“That’s what the county has been trying to do ever since,” Mark Haynes alleged.
He said the county created a “de facto” monopoly at Montrose Regional Airport by awarding the fixed-base operator contract to Jet Center Partners while not allowing JetAway full operations as per its agreement.
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JetAway, which operates adjacent to the airport under a 2004 “through the fence” lease agreement, has additionally filed federal actions against the county.
The local trial, two years in the making, opened Monday after the county rejected JetAway’s motion to dismiss. Accepting the motion could have required the county to pay its own attorneys fees.
The county contended JetAway changed the intent of its business beyond the scope of its lease once the contract to provide fixed-base operations at Montrose Regional Airport went up for bid.
It’s claiming breach of contract, as well as trespass due to alleged construction activities on airport land, and seeking declaratory relief concerning the off-airport agreement and lease assignment.
The county said JetAway does not meet minimum standards and that the business could resolve the issue by moving to on-airport property designated as space for a second FBO.
Jet Center Partners argued JetAway misled the public by advertising and representing itself as an FBO when it wasn’t and therefore violated the Consumer Protection Act.
JetAway dropped its claims against Jet Center Partners, but denied deceiving anyone. It said JCP could not meet the burden of proof required under the act. It also claimed restraint on commercial speech.
What constitutes an FBO — an entity that services non-commercial air traffic — was the sticking point Monday.
The county defines an FBO as an entity that sells fuel, attorney Brian Magoon said. He and JCP attorney Tucker Trautman said an FBO is a specific designation the aviation community understands to be a fuel provider.
Magoon said the county needed a ruling as to the minimum standards, what services JetAway could offer under its current agreement and whether the county could terminate that agreement if JetAway breached it.
“From the county’s position, the use of JetAway’s facility started to change when the FBO contract was presented,” Magoon said, accusing JetAway of “abandoning” its intent to simply open a commercial hangar and hotel facility in 2004.
The county complained JetAway was performing FBO duties on the county-owned ramp, for $250 per year under its lease agreement. Jet Center Partners pays in excess of $300,000 to operate on-airport.
Magoon also said JetAway’s conduct created safety hazards by allegedly parking vehicles in the ramp area since the restraining order was issued.
“It’s come to a point where if control is not made and maintained, there’s little else the county can do. JetAway is not without alternatives,” he said.
The Federal Aviation Administration frowns upon through the fence agreements because of safety, the county said.
Former airport manager Scott Brownlee would later testify as to that and to the FAA’s 2006 rejection of a JetAway complaint. (Due to time constraints, the Daily Press was not able to hear Haynes cross examine Brownlee).
Trautman said that JetAway’s agreement and the airport’s minimum standards do not permit an off-airport FBO.
“You should find JetAway is not entitled to operate an FBO,” Trautman told Judge James Schum.
Trautman said JetAway knew its lease did not permit an FBO, but deliberately hedged its bets that it would be awarded an FBO contract and advertised as an FBO despite repeated requests to stop.
“Every time they were told they couldn’t do something, they did it,” he said. “We submit this was all a plan to get an FBO.”
But Haynes said JetAway has always operated as an FBO, albeit without fuel sales. He said fuel sales are not the determining factor of an FBO, for which there exists no iron-clad definition. Just because the FAA doesn’t like off-airport agreements does not automatically make such agreements illegal; indeed, the FAA hardly ever acts against them, Haynes said.
“We do believe the airport has violated federal grant assurances by creating a de facto monopoly,” he said.
He reiterated that JetAway only wanted its existing contract enforced. That contract made perfectly clear the business intended to construct a hangar, heliport, hotel, restaurant and pool.
“This was to be a jet center,” Haynes said, not just an airport storage facility, and the county knew it. Additionally, the county knew about fueling in the ramp area, because, he said, county fuel trucks were fueling planes there for JetAway. One week after the FBO contract was awarded to JCP, though, his clients received a letter ordering them to stop.
Haynes also argued the airport’s minimum standards exempted the agreement JetAway inherited.
Brownlee would later testify that JetAway had presented its “resort” services as being for pilots and crew members, since it knew it could not sell fuel. Brownlee did not consider this an FBO.
The trial continues for the rest of the week.
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