. 

" FAA Exhibit 1, Item 8 at 2-3. 

2° Id. at 3. 

^' FAA Exhibit 1, Item 6 at 4. 

22 Id. 

" FAA Exhibit 1, Item 1, attachment: Letter, dated August 20, 2007, from J&B to Raul Regalado, President & 

CEO, MNAA. 
that have the authority to take corrective action."^^ According to the Complainant, "MNAA failed to 

respond to the August 20, 2007 missive."^* 

According to Respondent, MNAA staff took various acdons to resolve the Complainant's concems in 

response to Complainant's August 20, 2007, letter to MNAA's CEO. On or about August 21, 2007, 

Rebecca Ramsey, Manager of Properties, advised the Hudson Group of the Complainant's concems and 

need to improve the business reladonship.^^ She also responded to the Complainant's request for specific 

information, and attempted to arrange a meeting with the Complainant and the Hudson Group to resolve 

outstanding issues, which the Complainant declined to attend. Additionally, Amber Gooding, Director of 

Business Diversity Development, responded to the Complainant's request for informadon on the ACDBE 

program.^^ 

John Howard, Assistant Vice President of Properdes and Business Development Departments and MNAA 

Properties Corporation, also made several attempts to reach the Complainant to schedule a meeting, but 

received no response.^' The Complainant, and their representative, Mary Collier, ultimately agreed to 

meet with Mr. Howard privately on September 18, 2007, to discuss their concems. The Complainant 

informed Mr. Howard "that Hudson had informed them that Hudson 'did not negotiate' subleases and that 

the [Complainant] had to accept Hudson's sublease if they wanted to condnue working at the Airport."^" 

According to Mr. Howard, the Complainant also acknowledged to him that the Hudson Group did make a 

lot of effort to seek the Complainant's opinions in the beginning on the design of the new shoeshine stand 

inside Concourse B's CNN News Store, but the Hudson Group ultimately did not incorporate any of the 

Complainant's requested design elements.'" 

According to Complainant, when Respondent failed to respond to their August 20, 2007, letter to 

MNAA's CEO, Complainant then wrote to Mr. James H. Cheek, III (Chairman) and Ms. Rosalyn 

Carpenter of the MNAA Board of Commissioners on September 21, 2007, in an effort to resolve their 

complaint.^2 j ^ this letter, which included three attachments, the Complainant described their experience 

in attempting to finalize a sublease with the Hudson Group, and provided their comments and issues with 

the draft sublease. The Complainant's letter to the Board stated, "Our position at this moment is that we 

are sure that there are serious legal ramifications of the actions and follow-up taken by both the MNAA 

and the Hudson Group that damage the intent of fair and equitable treatment, and an equal playing field in 

opportunities available to ACDBEs."^'' The Complainant requested the MNAA Board to review their 

letter, to have staff ready to assist in resolving their concems, and to hear back from the Board.^"^ 

"Id. 

2"^ FAA Exhibit 1, Item 1 at 4. 

" FAA Exhibit 1, Item 6 at 4-5 and Item 10, exhibit 17. 

2' FAA Exhibit 1, Item 8 and Item 10, exhibits 20 & 21. 

2' FAA Exhibit 1, Item 7 and Item 10 at 14. 

^°Id. 

^' FAA Exhibit 1, Item 7 at 3. 

^2 FAA Exhibit 1, Item 1 at 4. 

^•^ Id. See attachment. Letter, dated September 21, 2007, from J&B to MNAA Board of Commissioners 

''Id. 
On October 13, 2007, Mr. Howard of the MNAA staff attempted to reach the Complainant to schedule a 

meeting between the Hudson Group, Olympic Supply, MNAA and the Complainant to address the issues 

the Complainant had raised in their letter to the Chairman of MNAA's Board of Commissioners. This 

meeting, ultimately scheduled for November 2, 2007, took place between the Complainant and MNAA 

staff, with two Hudson Group representatives attending the meeting by teleconference. At the request of 

the Complainant, Olympic Supply, the joint venture partner with Hudson, did not attend. According to 

Respondent, the November 2, 2007 meeting, was "an effort to resolve any issues so that all parties could 

move forward with a sublease between AMS-Olympic Joint Venture (Hudson Group) and J&B 

Enterprises. The meeting concluded with, among other things, the Hudson Group agreeing to work with 

the Complainant on the redesign of the shoe shine stand inside the CNN News Store on Concourse B, and 

MNAA, agreed to pay 50 percent of the cost of the redesign, although it had no legal obligation to do so.^^ 

Immediately following the November 2 meeting, Mr. Howard received a telephone call from the 

Complainant (Mr. Dmett), informing him that "J&B had no desire at all to move forward with that 

relationship" because they did not feel they could tmst Hudson. The Respondent stated that, based on 

the Complainant's reaction to the November 2, 2007 meedng, it decided to move Complainant out of the 

CNN News Store at B-5, and into a new location. The Respondent also decided to take Complainant out 

of the Hudson Master Concession Agreement altogether and allow Complainant to operate as a standalone entity under a new concession agreement directly with MNAA.''' According to Respondent, 

"MNAA made this exception to its Concessions Master Plan and Hudson's Master Lease and Concession 

Agreement because MNAA saw it as the most promising approach to keep [Complainant] operating at the 

Airport."^^ 

Respondent stated that its Property Manager then worked with Complainant to find stand-alone locations. 

The Airport identified four locations of which two were found to be satisfactory to Complainant.^' The 

Respondent subsequently found that they could not affect a move immediately because the shoeshine 

stand in location B-5 was constmcted in such a way that it could not be relocated, and that a new stand 

had to be constmcted or brought in from another airport.'^" The Complainant also had declined moving to 

a temporary location, stating it wanted only to move once to a permanent location."*' At the time of the 

proposed move. Respondent had communicated to the Complainant that it planned to procure new design 

services for a new shoe shine stand, and to complete a new concession agreement'*^ 

In the meantime, the Hudson Group also continued its efforts to reach out to the Complainant. In 

Febmary 2008, the Hudson Group wrote Complainant to acknowledge Complainant's desire to relocate 

its business to stand-alone locations proposed by the Airport, and to reaffirm its desire to retain 

Complainant as its subtenant and improve communications. Hudson requested Complainant to execute a 

^^ FAA Exhibit 1, Item 7 at 3-4. 

^^ Id. at 4. 

"Id. 

^* FAA Exhibit 1, Item 10 at 15. 

^'FAA Exhibit 1, Item 7 at 4. 

"" FAA Exhibit 1, Item 10 at 16 and Item 6 at 6. 

""FAA Exhibit 1, Item 10, exhibit 36 and Item 6 at 6. 

'•'^ FAA Exhibit 1, Item 10, exhibit 26. 
sublease, and offered its assistance to develop its merchandising line.'*^ According to Respondent, 

Complainant condnued to refuse to sign a sublease with Hudson."''* 

In April 2008, Respondent had nearly completed drafting a new concession agreement, and was awaiting 

written confirmation on Complainant's preferred locations and intent to enter into a direct lease 

agreement with Respondent. At this time, the Respondent's CEO received a letter from the 

Complainant's lawyer Anthony Robinson, Minority Business Enterprise Legal Defense and Educadon 

Fund (MBELDEF), alleging that MNAA and the Hudson Group were in violadon of FAA's DBE 

regulations, and requested a meeting between Respondent, the Hudson Group, and Complainant to 

informally resolve the legal compliance matters."*^ 

According to Respondent, between April and June 2008, MNAA attempted, without success, to 

coordinate a meeting with Complainant's attomey."** On June 6, 2008, the Respondent informed the 

Complainant's legal counsel, Anthony Robinson, that it would not be renewing the Complainant's lease 

and that the lease would temiinate upon its expiradon on August 31, 2008. Respondent further advised 

that MNAA would be issuing a Request for Proposals (RFP) for a shoe shine concessions operator, and it 

encouraged the Complainant to participate in the RFP process. Respondent also conveyed its expectation 

that Complainant would continue to operate the shoe shine concession on a month-to-month basis until a 

new operator was selected."" On July 30, 2008, Respondent received the Complainant's Part 16 

complaint. 

As of November 3, 2008, the date of the Respondent's last pleading, the Complainant continues to 

operate at the Airport as a month-to-month tenant at its original stand-alone C-Concourse location and at 

the B-5 location. The Hudson Group has permitted the Complainant to continue operating inside its store 

at B5 without a sublease."** 

HI. (B) PROCEDURAL HISTORY 

On July 30, 2008, Complainant filed its Part 16 Complaint with 12 exhibits. [FAA Exhibit 1, Item 1] 

On August 11, 2008, the FAA issued its Nodce of Dockedng. [FAA Exhibit 1, Item 3] 

On August 18, 2008, Respondent filed a Motion for Extension of dme to answer. [FAA Exhibit 1, Item 

4] 

"•^ FAA Exhibit 1, Item 10, exhibit 27. 

^ FAA Exhibit 1, Item 10 at 16. 

"^'Id.atn. 

^'^Id. 

"" Id. The Director notes that the Shoe Shine Service Concession Request for Proposal was posted on the 

Respondent's website on March 4, 2009. The nodce stated that proposals would be accepted until April 17, 2009. 

"•Md. 
On September 3, 2008, FAA granted the Respondent's request for an extension of time. [FAA Exhibit 1, 

Item 5] 

On September 4, 2008, the Complainant filed via email its objecdon to the extension request. [FAA 

Exhibit 1, Item 5A] 

On November 3, 2008, Respondent filed its Answer and Motion to Dismiss with Affidavits in Support. 

[FAA Exhibit 1, Items 6-10] 

On December 11, 2008, Complainant filed a request for an extension of time to reply. [FAA Exhibit 1, 

Item 13]' ' 

On December 23, 2008, Respondent filed its objecdon to the extension request. [FAA Exhibit 1, Item 14] 

On January 8, 2009, FAA denied the Complainant's request for an extension of dme. [FAA Exhibit 1, 

Item 15] 

On January 9, 2009, Raymond G. Price, Esq., notified the parties that he does not represent the 

Complainant and will not be representing the Complainant in this proceeding.^" [FAA Exhibit 1, Item 16] 

On March 10, 2009, the Director issued a Notice of Extension of Time for issuance of Director's 

Determination to on or before May 5, 2009. [FAA Exhibit 1, Item 17] 

On May 5, 2009, the FAA Issued its Director's Determination. [FAA Exhibit I, Item 18] 

On June 3, 2009, Complainant sought an extension of dme to file an appeal of the Director's 

Determinadon. [FAA Exhibit 1, Item 19] 

On June 15, 2009, the FAA extended J&B's dme to appeal to July 8, 2009. [FAA Exhibit 1, Item 20] 

On July 8, 2009, Complainant filed its Appeal of the Director's Determination. [FAA Exhibit 1, Item 

21] 

On July 8, 2009, Complainant filed its Motion to Supplement the Record. .[FAA Exhibit 1, Item 22] 

"*' On January 6, 2009 which was after the time to reply, Complainant submitted a letter to the FAA Part 16 Airport 

Proceedings Docket regarding their former attorney's request for an extension of time. The letter was not served 

properly and was without a certificate of service. Accordingly, the improperly filed letter was not considered by the 

Director in this determination, and is not included in the Index of the Administrative Record. 

^° On February 9, 2009, Complainant submitted a letter to the FAA Part 16 Airport Proceedings Docket, regarding 

their contractual relationship with the Hudson Group and Respondent. On February 17, 2009, Complainants 

submitted a letter to the FAA Part 16 Airport Proceedings Docket, which included a chronology of the events that 

the Complainants thought had a significant role in the review of the facts in this proceeding. Neither of these letters 

were served properly and both were without a certificate of service. Accordingly, these two improperly filed letters 

were not considered by the Director in this determination and are not included in the Index of the Administrative 

Record. 

10 
On July 14, 2009, Respondent filed a Motion for Immediate Stay and Extension of Time To File 

Reply to Appeal. [FAA Exhibit 1, Item 23] 

On July 16, 2009, Respondent filed its Opposidon to Complainant's Motion to Supplement the Record. 

[FAA Exhibit 1, Item 24] 

On July 16, 2009, Respondent filed a Modon to Strike New Issues Raised for the First Time on 

Appeal. [FAA Exhibit 1, Item 24] 

On July 14, 2009, Respondent Moved for an Extension of Time to File its Reply to the Appeal until 

after the Assistant Administrator had mled on the Motion to Supplement the Record and the Motion to 

Strike New Issues Raised on Appeal. [FAA Exhibit 1, Item 23] 

On July 17, 2009, Complainant filed Opposition to Motion for Stay and Extension of Time to Reply. 

[FAA Exhibit 1, Item 34] 

On July 24, 2009 FAA stated that Complainant's Modon to Supplement the Record and Respondent's 

Motion to Strike New Issues Raised on Appeal would likely be decided as part of the Appeal and 

granted MNAA an extension of time undl September 2, 2009, to file its Reply to the Appeal. . 

[FAA Exhibit 1, Item 25] 

On July 27, 2009, Complainant filed a Reply on Modon to Supplement and Opposition to 

Respondent's Motion to Strike New Issues on Appeal. [FAA Exhibit 1, Item 26] 

On July 31, 2009, Respondent filed a Motion to Strike Complainant's Unauthorized Reply. 

Complainant has not filed any Opposition to MNAA's Motion to Strike J&B's Reply. [FAA Exhibit 1, 

Item 27] 

On August 5, 2009, the FAA granted Respondent an Extension of Time to File Its Reply to the 

Appeal. [FAA Exhibit 1, Item 28] 

On September 2, 2009 Respondent filed its Reply to Complainant's Appeal of the Director's 

Determination and renewed its request that the Assistant Administrator deny J&B's motion to 

supplement the record and grant MNAA's motion to strike the two new issues raised for the first time 

on appeal: J&B's retaliation claim and its claim that the joint venture between Olympic Supply and 

Hudson Group does not meet FAA's allocadon of work requirements for joint ventures involving 

ACDBEs. [FAA Exhibit 1, Item 29] 

On September 2, 2009 Respondent filed its own Modon to Supplement The Record On Appeal. [FAA 

Exhibit 1, Item 30] 

On September 17, 2009, Complainant filed its Response to Respondent's Motion to Supplement The 

Record On Appeal. [FAA Exhibit 1, Item 31 ] 

On October 28, 2009, the FAA issued a Nodce of Extension of Time, nodfying parties that the FAA's 

Final Agency Decision will be issued on or before Febmary 16, 2010. [FAA Exhibit 1, Item 32] 

On Febmary 16, 2010, the FAA issued a Notice of Extension of Time, nodfying parties that the FAA's 

Final Agency Decision will be issued on or before March 5, 2010. [FAA Exhibit 1, Item 33] 

11 
IV. APPLICABLE FEDERAL LAW AND POLICY 

The Federal role in civil aviation has been augmented by various legislative actions that authorize programs for 

providing federal funds and other assistance to local communities for the development of airport facilities. In 

each such program, the airport sponsor assumes certain obligations, either by grant agreement or by restrictive 

covenants in property deeds and conveyance instmments, to maintain and operate its airport facilities safely 

and efficiently and in accordance with specified conditions. Commitments assumed by airport sponsors in 

property conveyance or grant agreements are important factors in maintaining a high degree of safety and 

efficiency in airport design, constmction, operation and maintenance, as well as ensuring the public fair and 

reasonable access to the airport. 

The following is a discussion pertaining to the Airport Improvement Program, Airport Sponsor Assurances, 

and the FAA Airport Compliance Program. 

A. Airport Improvement Program 

Title 49 USC § 47101, e? seq., provides for federal airport financial assistance for the development of publicuse airports under the Airport Improvement Program (AIP) established by the Airport and Airway 

Improvement Act of 1982, as amended. Title 49 USC § 47107, et seq., sets forth assurances to which an 

airport sponsor agrees as a condidon of receiving federal financial assistance. Upon acceptance of an AIP 

grant, the assurances become a binding obligation between the airport sponsor and the federal govemment. 

The assurances made by airport sponsors in AIP grant agreements are important factors in maintaining a viable 

nadonal airport system. Part 16 of Tide 14 of the Code of Federal Regulations (14 CFR Part 16) contains the 

mles of pracdce for filing complaints involving federally assisted airports.^' Complaints may be filed under 

Part 16 alleging violadons of the federal grant assurances required under 49 USC § 47107 or § 47113 for 

airports receiving federal airport improvement program funds. 

The standard federal grant assurances contain a civil rights assurance [No. 30], and a Disadvantaged Business 

Enterprise (DBE) Assurance [No. 37], as well as the express requirement to comply with 49 CFR Parts 26 and 

23. 

Tide 49 USC § 47113 provides authority for 49 CFR Part 26 and requires that "The Secretary of 

Transportation shall take affimiative action to ensure that an individual is not excluded because of race, creed, 

color, national origin, or sex from participadng in an activity carried out with money received under a grant 

under this subchapter. The Secretary shall prescribe reguladons necessary to carry out this section." 

Part 26 of 49 CFR contains the Department of Transportadon reguladons for its DBE program with respect to 

Department of Transportation-assisted contracts.^^ Part 26 applies to recipients of Federal Airport Funds 

authorized by 49 USC § 47101, etseq.^^ Part 26 does not apply to contracts in which the Department of 

'' See FAA Rules of Practice for Federally Assisted Airport Enforcement Proceedings, 61 Fed. Reg. 53998 (October 

16, 1996). 

^2 See Participation by Disadvantaged Business Enterprises in the Department of Transportation Financial 

Assistance Programs, 64 Fed. Reg. 5096 (February 2, 1999). 

" See 49 CFR § 26.3(a) (3). 

12 
Transportadon does not participate in financial assistance.^"* Part 26 replaced 49 CFR Part 23 for DBEs in 

Department of Transportation-assisted contracts; DBE airport concessions provisions of 49 CFR Part 23 were 

revised and updated in the Department's regulation entitled Part 23-Participation of Disadvantaged Business 

Enterprise in Airport Concessions.^^ 

The sections of 49 CFR Parts 23 and 26 applicable to this Part 16 proceeding include §§ 23.1, 23.3, 23.9, 

23.11, 23.57, 23.59, 23.61, 23.79, 26.7, 26.101, and 26.105. 

49 CFR § 23.1 sets forth the objecdves of 49 CFR Part 23: 

This part seeks to achieve several objectives: 

(a) To ensure nondiscrimination in the award and administration of opportunides for concessions by 

airports receiving DOT financial assistance; 

(b) To create a level playing field on which ACDBEs can compete fairly for opportunities for 

concessions; 

(c) To ensure that the Department's ACDBE program is narrowly tailored in accordance with 

applicable law; 

(d) To ensure that only firms that fully meet this part's eligibility standards are permitted to participate 

as ACDBEs; 

(e) To help remove barriers to the participation of ACDBEs in opportunities for concessions at 

airports receiving DOT financial assistance; and 

(f) To provide appropriate flexibility to airports receiving DOT financial assistance in establishing 

and in providing opportunides for ACDBEs. 

49 CFR § 23.3 defines the terms used in Part 23: 

Airport Concession Disadvantaged Business Enterprise (ACDBE) is defined as a concession that is a for-profit 

small business concem (1) that is at least 51 percent owned by one or more individuals who are both socially 

and economically disadvantaged or, in the case of a corporation, in which 51 percent of the stock is owned by 

one or more such individuals; and (2) whose management and daily business operadons are controlled by one 

or more of the socially and economically disadvantaged individuals who own it. 

Joint Venture is defined as an association of an ACDBE firm and one or more other firms to carry out a single, 

for-profit business enterprise, for which the parties combine their property, capital, efforts, skills and 

knowledge, and in which the ACDBE is responsible for a distinct, clearly defined portion of the work of the 

contract and whose shares in the capital contribution, control, management, risks, and profits of the joint 

venture are commensurate with its ownership interest. Joint venture entities are not certified as ACDBEs.^* 

^"^ See 49 CFR § 26.3(d). 

" See 70 Fed. Reg. 14496 (March 22, 2005). 

^^ See also DOT/FAA ACDBE Joint Venture Guidance, distributed July 17, 2008. Joint venture entides, 

themselves, are not cerdfied as ACDBEs. In order to count towards ACDBE participation, one or more of the joint 

venture participants must be a certified ACDBE. Even if the joint venture is more than 51% owned by an ACDBE 

firm, it is not certified as an ACDBE because, by definition, a joint venture is an association of firms, not 

13 
49 CFR § 23.9 provides the nondiscrimination requirements for recipients with airport concessions programs. 

(a) As a recipient, you must meet the non-discrimination requirements provided in part 26, § 26.7 with 

respect to the award and performance of any concession agreement, management contract or 

subcontract, purchase or lease agreement, or other agreement covered by this subpart. 

(b) You must also take all necessary and reasonable steps to ensure nondiscrimination in the award 

and administration of contracts and agreements covered by this part. 

49 CFR § 26.7 states: 

(a) You must never exclude any person from participation in, deny any person the benefits of, or 

otherwise discriminate against anyone in connection with the award and performance of any 

contract covered by this part on the basis of race, color, sex, or national origin. 

(b) In administering your DBE program, you must not, directly or through contractual or other 

arrangements, use criteria or methods of administration that have the effect of defeating or 

substantially impairing accomplishment of the objecdves of the program with respect to 

individuals of a particular race, color, sex or national origin. 

The reguladon in 49 CFR § 26.7 prohibits not only intendonal discrimination but also actions that have the 

effect of discriminating against individuals on one of the prohibited grounds (e.g., that have a disparate adverse 

impact on members of a particular group). The language of paragraph (b) is similar to that in the Department's 

longstanding Tide VI regulation (49 CFR § 21.5(b)(2) and is consistent with court interpretations of 

nondiscrimination statutes in other contexts.^' Therefore, to analyze the allegations in this case, we will 

consider two primary theories of discriminadon under Tide VI: intentional discrimination or disparate 

treatment, and disparate impact or adverse effects. 

The regulations in 49 CFR §§ 23.59 and 23.57 provide guidance to recipients on the role of the statutory 10 

percent goal in the ACDBE program, and on the situation where a recipient falls short of meeting its overall 

goals. The regulation in 49 CFR § 23.59 states: 

(a) The statute authorizing the ACDBE program provides that, except to the extent the Secretary 

determines otherwise, not less than 10 percent of concession businesses are to be ACDBEs. 

(b) This 10 percent goal is an aspirational goal at the nadonal level, which the Department uses as a 

tool in evaluating and monitoring DBEs' opportunities to participate in airport concessions. 

individuals. The regulation states as follows: § 26.73(e) An eligible DBE firm must be owned by individuals who 

are socially and economically disadvantaged. Except as provided in this paragraph, a firm that is no owned by such 

individuals, but instead is owned by another firm - even a DBE firm - cannot be an eligible DBE. Therefore, a joint 

venture cannot be certified as an ACDBE. 

" See Supplemental Notice of Rulemaking 62 FR 29548, 29551 (May 30, 1997) citing Alexander v. Choate, 469 

U.S. 287 (1985); Elston v. Talladega Board of Education, 997 F.2d 1394 (11* Cir., 1993). 

14 
(c) The national 10 percent aspirational goal does not authorize or require recipients to set overall or 

concession-specific goals at the 10 percent level, or any other particular level, or to take any special 

administrative steps if their goals are above or below 10 percent. 

The reguladon in § 23.57(a) states: 

(a) You cannot be penalized, or treated by the Department as being in noncompliance with this part, 

simply because your ACDBE participation falls short of your overall goals. You can be penalized 

or treated as being in non-compliance only if you have failed to administer your ACDBE program 

in good faith. 

Title 49 CFR § 23.61 prohibits the use of quotas or set-asides for ACDBE participation. 

Tide 49 CFR § 23.79 does not permit recipients to use local geographic preferences. The section states: 

As a recipient you must not use a local geographic preference. For purposes of this section, a local 

geographic preference is any requirement that gives an ACDBE located in one place (e.g. your local area) an 

advantage over ACDBEs from other places in obtaining business as, or with a concession at your airport. 

Finally, the reguladons in 49 CFR §§ 23.11, and 26.101 and 26.105 cover FAA's enforcement authorides in 

the event FAA finds the recipient in non-compliance. The regulation in 49 CFR § 23.11 states: 

The compliance and enforcement provisions of part 26 (§§ 26.101 and 26.105 through 26.107) apply to 

this part in the same way that they apply to FAA recipients and programs under part 26. 

The regulation in § 26.101(a) states: 

(a) If you fail to comply with any requirement of this part, you may be subject to formal enforcement 

actions under § 26.103 or § 26.105 or appropriate program sanctions by the concerned operating 

administration, such as the suspension or termination of Federal funds, or refusal to approve projects, 

grants, or contracts until deficiencies are remedied. Program sanctions may include.. .in the case of the 

FAA program, actions consistent with 49 U.S.C. 47106(d), 47111(d), and 47122... 

The regulatory provision in § 26.105 specifically provides for enforcement actions in FAA programs, as 

follows: 

(a) Compliance with all requirements of this part by airport sponsors and other recipients of FAA 

financial assistance is enforced through the procedures of Title 49 of the United States Code, including 

49 U.S.C. 47106(d), 47111(d), and 47122, and reguladons implementing them. 

(b) The provisions of § 26.103(b) and this section apply to enforcement actions in FAA programs. 

(c) Any person who knows of a violation of this part by a recipient of FAA funds may file a complaint 

under 14 CFR part 16 with the Federal Aviation Administration Office of Chief Counsel. 

15 
B. Airport Sponsor Assurances 

As a condition precedent to providing airport development assistance under the Airport Improvement Program, 

49 USC § 47107, et seq., the Secretary of Transportation and, by extension, the FAA must receive certain 

assurances from the airport sponsor. Title 49 USC § 47107(a) sets forth the statutory sponsorship requirements 

to which an airport sponsor receiving Federal financial assistance must agree. 

The FAA has a statutory mandate to ensure that airport owners comply with these sponsor assurances. FAA 

Order 5190.6A, Airport Compliance Requirements (Order), issued on October 2, 1989, provides the policies 

and procedures to be followed by the FAA in carrying out its legislatively mandated functions related to 

federally obligated airport owners' compliance with their sponsor assurances. The FAA considers it 

inappropriate to provide Federal assistance for improvements to airports where the benefits of such 

improvements will not be fully realized due to inherent restrictions on aeronautical activities. 

Federal Grant Assurances No. 30 and No. 37 apply to the circumstances set forth in this complaint. Grant 

Assurance No. 30 states: 

It [the airport recipient] will comply with such mles as are promulgated to assure that no person shall, 

on the grounds of race, creed, color, national origin, sex, age, or handicap be excluded from 

participating in any activity conducted with or benefiting from funds received from this grant. This 

assurance obligates the sponsor for the period during which Federal financial assistance is extended to 

the program, except where Federal financial assistance is to provide, or is in the form of personal 

property or real property or interest therein or stmctures or improvements thereon in which case the 

assurance obligates the sponsor or any transferee for the longer of the following periods: (a) the.period 

during which the property is used for a purpose for which Federal financial assistance is extended, or 

for another purpose involving the provision of similar services or benefits, or (b) the period during 

which the sponsor retains ownership or possession of the property. 

Grant Assurance No. 37 states: 

The recipient shall not discriminate on the basis of race, color, national origin or sex in the award and 

performance of any DOT-assisted contract or in the administration of its DBE program or the 

requirements of 49 CFR Part 26. The recipient shall take all necessary and reasonable steps under 49 

CFR Part 26 to ensure non-discrimination in the award and administration of DOT-assisted contracts. 

The recipient's DBE program, as required by 49 CFR Part 26, and as approved by DOT, is 

incorporated by reference in this agreement. Implementation of this program is a legal obligation and 

failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the 

recipient of its failure to carry out its approved program, the Department may impose sanctions as 

provided for under Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 

USC 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 USC 3801). 

C. The FAA Airport Compliance Program 

The FAA discharges its responsibilities for ensuring airport owners' compliance with their Federal obligations 

through its Airport Compliance Program. The FAA's airport compliance efforts are based on the obligations 

an airport owner accepts when receiving Federal grant funds or the transfer of Federal property for airport 

16 
purposes. These obligations are incorporated in grant agreements and instmments of conveyance in order to 

protect the public's interest in civil aviation and to ensure compliance with Federal laws. 

The FAA Airport Compliance Program is designed to ensure the availability of a national system of safe and 

properly maintained public-use airports operated in a manner consistent with the airport owners' Federal 

obligations and the public's investment in civil aviation. 

The Airport Compliance Program does not control or direct the operation of airports. Rather, it monitors the 

administration of the valuable rights pledged by airport sponsors to the people of the United States in exchange 

for monetary grants and donations of Federal property to ensure that the public interest is being served. FAA 

Order 5190.6A, Airport Compliance Requirements (Order) sets forth policies and procedures for the FAA 

Airport Compliance Program. The Order is not regulatory and is not controlling with regard to airport sponsor 

conduct. Rather, it establishes the policies and procedures to be followed by FAA personnel in carrying out the 

FAA's responsibilities for ensuring airport compliance. It provides basic guidance for FAA personnel in 

interpreting and administering the various continuing commitments made to the United States by airport 

owners as a condition of receiving a grant of Federal funds or the conveyance of Federal property for airport 

purposes. The Order analyzes the various obligations set forth in the standard airport sponsor assurances, 

addresses the nature of those assurances, addresses the application of those assurances in the operation of 

public-use airports, and facilitates interpretation of the assurances by FAA personnel. 

The FAA Compliance Program is designed to achieve voluntary compliance with federal obligations accepted 

by owners and/or operators of public-use airports developed with FAA-administered assistance. Therefore, in 

addressing allegations of noncompliance, the FAA will make a determination as to whether an airport sponsor 

is currently in compliance with the applicable federal obligations. Consequently, the FAA will consider the 

successful action by the airport to cure any alleged or potential past violation of applicable federal obligation to 

be grounds for dismissal of such allegations.^^ 

The Order covers all aspects of the airport compliance program except enforcement procedures, which as 

referenced above are at FAA Rules of Practice for Federally-Assisted Airport Enforcement Proceedings (14 

CFR Part 16). Under 49 CFR § 26.105(b), any person who knows of a violation of Part 26 by a recipient of 

FAA funds may file a complaint under 14 CFR Part 16 with the Federal Aviation Administration Office of 

Chief Counsel. 

On Febmary 22, 2002, the Director of the Office of Airport Safety and Standards (now the Director of Airport 

Compliance and Field Operations) delegated to the Deputy Assistant Administrator for Civil Rights the 

authority to prepare and issue director's determinations pursuant to 14 CFR Part 16.^' At the time that the 

Director's Determination was issued, the Deputy Assistant Administrator for Civil Rights position was vacant, 

without an acting official, and the Director of Airport Compliance and Field Operations was acting as the 

decision maker. 

^* See e.g. Wilson Air Center v. Memphis and Shelby County Airport Authority, FAA Docket No. 16-99-10, 

(8/30/01); upheld in Wilson Air Center, LLC v. FAA, 372 F.3d 807 (C.A. 6. June 23. 2004). 

See Albuquerque Valet Parking Service, Norma G. Morris and David Powdrell, v. City of Albuquerque, 

Albuquerque, NM, FAA Docket No. 16-01-01; upheld m Albuquerque Valet Parking Service v. FAA, Civ. No. 03-

575 (D.C. New Mexico, March 31, 2004). 

17 
D. Appeal to the Associate Administrator 

Pursuant to 14 CFR, Part 16, §16.33, the Associate Administrator for Airports will issue a final decision 

on appeal from the Director's Determination, without a hearing, where a hearing is not required by statute 

and is not otherwise made available by the FAA. In appeals, it is the Associate Administrator's 

responsibility to determine whether (1) the findings of fact made by the Director are supported by a 

preponderance of reliable, probative and substantial evidence, and (2) each conclusion of law is made in 

accordance with applicable law, precedent, and public policy. [See e.g. Ricks v Millington Municipal 

Airport.FAA Docket No. 16-98-19, p.21 (12/30/99) and 14 CFR, Part 16, §16.227] A general delegation 

was issued on Febmary 22, 2002, from the Associate Administrator for Airports to the Assistant 

Administrator for Civil Rights for issuance of final agency decisions for Part 16 actions involving 

allegations of civil rights violations. 

V. PROCEDURAL MATTERS 

A. Motions to Supplement the Record On Appeal 

Prior to addressing the merits of this appeal there are a number of pending procedural matters which 

require resolution. 

i. Motions to Supplement the Record on Appeal 

On July 8, 2009, Complainant filed a Modon to Supplement The Record On Appeal pursuant to 14 C.F.R. 

section 16.19(a). [FAA Exhibit 1, Item 22] Complainants in its motion seeks to enter into the record the 

following documents: (1) Letters dated January 5, 2009, Febmary 9, 2009 and Febmary 17, 2009, from 

J&B Enterprises to the Federal Aviation Administration, Office of Chief Counsel, and; (2) Letter dated 

June 19, 2008, from Anthony W. Robinson, Attorney, to Robert C. Watson, Attomey, and (3) Letter 

dated, January 9, 2009, Letter with Attachments dated January 9, 2009, from Mara E. Rosales to Michael 

Freilich. Id. On July 16, 2009, Respondent filed its Opposition to Complainant's Motion to Supplement 

The Record on Appeal. Subsequently on July 27, 2009, Complainant filed a Reply on Motion to 

Supplement The Record and Opposition to Respondent's Motion to Strike New Issues On Appeal. On 

September 12, 2009, Respondent filed Respondent's Motion to Strike Complainant's Unauthorized Reply 

to Respondent's Opposition to Complainants Motion to Supplement The Record. [FAA Exhibit 1, Items 

22-24, 26-27] 

The Assistant Administrator has reviewed the documents sought to be entered in the record by 

Complainant and considered the objections of Respondent. The documents sought to be entered by the 

Complainant are correspondence previously submitted to the FAA or to Respondent in regard to this 

matter. The Assistant Administrator finds it is information of a general nature regarding Complainant's 

allegations already contained in the record. Respondent will not be unduly prejudiced by its inclusion and 

consideration. Therefore, the Complainant's Motion To Supplement The Record On Appeal is granted 

and Respondent's Motion in Opposition is denied. 

On September 2, 2009, September 2, 2009, Respondent filed a Motion To Supplement The Record On 

Appeal, pursuant to 14 C.F.R. section 16.19(a). [FAA Exhibit 1, Item 30] Respondent seeks to enter into 

18 
the record the Affidavit of Rebecca Ramsey, Manager of Properties, Metropolitan Nashville Airport 

Authority, and four accompanying exhibits. On September 17, 2009, the Complainant filed its Response 

To Respondent's Motion to Supplement The Record on Appeal. The Complainant objects to inclusion of 

Respondent's documents and exhibits on the grounds that they are irrelevant to the issues presented on 

appeal. The Assistant Administrator has reviewed the documents sought to be entered and finds they 

pertain to the RFPs issued by Respondent and evidence not available earlier but connected to 

Complainants' new allegations. Accordingly, the Assistant Administrator concludes that the materials are 

relevant to the issues raised herein and that Complainant will not be unduly prejudiced by its inclusion, 

therefore. Respondent's Motion To Supplement the Record On Appeal is also granted. 

ii. Respondent's Motion to Strike New Issues Raised On Appeal 

On July 16, 2009, Respondent filed its Opposition to Complainant's Motion to Supplement the Record 

On Appeal and Motion to Strike New Issues Raised On Appeal. [FAA Exhibit 1, Item 24] In its motion 

the Respondent requests that the Assistant Administrator strike from consideration two issues contained 

in Complainant's Appeal of Director's Determination filed July 8, 2009. The Respondent contends that 

Complainant, for the first time on appeal, alleged that it was the victim of retaliation. Respondent also 

asserts that Complainant has never alleged that the joint venture between Hudson and Olympic does not 

conform to the FAA's Joint Venture Guidance. Id. 

Retaliation Claim Review 

The Complainants have attributed considerable attention in their appeal documents to the claim 

that the Director erred in failing to glean that Complainant was the victim of retaliation in 

violation of 49 C.F.R. §§23.11 and 26.109. The Assistant Administrator has carefully 

reviewed the appeals documents provided by Complainant to support its claim of retaliation. 

The Assistant Administrator has summarized below some of the varied factual claims and legal 

issues regarding retaliation raised by Complainant in its appeal document: 

1. Retaliation is a form of discrimination and the Director "simply failed to recognize or 

acknowledge the complainant's allegation," encompassed more than disparate impact and 

disparate treatment discrimination.""^^ 

2. The ACDBE Program regulations specifically prohibit retaliation, as 49 C.F.R. section 

23.11 specifically incorporated the compliance and enforcement provisions found in 49 

C.F.R. section 26.109. Thus, the Director, in light of the regulation, should inherently have 

evaluated the actions of the Complainant and the Respondent as it related to retaliation. *' 

60 FAA Exhibit 1, Item 21 at 4 

"'Id. at 5. 

19 
3. The Complainant reasons that more than an inference of retaliation is warranted by the 

statements of Amber Gooding, Director of Business Development, and John Howard, Jr., 

Assistant Vice-President of Properties and Business Development. It claims those 

statements are irrefutable proof that the Respondent decided to publicly bid the shoeshine 

concession on June 6. 2008, solely because it received the April 15, 2008 letter from J&B's 

attorney alleging that MNAA and Hudson were in violation of the DBE program 

regulations.^2 

Complainant further asserts that John Howard, Jr., Assistant Vice-President of Properties, 

admitted he was "well along in drafting a new concessions agreement with J&B 

Enterprises, but stopped when he received the letter from Complainant's attorney stating 

that MNAA and Hudson were in violation of the 49 CFR Parts 23 and 26. " 

5. Complainant argues that the affidavits of John Howard, Jr., and Amber Gooding offer no 

other rationale than the receipt of Complainant's attorney's letter as a reason for failing to 

schedule concessions contract discussion meeting between MNAA and J&B Enterprises.^"* 

6. Complainant argues that it has established a prima facie case of retaliation by showing that 

it (1) engaged in statutorily protected expression (its attorney's letter of complaint), (2) it 

was subjected to a "materially adverse" act (the termination of its concession's agreement), 

and (3) there was a causal relationship between the protected activity and the materially 

adverse action taken by Respondent (public bid of the shoeshine concession).*^ 

Complainant also asserts that the causal relationship is established by the close temporal 

proximity (less than two months) between J&B's attorney's letter and the decision to 

terminate the existing concessions agreement.** 

Complainant also reasons that the Respondent is liable for retaliation because it has failed 

to articulate a legitimate, non-discriminatory explanation for its action in terminating its 

direct concessions relationship with J&B Enterprises. Complainant argues that 

Respondent's purported nondiscriminatory reason (inability to schedule a meeting with 

Complainant) does not rationally explain why Complainant's contract was terminated. 

Complainant asserts that it was ready to discuss the revised lease at any time during the 

Id. at 6. 

62 

" Id. at 5. 

'^ Id. at 8. 

65 Id. 

'^''Id. 

20 
eight month period leading up to the notice of the termination of its lease, but the 

Respondent did not come to the table.*^ 

9. The Complainant asserts that the Director failed to recognize, interpret and adjudicate the 

claim of retaliation it clearly presented in its factual allegations at the investigative stage. 

Consequently, Complainant insists that the Assistant Administrator should assess as error 

the Director's oversight and find Respondent in violation of 49 C.F.R. §§23.11 and 26.109. 

As a starting point, the Assistant Administrator has chronicled above, in some detail, the Complainant's 

numerous new legal and factual arguments regarding alleged retaliation, specifically for the purpose of 

showing how inappropriate it would be at the appeal stage of these proceedings to attempt to undertake 

resolution of such complex factual and legal issues. 

Had the Complainant articulated that it was the victim of retaliation in its initial complaint, then it would 

have been incumbent upon the Respondent to carefiilly evaluate its actions and submit a reasoned 

response with specific evidentiary support. It cannot be assumed that the present record is fully 

developed with regard to information Respondent believes relevant regarding a claim of retaliation, and to 

which it was never given the opportunity to address. Likewise the Director, in the appropriate fomm 

during the investigative stage, would have had the opportunity to flilly examine the claims and evidence 

of both parties and make further exploration into events and documentation he thought to be relevant on 

the issue. 

The Assistant Administrator reminds the Complainant that, in investigating a complaint under Part 16, the 

Director may include a review of the pleadings of the parties, as supplemented by any informal 

investigation the FAA considers necessary, and by additional information furnished by the parties at FAA 

request. The FAA may rely entirely on the complaint and responsive pleadings. Each party is required to 

file all documents that it considers sufficient to present all relevant facts and argument necessary for the 

FAA to determine whether the sponsor is in compliance.** The intent of 14 CFR § 16.29 is that the FAA 

will be able to decide the merits of a case by looking solely at the record. After reviewing the 

Complainant's complaint, the Assistant Administrator finds no direct or indirect allegations of 

retaliation.*' Furthermore, the totality of the new factual claims and legal analysis proffered by 

Complainant at this stage illustrates not only that the initial complaint was completely deficient in regard 

to any mention of the issue of retaliation, but also confirms the Assistant Administrator's opinion that, 

contrary to Complainant's assertion, the Director had no reason to infer or inquire whether the 

Complainant was the victim of retaliation. Moreover, based on the record before the Director, it appears 

the Respondent administered the ACDBE program and engaged in extraordinary efforts to maintain its 

relationship and retain J & B at the airport.TM Accordingly, the Assistant Administrator finds the Director 

"Id. At 10. 

'^^ 14 CFR § 16.29. 

'^^ FAA Exhibit 1, Item l,at 1-3. 

TM FAA Exhibit 1, Item 7 and Item 10 at 6. 

21 
did not err in failing to find that Respondent retaliated against Complainant in violation of 49 C.F.R. 

§§23.11 and 26.109 and Respondent's Modon to Strike New Issues Raised On Appeal is hereby granted 

as to this issue. 

Hudson Joint Venture Claim Review 

The Assistant Administrator notes that on appeal the Complainant has introduced a new basis for 

challenging the participation of the joint venture partnership between Hudson and Olympic Supply. The 

Complainant alleges that the Director should not have counted the Hudson joint venture partnership's 

participation because the ACDBE partner, Olympic Supply, is not responsible for a "distinct, clearly 

defined portion of the work" of the contract as required by the regulation and the FAA's joint venture 

guidance. Complainant points to a Maryland Aviation Administration audit of the Hudson/Olympic 

Supply Joint Venture operating at Baltimore-Washington Intemational Airport (BWI). Complainant 

avers that the BWI audit team "disqualified" Olympic News/Supply from receiving ACDBE credit 

because it failed to operate independendy from Hudson.^' 

The Assistant Administrator finds that the Director correctly assessed the participation of the Hudson/ 

Olympic Supply joint venture based upon the issues and evidence presented in the record at the 

investigative stage. As the Assistant Administrator noted earlier, under Part 16 the Director may include 

a review of the pleadings of the parties, as supplemented by any informal investigation the FAA considers 

necessary, and by additional information furnished by the parties at FAA request. The FAA may rely 

entirely on the complaint and responsive pleadings. Each party is required to file documents that it 

considers sufficient to present all relevant facts and argument necessary for the FAA to determine 

whether the sponsor is in compliance. [14 CFR § 16.29] The intent of 14 CFR § 16.29 is that the FAA 

will be able to decide the merits of a case by looking solely at the record. Consequently, the Assistant 

Administrator finds that the new issues raised by Complainant upon appeal challenging the participation 

of the joint venture partnership are not properly raised at this stage of the proceeding and Respondent's 

Motion to Strike New Issues Raised On Appeal is hereby granted as to this issue. 

VI. ANALYSIS AND DISCUSSION 

Upon consideration of J & B Enterprise's complaint filed with the FAA on July 30, 2008, the Director of 

the Office of Airport Compliance and Field Operations determined MNAA did not discriminate against 

the Complainant on the basis of his race (African American), nor did the airport, in the administration of 

its new shoeshine concession leasing policy and procedure, implement the program in such a manner as to 

have a disparate impact upon Complainant or other African Americans. The Director also determined 

that the Respondent had awarded the two identified specialty retail concessions contracts to Hudson 

Group in accordance with Respondent's 15.7% ACDBE contract goal and 49 C.F.R. Part 23. 

^' FAA Exhibit 1, Item 21 at 20-21 

22 
Disparate Impact Claim Review 

The Complainant explained the essence of its claim of disparate impact discriminadon as follows, 

"MNAA violated 49 CFR § 26.7 because MNAA administered the ACDBE program, in such a way that 

both directly and through contractual and other arrangements . . . used criteria or methods of 

administration that have had the effect of defeating or substantially impairing accomplishment of the 

objectives of the ACDBE program with respect to J&B on the basis of race." ''^ The Complainant fiirther 

detailed the factixal basis for its claim of discrimination against Respondent stating, "[ajfter the contract 

was awarded to Hudson, in violation of the concession agreement, it sought to alter the layout and store 

location, without either written notice to, or discussion with J&B."^^ The Complainant further alleged 

that "MNAA avoided the legal process and ordered the closure of the J&B store located at Concourse B-1 

in July of 2007. As a consequence of this breach of the Concession Agreement, J&B was placed in the 

CNN store and not in the Hudson News store."^"* 

The Complainant also cited the negative effect Respondent's actions had on its business operations 

stating, "[tjhese illegal acts placed J&B at a distinct business disadvantage; it was without appropriate 

storage space for customers' bags, coats, hats, and other belongings, and the booth space made it difficult 

for customers' shoes to be shined. Moreover, elderly and or handicapped customers had tremendous 

difficulty being seated. The sum of the aforesaid alleged acts of discrimination violate 49 CFR Part 26 § 

26.7(b) and 49 CFR Part 23 § 23.1(e)."^^ 

The Respondent countered, stating that Complainant's allegations "do not identify a policy or practice 

at issue, nor do they identify a disparate adverse impact suffered by African-American DBE 

concessionaires at the Airport." ^* It contended that Complainant did not supply evidence to 

demonstrate adverse impact or any impact of Respondent's actions on any entity other than J&B's 

individual business. The Respondent's ACDBELO asserted that "[t]wo other ACDBEs, one owned by 

African-American owners, participated in the Hudson News, Gift and Specialty Retail concessions 

proposal. Neither of them has expressed any discontent with Hudson, MNAA, or the ACDBE 

program."''^ 

On appeal the Complainant asserts several errors in the Director's application of the disparate impact 

analysis to the facts at hand. Complainant argues the Director erred in concluding there was no disparate 

impact violation because "J&B, an African American owned business, was the only existing concession 

that MNAA subjected to the challenged policy, DD at 23, and was the only shoeshine operator at 

MNAA."''* Thus, Complainant asserts that the challenged policy had a disparate impact on African 

Americans both by virtue of the fact that it applied only to African American owned businesses and that it 

was not applied to non-minority owned businesses. 

^^ FAA, Exhibit 1, Item 1 at 3 

•'^ Id. at 2-3 

'Ud. 

''Id . 

^* FAA Exhibit 1, Item 10 at 27. 

" FAA Exhibit 1, Item 8 at 4. 

^* FAA Exhibit Litem 21 at 11. 

23 
In reviewing the Director's analysis, the Assistant Administrator finds the Director reviewed the 

complaint, responses and record evidence, applied the appropriate legal standards, and applied the facts to 

the legal analysis to determine whether Complainant had established a prima facie case of discrimination 

based upon disparate impact. The Director oudined the Complainant's burden of proof stating: 

In order to make a prima facie showing that a given action by the Respondent 

violated 49 CFR § 26.7(b), the Complainant must show that the Respondent's 

actions had a disproportionate and an adverse impact on this group. To do this, the 

Complainant must show a causal connection between the facially neutral policy and 

the disproportionate and adverse impact on African American shoe shine operators 

as a group. 

In order to establish causation, the Complainant is required to employ facts and 

statistics that will adequately capture the impact of the practice on similarly situated 

African Americans, and members of non-protected groups. The Complainant must 

show, using an appropriate measure, that specific actions of the Respondent caused 

a disparate effect on similarly situated concessionaires to the detriment of African 

American shoe shine operators. New York City Environmental Justice Alliance 

(NYCEJA) V. Giuliani, 214 F.3d 65, 70 (2d Cir. 2000).^' 

The Director found the Complainant failed to establish a prima facie case of discrimination based on 

disparate impact because it failed to include any facts or statistics to show the effect Respondent's acdons 

had on other African Americans and members of the non-protected groups. The Assistant Administrator 

is likewise not persuaded by Complainants assertion on appeal of discriminatory impact where, once 

again. Complainant has failed to show any factual or statistical evidence of record to confirm such a 

claim. Additionally, the record does appear to contain evidence (although not a basis for the Director's 

opinion) that under Respondent's revised concessions program, an African American-owned specialty 

retail concession and a non-protected group business (neither of them a shoeshine operation) were 

allowed to continue their direct lease arrangements under the new concessions program.*" 

Consequently, not all African American owned businesses were required to relinquish their direct lease 

arrangements as was asserted by Complainant. 

The Complainant also assigns as error the Director's conclusion that MNAA met its burden of providing 

a substantial justification for its policies because there was a "comparably effective practice that would 

have made the Airport's objectives efficiently and would have less discriminatory effect, notably a direct 

lease with the Airport."*' The Complainant further argues that the Director's error is made even more 

apparent because the Director should have taken note of the fact that the Airport itself concluded that 

requiring the shoeshine concession to operate under Hudson did not work and issued an RFP with a direct 

lease shoeshine arrangement. 

' ' FAA Exhibit 1, Item 18 at 22. 

^^ See FAA Index Item 12, DBE Office Online Reporting System (DOORS) report showing Nashville Nails as an 

African-American owned ACDBE and The Massage Bar, a non-protected class business as direct airport lessees. 

*' FAA Exhibit 1, Item 21 at 12. 

24 
The Assistant Administrator finds that the Respondent articulated several permissible non-discriminatory 

reasons for requiring the shoeshine concession to be managed by the master retail concessionaire, 

Hudson. The Director performed an extensive analysis of those reasons which included, the development 

of a new Concessions Master Plan, implementation of a new merchandising concept, "news and 

convenience," increased customer service, and greater revenues. The Director explained his reasons for 

accepting Respondent's articulated justifications as valid stating: 

The Director finds that Respondent's reason for changing the arrangement for the 

shoe shine concession appears to be in the interest of increasing customer service. 

Further, an airport has discretion in fashioning its concessions program. The FAA 

under its Airport Compliance Program does not seek to control or direct the 

operations of airports. The Director finds that Respondent exercised this discretion 

in developing a concessions program that met its long term business objectives. 

There is nothing in the ACDBE or DBE regulations that would require an airport 

sponsor to select one merchandising concept, or concession management method 

over another, unless an airport sponsor's action was motivated, or resulted in 

discrimination prohibited under 49 CFR § 26.7.*^ 

The Assistant Administrator finds nondiscriminatory reasons in the record for Respondent to decide to 

alter its long-term direct contracting relationship with Complainant. The sole fact that Respondent's 

decisions may not ultimately bear the anticipated fmit is not an acceptable basis to conclude that they 

have a discriminatory impact; such is the nature of business. As the Director noted, the FAA has no 

interest in directing the merchandising programs of Airports or curtailing their discretion in fashioning 

such programs, as long as they are lawfully created.*^ Therefore, the Assistant Administrator finds no 

error in the Director's analysis or findings as they relate to the claim of disparate impact discrimination. 

Disparate Treatment Claim Review 

The Complainant alleged in the proceedings below that Respondent and Hudson discriminated against it 

on the basis of race (African American) through collaborative acts of fraud and intimidation. 

Specifically, Complainant asserted that it was not afforded the same rights as other concession operators 

at the airport including: (1) not being permitted to design its interiors and obtain approval from the 

Airport, as was the case for all other operators; (2) not being given a hearing to discuss objections or 

questions regarding the relocation of its shoeshine operation; (3) being denied the opportunity to provide 

adequate seating for its customers, or their belongings resulting in the drastic reduction of its gross 

receipts; (4) being denied comparison information for other concession operators within the Airport ; and 

(5) not receiving adequate attention to information requests posed to the Respondent or Hudson.*"* 

Complainant also stated that it was ordered to pay for a booth which did not meet its operational 

requirements and that it was threatened with removal from the airport for refusal to sign the sublease 

^^ FAA Exhibit 1, Item 18 at 23. 

^Md. 

^^ FAA Exhibit Litem 1 

25 
agreement drafted by Hudson. Complainant stated that all of the above acts were the result of an 

organized campaign of intentional racial discrimination and harassment.*^ 

The Assistant Administrator finds that the Director undertook a thorough review of the Complainant's 

claim of disparate treatment discrimination under 49 C.F.R. section 26.7(a). The Director outlined the 

steps necessary for a proper analysis of intentional discrimination and referenced the cases that outline the 

steps. The Director noted what the Complainants needed to show in order to prove intentional 

discrimination, and applied the McDonnell Douglas framework to determine whether the Complainants 

proved their discrimination claim as follows: 

To analyze whether racial discrimination occurred under 49 CFR § 26.7(a), 

the FAA will use the intentional discrimination or disparate treatment theory 

of discrimination under Title VI of the Civil Rights Act, as amended. The 

Director will review these matters to determine whether Respondent 

intentionally discriminated against Complainant on the basis of its race, when 

after the contract was awarded to Hudson, in violation of the Complainant's 

concession agreement. Respondent allegedly took the following actions: (1) 

altered the layout and store location, without either written notice to, or 

discussion with Complainant; (2) ordered the closure of the J&B store located 

at Concourse B-1 in July 2007; (3) placed J&B in the CNN store and not in 

the Hudson News store; and (4) threatened to remove Complainant from the 

premises when it refused to sign a sublease with Hudson. 

The analysis of intentional discrimination is equivalent to the analysis of 

disparate treatment under the Equal Protection Clause of the Fourteenth 

Amendment. (See U.S. Department of Justice Title VI Legal Manual, at 42 

(January 11, 2001) . . . Intentional discrimination claims may be analyzed 

using the Title VII burden shifting analytic framework established by the 

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 at 802 

(1973). 

In applying the framework established in McDonnell Douglas, the 

complainant must first raise an inference of discrimination by establishing a 

prima facie case of discrimination. The elements of a prima facie case often 

include, (1) the aggrieved person was a member of a protected class, (2) the 

person applied for, and was eligible for a federally-assisted program that 

was accepting applications, (3) despite the person's eligibility he or she was 

rejected, and (4) recipient selected applicants of the person's qualifications, 

or the recipient continued to accept applications from applicants of person's 

qualifications.** 

' ' Id. at 2-3 

^* FAA Exhibit 1, Item 18 at 27-28. 

26 
The Director found that the Complainant did not establish a prima facie case of discrimination, as it 

provided no information to show that Respondent nor Hudson treated other subcontractors not of 

Complainant's race differently.*^ While the Director noted that there was no specific written notification 

given to Complainant regarding the relocation of the B-7 concession location., there was, however, 

substantial general information notice given to Complainant and other concessionaires regarding the 

relocation of concessions, including the shoeshine concessions, under the new concession plan. 

Complainant, in fact, attended the mandatory pre-proposal meeting in Febmary of 2006 regarding the new 

concessions RFP.** 

The Director also examined the Respondent's articulated nondiscriminatory reasons for its alleged 

actions.*' The Assistant Administrator finds that there is substantial evidence in the record to support the 

Director's finding that Complainant was not the victim of disparate treatment racial discrimination in 

violation of 49 C.F.R section 26.7(a). The Director's Determination focused on the consequences of the 

recipient's practices, rather than the recipient's intent and performed the appropriate analysis pursuant to 

relevant cases decided under Title VII disparate impact law.'" The Complainant did not demonstrate by a 

preponderance of evidence that the Respondent's practice has a disproportionate adverse effect on the 

protected group [African Americans]." In fact, the Director found "The Complainant has provided only 

evidence of how it was adversely impacted by Respondent's decisions; it has provided no facts or 

statistical data to show whether there is a disproportional and adverse impact on African American shoe 

shine operators... nor ...the impact... on shoe shine operators not of Complainant's race...."'^ The 

Assistant Administrator specifically notes the airport's longstanding contractual relationship with 

Complainant; the Respondent's willingness to remove Complainant from its subcontractor relationship 

with Hudson when it proved unworkable; and Respondent's decision to pay half of the cost to constmct a 

new shoeshine booth ordered to Complainant's specifications. Finally, the Director also researched 

Respondent's past history regarding discrimination complaints and Respondent's record of ACDBE goal 

achievement during past three federal fiscal years. Respondent achieved 16.5 percent, 9.6 percent, and 

18.9 percent participation in non-car rental ACDBE participation. The history supports Respondent's 

ACDBE efforts to protect the group and meet its goal.'^ The record herein lacks evidence to support 

Complainant's claim of disparate treatment and impact. Therefore, the Assistant Administrator finds that 

the Director did not err in his determination to dismiss Complainant's claim of discrimination on the basis 

of race. 

^^ Id. at 27 

^* Id. at 29 

^' Id. at 27-28 

'° Id. at 21-24 

" Id. at 22 

'^Id. 

'^It should be noted that, while Respondent has a good record of achievement of overall goals, 49 CFR Part 23.57 

recognizes that recipients who expend good faith efforts in operating their program cannot be penalized as being 

non- compliant solely because their ACDBE participation fall short of their overall goal. 

27 
Award of News, Gifts & Retail Concessions Part 23 Compliance Claim Review 

The Complainant initially asserted in the proceedings below that the Respondent erred in awarding the 

Hudson Group the two prime concessions contracts because it failed to achieve the required 15.7 percent 

ACDBE participation goal set in the solicitation.'"* The Director found that Complainant based this 

assertion on two misconceptions it had regarding the proper interpretation of the regulation. First, the 

Director found that Complainant based its accounting of Hudson's ACDBE participation on the incorrect 

assumption that the regulation required that the ACDBE control 51 percent of the joint venture in order 

for it to be ACDBE certified.'^ Complainant reasoned that since AMS-Olympic Nashville, Hudson's 

ACDBE joint venture partner, only owned 17 percent of the entity, its participation would not count 

toward the Respondent's 15.7 percent ACDBE participation requirement, resulting in the Hudson Group 

Joint Venture achieving no more than 2 percent ACDBE participation. The regulations in fact require 51 

percent ownership and control of the ACDBE firm by socially and economically disadvantaged 

individuals, not 51 percent control of a joint venture by the ACDBE joint venture partner. 

Secondly, the Director detennined that Complainant was incorrect in its claim that Olympic Supply and 

Hudson's other ACDBEs were not certified in the State of Tennessee. The record indicates that the 

Respondent provided documentation of Olympic Supply's certification within the state indicating that it 

was owned by two African American individuals. 

Accordingly, the Assistant Administrator also finds that the Director did not err in validating the award of 

the two prime concessions contracts to Hudson, and in validating the achievement of the 15.7 percent 

ACDBE participation by the Hudson/Olympic Supply joint venture. 

Also, on appeal the Complainant alleges that the Director should not have counted the Hudson joint 

venture partnership's participation because the ACDBE partner, Olympic Supply, is not responsible for a 

"distinct, clearly defined portion of the work" of the contract as required by the regulation and the FAA's 

joint venture guidance. As stated earlier in this determination, the Assistant Administrator will not 

undertake a review and analysis of that allegation as it was dismissed from consideration on appeal based 

upon the grant of Respondent's Motion to Strike New Issues Raised on Appeal, see the discussion of this 

issue on page 22. 

49 C.F.R Part 23 and 26 & Grant Assurances Nos. 30 & 37 Claim Review 

The Complainant in the proceeding below alleged that Respondent failed to implement its ACDBE 

program in good faith, citing its failure to meet the ACDBE program objectives under 49 CFR § 23.1.'^ 

The Complainant contended that Respondent did not provide for a level playing field, and thwarted 

Complainant's full participation in the ACDBE program when Respondent was unable to relocate 

Complainant outside of B-5 as planned. The Complainant believes the Respondent did not follow through 

'" FAA Exhibit 1, Item 1 at 2-3 

'^ FAA Exhibit 18. at 19-20. 

"^ Id. at 18. 

" FAA Exhibit 1, Item 1 at 2-3. 

28 
on its decision to remove Complainant from the Hudson master concession contract and move it into a 

direct lease arrangement with the Airport.'* 

On appeal the Complainant argues that the Director erred in his analysis and conclusion that the 

Respondent's actions, or inaction, individually or cumulatively, were not contrary to the administrative, 

general and compliance requirements of 49 C.F.R. Parts 23 and 26 and the Federal Grant Assurances Nos. 

30 and 37. The Complainant challenges on appeal the Director's rationale that the Respondent 

"attempted to do everything it believed it could to facilitate Complainant's full participation in the 

ACDBE program."" The Complainant argues that such a finding is clearly contradicted by 

Respondent's decision to terminate its longstanding direct concessions relationship with Complainant and 

put the shoeshine concession up for public bid. The Complainant also disagrees with the Director's 

assessment that Respondent made "extraordinary efforts" to resolve all of Complainant's issues with 

Hudson and accommodate its needs. The Complainant opines that Respondent's "extraordinary attempts" 

were nothing but "empty promises and agreements never executed."'"" The Assistant Administrator finds 

that the Director performed a frank and balanced review of Respondent's administration of its Part 23 

ACDBE Program consistent with the objectives set forth in 49 C.F.R. section 23.1. For example, the 

Director recognized that Respondent's failure to " set service or operational standards, or a minimum 

square footage allotment. . . created the conditions for issues such as those experienced by the 

Complainant on the unsuitability of the space and design of the shoeshine stand."'"' The Director also 

found that" Respondent did not appear to consider the impact of its policy on ACDBEs and other small 

businesses, when it decided to charge a 13 percent rent for both the news and convenience store operator, 

and the shoeshine operator, which were to be co-located in two of the news and convenience stores. As 

noted above, the news and convenience and the shoeshine concessions are not comparable. The two 

concessions vary widely in their industry type and traditional profit margins." (Id. at 31) 

The Director also noted Respondent's willingness to correct the inequities it created that had become a 

barrier to Complainant. This included the decision by Respondent and Hudson to reduce Complainants 

rent from 13 percent to 4 percent of gross sales to make it consistent with the amount Complainant 

previously paid under its previous direct leasing contract.'"^ The Director likewise correctly noted 

Respondent's extraordinary action in removing Complainant from Hudson's master lease when the issues 

between Hudson and Complainant could not be resolved.'"^ 

The Assistant Administrator concludes, based upon review of the statements of the parties and the totality 

of the record, that the airport took more than reasonable steps to accommodate the Complainant's issues 

'* FAA Exhibit 1, Item 21 at 22. 

"'Id. at21. 

'°° Id. at 22. 

'"'FAA Exhibit 1, Item 18 at 31. 

'"^ Id. 

'°^Id. 

29 
and the Director did not err in finding the Respondent was compliant with the administrative, general and 

compliance requirements of 49 CFR Parts 23 and 26 and Grant Assurances No. 30 and No. 37. *""* 

VII. FINDINGS AND CONCLUSION 

Based on the foregoing discussion and analysis,.the Assistant Administrator concludes that the Director's 

Determination is supported by a preponderance of reliable, probative, and substantial evidence, and is 

consistent with applicable law, precedent, and FAA policy as described above. This appeal does not 

provide a sufficient basis for reversing the Director's Determinations finding that the Respondent 

Metropolitan Nashville Airport Authority: (1) complied with 49 CFR Part 23 in good faith by awarding 

the Hudson Group the two News, Gifts, and Specialty Retail concession contracts (NGSP-1 and NGSP2) at Nashville Intemational Airport; (2) correcdy determined that the Hudson Group exceeded 

Respondent's ACDBE contract goal of 15.7 percent: (3) did not disparately impact Complainant or other 

African Americans in the administration of its new shoeshine concession leasing policy and procedure 

consistent with its duty to comply with 49 CFR § 23.9 and 49 CFR § 26.7(b): (4) did not discriminate 

against the Complainant on the basis of its race (African American) in compliance with 49 CFR § 23.9 

and 49 CFR § 26.7(a), and; (5) complied with the administrative, general and compliance requirements 

of 49 CFR Parts 23 and 26 and Grant Assurances No. 30 and No. 37. 

ORDER 

The FAA dismisses this Appeal and affirms the Director's Determination pursuant to 14 CFR 

§16.33. This Decision constitutes the final decision of the Assistant Administrator for Civil 

Rights and Diversity Advocate, pursuant to 14 CFR § 16.33 (a), under the authority of 49 USC 

§§47122 and 46101. 

APPEAL RIGHTS 

A party to this decision disclosing a substantial interest in the final decision and order of the Federal 

Aviation Administration may file a petition for review pursuant to 49 U.S.C. § 46110, in the United States 

Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the 

Circuit in which the person resides or has its principal place of business. The petition must be filed not later 

than 60 days after this Final Decision and Order has been served on the parties. 

16.247(a).] 

105 [14 CFR, Part 16, § 

Date 6^^/ 3 ^o/o 

Fanny Rivera 

Assistant Administrator for 

Civil Rights and Diversity Advocate 

'"•* The Assistant Administrator notes that 49 CFR Part 23 specifically addresses the requirements relating to the 

operation of an airport concessions program and incorporates by reference many of the general compliance, 

administrative and policy provisions of 49 CFR Part 26. See, e^., 49 CFR Part 23 sections 23.9(a), 23.11, 23.23, 

23.23(e)(l)(iv) and 23.55. 

'"^ The FAA requires the moving party to include a supporting brief with its Petition for Appeal. 

30 
FAA Exhibit 1 

J&B Enterprises Inc., d/b/a Rhythm Shine v. 

Metropolitan Nashville Airport Authority 

Director's Determination - Docket No. 16-08-07 

INDEX OF ADMINISTRATIVE RECORD 

Item 1 July 30, 2008, complaint filed by J&B Enterprises Inc., d/b/a Rhythm Shine 

(Complainant), against the Metropolitan Nashville Airport Authority (MNAA) 

(Respondent), alleging numerous violations of 49 CFR Parts 23 and 26 in 

reference to a Request for Proposal (RFP) for the management of the News Gifts 

and Specialty Retail concessions at MNAA. July 30, 2008, letter accompanying 

complaint, from Anthony W. Robinson, Esquire, Minority Business Enterprise 

Legal Defense and Education Fund, Inc. (MBELDEF) to the Federal Aviation 

Administration (FAA) Office of the Chief Counsel, certifying service of 

complaint upon the MNAA by electronic mail to Robert Watson, Esq., Senior 

Vice President and Chief Legal Officer and to Raul Regalado, President & CEO, 

MNAA. 

Complainant included the following attached exhibits with its complaint. The 

following attachments were not paginated and were not referenced numerically or 

alphabetically. They are presented below in the order found in the complaint 

document. 

- September 20, 2006, Press Release issued by Hudson Group and MNAA, "Metropolitan 

Nashville Airport Selects Hudson Group and Partners to Revamp BNA's News/Gift and 

Retail Concessions." 

- Concession Agreement, Exhibits A& B, map, dated May 14, 1992, showing tenant 

locations in North Concourse "B" and South Concourse "C", and Complainant's 

"Assigned Area" in Concourse "B" Alcove, and "Assigned Area: in Course "C" Alcove. 

- December 7, 2007, E-mail from MNAA, John Howard, to James Druett and Betty 

Druett, Subject: "Rhythm Shine". Correspondence concems relocation of shoeshine 

stand. 

- December 12, 2007, E-mail from MNAA, John Howard, to Betty Druett, Subject: 

"Moving of shoe shine booth from Hudson News store to temporary location." 

- November 29, 2007, E-mail from MNAA, Rebecca Ramsey to S. Farris, Hudson Group, 

Subject: "Shoe shine stand @ CNN". Correspondence concems request for certain 

information for the move of the shoe shine stand from CNN to temporary location in 

front of old "B" Concourse smoking lounge. 
- November 20, 2007, E-mail from MNAA, Rebecca Ramsey to James and Betty Dmett, 

Subject: "New Shoeshine locations". Correspondence concems attendance of Betty and 

James Dmett at casual luncheon to meet Tommy Bibb, new Properties Director. 

- November 19, 2007, E-mail from MNAA, Rebecca Ramsey, to James and Betty Dmett, 

Subject: "New Shoeshine locations." Correspondence concems request to schedule 

search for potential locations for shoe shine stands. 

- August 20, 2007, Letter from James Dmett, President, and Betty Dmett, 

Secretary/Treasurer, J&B Enterprises, Inc. to Mr. Raul Regalado, President and CEO, 

MNAA, concerning grievances with the Hudson Group, experience with the solicitation 

process for the master retail concession contract, and request for information. 

- September 21, 2007, Letter from James Dmett, President, and Betty Dmett, Secretary 

and Treasurer, J&B Enterprises, Inc. to Mr. James H. Cheek, III, Chairman, and Ms. 

Roslyn Carpenter, Board of Commissioners, MNAA, concerning numerous grievances 

with regard to the retail concession contract. Includes a history of Complainant's 

experience with MNAA, and with MNAA's News, Gifts, and Specialty Retail RFP, and a 

September 21, 2007, letter from J&B to MNAA Commissioners detailing lease concems. 

- November 2, 2007, meeting attended by J&B, MNAA and Hudson Group 

representatives, meeting minutes. 

- April 15, 2008, Letter from Anthony W. Robinson, Esquire, MBELDEF, to Raul 

Regalada [Regalado], President and CEO, MNAA, advising the Airport of their status as 

J&B Enterprises, Inc.'s legal representative, and requesting a meeting to voluntarily 

resolve legal compliance issues. 

-June 06, 2008, Letter from Robert C. Watson, Senior Vice President and Chief Legal 

Officer, MNAA, to Anthony W. Robinson, MBELDEF, informing Mr. Robinson of their 

lack of success in obtaining a satisfactory date to meet, and the Airport's intent to not 

renew J&B Enterprises' contract, and plan to publicly compete the Shoe Shine 

Concession at BNA. 

Item 2 August 7, 2008, Letter from Anthony W. Robinson, Esq., MBELDEF, to FAA 

Office of the Chief Counsel, regarding "Complaint of J&B Enterprises, Inc. d/b/a. 

Rhythm Shine v. Metropolitan Nashville Airport Authority; Supplemental 

Certificate of Service." 

Item 3 August, 11, 2008, FAA Notice, advising the parties that Complaint filed by J&B 

Enterprises Inc., d/b/a Rhythm Shine under the mles of 14 CFR Part 16, has been 

docketed by the FAA's Office of the Chief Counsel as Docket No. 16-08-07. 
Item 4 August 18, 2008, Designation of Persons to Receive Service for the Metropolitan 

Nashville Airport Authority, and Respondent Metropolitan Nashville Airport 

Authority's Motion for Extension of Time to File Answer. 

Item 5 September 3, 2008, Letter from FAA, Airports Law Branch, to Thomas R. 

Devine, Esq., KAPLAN, KIRSCH, & ROCKWELL, LLP, and to Blaine A'mmon 

White, Esq. and Anthony W. Robinson, Esq., MBELDEF, granting Respondent's 

request for an extension of time to file Answer. Respondent's Answer due 

November 3, 2008. 

Item 5A September 4, 2008, Complainant's Objection to Respondent's Request for An 

Extension of Time. 

Item 6 October 31, 2008, Affidavit in Support of Respondent Metropolitan Nashville 

Airport Authority's Answer and Motion to Dismiss: Rebecca Ramsey, Manager 

of Properties, MNAA. 

Item 7 October 30, 2008, Affidavit in Support of Respondent Metropolitan Nashville 

Airport Authority's Answer and Motion to Dismiss: John Howard Jr., Assistant 

Vice President of Properties and Business Development, MNAA. 

Item 8 October 30, 2008, Affidavit in Support of Respondent Metropolitan Nashville 

Airport Authority's Answer and Motion to Dismiss: Amber Dancy Gooding, 

Director of Business Diversity Development, MNAA. 

Item 9 November 3, 2008, Respondent Metropolitan Nashville Airport Authority's 

Motion to Dismiss. 

Item 10 November 3, 2008, Respondent Metropolitan Nashville Airport Authority's 

Answer and Memorandum of Points and Authorities in Support Thereof and in 

Support of its Motion to Dismiss. 

Exhibit List To: Respondent Metropolitan Nashville Airport Authority's Answer and 

Memorandum of Points and Authorities in Support Thereof and in Support of Its Motion 

to Dismiss 

Volume 1 of 2 (Exhibits 1 through 12) 

Exhibit 1: Layout of Concourses (BNA—All Concession Locations). 

Exhibit 2: Metropolitan Nashville Airport Authority, Nashville Intemational Airport, 

Master Concession Plan, dated December 2004 (Excerpts). 

Exhibit 3: FY 2009-2011 Airport Concessionaires DBE Program, Goal Methodology 

(Non-Car Rental Concessions) for Nashville Airport. 
Exhibit 4: FFY 2006 - 2008 Airport Concessionaires DBE Goal Methodology (Non-Car 

Rental concessions) for Nashville Intemational Airport, dated December 2005, and 

Metropolitan Nashville Airport Authority, Airport Concessions Disadvantaged Business 

Program for Nashville Intemational Airport, December 2005, revised August 2006. 

Exhibit 5: Letter to Raul Regalado from M. Howell, Regional Civil Rights Officer for 

FAA, dated September 29, 2006, regarding overall DBE goal methodology for 15.7 

percent for non-car rental concessions for federal fiscal years 2006-2008. 

Exhibit 6: MNAA's Uniform Reports of ACDBE Participation, 2007 and 2008. The 

MNAA's Uniform Report of ACDBE Participation for FY 2007 report was not submitted 

although it was stated to be included. 

Exhibit 7: Second Amendment to Concession Agreement between J&B Enterprises, Inc. 

and Metropolitan Nashville Airport Authority, dated December 17, 2003 

Exhibit 8: Concession Agreement between J&B Enterprises, Inc. and Metropolitan 

Nashville Airport Authority for Shoeshine Concession, dated July 6, 1992, and First 

Amendment to Concession Agreement, dated July 25, 1997. The First Amendment to 

Concession Agreement was not submitted, although it was stated to be included. 

Exhibit 9: Letter to J. Dmett from R. Ramsey dated December 23, 1999, extending 

J&B's Concession Agreement on year-to-year basis until Authority implements 

its Long Range Commercial Strategic Plan. 

Exhibit 10: Letter to R. Regalado from J. Dmett and B. Dmett, dated August 20, 

2007, concerning grievances with the Hudson Group. 

Exhibit 11: Letter to M. Tatom from J. Dmett and B. Dmett, dated 

October 3, 2006, thanking her for her professionalism in handling their concems. 

Exhibit 12: Request for Proposals for News, Gifts and Specialty Retail Concession at 

Nashville Intemational Airport, dated Febmary 6, 2006 (Excerpts). Excerpts provided: 

Table of Contents; Section 1, Introduction; Section II, Solicitation Schedule; Section VII, 

News, Gifts and Specialty Retail Concepts; and Section IX, Rights and Duties of 

Proposers. 

Volume 2 of 2 (Exhibits 13 through 37): 

Exhibit 13: Sign-In Sheet for Pre-Proposal Meeting, dated Febmary 24, 2006. 

(Attendance List for the News, Gift, and Specialty Retail RFP Pre-proposal Meeting.) 

Exhibit 14: Press Release regarding Award of Concessions, dated September 20, 2006. 

Exhibit 15: Master Lease and Concession Agreement between Airport Management 

Services, LLC (Hudson Group) and Metropolitan Nashville Airport Authority, dated 

November 30, 2006. 
Exhibit 16: E-mail to H. Bassett, Transystem Inc. from R. Ramsey, dated May 11, 2007, 

declining the Hudson Group's request to flip the shoe shine area and the refrigerator areas 

in the B-5, CNN store. 

Exhibit 17: E-mail to J. DiDomizio and others from R. Ramsey, dated August 21, 2007, 

conceming the relationship between J&B Enterprises and the Hudson Group. 

Exhibit 18: E-mail to J. Dmett and B. Dmett from J. Howard, dated September 6, 2007, 

requesting a face to face meeting with J&B Enterprises to resolve any issue between J&B 

Enterprises and the Hudson Group. 

Exhibit 19: E-mail to J. Howard from J. Wilson, the Hudson Group, dated September 17, 

2007, responding to Mr. Howard's request for a list of items needed from J&B 

Enterprises. 

Exhibit 20: (1) Letter to J&B from R. Ramsey, dated August 29, 2007, enclosing 

information that J&B requested in their letter to Raul Regalado dated August 20, 2007; 

(2) Letter to R. Ramsey from J&B, dated August 31, 2007, informing Ms. Ramsey that 

the information that was sent was identical to the information that J&B already had in its 

possession; Letter to A.Gooding from J&B, dated September 1, 2007, requesting several 

items of information, including some relating to the Concession Agreement for the 

Hudson Group; (3) e-mail to James and Betty Dmett from R. Ramsey, dated September 

6, 2007, responding to Complainant's request for information, and agreeing to share a 

copy of Hudson's proposal that was submitted in response to the News, Gifts, and 

Specialty Retail RFP; and (4) e-mail to R. Ramsey from J. Howard, dated October 9, 

2007, informing Ms. Ramsey that Mr. Howard met with the Dmetts, and they picked up 

Hudson's response to the RFP. 

Exhibit 21: E-mail to R. Ramsey from B. Dmett, dated September 5, 2007, regarding 

James and Betty Dmett's decision not to attend a September 14, 2007, meeting with 

Airport and Hudson Group personnel. 

Exhibit 22: E-mail to J. Howard from B. Dmett, dated September 19, 2007, regarding 

concems to be addressed. 

Exhibit 23: Letter (with attachments) to MNAA Board of Commissioners from J. Dmett 

and B. Dmett, dated September 21, 2007, regarding grievances with the Hudson Group. 

Exhibit 24: November 2, 2007, meeting attended by J&B, MNAA, and Hudson Group 

representatives, meeting minutes. 

Exhibit 25: E-mail to J. Dmett and B. Dmett from R. Ramsey, dated November 19, 

2007, regarding the scheduling of a meeting to look at potential shoe shine locations. 
Exhibit 26: E-mail to J. Dmett and B. Dmett from J. Howard, dated December 7, 2007, 

regarding plans relating to the relocation of the shoe shine stand currently inside the CNN 

Newsstand. 

Exhibit 27: Letter to Mr. and Mrs. J. Dmett from D. Benton, the Hudson Group, dated 

Febmary 11, 2008, regarding desire to execute a sublease with J&B Enterprises, and to 

offer assistance in developing its merchandising line. 

Exhibit 28: E-mail to J. Howard from R. Ramsey, dated April 8, 2008, regarding plan to 

move forward with a temporary location for Rhythm Shine. 

Exhibit 29: Letter to R. Regalado from A. Robinson, MBELDEF, dated April 15, 2008, 

regarding legal representation of J&B Enterprises, and request to informally resolve J&B 

Enterprises' issues. 

Exhibit 30: Letter to A. Robinson, MBELDEF, from R. Watson, MNAA Senior Vice 

President and Chief Legal Officer, dated June 6, 2008, regarding the lack of success in 

scheduling an informal resolution meeting, and intent to compete the shoe shine 

concession, and not renew J&B Enterprises' contract with MNAA. 

Exhibit 31: Photos of J&B's shoe shine stands~2 photos of B Concourse inside CNN 

Newsstand, and 2 photos of Complainant's C-Concourse location. 

Exhibit 32: DBE Certificate Documents for Olympic Supply, April 2006. 

Exhibit 33: ACDBE Joint Venture Guidance from FAA issued July 17, 2008. 

Exhibit 34: Memorandum to Rebecca Ramsey from Michelle Tatom (former DBELO at 

MNAA), dated June 8, 2006, regarding the assessment of each proposer's response to 

the ACDBE participation goal and requirements in the News, Gift, and Specialty Retail 

concession RFP. 

Exhibit 35: Letter to J&B Enterprises from J. Howard, dated September 11, 2007, 

regarding J&B Enterprises' lack of response to Mr. Howard's request for a meeting. 

Exhibit 36: E-mail to R. Ramsey from B. Dmett, dated November 29, 2007, regarding 

J&B Enterprises' response to MNAA's proposal to move it to another location. 

Exhibit 37: Hudson/Olympic DBE Participation Report FY 2008. 

Item lOA November 6, 2008, Notice of Change of Address for Attomey for Respondent 

Metropolitan Nashville Airport Authority, Arthur P. Berg, KAPLAN KIRSCH & 

ROCKWELL LLP. 

Item 11 FAA AIP Grant History for MNAA, 2006 through 2008. 
Item 12 MNAA's Uniform Report of ACDBE Participation for FY 2006 (October 1, 2005 

to September 30, 2006); FY 2007 (October 1, 2006 to September 30, 2007); and 

FY 2008 (October 1, 2007 to September 30, 2008); List of ACDBEs by name, 

concession type, concession receipts, and race/ethnicity in FY 2007 for the 

MNAA, from FAA's DOORS database. 

Item 13 December 11, 2008, Complainant's Request for An Extension of Time to retain 

substitute counsel. 

Item 14 December 23, 2008, Respondent Metropolitan Nashville Airport Authority's 

Opposition to Complainant's Motion for An Extension of Time. 

Item 15 January 8, 2009, FAA Order, denying Complainant's request for extension of 

time. 

Item 16 January 9, 2009, Notice from Raymond G. Prince, attomey at law, PRINCE & 

HELLINGER, PC, Nashville, Tennessee, notifying parties that he has not been 

retained by Complainant, and does not represent, and will not be presenting 

Complainant in this matter. 

Item 17 March 10, 2009, FAA Notice of Extension of Time, notifying parties that 

Director's Determination will be issued on or before May 5, 2009. 

Item 18 On May 5, 2009, the FAA Issued its Director's Determination. 

Item 19 On June 3, 2009, Complainant sought an extension of time to file an appeal of 

the Director's Determination. 

Item 20 On June 15, 2009, the FAA extended J&B's time to appeal to July 8, 2009. 

Item 21 On July 8, 2009, Complainant filed its Appeal of the Director's Determination. 

Item 22 On July 8, 2009, Complainant filed its Motion to Supplement the Record. 

Complainant included the following attached exhibits with its motion. The 

following attachments were not referenced numerically or alphabetically. 

The documents are presented below in the order found in the 

Complainant's motion. 

- January 5, 2009, Letter from James Dmett, President, and Betty Dmett, 

Secretary/Treasurer, J&B Enterprises, Inc. to FAA Office of the Chief 

Counsel, describing events and conversations that occurred between MNAA 

and J&B Enterprises. 

- Febmary 9, 2009, Letter from James Dmett, President, and Betty Dmett, 

Secretary/Treasurer, J&B Enterprises, Inc. to Elizabeth Newman, FAA Office 
of Chief Counsel, alleging that J&B Enterprises is being unfairly charged 

rental fees by both Hudson Group and the Nashville Airport. 

- Febmary 17, 2009, Letter from James Dmett, President, and Betty Dmett, 

Secretary/Treasurer, J&B Enterprises, Inc. to Elizabeth Newman, FAA Office 

of Chief Counsel, describing events and conversations that occurred between 

MNAA and J&B Enterprises. 

-June 19, 2008, Letter from A. Robinson, MBELDEF, to Robert Watson, 

MNAA Senior Vice President and Chief Legal Officer, responding to Robert 

Watson's letter of June 6, 2008, requesting a meeting to resolve outstanding 

issues regarding the shoeshine concession. 

- January 9, 2009, Letter from Mara E. Rosales, Attomey to Michael Freilich 

describing events and investigations at airports across the nation indicating 

violations of the FAA's Joint Venture Guidance. 

Item 23 On July 14, 2009, Respondent filed a Motion for Immediate Stay and 

Extension of Time To File Reply to Appeal and an Extension of Time to File 

Reply. 

Item 24 On July 16, 2009, Respondent filed its Opposition to Complainant's Motion to 

Supplement the Record and Motion to Strike New Issues On Appeal. 

Item 25 On July 24, 2009, FAA Notice of Extension of Time for MNAA until 

September 2, 2009, in order to file its Reply to the Appeal. 

Item 26 On July 27, 2009, Complainant filed a Reply on Motion to Supplement and 

Opposition to Respondent's Motion to Strike New Issues on Appeal. 

Item 27 On July 31, 2009, Respondent filed a Motion to Strike Complainant's 

Unauthorized Reply To Complainant's Motion to Supplement The Record. 

Item 28 On August 5, 2009, the FAA granted Respondent an Extension of Time to File 

Its Reply to the Appeal. 

Item 29 On September 2, 2009, Respondent filed its Reply to Complainant's Appeal of 

the Director's Determination and renewed its request that the Assistant 

Administrator deny J&B's motion to supplement the record and grant MNAA's 

motion to strike the two new issues raised for the first time on appeal. 

Item 30 On September 2, 2009, Respondent filed its own Motion to Supplement The 

Record On Appeal. 
-Affidavit in Support of Respondent Metropolitan Nashville Airport 

Authority's Motion to Supplement The Record On Appeal: Rebecca Ramsey, 

Manager of Properties, MNAA. 

Exhibit A - Request for Proposals For Shoe Shine Service Concession, May 

2009 

Exhibit B - Blank Concession Agreement 

Exhibit C - SLB, Inc. Executive Summary 

Exhibit D - DBE Certificates 

Item 31 On September 17, 2009, Complainant filed its Response to Respondent's 

Motion to Supplement The Record On Appeal. Complainant included the 

following attached document with its response: 

-Declaration of James Dmett dated September 13, 2009. 

Item 32 October 28, 2009, FAA Notice of Extension of Time, notifying parties that the 

FAA's Final Agency Decision will be issued on or before Febmary 16, 2010. 

Item 33 Febmary 16, 2010, FAA Notice of Extension of Time, notifying parties that the 

FAA's Final Agency Decision will be issued on or before March 5, 2010. 

Item 34 July 17, 2009, Complainant filed Opposition to Respondent's Motion for Stay and 

Extension of Time to File Reply 
CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on March 5, 2010,1 caused to be placed with Federal 

Express and via electronic mail a true copy of the Federal Aviation Administration's 

FINAL AGENCY DECISION addressed to: 

Mr. Arthur P. Berg 

Kaplan Kirsch & Rockwell LLP 

641 Lexington Ave., Suite 1409 

New York, New York 10022 

Aberg@Kaplan.kirsch.com 

(212)328-9515 

(646) 514-5440 FAX 

Mr. Thomas J. Henderson 

Henderson Law Firm, PLLC 

1666 Connecticut Avenue, N.W., Suite 310 

Washington, DC 20009 

tih@hendersonfirm.net 

(202) 742-7447 

(202) 742-7776 FAX 

Sharon Long 

Airports & Environmental Lai^ Division