Florida Lawyer News Services | Robbins Equitas

Battle Over Airport Noise Ordinances Goes Bi-Coastal

A battle over the authority of a local municipality to enact aircraft noise ordinances is shaping up simultaneously on both the “left coast” (California) and the “right coast” (Florida). In California, the city of Santa Monica has appealed an FAA decision that prohibited the city from banning certain jets from operating at the Santa Monica Municipal Airport (SMO). The city adopted an ordinance in March 2008, banning Category C and D jets (e.g. Gulfstreams, Challengers, and some Citations) based on what the city called “safety issues.” The FAA issued a cease and desist order on April 24th, the day that the ordinance was to go into effect, and a District Court granted the FAA a temporary restraining order which stopped the ordinance from being enforced. The city then appealed the FAA decision and the case will soon be heard by the U.S. Court of Appeals, D.C. Circuit.

Both AOPA and NBAA have been actively involved in the dispute (which has been going on for more than 7 years) and each will file briefs as amicus curiae or “friends of the court” with the D.C. Circuit. Kathy Yodice, legal counsel for AOPA, explained why this issue is important to the national “alphabet” aviation groups, and why they are weighing in on this issue: “The implications of this case extend beyond the instant dispute between the city and the FAA, and any decision by this court could potentially affect how similar circumstances are treated elsewhere . . . If the city of Santa Monica is allowed to implement its desired bans, such precedent could provide airport sponsors nationwide with a basis to implement restrictions at a publicly funded airport, an action that should and always has been within the exclusive province of the FAA.”

Meanwhile, back here in Florida, a similar battle is brewing at the Vakaria Airport which proves AOPA’s point. Although the Valkaria Airport (X59) is owned and operated by Brevard County, it sits within the Town of Grant-Valkaria. The Town (which is located between Melbourne and Sebastian on the east coast of Florida) passed an ordinance that prohibited commercial flight training/instruction at the airport and prohibited commercial flight training/instruction schools from being located at the airport. Like Santa Monica, the Town cited noise and safety concerns as the basis for its ordinance claiming that homeowners have been “victimized and harassed by the
noise associated with certain low flying aircraft over or near their property.”

After passing the ordinance, the Town asked the FAA if it could enforce the ordinance and the FAA was unequivocal in pointing out that it could not. In its August letter to the Town, the FAA cited the abundant legal authority giving the FAA the sole and exclusive authority to regulate “airspace use, management and efficiency, air traffic control, safety, navigational facilities, and the regulation of aircraft noise at its source.” Based on this authority, the FAA advised the Town that the ordinance is not enforceable because, among other things, the Town is not the “proprietor” of the airport: “Nonproprietor jurisdictions such as the Town of Grant- Valkaria have no role in determining the legal requirements affecting the operation of the airport or airport development. This would include prohibiting the basing of commercial flight schools and flight instruction at the Airport for purposes of controlling aircraft noise and safety.” It is presently uncertain whether the Town will appeal the decision, or whether the airport proprietor (Brevard County) will take steps to enact regulations that mirror the ordinance adopted by the Town.

These two battles provide us with an example of federal preemption of state and local law, as discussed in an article that appeared in the Fall, 2008, edition of Florida Aviation Business (“Pre What? The Fight Over Federal Preemption and What it Means to You”). As we have seen at the Naples Municipal Airport, the power of the FAA is not unlimited, and a municipality can enact “reasonable” regulations to reduce aircraft noise at an airport that is owned and operated by the municipality. In such cases, the FAA may not withhold airport improvement grants based on the FAA’s determination that the municipality violated grant assurances. The problem for both Santa Monica and Valkaria airports, however, is that the ordinances the municipality wishes to enact will most likely be found to be unreasonable and discriminatory. That is so because the ordinances prohibit one activity, while another similar activity has precisely the same noise and/or safety impact.

Nevertheless, the process underway at Santa Monica (and possibly Valkaria) airport provides an excellent example of the process of FAA/federal preemption at work. A municipality enacts an ordinance, the FAA decides that the ordinance is either expressly preempted and/ or unreasonably discriminates against certain flight activities, the municipality appeals, and the D.C. Circuit decides the issue. We know how the process turned out at Naples, and it will be important to monitor the outcome of the Santa Monica and Valkaria disputes. While it might appear on the surface that only aviation businesses at Santa Monica and Valkaria will be affected by the outcome of these disputes, there is no question that the entire aviation industry will be adversely impacted if the FAA loses either one of these battles. This is one time that it might serve all of us to cheer, rather than jeer, the FAA.

Americans with Disabilities Act Update

Disability Access Lawsuits on the Rise

By Vincent Lynch, Managing Partner of Pinkard Lynch, P.A.

The Americans with Disabilities Act (ADA) was established by the United States Congress in 1990 to protect disabled Americans from discrimination in employment, government services and places of public accommodation, such as privately owned or operated hotels, restaurants, and shopping centers. The ADA is a Pandora’s Box of litigation for small, medium and large businesses.

Title III of the ADA requires businesses to be accessible to the disabled that utilize their goods and services. The ADA requires removal of structural barriers in businesses open to the public where removal is “readily achievable.” 42 U.S.C. §12182(b)(2)(A)(iv). Where removal of a barrier is not readily achievable, businesses may provide access “through alternative methods if such methods are readily achievable.” 42 U.S.C. §12182(b)(2)(A)(v). Aggrieved individuals may sue to enforce the ADA and, if successful, obtain injunctive relief and an award of attorney’s fees. 42 U.S.C. §§12188(a)(1); 2000a-3(a). Monetary damages are not recoverable. Several disabled persons, disability organizations and their attorneys are bringing high volume ADA litigation that is hurting business in an already difficult economic climate.

High Volume ADA Plaintiffs’ and their Lawyers

Some of these persons and organizations include Stephen A. Karakis, Nolan R. Campbell, Access for the Disabled Inc., and Access 4 All Inc. Over the last few years, hundreds of lawsuits were filed against a variety of businesses in an overzealous attempt to force compliance with the ADA. One of the most prolific ADA Access litigants is A. Joseph Raetano. Mr. Raetano, through his attorney, Todd Shulby, filed approximately 100 ADA cases in the Tampa Metropolitan Area in 2009 claiming discrimination by a laundry list of private businesses. Mr. Raetano sued 27 commercial property owners in Clearwater, Florida and 10 on Main Street in Dunedin, Florida. His lawyer, Todd Shulby, filed approximately 800 ADA lawsuits since 1995. Where does it end?

Enter Scott N. Johnson, Esq. a disabled attorney near Sacramento California who jumped on the ADA bandwagon and added a new twist. Mr. Johnson filed over a dozen lawsuits in November 2009 alone in the US District Court for the Eastern District California. Mr. Johnson filed over 100 lawsuits so far, represents himself and Disabled Access Prevents Injury, Inc., and seeks not only injunctive relief (such as repairs) but monetary damages under the California Civil Code. California courts are being flooded with new disability access cases in part because of even broader state protections than those available under the ADA and the right to seek damages.

Some backlash has taken place from Judges that handle ADA cases and several bills were presented before Congress to reform the ADA, but none have passed and it remains extremely easy for a business to be sued for a failure to comply with the ADA. Orlando Federal Judge Gregory Presnell indicated that “[t]he current ADA lawsuit binge is essentially driven by economics-that is, the economics of attorney’s fees.”

A Federal Court in California described their tactics:

“The scheme is simple: an unscrupulous law firm sends a disabled individual to as many businesses as possible, in order to have him aggressively seek out any and all violations of the ADA. Then, rather than simply informing a business of the violation and attempting to remedy the matter through ‘conciliation and voluntary compliance,’ a lawsuit is filed, requesting damage awards that would put many of the targeted establishments out of business.

Defending a Disability Access Lawsuit

Structures built before 1992 constitute “existing facilities” under the ADA. A business run in an “existing facility” need only remove actual structural barriers to access that are “readily achievable” and do not require “much difficulty or expense.” This is a fairly lenient standard and takes into consideration the cost of making repairs to remove the alleged barriers to access in a lawsuit. New facilities or buildings constructed after 1993 must be “readily accessible” and “usable” by individuals with disabilities. A comprehensive list of specific regulations govern new construction including specific architectural and building specifications such as counter heights and the size of a bathroom stall.

In either case, a company can defend the case by proving the person did not attempt to actually access the premises or has no real intention of returning which may be the case with a high volume Plaintiff. The private company can also assert that the alleged barrier does not, in fact, prevent the person from gaining access to the goods and services of the business. Also, the company can argue that the modification sought would create an undue burden or expense.

Our Experience

Our firm has successfully represented dozens of small and large companies throughout the US in disability access and employment litigation and prevention. Our clients include health care professionals, restaurants, golf courses, recreational businesses, shopping centers, retail stores and hotels.

Aviation Insurance Newletter for Fall 2009

TOPICS INCLUDE:

BAD GAMBLE: LESSONS FROM AN INDEMNITY CLAIM THAT WENT SOUTH

OVER-60 PILOTS: THE IMPACT OF AGE ON SAFETY AND RISK FACTORS

LOOKING BACK: FOLLOWING THE HISTORY OF FRONTIER AIRLINES

Wojciechowicz v. United States

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Florida Aviation Law Update Newsletter for Fall 2009

TOPICS INCLUDE:

FILE A LIEN: THE EQUITY IN AIRCRAFT CAN GET YOU YOUR MONEY

ONLINE TRAINING: WEIGH IN ON PILOTS EARNING ONLINE CREDENTIALS

LOOKING BACK: FOLLOWING THE HISTORY OF FRONTIER AIRLINES

BIO-DIESEL AS ONE SOLUTION TO OVERCOMING THE FUEL PRICE ISSUE

THE AIRCRAFT BROKERAGE MARKET

THE ROBBINS EQUITAS LAW FIRM WILL NOT ATTEND NBAA THIS YEAR

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