STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIAN BEVAN, JANE BEVAN, ) LISA BEVAN, and ANDREW BEVAN, )

)

Petitioners, )

)

vs. ) CASE NO. 93-1314

) RICHARD and CLAUDIA COWART ) and DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Ft. Myers, Florida, on August 3 and September 13, 1994. Petitioners, witnesses, and the court reporter attended the hearing in Ft. Myers. The attorneys and Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, participated by videoconference from Tallahassee.

APPEARANCES

For Petitioners: Brian and Lisa Bevan

1200 Masanabo Lane

Ft. Myers, Florida 33919

For Respondents Richard A. Lotspeich Richard and Landers & Parsons Claudia Cowart: Post Office Box 271

Tallahassee, Florida 32302

For Respondent Douglas M. MacLaughlin Department of John L. Chaves Environmental Assistant General Counsel

Protection: 2600 Blair Stone Road, Room 654

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUE

The issue in this case is whether the Cowarts are entitled to construct a seawall.

PRELIMINARY STATEMENT

By Petition for Formal Administrative Hearing filed February 5, 1993, Petitioners alleged that they are adjacent residents and property owners to the site of a seawall. They allege that the seawall will violate water quality standards, adversely affect the conservation of fish and wildlife, cause erosion to Petitioners' property, and interfere with Petitioners' enjoyment of and access to the Caloosahatchee River.

By Motion in Limine and Motion to Strike filed May 11, 1993, Respondents Cowarts requested that the hearing officer enter an order striking certain allegations or limiting the issues to be presented at the hearing.

An Order in Limine entered May 26, 1993, limits the issues to whether the construction of a seawall with riprap is an exempt activity under Rule 17- 312.050(1)(t), Florida Administrative Code. The order identifies the following subsidiary issues:

1. Whether the seawall/riprap is between and adjoins at both ends existing seawalls and riprap;

2. Whether the seawall/riprap follows a continuous and uniform line of construction with the existing seawalls or riprap;

3. Whether the seawall/riprap is no more than

   150 feet in length; and

4. Whether the construction does not violate existing water quality standards, impede navigation, or adversely affect flood control.

The order specifically excludes from consideration at the hearing issues involving unauthorized dredging, unauthorized construction of a boat ramp, the height of the seawall, the location of the mean high water line, and fraud.

At the hearing, Petitioners called one witness and offered into evidence 20 exhibits. The Cowarts called two witnesses and offered into evidence two exhibits. All exhibits were admitted except Petitioners Exhibits 6, 8, 12, 26,

and 27.

Rulings on timely filed proposed findings are in the appendix.

FINDINGS OF FACT

1. By Joint Application for Works in the Waters of Florida filed January 14, 1993, Richard and Claudia Cowart requested permission to construct a concrete seawall with sloping riprap along their property, which is bordered by the Caloosahatchee River.

   
   

2. The application describes the length of the seawall as 130 feet. The application describes the length of the riprap as "up to 130 [feet]" and the width of the riprap as five feet.

   
   

3. The application states that the Cowarts are the record owner of the property and that Brian Bevan is an owner of adjacent property. There are seawalls for some distance on both sides of the proposed seawall, including along the property of Mr. Bevan. The seawall on the side opposite that of Mr. Bevan is indicated on the drawing accompanying the application.

4. The drawing attached to the application depicts an existing retaining wall waterward of the approximate mean high water line and the proposed seawall landward of the approximate mean high water line. The proposed seawall would travel parallel to the river's shoreline for a distance of about 130 feet. At both ends, the wall turns away from the river and runs an additional 25-30 feet perpendicular to the river. At the southerly end of the proposed seawall, the drawing also indicates a "wetland enhancement area" where 100 one-gallon red mangrove trees would be planted.

   
   

5. A second drawing attached to the application consists of a cross- section of the proposed activity. The cross-section drawing depicts, among other things, the riprap to be placed waterward of the proposed seawall, which is perpendicular to the surface of the water. The proposed riprap has no discontinuities.

   
   

6. By letter to the Cowarts dated January 20, 1993, the Department of Environmental Regulation (DEP) stated that it found that the proposed activity was exempt from the need for a wetland resource permit, pursuant to Rule 17- 312.050(1)(t), Florida Administrative Code. Within a couple of months after issuance of the letter, the Cowarts constructed a seawall.

   
   

7. Petitioners challenged the determination by filing a petition on February 4, 1993.

   
   

8. The proposed seawall would not violate existing water quality standards, impede navigation, or adversely affect flood control.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

   
   

10. The Cowarts have the burden or proving their entitlement to the exemption. Department of Transportation v. J.W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

    
    

11. Section 403.813(2) provides:

    
    

    No permit under this chapter [or] chapter 373

    . . . shall be required for activities associated with the following types of projects:

    * * *

    (o) The construction of private seawalls in waters of the state where such construction is between and adjoins at both ends existing seawalls, follows a continuous and uniform seawall construction line with the existing seawalls, is no more than 150 feet

    in length, and does not violate existing water quality standards, impede navigation, or affect flood control.

    . . .

12. The proposed activity is the construction of a private seawall. As described in the application, the proposed seawall would be between and adjoin at both ends existing seawalls, would follow a continuous and uniform construction line with existing seawalls, and would not violate existing water quality standards, impede navigation, or affect flood control.

    
    

13. The only significant issue presented is whether the proposed seawall is more than 150 feet long. The portion running along the river is not. However, if the perpendicular retaining walls are added, the proposed seawall is over 150 feet long.

    
    

14. The seawall is the portion of the wall running parallel to the water. A wall running perpendicular to the water, such as the shorter segments at either end of the seawall, does not serve the function of a seawall.

    
    

15. On October 24, 1994, the Cowarts filed a Motion for Determination of Improper Purposes and Award of Attorney's Fees and Costs. In the motion, the Cowarts request attorneys' fees and costs under Section 120.59(6). Section 120.59(6)(d) requires the hearing officer to determine if a party participated in the proceeding for an "improper purpose," and, if so, to recommend in the recommended order an award of attorneys' fees. Section 120.59(6)(e)1 defines "improper purpose" as "primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of . . . securing the approval of an activity."

    
    

16. It is true that Mr. Bevan repeatedly refused to abide by evidentiary rulings and continued to offer evidence concerning the actual construction. However, the issue involving the manner of calculating the length of the seawall is a substantial issue that precludes a finding of improper purpose. The hearing officer therefore denies the motion and declines to find that Petitioners, or any of them, participated in the proceeding for an improper purpose.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the petition of the Bevans and declining to award attorneys' fees and costs against them or any of them.

ENTERED on October 28, 1994, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings on October 28, 1994.

APPENDIX

Rulings on Petitioners' Proposed Findings

Petitioners filed a proposed recommended order without proposed findings of fact. To the extent that anything in the proposed recommended order may be construed to be a proposed finding of fact, it is rejected as irrelevant or unsupported by the appropriate weight of the evidence.

Rulings on Cowarts' Proposed Findings

1-11: adopted or adopted in substance. 12: rejected as unnecessary.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 32399-2400

Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 32399-2400

John L. Chaves, Assistant General Counsel Douglas H. McLaughlin, Assistant General Counsel Department of Environmental Protection

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

Brian Bevan

1200 Masanabo Lane Ft. Myers, FL 33919

Richard A. Lotspeich Landers & Parsons

1. Box 271 Tallahassee, FL 32302

   
   

   NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

   
   

   All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

   
   

   =================================================================

   AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA

   DEPARTMENT OF ENVIRONMENTAL PROTECTION

   
   

   
   

   BRIAN BEVAN, JANE BEVAN,

   LISA BEVAN, and ANDREW BEVAN,

   
   

   Petitioners,

   
   

   OGC Case No. 93-0307

   vs. DOAH Case No. 93-1314

   
   

   RICHARD and CLAUDIA COWART,

   and DEPARTMENT OF ENVIRONMENTAL PROTECTION,

   
   

   Respondents.

   /

   
   

   FINAL ORDER

   
   

   On October 28, 1994, a Hearing Officer with the Division of Administrative Hearings (hereafter "DOAH") submitted his Recommended Order to the Department of Environmental Protection, formerly known as the Department of Environmental Regulation (hereafter "Department"). Copies of the Recommended Order were also served upon the Petitioners, Brian Bevan, Jane Bevan, Lisa Bevan and Andrew Bevan (hereafter "Petitioners"), and the Respondents, Richard and Claudia Cowart (hereafter "Applicants"). A copy of the Recommended Order is attached as Exhibit A.

   
   

   Petitioners filed exceptions to the Recommended Order on November 8, 1994. Exceptions to the Recommended Order were also filed on behalf of the Applicants on November 9, 1994. On November 16, 1994, the Department filed its response to Petitioners' exceptions. The matter is now before me as Secretary of the Department for final agency action.

   
   

   BACKGROUND

   
   

   The Applicants are owners of residential property located on the banks of the Caloosahatchee River at the end of Logan Lane in Fort Myers, Lee County, Florida. Petitioners reside on property adjacent to the southern boundary of the Applicants' property. On January 14, 1993, application No. 362244905 was filed with the Department on behalf of the Applicants in connection with a proposed project to construct a concrete seawall with riprap on the waterward side of their property. (Cowart Ex. 1) This application sought a determination that the proposed seawall project was exempt from the requirement of obtaining a wetland resource permit from the Department.

   On January 20, 1993, the Department issued a Notice of Intent to grant the requested exemption based on Rule 17-312.050(1)(t), Florida Administrative Code. 1/ (Cowart Ex. 2) Petitioners then filed a timely Petition for Formal Administrative Hearing challenging the issuance of the requested exemption for the proposed seawall project. 2/ This petition was forwarded to DOAH for a formal hearing pursuant to Section 120.57(1), Florida Statutes, and Hearing Officer Robert E. Meale (hereafter "Hearing was assigned to hear the case. A Motion to Dismiss Petition for Formal Administrative Hearing was then filed on behalf of the Applicants, and Petitioners followed with a timely response in opposition to this Motion to Dismiss.

   
   

   The Applicants subsequently filed a Motion in Limine and Motion to Strike directed to the Petition for Formal Administrative Hearing and Petitioners' Response to Motion to Dismiss. The Motion in Limine and Motion to Strike basically sought to limit the scope of the DOAH hearing to the issue of whether the proposed seawall with riprap project as described in the application complied with the exemption conditions of Rule 17-312.050(1)(t), Florida Administrative Code. A response was filed by the Department concurring with the Motion in Limine, but disagreeing in part with the Motion to Strike. A belated response was filed by Petitioners in opposition to the Applicants' Motion in Limine and Motion to Strike. On May 26, 1993, the Hearing Officer entered an order granting the Motion in Limine, and part of the relief requested in the Motion to Strike.

   
   

   The DOAH final hearing was held on August 3 and September 13, 1994. The Recommended Order reflects that two witnesses testified on behalf of the Applicants, and one witness was called on behalf of the Petitioners. Various exhibits were introduced into evidence by the Applicants and Petitioners. The basic issues in this case were:

   
   

   1. Whether the Applicants' proposed seawall with sloping riprap was exempt from the Department's wetland resource permit requirements by virtue of the exemption provisions of Section 403.813(2)(o), Florida Statutes, and Rule 17- 312.050(1)(t), Florida Administrative Code.

      
      

   2. Whether the Applicants provided reasonable assurance that construction of the proposed seawall with riprap would not violate water quality standards, impede navigation or adversely affect flood control.

Proposed Recommended Orders were filed by all the parties after the final hearing was concluded. In addition, the Applicants filed with DOAH a post- hearing Motion for Determination of Improper Purposes and Award of Attorney's Fees and Costs pursuant to Section 120.59(6), Florida Statutes.

The Hearing Officer found in paragraph 8 of the Recommended Order that the proposed seawall would not violate water quality standards, impede navigation or adversely affect flood control. The Hearing Officer concluded in paragraphs 11 through 14 that the proposed seawall with riprap as described in the application complied with the statutory and regulatory exemption conditions, including the provision that the seawall be no more than 150 feet in length. The Hearing Officer also ruled in paragraphs 15 and 16 that Petitioners had not participated in the proceeding for an improper purpose under Section 120.59(6), Florida Statutes. The Hearing Officer ultimately recommended that the Department enter a Final Order "dismissing the petition of the Bevans and declining to award attorneys' fees and costs against them or any of them."

RULINGS ON PETITIONERS' EXCEPTIONS

Preface

Petitioners' exceptions dispute portions of the Hearing Officer's preliminary statement, findings of fact, conclusions of law, rulings on Petitioners' proposed findings and rulings on Applicants' proposed findings. As a preface to my rulings on the various exceptions, it is appropriate that I comment on the standard of review imposed by law on an agency in reviewing recommended orders submitted by DOAH hearing officers.

Under Section 120.57(1)(b)10, Florida Statutes, a reviewing agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order of an administrative hearing officer. However, the agency may not reject or modify findings of fact made by the hearing officer, unless a review of the complete record demonstrates that such findings were not based on competent, substantial evidence or that the proceedings on which the findings were based do not comply with the essential requirements of law. See, e.g., Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987).

The agency reviewing a recommended order may not reweigh the evidence, resolve conflicts therein or judge the credibility of witnesses, as those are evidentiary matters within the province of the hearing officer as the trier of the facts. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the hearing officer, the reviewing agency is bound by such finding. Florida Department of Business Regulation v. Bradley, supra, at 1123. At the review level, however, the agency head is free to exercise his or her judgment and reject the hearing officer's conclusions of law. See, e.g., MacPherson v. School Board of Monroe Countv, 505 So.2d 682 (Fla. 3d DCA 1987); Siess v. Dept. of Health and Rehabilitative Services, 468 So.2d 478 (Fla. 2d DCA 1985); Alles v. Dept. of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982).

Exception No. 1 - Recommended Order of Hearing Officer

Petitioners correctly note in this exception that the Department was not represented by Douglas MacLaughlin, Esquire, on the second day of the DOAH final hearing as indicated in the Recommended Order. 3/ Petitioners also are correct that Jane Bevan made an appearance in their behalf on September 13, 1994. These technical exceptions raised by Petitioners are granted, but are deemed to be purely clerical matters constituting harmless error.

Exception No. 2 - Preliminary Statement of the Hearing Officer

In this exception, Petitioners disagree with the Hearing Officer's summary of the background, procedural matters and substantive issues as set forth in the Preliminary Statement of the Recommended Order. I do concur with Petitioners' assertion that the question of whether the Applicants' seawall falls within the definition of a "vertical seawall" under Rules 17-312.020(19) and 17- 312.050(1)(t), Florida Administrative Code, is an additional significant issue in this case not specifically identified in the Recommended Order. With this addition, I conclude that the Hearing Officer's Preliminary Statement presents a reasonably accurate summation of the relevant procedural and substantive matters presented in this proceeding.

The additional issue of whether the Applicants' seawall project constitutes a "vertical seawall" under the Department's rules is significant to the disposition of this case because:

1. The statutory basis for exempting the construction of seawalls from wetland resource permitting requirements is Section 403.813(2)(o), Florida Statutes, which does not require a permit under the following conditions:

   
   

   (o) The construction of private seawalls in waters of the state where such construction is between and adjoins at both ends existing seawalls, follows a continuous and uniform seawall construction line with the existing seawalls, is no more than 150 feet in length, and does not violate existing water quality standards, impede navigation, or affect flood control.

   
   

2. The Department, as the permitting agency, has adopted rules implementing this statutory exemption for private seawalls. A primary rule is Rule 17-312.050(1)(t), Florida Administrative Code, which reads as follows:

   
   

   17-312.050 Exemptions.

   
   

   1. No permit shall be required under this chapter for dredge and filling specified in Section 403.813(2), F.S., . . . for the projects listed below.

      * * *

      (t) The construction of vertical seawalls in waters of the State, other than in an estuary or lagoon, and the construction of riprap revetments, where such construction is between and adjoins at both ends existing seawalls or riprap, follows a continuous and uniform construction line with the existing seawalls or riprap, is no more than 150 feet in length, and does not violate existing water quality standards, impede navigation, adversely or affect flood control. However, this shall not affect the permitting requirements of Chapter 161, F.S. Construction shall be in accordance with

      Section 403.918(5), F.S. (emphasis supplied).

      
      

3. The evidence of record establishes that the portion of the Caloosahatche'e River where the Applicants' seawall is located is an "estuary" within the purview of Rule 17-312.050(1)(t). Thus, if the subject seawall is deemed to be a "vertical seawall" under this rule it would not be entitled to an exemption from Department permitting requirements, regardless of its length.

   
   

4. Rule 17-312.020(19), Florida Administrative Code, provides in part that a "seawall with sloping riprap on the waterward face shall not be considered a vertical seawall."

The Department's Proposed Recommended Order sets forth the staff position that the Applicants' proposed seawall project is not a "vertical seawall" as defined in Rule 17-312.020(19) due to the conclusion of sloping riprap along its waterward face in the drawings attached to the application. Thus, the proposed seawall would be entitled to the exemption under Rule 17-302.050(1)(t), Florida Administrative Code. This interpretation of Rules 17-312.020(19) and 17- 312.050(1)(t) appears to have a reasonable factual basis in light of the evidence of record before me for review. I would specifically note that the second drawing titled "SECTION A-A" attached to the Applicants' written request for exemption includes a rough sketch of rock on the waterward side of the proposed seawall with the description "Proposed Riprap Along Planting Area." (Cowart Ex. 1)

The case law of Florida holds that great deference should be accorded to administrative interpretations of statutes and rules that the agency is required to enforce, and such administrative interpretations should not be overturned unless clearly erroneous. See, e.g., Department of Environmental Regulation v. Goldring, 477 So.2d 532, 534 (Fla. 1985); Pan American World Airways, Inc. v.

Florida Public Service Commission, 427 So.2d 716, 719 (Fla. 1983); Harloff v. City of Sarasota, 575 So.2d 1324, 1327 (Fla. 2d DCA 1991). I conclude that the Department staff interpretation of the definition provisions of "vertical seawall" as set forth in Rules 17-312.020(19) and 17-312.050(1)(t), Florida Administrative Code, is not clearly erroneous based on the matters of record before me for review and should not be overturned.

Petitioners also take issue in this and their next exception with various factual findings and evidentiary rulings made by the Hearing Officer at the final hearing and in the Order in Limine entered on May 26, 1993. In the Preface above, it is noted that factual findings and evidentiary rulings in a DOAH formal proceeding are matters generally within the sound discretion of the hearing officer as the trier of the facts. Section 120.57(1)(b)10, Florida Statutes, mandates that factual findings of a hearing officer may not be rejected "unless the agency first determines from a review of the complete record . . . that the findings were not based on competent substantial evidence or that the proceedings . . . did not comply with the essential requirements of law." (emphasis supplied) As discussed in more detail in the following ruling on Petitioners' Exception 3, I am unable to make a "review of the complete record" in this case because of the failure of Petitioners to furnish the complete transcript of the DOAH final hearing in connection with their exceptions to the Hearing Officer's Recommended order.

In view of the above, Petitioners' Exception No. 2 is granted to the limited extent of adding as a significant issue in this case the question of whether the Applicants' seawall project constitutes a "vertical seawall" within the purview of the applicable Department rules. In all other respects, this exception is denied.

Exception No. 3 - Findings of Fact by Hearing Officer

This composite exception contains various objections by Petitioners to the Hearing Officer's findings of fact and related conclusions in paragraphs l, 2, 4, 5, 6, 12 and 13 of the Recommended Order. Petitioners also take exception to the Hearing Officer's rulings on their Proposed Recommended Order. In addition, Petitioners repeat their objections to the Hearing Officer's interpretation of the statutory and rule provisions relating to exemption of private seawalls from Department permitting requirements and reassert their disagreement with the evidentiary rulings in the prehearing Order in Limine.

Most of these miscellaneous exceptions raise factual issues that are dealt with in the paragraphs below. The issue of the manner of calculating the length of the seawall for the purpose of determining whether the Applicants' seawall project is entitled to the requested exemption, however, appears to be a mixed question of law and fact. Although there are severe restraints on an agency in rejecting the facts as found by the Hearing Officer, the reviewing agency is free to substitute its judgment concerning the legal determination of whether the factual findings establish compliance with the governing law. See Harloff

v. City of Sarasota, 575 So.2d 1324, 1328 (Fla. 2d DCA 1991); 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So.2d 946, 955 (Fla. 1st DCA 1989).

The exemption from standard permitting requirements of private seawalls is limited to seawalls of "no more than 150 feet in length" by Section 403.813(2)(o), Florida Statutes, and Rule 17-312.050(1)(t), Florida Administrative Code. The subject application for exemption describes the length of the seawall as "up to 130 feet." (Cowart Ex. 1) The first scaled drawing attached to the application for exemption and the proposed site plan indicate that the 130 foot figure applies to the length of the seawall contiguous to the shoreline of the river; and that there is an additional 25-30 feet of seawall perpendicular to the river at each end. (Cowart Ex. 1; Bevan Ex. 25) Thus, if the two perpendicular portions of the structure are included in the length calculation, the seawall would exceed the statutory and rule maximum length of

150 feet.

Petitioners argue that the two perpendicular portions of the structure should be included in the length calculation, thereby disentitling the seawall project to the requested exemption. The Hearing Officer rejected this contention and concluded in paragraph 14 of the Recommended Order that the two end portions of the structure perpendicular to the river do not serve the function of a seawall and are not to be included in the length calculation for exemption purposes. This conclusion of the Hearing Officer is supported by the hearing testimony of the Department's employee, Gordon Romeis. Mr. Romeis testified that the two end portions of the structure perpendicular to the river extend into upland areas beyond the Department's wetland jurisdiction and were not included in the exemption determination for that reason. (Tr. 19-20)

In the prior ruling, case law is cited holding that great deference should be given to agency interpretations of statutes and rules they are required to enforce. Furthermore, the agency's interpretation does not have to be the only one, or even the most desirable; it is sufficient if it is a permissible one.

See Little Munyon Island v. Dept. of Environmental Regulation, 492 So.2d 735, 737 (Fla. 1st DCA 1986). The Department's staff position adopted by the Hearing Officer in this case, excluding the nonjurisdictional portions of the seawall structure from the exemption determination process, appears to be both a reasonable and permissible interpretation based on the statutory and rule language in question as applied to the evidence of record. The Hearing Officer's conclusion in paragraph 14 of the Recommended Order is affirmed.

The remainder of the miscellaneous objections in Petitioners' third exception deal essentially with factual rulings and findings of the Hearing Officer. 4/ I am prohibited by law from rejecting or modifying the Hearing Officer's findings of fact, unless I review the "complete record" of the DOAH formal proceeding. The case law of this state construing Section 120.57(1)(b)(10), Florida Statutes, has consistently held that a reviewing agency should not reject the findings of fact of a DOAH hearing officer where

the party disputing the findings of fact has failed to furnish to the reviewing agency a complete transcript of the DOAH proceedings. See, e.g., Rabren v.

Department of Professional Regulation, 568 So.2d 1283 (Fla. 1st DCA 1990); Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); Booker Creek Preservation, Inc. v. Department of Environmental Regulation, 415 So.2d 750 (Fla. 1st DCA 1982).

The Department's rules implementing s. 120.57(1)(b), Florida Statutes, are even more explicit. Rule 62-103.200(1), Florida Administrative Code, 5/ requires that "[a]ny exception disputing a finding of fact must be accompanied by a complete transcript of the hearing." The related provisions of Rule 62- 103.205(3), Florida Administrative Code, direct that "[a] party filing [an] exception to any finding of fact of the hearing officer must file a complete transcript of the hearing with the exception."

The DOAH final hearing in this case was held on August 3 and September 13, 1994. However, no transcript of the first day of the final hearing was filed by Petitioners in connection with their exceptions. 6/ Only a transcript of the second day of the final hearing was furnished, and this partial transcript is specifically designated by the court reporter as an "Excerpt of Proceedings." (Tr. 1) This transcript of the second day of the DOAH final hearing commences with the continuation of the Petitioners' prior cross-examination of Department employee Gordon Romeis. (Tr. 12-13)

The rules governing the recording of testimony at a DOAH final hearing expressly provide that at "hearings during which the services of a court reporter have been retained, any party who wishes a written transcript of the testimony shall order the same at his own expense." Rule 60Q-2.023(3), Florida Administrative Code. (emphasis supplied) Furthermore, the cases cited above make it clear that the party seeking agency review of a recommended order of a hearing officer has the responsibility for furnishing the complete transcript of the DOAH proceedings to the agency. See, e.g., Rabren v. Dept. of Professional Regulation, supra, at 1290.

For the reasons stated above and in the prior ruling, the various exceptions of Petitioners set forth under the heading

"3. FINDINGS OF FACTS BY HEARING OFFICER" are denied."

RULING ON APPLICANTS' EXCEPTION

The Applicants filed a single exception addressing the Hearing Officer's conclusion in paragraph 16 of the Recommended Order that the Petitioners did not participate in this proceeding for an "improper purpose" within the purview of Section 120.59(6), Florida Statutes, and denying the Applicants' motion for attorney fees and costs. The previously cited statutory and rule provisions exempting private seawalls from Department permitting requirements are expressly limited to seawalls of "no more than 150 feet in length." I concur with the Hearing Officer's conclusion that the issue of the manner of determining the length of the seawall for the purpose of entitlement to the requested exemption was a substantial disputed issue precluding a finding of improper purpose on the part of the Petitioners.

The question of whether a party intended to participate in a formal administrative proceeding for an improper purpose has been judicially determined to be an issue of fact within the prerogative of the hearing officer, rather than a conclusion of law that may be freely rejected by the reviewing agency.

See Burke v. Harbor Estates Associates, Inc., 591 So.2d 1034, 1037 (Fla. 1st DCA 1991). Furthermore, the court noted in the Burke decision that the Department's predecessor agency, the Department of Environmental Regulation, claimed no special insight or expertise in determining whether a party participated in a formal administrative proceeding for an improper purpose. Burke, supra, at 1037. No claim of such special insight or expertise has been made by any party in this proceeding.

The Applicants request in their exception that this case be remanded to the Hearing Officer for the purpose of taking testimony on the issue of whether the Petitioners participated in this proceeding for an improper purpose. I am of the view, however, that such a remand would be a meaningless and futile gesture in view of the Hearing Officer's clear and unambiguous ruling in the Recommended Order that a finding of improper purpose on the part of Petitioners is precluded under the facts of this case. Consequently, the Applicants' exception is denied.

CONCLUSIONS OF LAW

This case came for agency review in a somewhat unusual posture. It is undisputed that the Applicants constructed their seawall project prior to the DOAH final hearing. This immediate action was taken by the Applicants despite the fact that the Department's letter of exemption determination provides that, upon the timely filing of a petition challenging the determination, "this Notice [of exemption determination] will not be effective until further Order of the Department." (Cowart Ex. 2, page 3)

I am not in full agreement with the Hearing Officer's evidentiary rulings severely limiting the scope of the final hearing and preventing Petitioners from presenting certain evidence relating to the actual construction of the Applicants' seawall. The Hearing Officer's findings of fact in the Recommended Order deal almost exclusively with the written statements and attached drawings comprising the Applicants' request for exemption filed on January 14, 1993.

A DOAH formal hearing under Section 120.57(1), Florida Statutes is not an administrative review of prior agency final action. The administrative hearing is a de novo proceeding designed to formulate agency final action, and the parties are allowed to present additional evidence on relevant matters not previously included in the application or in the notice of intent to issue or deny the permit. See Hamilton County Commissioners v. State, 587 So.2d 1378, 1387-88 (Fla. 1st DCA 1991); Florida Dept. of Transportation v. J.W.C. Company Inc., 396 So.2d 778, 786-787 (Fla. 1st DCA 1981). Thus, none of the parties to this proceeding should have been precluded from presenting relevant evidence at the DOAH final hearing relating to the Applicants' prior construction of the seawall merely because such evidentiary matters were not in existence at the time the application for exemption was submitted or at the time the Department's preliminary determination of entitlement to the exemption was issued.

Clearly, the best evidence of whether the seawall was within the requirements of the exemption was evidence of the actual construction thereof, rather than proposals for construction that were arguably superceded by the actual construction. This Final Order does not constitute a determination by the Secretary that the seawall was constructed in substantial compliance with the specifications submitted to the Department or that the "as-built" project complies with applicable exemption or permitting requirements.

As noted above, I am limited by strict standards of agency review in rejecting or modifying the Hearing Officer's evidentiary rulings and factual findings. This limitation is even more severe in this case due to the failure of the Petitioners to furnish a complete transcript of the DOAH final hearing. I am of the view, however, that the Petitioners' claims of substantial deviations in the course of the actual construction of the Applicants' seawall from the specifications presented in their request for exemption at least warrant an official investigation by the Department of these claims. Should such investigation disclose that substantial deviations exist in the "as-built" seawall that would preclude the applicants' entitlement to the exemption, these issues can be dealt with in a subsequent enforcement proceeding.

It is therefore ORDERED:

A. The "Appearances" section on page one of the Recommended Order is modified to reflect that Jane Bevan also made an appearance in behalf of Petitioners and that the Department was also represented at the hearing by John

1. Chaves, Esquire.

   
   

   1. The Preliminary Statement of the Recommended Order is modified by adding at the end of unnumbered paragraph three the following language:

      
      

      An additional significant subsidiary issue is whether the seawall/riprap constitutes a "vertical seawall" under Rules

      17-312.020(19) and 17-312.050(1)(t), Florida Administrative Code.

      
      

   2. The Recommended Order of the Hearing Officer, as modified by Paragraphs A and B above, is adopted and is incorporated herein by reference.

      
      

   3. The Applicants' application No. 362244905 for exemption under Rule 17- 312.050(1)(t), Florida Administrative Code, of its proposed project as submitted to the Department, consisting of a seawall with sloping riprap on the waterward side, is GRANTED.

      
      

   4. The Applicants' request that this cause be remanded to the Hearing Officer for the purpose of holding an evidentiary hearing on the issue of whether the Petitioners participated in this proceeding for an improper purpose is DENIED.

      
      

   5. The Department's South District Office is hereby directed to conduct a compliance inspection within sixty (60) days of the date of entry of this Final Order of the Applicants' constructed seawall project to determine if there are any violations warranting the commencement of agency enforcement action.

Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.

DONE AND ORDERED this 9th day of December, 1994, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

VIRGINIA B. WETHERELL

Secretary

Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

ENDNOTES

1/ Chapter 17-312, Florida Administrative Code, was transferred intact to a newly created Chapter 62-312, Florida Administrative Code, effective August 10, 1994. This chapter will continue to be referred to with its former Title 17, Florida Administrative Code, designation in the interest of consistency with the Recommended Order.

2/ The Applicants proceeded to construct the seawall soon after they received the Department's preliminary exemption determination, notwithstanding the Petitioners' timely challenge of this preliminary agency action. See, e.g., paragraph 6 of the Recommended Order.

3/ The Department was represented by John L. Chaves, Esquire, on the second day of the DOAH final hearing held on September 13, 1994.

4/ This portion of the Petitioners; Exceptions references a November 4, 1994, letter from an architect and relted architectural drawings which were included as attachments to the Petitioners' Exceptions filed with the Secretary for review. The letter and drawings were obciously prepared after the DOAH final hearing was completed and after the Recommended Order was submitted. The Department's Response to Petitioner's Exceptions correctly points out that the letter and drawings were not admitted into evidence at the DOAH hearing and are not properly part of the record on review. I agree that the filing of the letter and related drawings constitute and improper attempt by the Petitioners to supplemant the record on agency review and decline to take these documents into consideration in the preparation and entry of this Final Order.

5/ Chapter 17-103, Florida Administrative Code, was recently transferred intact to a newly created Chapter 62-103, Florida Administrative Code, effective August 10, 1994.

6/ The Hearing Officer estimated that the initial evidentiary hearing on August 3, 1994, covered a period of time of about seven and one-half hours.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been sent by U.S. Mail to the following persons:

Richard A. Lotspeich, Esquire Brian Bevan

LANDERS & PARSONS 1200 Masanabo Lane

310 W College Ave Ft Myers Florida 33919 P O Box 271

Tallahassee Florida 32302 and by hand delivery to:

Robert E. Meale Ann Cole, Clerk

Hearing Officer Division of Administrative Division of Administrative Hearings

Hearings The DeSoto Bldg

The DeSoto Bldg 1230 Apalachee Pkwy

1230 Apalachee Pkwy Tallahassee FL 32399-1550

Tallahassee FL 32399-1550

John L. Chaves, Esquire

Department of Environmental Protection 2600 Blair Stone Rd

Tallahassee Florida 32399-2400 this 12th day of December, 1994.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

J. TERRELL WILLIAMS Assistant General Counsel Twin Towers Office Bldg 2600 Blair Stone Rd

Tallahassee Florida 32399-2400 Telephone: 904/p488-9314

Docket for Case No: 93-001314

Orders for Case No: 93-001314