Airborne Flying Serv., Inc., v. City of Hot Springs, Ark.-178

FAA Docket No:

16-07-06

Lexis Cite:

2008 FAA LEXIS 148

Westlaw Cite:

2008 WL 2004274

Author:

Shaffer, D. Kirk, Associate Administrator for Airports

Author Title:

Associate Administrator for Airports

Complainant(s):

Airborne Flying Service, Inc.

Respondent(s):

Hot Springs (Ark.)

Airport(s):

Hot Springs Memorial Airport (HOT)

Holding:

Affirming Director's Determination of Dec. 18, 2007. See Determination No. 188.

Abstract:

Complainant, Airborne Flying Services, proposed to install an underground storage tank on its leasehold to self-fuel. Respondent, the City of Hot Springs, denied the Complainant’s request. Complainant alleged that by denying the request, Respondent unreasonably restricted the Complainant’s right to self-fuel in violation of Grant Assurances 22 and 23. The Director’s Determination found the Respondent was not in violation of its federal obligations and dismissed the complaint. Complainant appealed on two issues: (1) the Director’s conclusion that the Airport Minimum Standards for self-fueling were not unreasonable and were not overly burdensome and (2) the Director’s reliance on two previous FAA decisions. The appeal was dismissed.|Minimum Standards:|The Director’s Determination that Respondent did not constructively deny Complainant’s right to self-fuel was upheld. Although Respondent refused to grant a request to install an underground fuel tank at Complainant’s leasehold, it proposed an alternate method in which Complainant would store fuel in above-ground tanks at Respondent’s fuel farm and would purchase trucks to transport fuel to its aircraft. (pp. 15-19).|Precedent:|The Director did not err by relying on Monaco Coach Corp. v. City of Eugene, FAA Docket No. 16-03-17, Director’s Determination (June 17, 2004) as case support for the decision that Respondent did not violate its “federal obligations by refusing to accept the Complainant’s preferred method of self-fueling and, instead, offering a method of self-fueling that is more costly and less convenient to the Complainant” when Monaco Coach specifically addressed the same issue. (pp. 19-20).|The Director did not err by relying on BMI Salvage Corp. & Blueside Services, Inc. v. Miami-Dade County, FL, FAA Docket No. 16-05-16, Director’s Determination (July 25, 2006) for the proposition that motive alone does not establish unjust economic discrimination when Complainant had not established that it had been denied access. (pp. 20-21).

Index Terms:

Airborne Flying Serv., Inc., v. City of Hot Springs, Ark. -- No. 16-07-06 -- No. FAA-2008-0189