01-001430 Department Of Transportation vs. G And J Management Company, Inc.
 Status: Closed
Recommended Order on Wednesday, October 24, 2001.


View Dockets  
Summary: Department did not prove that Respondent engaged in or benefited from removal, cutting, or trimming of trees or vegetation on public right-of-way. Recommend agency rescind notice of violation.

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.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 01/22/2002
Proceedings: Agency Final Order
PDF:
Date: 01/22/2002
Proceedings: Final Order filed.
PDF:
Date: 10/24/2001
Proceedings: Recommended Order
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.
PDF:
Date: 09/19/2001
Proceedings: Respondent`s Proposed Recommended Order 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: 08/17/2001
Proceedings: Respondent`s Prehearing Statement (filed via facsimile).
PDF:
Date: 08/15/2001
Proceedings: Petitioner`s Prehearing Statement (filed via facsimile).
PDF:
Date: 07/17/2001
Proceedings: Notice of Taking Deposition Duces Tecum filed G & J Management Company, Inc.
PDF:
Date: 07/17/2001
Proceedings: Notice of Taking Deposition filed D. O`Neill
PDF:
Date: 07/12/2001
Proceedings: Petitioner`s First Request for Production filed.
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.
PDF:
Date: 06/12/2001
Proceedings: Unopposed Motion to Continue Final Hearing filed by Respondent.
PDF:
Date: 04/25/2001
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 04/25/2001
Proceedings: Notice of Hearing issued (hearing set for June 20, 2001; 10:00 a.m.; Gainesville, FL).
PDF:
Date: 04/20/2001
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 04/13/2001
Proceedings: Initial Order issued.
PDF:
Date: 04/12/2001
Proceedings: Request for Formal Administrative Hearing filed.
PDF:
Date: 04/12/2001
Proceedings: Tree Damage Report filed.
PDF:
Date: 04/12/2001
Proceedings: Unpermitted Vegetation Removal filed.
PDF:
Date: 04/12/2001
Proceedings: Agency referral filed.

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

Related Florida Statute(s) (3):