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32 Landowners near an airport may also assert that airport operations constitute a nuisance, meaning that an ordinary person would consider flight impacts such as noise, vibration, and lighting to interfere with an ownerâs use of property to such a degree that the inter- ference requires a remedy. State statutes can help air- port entities defend these claims. States typically pro- vide that an airport is not a ânuisance per se,â and state statutes may preclude or limit nuisance claims to some extent, particularly when based on a claim of âpublic nuisance,â a claim that airport operations are subver- sive to general public rights.289 Residents may assert claims of âprivate nuisanceâ as well, or claims that the airport is creating a private harm that is specific to a given resident rather than having a broader, general impact. Courts may find that the ordinary operations of an airport cannot result in a claim of private nuisance, and generally courts also do not allow such a claim to be based on a plaintiffâs sub- jective preferences about his or her environment. If a court does find in a given case that the evidence demon- strates a nuisance, courts do not enjoin or abate a pub- lic airport in response to a nuisance claim.290 Local claims that challenge the real property and land-use actions of an airport entity can have the effect of eroding the powers that states provide to protect air- port operations. In most instances, these claims do not succeed, and courts find that the law supports an air- portâs ordinary activities. Strong and specific state laws, however, can help prevent challenges to ordinary air- port activities and support the public interest in air transportation. V. AIRPORT MANAGEMENT AND OPERATIONS States typically enact a variety of laws that regulate management and operational activities occurring at an airport. In some instances, these laws arise from the governmental nature of the airport entity. Other laws are aimed at establishing policy for commercial or other specific activities at the airport. This section will review common airport-specific laws in this area. A. Finance and Administration State laws regulating finance and administration functions at an airport tend to reflect a number of poli- cies. States tend to give airport entities discretion to 289 For examples, see IND. CODE ANN. Â§ 32-30-6-10 (through 2011 1st Reg. Sess.); Thrasher v. Atlanta, 178 Ga. 514, 173 S.E. 817 (Ga. 1934) (airports not nuisance per se). 290 See Town of Hull v. Mass. Port Auth., 441 Mass. 508, 806 N.E.2d 901 (Mass. 2004) (finding no claim for public nui- sance based on noise because airport operations were legisla- tively sanctioned and town made no allegation that airport had exceeded its statutory authority or violated federal regulations; also finding against claim of private nuisance because evidence did not implicate a property right of the town and action not supported by precedent). See also Jack L. Litwin, Annotation, Airport Operations or Flight of Aircraft as Nuisance, 79 A.L.R. 3d 253 (orig. pub. 1977). operate the airport in a way that supports its commer- cial needs. These laws also balance the needs of busi- ness activities with the governmental nature of the en- tity. In general, administrative functions at an airport that could be performed by any government entity are regulated by laws that address government actions, but state laws that address airport commercial activities, such as concessions and leasing, depart from those gov- ernmental requirements to varying degrees. Setting Airport Charges. Federal laws impose re- quirements on charges set by airports that restrict the scope of permissible state and local policies. Significant federal requirements focus on airport charges for the use of airfield facilities. The federal government prohib- its a âhead taxâ on passengers at any airport, and at federally assisted airports, airport rate formulas for the use of airfield facilities must comply with federal regu- lations.291 Federal grant assurances also create signifi- cant requirements for federally assisted airport entities. Among them, airport entities cannot engage in eco- nomic discrimination. They must make the airport available on reasonable terms and without unjust dis- crimination to all types of aeronautical activities. The grant assurances also obligate these airport entities to make their facilities available without charge (in many instances) for use by aircraft owned by the federal gov- ernment, and they must furnish land for certain federal facilities without charge.292 Other federal requirements apply as well. For example, if an airport entity uses passenger facility charge funding to construct terminal facilities, it must comply with certain requirements regarding the rents for those facilities.293 Federal law, however, expressly provides that an airport entity may require âreasonable rental charges, landing fees, and other service charges from aircraft operatorsâ¦.â294 Federal grant assurances also obligate federally-assisted airport entities to âmaintain a fee and rental structure for the facilities and services at the airport that will make the airport as self-sustaining as possible under the circumstances existing at the par- ticular airportâ¦.â295 Thus states may regulate airport charges when not preempted by federal law, and a stateâs empowerment provisions and statutory obliga- tions can have a substantial impact on an airport en- tityâs practices. Airport entities are normally considered to be gov- ernment âenterprisesâ that may generate revenues 291 See 49 U.S.C. Â§ 40116; Policy Regarding Airport Rates and Charges, 61 Fed. Reg. 31994 (June 21, 1996); Air Trans- port Assân of Am. v. Depât of Transp., 129 F.3d 625, 327 U.S. App. D.C. 133 (D.C. Cir. 1997) (vacating portions of the Policy Regarding Airport Rates and Charges). 292 See Grant Assurance Nos. 23, 27, and 28, http://www.faa.gov/airports/aip/grant_assurances/media/ airport_sponsor_assurances.pdf. 293 See 14 C.F.R. Pt. 158, App. A, Â§ B.8. 294 49 U.S.C.A. Â§ 40116(e)(2). 295 Grant Assurance No. 24, http://www.faa.gov/airports/ aip/grant_assurances/media/airport_sponsor_assurances.pdf.
33 through business activities to support their overall op- erations. This approach differs from that of entities en- gaged in conducting general government. General gov- ernment entities raise revenues by collecting taxes, and may only impose charges for services on a âcost recov- eryâ basis to recover their expenses.296 As a government âenterprise,â an airport entity has discretion to set a charge that will be revenue producing based on market factors without regard to the entityâs actual costs for providing a given commercial activity.297 Concession activities, for example, represent one im- portant source of funding for many airport entities. Air- port entities award concessions to private businesses to conduct a commercial activity at the airport that pro- vides services to the public. In return, the airport entity is funded by receiving a percentage of the concessionâs gross revenues because it has allowed the business to profit from access to the airportâs customers. A number of industries have challenged an airport entityâs ability to impose charges based on a percentage of gross reve- nues (including car rental, ground transportation, and off-airport parking), but courts have consistently upheld airport concession charges imposed on this basis. For example, in Seattle-Tacoma International Taxi Association v. Port of Seattle,298 a taxicab association challenged an airport entityâs ability to issue a Request for Proposals that required the chosen provider to pay the greater of a percentage of gross revenues or a minimum annual guaranteed amount for the privilege of operating at the airport. The court found that these charges did not violate the stateâs Revised Airports Act, which required the airportâs charges to be reasonable and uniform for the same class of service and be estab- lished with due regard to a personâs use of property and improvements and the airportâs expense of operation. Under this standard, the court observed that taxicabs were a distinct âclass of service,â that the airportâs charge supported its overall operations, and that taxi- cabs would have access to the overall benefit of the fa- cility rather than just specific roadways. The court found these factors to support concession fees based on a percentage of gross revenues.299 296 See, e.g., Denver Street LLC v. Town of Saugus, 78 Mass. App. Ct. 526, 939 N.E.2d 1187 (2011) (a government entityâs charges will constitute a permissible fee, and avoid being cate- gorized as an impermissible tax, when they are charged to an individual in exchange for a particular service, they are paid voluntarily (because an individual may choose not to use the service), and they are not collected to raise revenues but to compensate the government entity for the cost of providing the service). 297 For example, see Riemers v. State, 731 N.W.2d 620 (N.D. App. 2007) (distinguishing fees set for permit or license and fees set by a government enterprise); Coleman v. Kootsillas, 575 N.W.2d 527 (Mich. 1998) (government conduct- ing activity for purpose of producing a profit). 298 156 Wash. App. 1025, unpublished (June 7, 2010). 299 Id., citing Branson v. Port of Seattle, 152 Wash. 2d 862, 101 P.3d 67 (2004) (port has broad discretionary power to set concession fees in the manner it chooses so long as the result- Other charges at an airport are intended to generate revenue as well, such as leasing hangar space or other commercial functions. States often do not address these fee setting measures. They may, however, discuss some of the factors or standards that airport entities must consider when calculating rates and charges. For ex- ample, in Maine, municipal airport rates and charges must make use of methodologies that are reasonably related to the use of airport property or services, such as square footage, gross receipts, or landing fees.300 States also may impose âgovernmentalâ kinds of pro- cedures in connection with airport charges. For exam- ple, Kentucky state law provides a remedy for persons aggrieved by an airport entityâs charges, creating a right of appeal to a governmental review process.301 States also address concerns for fairness and due proc- ess through notice requirements, such as by requiring an airport entity to provide public notice before setting certain charges, or requiring it to comply with solicita- tion requirements before entering its contracts.302 In a few instances, states may prohibit or restrict the imposition of specific airport charges. For example, Alaska state law provides that airport entities must permit military uses without charge, and it prohibits imposing some charges on a percentage of gross reve- nue basis.303 State laws prohibit imposing a charge for landing fees except on aircraft used in commercial ac- tivities or aircraft above a specified weight.304 Nevada state law prohibits new fees or taxes on the sale of avia- tion fuel after a specified date.305 Thus while in general airport entities have broad authority to determine rates and charges, their authority is shaped by specific fed- eral and state requirements. ing fees comply with the basic limitations set forth in state statute; the fee that a taxi company must pay under a conces- sion agreement derives both from the burden of the taxi com- panyâs use of airport property and the benefit that the port bestows on the taxi company by providing it with exclusive access to a market of potential customers). See also Â§ 5.E, infra, regarding car rental issues. 300 See ME. REV. STAT. ANN. tit. 30-A Â§ 5405 (through 2009 2d Reg. Sess.). See also HAW. REV. STAT. Â§ 261-7 (through 2010 Reg. & Sp. Sess.) (specifying various fee requirements to pro- vide for airport expenses). 301 See KY. REV. STAT. ANN. Â§ 183.133 (through 2010) (pro- viding right of appeal to aggrieved parties). 302 For examples, see ALASKA STAT. Â§ 02.15.090 (through 2010 Reg. Sess.) (notice when setting customer facility charges); DEL. CODE ANN. tit. 2, Â§ 933 (through 2011, 78 Laws, chs. 1â203) (procurement requirements). 303 See ALASKA STAT. Â§ 02.15.090 (through 2010 Reg. Sess.). 304 For example, see N.M. STAT. ANN. Â§ 64-1-16 (through 2010 2d Reg. Sess. & 2d Sp. Sess.) (airports receiving state funds may only charge landing fees on commercial aircraft); TENN. CODE ANN. Â§ 42-2-107 (through 2010 1st Ex. Sess. & 2010 Reg. Sess.) (prohibiting landing fees on aircraft 12,500 lbs or less). 305 NEV. REV. STAT. ANN. Â§ 365.210 (through 2009 Reg. Sess. & 2010 Sp. Sess.) (incudes exceptions).
34 Leasing Airport Lands. As with airport charges, leas- ing airport lands is generally subject to a variety of fed- eral and state requirements that reflect both the com- mercial and governmental aspects of airport activities. Federal regulations are imposed primarily on a contrac- tual basis through airport grant assurances and prop- erty deeds.306 Among them, airport entities may not enter leases or other arrangements for aeronautical activities that convey exclusive rights, and arrange- ments must be on reasonable terms and without unjust discrimination.307 FAA considers an aeronautical lease term that exceeds 50 years to be a prohibited disposal of property, and airport entities cannot enter exclusive long-term leases with airlines (defined as 5 years or more) for facilities that have been funded using Passen- ger Facility Charges.308 In general, however, federal regulations support an airport entityâs ability to enter commercial arrangements for the use of its land.309 State laws impose similar policy requirements on airport entities. In general, state laws give these enti- ties the power to lease airport lands for airport pur- poses (and sometimes for nonairport purposes). State laws commonly make airport leases subject to broad prohibitions against depriving the public of its equal and uniform use of the airport and against granting exclusive rights.310 States may further express broad 306 See 49 U.S.C.A. Â§ 47107 (requiring contractual grant as- surances in exchange for federal assistance); FAA Airport Compliance Manual, FAA Order 5190.6B Â§ 1.9 (Sept. 30, 2009) (listing sources of an airport sponsorâs federal obligations, in- cluding grant assurances and property deeds). 307 Grant Assurance Nos. 22 and 23, http://www.faa.gov/ airports/aip/grant_assurances/media/airport_sponsor_ assurances.pdf. 308 See FAA Airport Compliance Manual, Order 5190.6B, Â§ 12.3.b(3); 14 C.F.R. Â§ 158.3 and App. A at B.5âB.6 (lease re- quirements). Other federal policies may apply to an airportâs leasing practices as well. For example, FAA discourages âthrough-the-fenceâ arrangements, in which tenants that do not lease airport land have access to airport facilities. See FAA Airport Compliance Manual, FAA Order 5190.6B Â§ 12.7 (Sept. 30, 2009); Grant Assurance No. 5.g, http://www.faa.gov/ airports/aip/grant_assurances/media/airport_sponsor_ assurances.pdf (prohibiting through-the-fence arrangements involving residential uses). It also imposes requirements on providing airlines with competitive access to facilities. See Grant Assurance No. 39, http://www.faa.gov/airports/aip/ grant_assurances/media/airport_sponsor_assurances.pdf. 309 For example, see FAA Airport Compliance Manual, Or- der 5190.6B, Â§ 10.2 (supporting an airport entityâs use of minimum standards to impose conditions on airport land uses and commercial arrangements); Grant Assurance No. 39, http://www.faa.gov/airports/aip/grant_assurances/media/ airport_sponsor_assurances.pdf (requiring tenants construct- ing hangars to enter terms and conditions that the airport entity imposes). 310 These provisions were a part of the Uniform Airports Act, which influenced the laws of many states. See App. A: State Codes (noting uniform law influences by state). For ex- ample, see, e.g., WASH. REV. CODE ANN. Â§Â§ 47.68.130, 47.68.140 (through 2011, chs. 1 & 2) (imposing these common require- ments). goals for airport leases, such as by directing airport entities to manage facilities and grant concessions in furtherance of the development of commerce and tour- ism or to provide for diverse services.311 State requirements may relate to particular types of leases on airport property. For example, most state laws empower airport entities to lease an entire airport facil- ity.312 Some states impose requirements for tenant in- vestments on airport property.313 Some also address specific facilities, such as requiring that a concession for âin-bondâ (duty free) merchandise be exclusive, that airport leases comply with minimum standards issued by the state aeronautics agency, or that airport entities comply with laws making vending space opportunities available to the blind.314 Airport lease durations are a common area of state regulation. A state may address durations generally, such as by requiring that airport leases have an ade- quate duration to assure permanence and stability to a tenant using an airport for an aeronautical business.315 A state also may impose specific requirements in addi- tion to maximum durations, such as by requiring that the airport entity also obtain a reversion of title for ten- ant-constructed improvements; requiring a specified minimum level of investment; distinguishing types of leases when imposing maximum durations; extending lease term requirements to renewal periods; and requir- ing periodic adjustments in rent in connection with lengthy terms.316 Maximum permitted durations vary, such as terms of 20â30 years when tenants construct improvements or as few as 10 years for any airport lease.317 311 For example, see CAL. PUB. UTIL. CODE Â§ 21690.7 (through 2011 Reg. Sess., ch. 745, and 2011â2012 1st Ex. Sess.). 312 These provisions were a part of the Uniform Airports Act, which influenced the laws of many states. See App. A: State Codes (noting uniform law influences by state). 313 For example, see LA. REV. STAT. ANN. Â§ 2:135.1 (through 2010 Reg. Sess.) (allowing extensions of lease term for specified tenant investments); UTAH CODE ANN. Â§ 72-10-207 (minimum investment required for certain long-term leases). 314 For examples, see ALASKA STAT. Â§Â§ 02.15.091 and 02.15.090 (through 2010 Reg. Sess.) (exclusive concessionaire required and specific requirements for tenant improvements); HAW. REV. STAT. Â§ 102-14 (through 2011 Reg. Sess.) (require- ments for public buildings). 315 For example, see N.H. REV. STAT. ANN. Â§ 422:18 (through 2010 Reg. Sess., ch. 381 & 2010 Sp. Sess., ch. 1). 316 For examples, see KAN. STAT. ANN. Â§ 13-1348b (through 2010 Reg. Sess.) (reversion of title); UTAH CODE ANN. Â§ 72-10- 207 (through 2010 Gen. Sess.) (specified minimum invest- ment); MO. ANN. STAT. Â§ 305.310 (through 2010 1st Ex. Sess.) (nonaeronautical leases limited to 20 years); IND. CODE ANN. Â§ 8-22-2-5 (through 2010 2d Reg. Sess.) (different maximum durations apply both for initial and extended lease terms and for both existing and tenant-investment facilities); WASH. REV. CODE ANN. Â§ 36.34.180 (through 2011, ch. 1 & 2) (requiring rent adjustments every 5 years). 317 For examples, see MISS. CODE ANN. Â§ 61-5-91 (through 2010 Reg. & 1st & 2d Ex. Sess.) (maximum of 25 years with
35 Airport leases also are subject to a number of âgov- ernmentalâ kinds of requirements due to the nature of airport entities. These leases are subject to state laws that apply to all government contracts (as discussed in the following section). âGovernmentalâ issues may also affect leasehold rights and remedies. For example, if government regulations result in closing premises sub- ject to an airport lease, in some circumstances an air- port tenant might assert a takings claim.318 Also, fed- eral grant assurances relating to airport leasing practices may not protect an airport entity from subse- quent state claims for damages under a lease.319 Other Administrative Requirements. Many laws ap- ply to government contracts, and as such they impact the activities that airport entities conduct. Among gen- eral legal principles, government cannot enter a con- tract that would have the effect of nullifying a state law (including an airport entityâs enabling statutes). Such contracts are void, and parties are assumed to under- stand this risk when contracting with government.320 Government contracts also must be executed in accor- dance with specific technical requirements. A failure to follow those requirements normally will render a con- tract void.321 Government contracts must have a public purpose as well. Raising revenue for an enterprise func- tion is considered to be a public purpose.322 State constitutions also normally prohibit govern- ment contracts from âlending creditâ to a private entity. In other words, government cannot assume a financial liability that in effect creates government debt for the benefit of a private enterprise, such as by agreeing to pay the debt of a potentially defaulting party or to be- investment); DEL. CODE ANN. tit. 2, Â§ 705 (through 2010, 77 Laws, chs. 1â476 and 2010 tec. corr.) (maximum of 10 years). 318 See Love Terminal Partners v. United States, 97 Fed. Cl. 355 (2011) (regulatory taking occurred when Wright Amend- ment Reform Act prohibited use of portions of airport in which plaintiffs held long-term leases). 319 See Asheville Jet, Inc. v. City of Asheville, 689 S.E.2d 162 (N.C. Ct. App. 2010) (federal leasing requirements imposed on airports did not preempt state action for damages on the lease). 320 See SC Testing Tech., Inc. v. Depât of Env. Protection, 688 A.2d 421 (Maine 1996) (contractor built inspection facili- ties after entering state contract to provide emissions testing; state then terminated contract when legislature repealed test- ing requirements, nullifying subject matter of contract, and court found contractor assumed that risk). 321 See Cherry Creek Aviation, Inc. v. City of Steamboat Springs, 958 P.2d 515 (Colo. Ct. App. 1998) (noting that in Colorado, a governmental/proprietary distinction no longer determined governmental immunity but affected other issues, including validity of a contract entered to obtain a Fixed Base Operator; the cityâs failure to comply with governmental execu- tion formalities rendered the contract void). 322 See Brody v. City of Millville, 114 N.J. Super. 94, 274 A.2d 849 (1971) (finding city could finance expansion of ten- antâs leased facility because airport lease had adequate public purpose when entered for aircraft engine repair business). come responsible to another partyâs creditors.323 As with private contracts, government contracts also are subject to a covenant of good faith and fair dealing. This cove- nant requires that when parties exercise discretion dur- ing the performance of a contract, they do so in good faith to accomplish the contractâs objectives and not act to undermine the contractâs performance.324 Public procurement laws also may affect airport con- tracts. Under these laws, airport contracts may be sub- ject to public solicitation requirements, and contracting actions normally cannot be arbitrary or capricious.325 Federal procurement requirements can supersede an airport entityâs local requirements for projects receiving federal funding, and other specific requirements may apply.326 Other administrative areas at an airport typi- cally must conform to common governmental require- ments as well. For example, airport-specific laws may address areas such as meetings or recordkeeping, con- cerns for protecting privacy in airport records and data, and marketing actions to promote the airport.327 Government employment is subject to many common legal requirements, but states may enact specific provi- sions addressing airports. For example, Michigan state law requires airport managers to obtain a license from the state aeronautics agency.328 Among various states, laws also may create airport-specific requirements re- lating to salary limitations, employment age require- ments, labor negotiations, strike requirements, dis- crimination monitoring requirements for concession- aires, workers compensation requirements, and re- quirements for airport and business employees.329 323 Jackson-Shaw Co. v. Jacksonville Aviation Auth., 510 F. Supp. 2d 691 (M.D. Fla. 2007) (airport entityâs long-term lease of property to private development company did not violate entityâs empowering statutes, it had a public purpose to raise revenue, and it did not constitute a lending of credit where airport entity was merely a lessor that shared in profits). 324 See Airis SFO, LLC v. City and County of San Francisco, 2010 Cal. App. Unpub. LEXIS 8283 (Oct. 20, 2010) (finding officials breached covenant); Hunting Aircraft, Inc. v. Peach- tree City Airport Auth., 281 Ga. App. 450, 636 S.E.2d 139 (2007) (airport had implied duty of good faith to consent to request to assign rights under easement agreement). 325 See Jackson-Shaw Co. v. Jacksonville Aviation Auth., 510 F. Supp. 2d 691 (M.D. Fla. 2007) (arbitrary and capricious standard applies when other procurement requirements do not). 326 See, e.g., ALA. CODE Â§ 23-1-358 (through 2010 Reg. Sess.) (federal requirements may supersede state). 327 For examples, see MINN. STAT. ANN. Â§ 473.685 (through 2011 Reg. Sess.) (data); FLA. STAT. ANN. Â§ 331.20 (through 2010 2d Reg. Sess., ch. 274 & 2010 Sp. A. Sess., ch. 283) (per- mitting advertising and promotions, including hospitality). 328 See MICH. COMP. LAWS ANN. Â§ 259.86 (through P.A. 2010, No. 266, Reg. Sess.) (airport manager license). 329 For examples, see MINN. STAT. ANN. Â§ 15A.0815 (through 2010 2d Sp. Sess.) (salary); COLO. REV. STAT. ANN. Â§ 8-3-108 (through 2010 2d Reg. Sess.) (unfair labor practice to obstruct airport access); MICH. COMP. LAWS ANN. Â§ 259.114 (through P.A. 2010, No. 266, Reg. Sess.) (ethics).
36 B. Police and Security State laws authorize police and security functions at airports. The Transportation Security Administration (TSA) performs some security functions at airports un- der federal law, but as presently implemented, the TSA does not exercise police powers and relies on local offi- cers to take police actions.330 When state laws empower airport police officers, they generally provide full peace officer authority, but many also limit jurisdiction.331 Common jurisdictional limitations include requiring that airport police officers act only on the airportâs premises and be engaged in their airport employment when acting.332 States normally permit these officers to exercise authority over any property of the airport en- tity. However they also may permit officers to pursue offenders leaving the airport, respond to a request for assistance from other agencies, or exercise authority over roadways in close proximity to the airport.333 States may authorize airports to use limited enforce- ment officers as well (such as parking enforcement offi- cers), and a state may provide that specified airport officers are not police officers.334 States may address other aspects of an airport officerâs duties as well, such as training requirements, whether or not airport offi- cers can conduct investigations, whether a local agency must authorize them to carry firearms, and whether they must display a badge while on duty.335 State laws also may address concerns involving the enforcement jurisdiction of other agencies. Airport enti- ties may be empowered to contract for police officers with neighboring municipalities or use such contracts to expand their police officersâ jurisdiction. Officers from surrounding jurisdictions may need to obtain an airport entityâs permission to access restricted airport areas, or airport entities may be empowered to enter mutual aid arrangements with other jurisdictions. In addition, the 330 49 U.S.C. Â§ 114(q) (TSA may designate law enforcement officersâit currently has not exercised that designation to create such officers for airports). 331 In the survey at App. B: Questionnaire Responses, per- centages were relatively even between airports employing a police force and those using a force not directly under the con- trol of airport management. 332 For example, see ALA. CODE Â§ 4-2A-6 (through 2010 1st Sp. Sess.) (providing for powers and jurisdiction). 333 For example, see IND. CODE ANN. Â§ 8-22-3-34 (through 2011 1st Reg. Sess.). 334 For examples, see OKLA. STAT. ANN. tit. 3, Â§ 65.8 (through 2010 2d Reg. Sess. ch. 479) (officers enforce ordinance on any airport properties); 70 ILL. COMP. STAT. ANN. 5/8.12 (through 2010 Reg. Sess., P.A. 96-1496) (security force not deemed regularly constituted police department); FLA. STAT. ANN. Â§ 316.640 (through 2010 2d Reg. Sess., ch. 274 & 2010 Sp. A. Sess., ch. 283) (airport parking enforcement officers). 335 For examples, see MONT. CODE ANN. Â§ 7-32-303 (2011) (training); NEV. REV. STAT. ANN. Â§ 171.1223 (through 2009 Reg. Sess. & 2010 Sp. Sess.) (investigations). CAL. PENAL CODE Â§ 830.33 (through 2011 Reg. Sess., ch. 745, and 2011â2012 1st Ex. Sess.) (carrying firearms); W. VA. CODE ANN. Â§ 8-29B-4 (through 2011 2d Extra Sess.) (firearms and badge). law may give others enforcement powers at airports. For example, most states empower their state aeronau- tics agencies to designate employees who can exercise police power when enforcing the stateâs aeronautics act.336 State laws also may empower pilots or airport managers to restrain persons who are interfering with aircraft operations until a police officer arrives.337 States may address airport security measures as well. Among various states, laws may extend security protections to aviation fuel facilities located off of the airport; authorize measures to detect weapons and ex- plosives; establish security zones on waters surround- ing an airport; designate air freight security areas at an airport; require that officers be present at passenger screening checkpoints; impose restrictions on aircraft keys; implement pilot identification requirements; ex- empt airport documents from public disclosure re- quirements; or require airport managers to participate in antiterrorism training.338 State homeland security programs may have authority to assess airport security risks and coordinate activities, and in Florida certain airport entities must file a security plan meeting state requirements.339 C. Operations Many airfield operations at an airport are governed by federal requirements, and as such, in many areas federal law may be preemptive.340 The state, however, provides the airport entityâs fundamental power to act, and some state laws address specific operational con- cerns. For example, states may address aeronautical matters such as launching rockets near an airport, heli- copter touring, aerial pesticide application, and the re- 336 The Uniform Aeronautical Regulatory Act contained these powers and influenced the laws in many states. See App. A: State Codes (noting states with aeronautics act provisions). 337 For example, see VA. CODE ANN. Â§ 5.1-21.1 (through 2010 Reg. Sess.) (empowering airport manager). 338 For examples, see ARIZ. REV. STAT. ANN. Â§ 41-4271 (through 2011, 1st Reg. Sess. and 3d Sp. Sess.) (fuel facilities); GA. CODE ANN. Â§ 38-3-22.2 (through 2010 Reg. Sess.) (requiring antiterrorism training); OHIO REV. CODE ANN. Â§ 4563.30 (through 2011â2012, files 1â47, 49 & 52) (keys, pilot identifica- tion, other matters); W. VA. CODE ANN. Â§ 8-29B-6 (through 2011 2d Extra. Sess.) (officer at checkpoint). 339 See FLA. STAT. ANN. Â§ 330.30 (through 2010 2d Reg. Sess., ch. 274 & 2010 Sp. A. Sess., ch. 283) (requiring plans from certain general aviation airports). 340 See 14 C.F.R. Pt. 139; In the Matter of the City of Santa Monica, Final Agency Decision and Order, FAA Docket No. 16- 02-08, 2009 (FAA July 8, 2009), available at http://part16.airports.faa.gov/pdf/16-02-08.pdf modified in part by In the Matter of the City of Santa Monica, Final Decision and Order Granting Clarification of Final Agency Decision (Sept. 3, 2009) (FAA states that in cases involving airport pro- prietors, no court has yet found that local authority determina- tions regarding aviation safety not preempted.)
37 moval of crashed aircraft once investigative processes are complete.341 States may address ground conditions as well. For example, they may exempt airfield vehicles from licens- ing requirements, prohibit unauthorized snowmobiles and recreational vehicles, and require the owners of livestock and fowl to keep them from entering an air- port.342 In nonaeronautical areas, states may authorize an airport entity to control vehicle and pedestrian traf- fic or impose parking conditions, such as by specifying requirements for handicapped parking or free park- ing.343 States also may empower airports to address emer- gency or dangerous conditions. For example, in Texas an airport entity has authority to declare a local state of disaster within the boundaries of an airport that it con- trols; Minnesota allows some airports to be designated as checking stations for aircraft flying into wilderness areas; and Alaska authorizes shelter cabins and comfort stations containing stoves and other suitable facilities as needed at airports.344 Most airport operational requirements are a product of federal law, but states regulate in some areas. Whether state or federal, these regulations define an airport entityâs compliance obligations, and they also can have the effect of establishing a standard of care in connection with liability actions against the airport en- tity.345 D. Passenger and Terminal Services States may regulate the local services that passen- gers receive in airport terminal buildings (in general, federal laws do not regulate these activities). For ex- ample, states typically regulate liquor licensing and require airport concessionaires to obtain special li- censes. In various states, laws may permit the sale of travel insurance by airport vending machines, impose requirements on foreign currency exchanges, permit the operation of slot machines, or regulate telecommunica- 341 For examples, see CAL. PUB. UTIL. CODE Â§ 21646 (through 2011 Reg. Sess., ch. 745, and 2011â2012 1st Ex. Sess.) (rockets); TENN. CODE ANN. Â§ 42-1-301 (through 2011 1st Reg. Sess.) (helicopter touring); LA. REV. STAT. ANN. Â§ 2:135.3 (through 2011 1st Extra Sess.) (pesticides); WIS. STAT. ANN. Â§ 287.81 (through 2011 Act 46, pub. Nov. 15, 2011) (crash). 342 For examples, see MICH. COMP. LAWS ANN. Â§ 324.82119 (through P.A. 2011, No. 224, Reg. Sess.) (snowmobiles); ALA. CODE Â§ 23-1-385 (through 2011 Reg. Sess.) (livestock and fowl). 343 For example, see WYO. STAT. ANN. Â§ 31-5-501 (through 2010 Bud. Sess.) (handicapped and other parking). 344 See TEX. GOVâT CODE Â§ 418.108 (Vernon, through 2009 Reg. & 1st Called Sess.) (local state of disaster); MINN. STAT. ANN. Â§ 84.46 (through 2011 Reg. Sess., ch. 19) (requiring transportation commissioner to designate checking stations at three airports and requiring specific responsibilities); ALASKA STAT. Â§ 18.40.010 (through 2010 2d Reg. Sess.) (shelter cabins). 345 See also Â§ 3, supra. tions and utilities at airports.346 States may be pre- empted, however, from enacting passenger service regu- lations that directly affect air transportation.347 State or local requirements may address speech at airports. Airports are considered nonpublic forums for First Amendment purposes, and thus airport entities may limit charitable solicitation activities in their facili- ties.348 This ability to regulate the time, place, and manner of speech, however, has not been found to sup- port a total ban on newspaper racks inside of a terminal building. The Fourth Circuit Court of Appeals found that a total ban on newspaper racks significantly re- stricts a publisherâs ability to distribute newspapers, and the airport entityâs interests in aesthetics, preserv- ing airport revenue, preventing congestion, and main- taining security were not found sufficient to justify the burden of a total ban.349 Similarly, the Eleventh Circuit Court of Appeals found that even in a nonpublic forum, where an airport entity may regulate content, its regulations must be reasonable and viewpoint neutral. As such, the court determined that an airport entity could not charge an advertising affiliation for ads placed on newspaper racks, and that the entityâs discretion to cancel licenses should be subject to nondiscriminatory standards. It upheld, however, the airport entityâs ability to charge a 346 For examples, see KY. REV. STAT. ANN. Â§ 304.9-240 (2011) (insurance); MINN. STAT. ANN. Â§ 325F.51 (through 2011 Reg. Sess.) (foreign currency exchanges); NEV. REV. STAT. ANN. Â§ 463.177 (through 2009 Reg. Sess. & 2010 Sp. Sess.) (slot ma- chines). 347 See Air Transport Assân of Am., Inc. v. Cuomo, 520 F.3d 218 (2d Cir. 2008) (finding New York law regarding the rights of delayed air passengers preempted; state statute later re- pealed). The federal government subsequently issued a âpas- senger bill of rightsâ establishing certain protections. See En- hancing Airline Passenger Protections, 74 Fed. Reg. 68983-01 (Dec. 30, 2009); Enhancing Airline Passenger Protections, 75 Fed. Reg. 45562-01 (Aug. 3, 2010); Enhancing Airline Passen- ger Protections, 76 Fed. Reg. 23110-01 (Apr. 25, 2011). 348 See Intâl Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 112 S. Ct. 2701, 120 L. Ed. 2d 541 (1992) (airport terminal is nonpublic forum for First Amendment purposes, and prohibition on solicitation of contributions satisfied rea- sonableness requirement); Intâl Soc. for Krishna Consciousness of Cal., Inc. v. City of Los Angeles, 48 Cal. 4th 446, 227 P.3d 395, 106 Cal. Rptr. 3d 834 (2010) (determining that whether or not airport was a public forum for free expression under the California Constitution, ordinance prohibiting solicitation at airport was valid as a reasonable time, place, and manner re- striction of expressive rights to the extent it prohibited solicit- ing the immediate receipt of funds). 349 See The News and Observer Publishing Co. v. Raleigh- Durham Airport Auth., 597 F.3d 570 (4th Cir. 2010) (when airport concession plan limited newspaper sales to retail out- lets, plan found unreasonable and not upheld; in nonpublic forum, government may reserve the forum for its intended purposes in addition to time, place, and manner regulations, but regulation must be reasonable and viewpoint neutral, and a total ban was not reasonable).
38 profit-conscious fee for these licenses.350 Another court considering advertising issues determined that an air- port entity may adopt a policy disallowing a competing parking lot from placing advertisements in airport fa- cilities.351 State efforts to regulate airport services also may fo- cus on airport buildings. For example, states may pro- hibit smoking in airports or permit certain airports to operate separately ventilated smoking areas.352 The Wisconsin state legislature has adopted a restroom eq- uity act requiring airports to maintain adequate facili- ties to ensure that women have the same speed of ac- cess to toilets as men.353 Laws in various states may impose requirements for the placement of art, litter receptacles, automated external defibrillators, or public pay phones with communications devices for communi- cation-impaired persons.354 E. Ground Transportation States may enact laws addressing car rental compa- nies and ground transportation providers in areas of concern to airport entities.355 As previously discussed, airport contracts for car rental concessions typically charge a fee based on a percentage of gross receipts, and when challenged, courts have upheld the use of these fees, whether applied to on or off-airport loca- tions.356 State statutes may address other aspects of airport car rental activities as well. For example, laws in Wisconsin and Nevada regulate how car rental com- panies may notify customers of charges imposed by the 350 See Atlanta Journal and Constitution v. City of Atlanta Depât of Aviation, 322 F.3d 1298 (11th Cir. 2003) (city could not require publishers selling newspapers to associate with certain soft drink advertisers having relationship with city). 351 See Park Shuttle N Fly, Inc. v. Norfolk Airport Auth., 352 F. Supp. 2d 688 (E.D. Va. 2004) (upholding privilege fee calculated on percentage of gross receipts that airport imposed on facility, and upholding airport advertising policy that disal- lowed placement of ads by off-airport lot). 352 For example, see COLO. REV. STAT. ANN. Â§ 25-14-203 (through 2011 1st Reg. Sess.). 353 See WIS. STAT. ANN. Â§ 101.128 (through 2009 Act 406, pub. June 20, 2010) (restroom equity). 354 For examples, see 410 ILL. COMP. STAT. ANN. 55/3.1 and 415 ILL. COMP. STAT. ANN. 105/10 (through 2011 Reg. Sess., P.A. 97-615 except P.A. 97-597) (litter and telecommunica- tions); NEV. REV. STAT. ANN. Â§ 4508.600 (through 2009 Reg. Sess. & 2010 Sp. Sess.). 355 For a summary of ground transportation requirements at specific airports, see SURVEY OF LAWS AND REGULATIONS OF AIRPORT COMMERCIAL GROUND TRANSPORTATION (Airport Co- operative Research Program Legal Research Digest 3, Trans- portation Research Board, 2008), http://onlinepubs.trb.org/ onlinepubs/acrp/acrp_lrd_003.pdf. 356 See Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Airport Auth., 906 F.2d 516 (11th Cir. 1990) (upholding 10 percent gross receipts charge); Enterprise Leasing Co. v. Metro. Air- ports Commân, 250 F.3d 1215 (8th Cir. 2001) (upholding off- airport car rental gross receipts charge). See also Â§ 5.A, supra. airport,357 and California law authorizes the use of cus- tomer facility charges by imposing detailed require- ments on their use.358 States may choose, however, to allow local government to regulate customer facility charges. Airport entities implement these charges in a variety of ways based on their state powers to impose charges.359 States also may address commercial ground trans- portation at airports (such as taxicabs and shuttles), and they may expressly authorize airport entities to regulate âfor hireâ vehicles. States may prohibit an air- port entity from granting any exclusive rights for these services, and they may make clear that every ground transportation provider has a right to discharge pas- sengers at the airport.360 States also may allow an air- port entity to establish an airport concession for taxicab or other ground transportation operations. When air- port entities establish a concession, the courts have upheld their ability to require concession fees using a gross receipts model.361 A state may permit criminal history background checks as well for ground transpor- tation drivers who provide service to an airport.362 F. Airport Criminal Offenses State criminal law codes typically contain a range of offenses that relate to actions at airports. In general, these crimes relate to airport administration matters, weapons at airports, airport safety and security, and airport operations. State laws may address enforcement issues as well. For example, in Indiana purchasing a ticket to board an aircraft constitutes consent for an airline to search a 357 For example, see WIS. STAT. ANN. Â§ 100.53 (through 2009 Act 406, pub. June 2, 2010) (advertising requirements); NEV. REV. STAT. ANN. Â§ 482.31575 (through 2009 Reg. Sess. & 2010 Sp. Sess.) (amended to permit rental car companies to impose concession fees as a surcharge). See also Sobel v. Hertz Corp,, 698 F. Supp. 2d 1218 (D. Nev. 2010) (former Nevada statute prohibiting car rental companies from separately disclosing airport concession recovery fee was not an unconstitutional regulation of commercial speech). 358 See CAL. GOVâT CODE Â§ 50474.1 (through ch. 745 of 2011 Reg. Sess. and all 2011â2012 1st Ex. Sess.). See also Speyer v. Avis Rent a Car System, Inc., 415 F. Supp. 2d 1090 (S.D. Cal. 2005) (determining California customer facility charge legisla- tion did not extend to transactions outside California). 359 See App. B: Questionnaire Responses, Question 1. 360 See N.Y. GEN. BUS. LAW Â§ 396-w (McKinney, through L. 2010) (right to discharge passengers and prohibition on unau- thorized business). 361 See Seattle-Tacoma Intâl Taxi Assân v. Port of Seattle, 156 Wash. App. 1025 (2010) (allowing gross receipts fee for taxicab concession); Toye Bros. Yellow Cab Co. v. Irby, 437 F.2d 806 (5th Cir. 1971) (allowing gross receipts fee for limou- sine and bus service even though motel courtesy cars and local transit system transports only charged a flat fee). 362 See UTAH CODE ANN. Â§ 72-10-601 (through 2011 2d Sp. Sess.).