By Myron Levin
FairWarning.org

No criminal charges will be filed against billboard giant Lamar Advertising Co. despite evidence that company workers in Tallahassee, Fla., over at least seven years secretly chopped down or poisoned trees to provide clearer views of its roadside signs.

In disclosing its decision not to prosecute, the State Attorney’s office in Tallahassee said its probe was hampered by uncooperative witnesses, statute of limitations problems, and the death last year of a Lamar executive linked to the tree attacks. But an investigation report concluded that illicit tree-poisonings, as detailed in an April story by FairWarning, were carried out.

“Although I suspect this was (and may still be) a corporate-wide practice, I have no evidence to show that it is occurring or has occurred in other Lamar offices,” said the August 3 report by investigator Jason Newlin, which was provided to FairWarning.

Hal Kilshaw, a Lamar vice president and chief spokesman, said the company was “encouraged that there will be no criminal prosecution in this matter.” He added: “Illegal vegetation control is not a Lamar corporate policy. It never has been, it never will be and it isn’t now.”

In a second victory for Lamar, a federal judge in Tallahassee has thrown out a whistleblower suit by former Lamar crew chief Robert J. Barnhart, 28, who admitted poisoning trees and claimed he was fired for saying he would no longer do it.

The order by U.S. District Judge Robert L. Hinkle said the Florida whistleblower law, which prohibits an employer from punishing a worker for objecting to illegal activities, did not apply because Barnhart lost his job to a back injury, not from a retaliatory firing.

“Illegally poisoning trees is reprehensible, as is asking an employee to participate in the practice,” Hinkle said in his July 30 ruling. “Remedies for illegally poisoning trees are available. But this lawsuit is not one of them.” Barnhart could not be reached for comment.

As reported by FairWarning, Barnhart’s lawsuit last September and his immunity agreement with authorities triggered the criminal probe. In statements to investigators and in his whistleblower case, Barnhart said he had poisoned seven to 10 trees from 2009 until 2011. His former supervisor Chris Oaks admitted in a deposition that he, too, had doused trees with herbicide, beginning in 2004.

According to Barnhart and Oaks, their orders came from Myron A. “Chip” LaBorde, a former Lamar vice president and regional manager for Florida and Georgia. LaBorde died last summer of pancreatic cancer.

Lamar has agreed to pay $3,000 to settle a related case, an administrative complaint by Florida agriculture officials alleging misuse of pesticides. The May 7 complaint charged Lamar with several violations, including using Triclopyr, the herbicide used in the tree attacks, “in a faulty, careless, or negligent manner.” Lamar, without admitting guilt, agreed last month to settle the pesticide complaint.

With more than 155,000 billboards, transit displays and other signs, Lamar calls itself the leading U.S. outdoor advertising firm. The company, based in Baton Rouge, La., reported net revenues of more than $1.1 billion in 2011.

Georgia Cappleman, the Leon County, Fla., chief assistant state attorney in charge of the criminal probe, said in an interview she was “disappointed’’ by the outcome. “We would have liked to have been able to prove that it extended upward,” she said, “which we all know it does.”

Cappleman acknowledged, however, that investigators did not attempt to talk to anyone at Lamar’s corporate offices. And the decision not to bring charges drew a critical blast from Rip Caleen, a  retired Tallahassee lawyer and environmentalist who had been monitoring the probe.

Caleen called the investigation “incomplete and superficial,” and said “the State Attorney’s office never got fired up on how wrong this conduct was.”

“The whole community’s environment has been diminished by this activity,” Caleen said, “and so far the culprits that did it have not been held accountable at all.”

The investigation report includes striking details, attributed to Barnhart, about how tree attacks were carried out.

“The ‘drilling method’ involved drilling a hole in the tree and pouring an unknown chemical in the hole,” the report said. “The tree would die over time from the chemical. The ‘hit and run method’ involved hitting the tree with a machete to make it look like it was hit with a lawn mower or a car. They would then pour the same chemical on the tree with the same results. …

“Barnhart stated he and his co-workers would poison or cut down trees every two to three months. He said they would cut trees down more often than they would poison them as it was easier and quicker to just cut the tree down. They would usually do this in the early morning hours while it was still dark outside. Often, they would turn on the emergency strobe lights on their truck and wear reflective vests to make it look like they were authorized to be there. …

“Barnhart said cutting and poisoning the trees was not the only recourse for a tree blocking one of the signs. Often, Lamar would hire a professional business to trim trees ... blocking their signs. Those trees were generally ones that they could not hide or damage in an undercover capacity. In other cases, Lamar employees including Barnhart would trim trees themselves.”

FairWarning is a nonprofit, online investigative news organization focused on public health and safety issues.

Support for this story came from the Fund for Investigative Journalism.