01-001430
Department Of Transportation vs.
G And J Management Company, Inc.
Status: Closed
Recommended Order on Wednesday, October 24, 2001.
Recommended Order on Wednesday, October 24, 2001.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF TRANSPORTATION, )
12)
13Petitioner, )
15)
16vs. ) Case No. 01 - 1430T
23)
24G AND J MANAGEMENT )
29COMPANY, INC., )
32)
33Respondent. )
35________________________ ________)
37RECOMMENDED ORDER
39A hearing was held pursuant to notice, on August 20,
492001, by Barbara J. Staros, assigned Administrative Law Judge
58of the Division of Administrative Hearings, i n Gainesville,
67Florida.
68APPEARANCES
69For Petitioner: Robert M. Burdick, Esquire
75Department of Transportation
78605 Suwannee Street
81Haydon Burns Building, Mail Station 58
87Tallahassee, Florida 32399 - 2202
92For Respondent: Gary S. Edinger, Esquire
98305 Northeast 1st Street
102Gainesville, Florida 32601
105STATEMENT OF THE ISSUE
109Whether Respondent engaged in, or benefited from, the
117unpermitted removal, cutting, or trimming of vegetation.
124PRELIMINARY STATEMENT
126By certified letter dated January 16, 2001, Petitioner
134notified Respondent that vegetation was removed at a specified
143location without written perm ission of the Petitioner. The
152January 16, 2001, letter did not contain a notice of rights to
164an administrative hearing. A second certified letter dated
172February 23, 2001, was sent by Petitioner to Respondent which
182did contain a notice of administrative hearing rights
190regarding the allegations contained in the January 16, 2001,
199letter.
200Respondent timely filed a Request for Formal
207Administrative Hearing which was forwarded to the Division of
216Administrative Hearings on or about April 12, 2001. A formal
226hea ring was scheduled for June 20, 2001. Respondent filed an
237Unopposed Motion for Continuance. The motion was granted and
246the case was rescheduled for hearing on August 20, 2001. At
257hearing, Petitioner presented the testimony of three
264witnesses, William D. Moriaty, Richard A. Bailey, and Juanice
273Hagan. Petitioner's Exhibits 1 through 6 were admitted into
282evidence. Respondent presented the testimony of three
289witnesses, Asher G. Sullivan, William D. Moriaty, and Juanice
298Hagan. Respondent's Exhibits 1 throu gh 3 were admitted into
308evidence.
309Official recognition was requested by the parties of
317Chapter 14 - 40, Florida Administrative Code, and Section
326479.106, Florida Statutes. The request was granted.
333A Transcript consisting of one volume was filed on
342Septem ber 4, 2001. At the parties' request, proposed
351recommended orders were due 20 days after the filing of a
362transcript. The parties timely filed Proposed Recommended
369Orders which have been considered in the preparation of this
379Recommended Order.
381FINDINGS OF FACT
3841. Respondent owns and maintains an off - premise outdoor
394advertising sign (billboard) located along Interstate 75 in
402Pasco County at section 14140, milepost 13.392. The sign is
412maintained under the Department of Transportation's
418(Department's) sig n permit BS - 600.
4252. During October 2000, Mr. Moriaty, a district roadside
434vegetation coordinator for the Department, noticed while
441driving on Interstate 75 that the subject sign, which had
451previously been screened from sight, could now be seen from
461the hi ghway. Upon closer inspection he observed that
470vegetation had been removed from the Department's right - of - way
482at the location of the sign. The vegetation removal included
492the removal of many large trees. The Department placed the
502value of the trees that were removed to be $41,814.74. 1 This
515removal of vegetation was done without the Department's
523permission.
5243. Removal of the vegetation and trees improved the view
534of the sign from Interstate 75, although it is not clear from
546the record whether it was the trees or the surrounding
556vegetation which obscured the sign.
5614. No evidence was presented establishing that
568Respondent removed the vegetation or directed others to
576perform the removal of vegetation. The president of G and J
587Management Company, Mr. Jer ry Sullivan, first became aware
596of the vegetation removal when he received the notice of the
607vegetation cut from the Department.
6125. Mr. Sullivan purchased the billboards for the purpose
621of obtaining billboard permits from the Department. These
629permits h ave a value separate and apart from the ability to
641advertise. That is, such permits can be traded - in for
652vegetation cuts elsewhere or otherwise used for leverage with
661other billboard companies.
6646. A county permit is also required prior to placing
674adver tising on the billboard. At present, Respondent does not
684have the necessary county permit for advertising. However,
692Mr. Sullivan conceded that he believed they could get county
702permits if they pressed the county hard enough.
7107. As of October 23, 2000, the face of the billboard was
722blank in that no copy was on the face of the billboard. At no
736time material hereto has third - party advertising copy appeared
746on the subject billboard.
7508. As of August 17, 2001, the face of the billboard
761contained the words, "This sign for rent" with a telephone
771number. At the time of the hearing, Mr. Moriaty recalled
781seeing that copy on the sign for, "probably the last month or
793so, but I don't know exactly when that went up." Thus, the
805copy first appeared on the billboard around mid - July 2001. 2
817As of August 17, 2001, regrowth had begun to occur and the
829vegetation partially obscured the copy on the subject
837billboard.
8389. Mr. Sullivan did not place this copy on the
848billboard. He leaves such matters to his business partne r,
858Tom Gunter. The copy was placed on the billboard so that the
870board would not be deemed abandoned. Mr. Sullivan, however,
879asserts that this was the wrong copy and furthers asserts that
890he is not actively marketing the billboard for advertising
899purposes nor has he ever actively marketed the subject
908billboard.
90910. At the time of the vegetation removal, vegetation
918had been removed from six other billboards within a few miles
929of the location of the subject billboard. These six
938billboards were owned by thr ee other outdoor advertising
947companies. At least one of these sites had a billboard with
958third party advertising on it.
96311. Originally, the Department issued violation notices
970for unauthorized vegetation cuts at these other six billboard
979sites. However, the Department later rescinded these
986violation notices. The Department based its decision to
994rescind the other notices of violation on its determination
1003that these six other instances of vegetation cuts involved
1012mowing and removal of non - woody brush rath er than tree
1024cutting. The Department conceded that permits are required in
1033either case and there is no distinction between permits that
1043are required for the removal of vegetation or the removal of
1054trees.
1055CONCLUSIONS OF LAW
105812. The Division of Administra tive Hearings has
1066jurisdiction over the parties and subject matter in this case,
1076Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.
108313. Section 479.106, Florida Statutes, provides in
1090pertinent part:
1092479.106 Vegetation management. --
1096(1) The r emoval, cutting, or trimming of
1104trees or vegetation on public right - of - way
1114to make visible or to ensure future
1121visibility of the facing of a proposed sign
1129or previously permitted sign shall be
1135performed only with the written permission
1141of the department in accordance with the
1148provisions of this section.
1152(2) Any person desiring to engage in the
1160removal, cutting, or trimming of trees or
1167vegetation for the purposes herein
1172described shall make written application to
1178the department. The application shall
1183inc lude the applicant's plan for the
1190removal, cutting, or trimming and for the
1197management of any vegetation planted as
1203part of a mitigation plan.
1208* * *
1211(7) Any person engaging in removal,
1217cutting, or trimming of trees or vegetation
1224in violation of thi s section or benefiting
1232from such actions shall be subject to an
1240administrative penalty of up to $1,000 and
1248required to mitigate for the unauthorized
1254removal, cutting, or trimming in such
1260manner and in such amount as may be
1268required under the rules of the department.
1275(emphasis supplied)
127714. The Department bears the burden of proof in this
1287proceeding and has the burden of going forward. Florida
1296Department of Transportation v. J.W.C. Co., Inc., and the
1305Department of Environmental Regulation , 396 So. 2d 778 (Fla.
13141st DCA 1981). The Department seeks to impose an
1323administrative fine of $1,000.00. Further, if a violation of
1333the statute is found, the Department would then seek to impose
1344mitigation pursuant to Rule 14 - 40.030(2), Florida
1352Administrative Code, as it described in its notice of
1361violation sent to Respondent. Accordingly, the Department
1368must meet the clear and convincing standard. Osborne Stern &
1378Co., v. Department of Banking and Finance , 670 So. 2d 932
1389(Fla. 1996).
139115. The Department has not me t its burden of proving
1402that Respondent engaged in the removal, cutting, or trimming
1411of trees or vegetation around the subject billboard. There is
1421simply no evidence in the record establishing that Respondent
1430engaged in the removal or cutting of the vege tation or trees.
144216. The Department has not met its burden of proving
1452that Respondent constitutes a "person benefiting from" the
1460vegetation cut. The cut took place around October 2000. The
1470subject board has not been rented to an advertiser and
1480Responde nt is not actively marketing the subject board for
1490advertising purposes. Further, there is no evidence that the
1499permit has been traded or that the sign being more visible
1510somehow enhances Respondent's prospective ability to trade its
1518permit.
151917. In its Prehearing Statement and opening statement,
1527Respondent cites Florida Department of Transportation v. E.T.
1535Legg & Company , 472 So. 2d 1336 (Fla. 4th DCA 1985), arguing
1547that the Department pursued this case against Respondent but
1556rescinded the notices of vio lation originally sent to the
1566other outdoor advertising companies, and, therefore, engaged
1573in selective enforcement. The doctrine of selective
1580enforcement is one involving equal protection rights and is,
1589therefore, outside the scope of this proceeding. D epartment
1598of Revenue v. Young American Builders , 330 So. 2d 864, 865
1609(Fla. 1st DCA 1976) (The Administrative Procedure Act cannot
1618and does not relegate Fourteenth Amendment questions to
1626administrative determination.) See also Key Haven Associated
1633Enterpris es, Inc. v. Board of Trustees of Internal Improvement
1643Trust Fund , 427 So. 2d 153, 158 (Fla. 1983) (Court discusses
1654district court review of claim that an agency has applied a
1665facially constitutional statute in such a way that the
1674aggrieved party's constitu tional rights have been violated.)
1682Secondly, there is insufficient evidence in the record to
1691support a conclusion that the Department engaged in
1699inconsistent agency action in this matter.
1705RECOMMENDATION
1706Based upon the foregoing Findings of Fact and Conclu sions
1716of Law set forth herein, it is
1723RECOMMENDED:
1724That the Department enter a final order rescinding its
1733violation notice sent to Respondent.
1738DONE AND ENTERED this 24th day of October, 2001, in
1748Tallahassee, Leon County, Florida.
1752BARBARA J. STAROS
1755Administrative Law Judge
1758Division of Administrative Hearings
1762The DeSoto Building
17651230 Apalachee Parkway
1768Tallahassee, Florida 32399 - 3060
1773(850) 4 88 - 9675 SUNCOM 278 - 9675
1782Fax Filing (850) 921 - 6847
1788www.doah.state.fl.us
1789Filed with the Clerk of the
1795Division of Administrative Hearings
1799this 24th day of October, 2001.
1805EN DNOTES
18071/ The Department presented evidence as to the value of the
1818trees that had been removed. However, the parties stipulated
1827that the issue to be resolved in this case was whether or not a
1841violation of the statute had occurred, and that the value of
1852the trees would become important as to mitigation only if a
1863violation was found to have taken place. In any event, the
1874value of the trees and how that value would affect mitigation
1885does not come into play in this proceeding.
18932/ The copy appeared on the billboard seven months after the
1904notice of violation was issued by the Department.
1912COPIES FURNISHED:
1914Robert M. Burdick, Esquire
1918Department of Transportation
1921605 Suwannee Street
1924Haydon Burns Building, Mail Station 58
1930Tallahassee, Florida 32399 - 2202
1935Gary S. Edinger, Esquire
1939305 Northeast 1st Street
1943Gainesville, Florida 32601
1946James C. Myers, Clerk of Agency Proceedings
1953Department of Transportation
1956605 Suwannee Street
1959Haydon Burns Building, Mail Station 58
1965Tallahassee, Florida 32399 - 2 202
1971Pamela Leslie, General Counsel
1975Department of Transportation
1978605 Suwannee Street
1981Haydon Burns Building, Mail Station 58
1987Tallahassee, Florida 32399 - 2202
1992NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1998All parties have the right to submit written exce ptions within
200915 days from the date of this recommended order. Any exceptions
2020to this recommended order should be filed with the agency that
2031will issue the final order in this case.
- Date
- Proceedings
- PDF:
- Date: 10/24/2001
- Proceedings: Recommended Order issued (hearing held August 20, 2001) CASE CLOSED.
- PDF:
- Date: 10/24/2001
- Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
- PDF:
- Date: 09/21/2001
- Proceedings: Proposed Recommended Order of Petitioner, Department of Transportation filed.
- Date: 09/04/2001
- Proceedings: Transcript filed.
- Date: 08/20/2001
- Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
- PDF:
- Date: 07/17/2001
- Proceedings: Notice of Taking Deposition Duces Tecum filed G & J Management Company, Inc.
- PDF:
- Date: 06/18/2001
- Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for August 20, 2001; 10:00 a.m.; Gainesville, FL).
- PDF:
- Date: 06/15/2001
- Proceedings: Memorandum to Judge Staros from R. Burdick (regarding availability of parties) filed via facsimile.
Case Information
- Judge:
- BARBARA J. STAROS
- Date Filed:
- 04/12/2001
- Date Assignment:
- 04/13/2001
- Last Docket Entry:
- 01/22/2002
- Location:
- Gainesville, Florida
- District:
- Northern
- Agency:
- ADOPTED IN PART OR MODIFIED
Counsels
-
Robert M. Burdick, Esquire
Address of Record -
Gary S. Edinger, Esquire
Address of Record -
Gary S Edinger, Esquire
Address of Record