Tropical Aviation Ground Services, Inc. and Air Sunshine, Inc. v. Broward County, Florida – No. 16-12-15
FAA Docket No:
FAA Docket No. 16-12-15
Author:
Randall S. Fiertz, Director, Office of Airport Compliance and Management Analysis
Complainant(s):
Tropical Aviation Ground Services, Inc., Air Sunshine, Inc.Respondent(s):
Broward County, FloridaAirport(s):
Fort Lauderdale-Hollywood International Airport (FLL)
Holding:
No Violation.Abstract:
Complainant entered into a month-to-month lease with the County that limited the types of services the Complainant could provide and disallowed the Complainant from permitting the temporary or permanent storage, arrival, or presence of “derelict aircraft” on the premises at any time. (The lease defined “derelict aircraft,” as an aircraft lacking current and valid FAA airworthiness certificate, an aircraft that had been issued a condition notice by the FAA, or an aircraft that had major components, accessories, flight controls, portions of the airframe or engines removed so as to render the aircraft unflyable.) (p. 5.)
Less than a month after entering into the lease, the Complainant sent a letter to the County raising several problems and issues with the lease, including negotiations to secure a long-term lease, signing the lease agreement under duress, and difficulty in correcting code violations and other issues by the previous tenant. Complainant also stated that its expansion plans were dealt a serious blow because of these lengthy negotiations, but it could not wait any longer to enter into a long-term lease and on similar terms to what the County offered other tenants. (p. 5-6.) The parties signed an amendment extending, on a month-to-month basis, the Complainant’s leasehold at the airport.
Three years later, the County enacted Ordinance § 2-30(f), Removal of Derelict Aircraft or Derelict Motor Vehicles. Ten years later the County notified the Complainant that it was in violation of the ordinance. The County also sought and obtained authorization to terminate the Complainant’s short-term lease and it commenced an eviction notice in state court. As part of a settlement agreement, the Complainant was required to vacate its leasehold within 180 days in concert with the effect date of a writ of possession, but could enter into a sublease with a prime tenant of the County at the Airport.
Complainant contended that the Country refused to consent to a sublease it brokered while the County countered that it had no obligation to consent to a sublease given that the Complainant had breached the settlement agreement. A formal Part 16 was subsequently filed. (p. 8.)
In response, the County stated that “it has complied with the applicable Federal law and Federal Aviation Administration (FAA) Grant Assurances.” The County also asserted that the Complainant had derelict aircraft on leased property that were not removed as required by ordinance, and that the Complainant failed to vacate the premises within 180 days as required by a settlement agreement entered into by the parties. The County also argued that this alleged breach of the settlement agreement relieved it of any duty to provide the consent required for Tropical or its subsidiary to obtain a sublease at FLL. (p. 1.)
The Director found no violation on the part of the County. First, “we conclude that it is not unreasonable for the County to withhold its consent to a sublease where Tropical has breached a settlement agreement with the County—particularly when the very settlement agreement breached provided for the consent at issue.” (p. 19.) Second, “[t]he FAA supports a local government’s right to make and enforce their own laws, regulations, policies, and ordinances; provided these are applied in a reasonable manner and consistent with Federal law. The Director does not find the ordinance at issue here to be unduly burdensome or improperly vague.” (p. 19.) Third, the record contained no evidence showing that other entities at the airport were permitted to store derelict aircraft past 60 days, belying the Complainant’s argument that it was the target of selective or unjustly discriminatory enforcement. (p. 20.)
The Director also rejected the Complainant’s allegations under Grant Assurance 22 given insufficient evidence that it was similarly situated to other tenants but treated differently. “Complainant failed to provide any details such as what other companies, what parcels of property were leased, or what other entities at the airport have sub-leases and/or short-terms leases. Without this type of information to support the allegation that the County granted additional land to “a select” number of similarly situated tenant forcing other tenants such as Tropical to become sub-lessees, is unsupported.” (p. 22-23.)
The Director also found no violation of Grant Assurance 24, Fee and Rental Structure, as “[n]othing in the record points towards an action on the County’s part that it purposely failed to collect revenues or has changed lower rates than it should change.” (p. 24.)
The Director further rejected the Complainant’s claim under Grant Assurance 30 (predicated on the fact that at least one of its principals was of “Middle Eastern race, Muslim creed, and/or Iranian origin”) because “[t]he preponderance of the evidence suggests that the Complainant was never denied an opportunity to participate in any airport activity due to race, creed, or national origin. The FAA’s Office of Civil Rights also reviewed this complaint and affirmed this conclusion.” (p. 26.)
The Complainant’s claim under Grant Assurance 37, Disadvantaged Business Enterprises (DBEs), also was dismissed as “[t]here is no evidence showing the Complainant is now or has ever participated in a [Disadvantaged Business Enterprises] contract. Its tenancy on a federally funded airport is outside the definition of a DOT-assisted contract. Moreover, the Complainant also failed to demonstrate recognition or even qualification as a DBE, under statutory guidance.” (p. 27.)
Finally, “the record establishes that the County terminated the Complainant’s lease for cause, and evicted it from the leasehold. The record contains no evidence that the County has taken steps to prevent Air Sunshine from accessing the Airport’s terminal and gates, specifically the commuter gate in Terminal 4. The Director cannot affirm that a lease termination concerning airport hangars and ramp space is by itself grounds for a finding of violation of Grant Assurance 39 [Competitive Access]. This is especially true if the Airport has not prevented the operator from accessing its terminal areas or otherwise provide aircraft and baggage access to those terminal areas and gates.” (p. 29.)