As many of you are probably aware, a helicopter pilot recently had his airman certificate revoked for participating in a sex act while he was operating a helicopter over a populated area. The incident gained its notoriety from the edited video that was released over the internet showing the pilot’s passenger, an adult entertainment star, performing oral sex on the pilot while he was flying the aircraft. Of course, when the FAA saw the video enforcement action followed soon thereafter. In Administrator v. Martz, the FAA issued an emergency order of revocation revoking the pilot’s certificate for his alleged violation of FAR 91.13(a) (careless and reckless). The pilot appealed the emergency order to the NTSB and, after a hearing at which the unedited version of the video was shown, Administrative Law Judge Mullins affirmed the FAA’s emergency revocation order.
ALJ Mullins determined that the sex act had occurred and “while both the passenger and respondent had lap belts and shoulder harnesses unlatched, while respondent’s clothing during the performance of the sex act risked interfering with the helicopter’s controls, and while the passenger was in a position to interfere with the helicopter’s controls, all of which occurred as respondent was operating the helicopter above a populated area.” The ALJ also noted that the pilot had been involved in previous enforcement actions and revocation of the pilot’s certificate was the appropriate sanction under the Sanction Guidance Table.
The pilot then appealed the ALJ’s decision to the full Board. He argued that his conduct did not amount to “gross recklessness”, that the ALJ improperly admitted medical testimony, that the Sanction Guidance Table does not provide for revocation under the facts of the case and that the pilot did not lack the qualifications necessary to hold an airman certificate.
First, the Board recounted the ALJ’s factual findings regarding the sexual act and the potential interference with operation of the helicopter that could have resulted. It then affirmed the finding of “gross recklessness” and observed that the pilot’s argument against “gross recklessness” “seems to ignore not only the risks he took on the flight in question, but ignores the laws of physics as well.” Even though the flight was never actually in danger, the FAA only had to show potential endangerment to prove that the helicopter was in a careless or reckless manner. The Board then concluded that “during substantial portions of the flight in question, it appears to this Board that the flight was but a single misstep from disaster.”
Next, the Board rejected the pilot’s argument that the ALJ improperly admitted the testimony of an inspector who testified that the pilot would have been distracted or could have incorrectly manipulated the controls of the helicopter in the event of a “biological reaction” to the “activities during the flight”. The Board held that the pilot had not shown how the testimony was prejudicial and then observed that even without the inspector’s opinion, “we would expect our judges to be able to assess the evidence on videotape and apply judgment, common sense, and their understanding of common events to the circumstances.” (Although, perhaps presumptuous, the Board’s expectation regarding an ALJ’s “understanding of common events” is also humorous and, I suspect, made ALJ Mullins laugh.)
The Board also rejected the pilot’s argument regarding whether revocation was the appropriate sanction under the Sanction Guidance Table. In deferring to the Table, the Board noted that the Table clearly provided for revocation for grossly reckless or careless conduct. It concluded that the pilot’s conduct was egregious and exhibited a disregard for safety which justified revocation.
Finally, the Board affirmed the ALJ’s determination that the pilot lacked the qualifications necessary to hold his airman certificate. The Board held that, in light of the pilot’s conduct in this case and the conduct at issue in the previous enforcement actions, the pilot had not convinced the Board that he possessed the care, judgment, and responsibility to hold an airman certificate and, as a result, he lacked the qualifications to hold an airman certificate.
The result here doesn’t surprise me. However, I did find the Board’s factual explanations and its assumptions humorous. Also, the case certainly does make for interesting conversations with other aviation attorney’s (both private and FAA) who handle FAA enforcement cases.
