STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PUPS PUB TPA, LLC, AND PUPS PUB

ORLANDO, LLC,

Petitioners,
Case No. 23-0429RU
vs.

DEPARTMENT OF HEALTH,

Respondent.
/

FINAL ORDER
On March 28 and 29, 2023, a duly-noticed hearing1 was conducted in
Tallahassee, Florida, before Lynne A. Quimby-Pennock, an administrative
law judge (“ALJ”) assigned by the Division of Administrative Hearings
(“DOAH”).

APPEARANCES
For Petitioner: Tana D. Storey, Esquire
Amanda Marci Hessein, Esquire
Rutledge Ecenia, P.A.
119 South Monroe Street, Suite 202
Tallahassee, Florida 32301

For Respondent: Katelyn Rose Boswell, Esquire

Jillian Pratt, Esquire2
Florida Department of Health
Prosecution Services Unit
4052 Bald Cypress Way, Bin A-02
Tallahassee, Florida 32399

1As noticed, a Zoom conference connection was utilized for one witness and to share exhibits
during the course of the hearing.

2Ms. Pratt was listed as counsel for Respondent and was present for the direct examination
of Petitioners’ first witness; however, she was excused for the remainder of the hearing.
 STATEMENT OF THE ISSUE
The issue is whether the Department of Health’s (“DOH”) changed
interpretation involving Florida Administrative Code Rule 64E-11.003(6)(c)
constitutes an unadopted rule in violation of sections 120.54(1)(a) and 120.56,
Florida Statutes, which cannot be applied unless and until promulgated.

PRELIMINARY STATEMENT
On Thursday, February 2, 2023, Petitioners, PUPS PUB TPA, LLC (“PP
TPA”), and PUPS PUB ORLANDO, LLC (“PP ORL”) (collectively referred to
as “Petitioners”), initiated this proceeding by filing a Petition Challenging
Agency Statement Defined as an Unadopted Rule (“Petition”). The Petition
seeks a determination that:

[The] Department of Health, is inappropriately

relaying [sic] on unadopted statements of general
applicability that have not been adopted as rules in
contravention of section 120.54(1)(a) to take
enforcement actions or otherwise prohibit dog
friendly bars and lounges falling within its
jurisdiction from allowing dogs inside the bar or
lounge despite the Department’s prior
authorization and interpretation of its rules to the
contrary.

The Petition alleges that DOH changed its interpretation of rule 64E-
11.003(6), which provides, in pertinent part:

(6) Other Facilities and Operations – Except as

specifically provided in this subsection, the
standards for other facilities and operations are
governed by Chapters 6-7 of the Food Code, as
incorporated by reference in rule 64E-11.002,
F.A.C.

* * *

2
 (c) Live Birds and Animals – No live birds or
animals, excluding crustacea, shellfish, and fish in
aquariums, are allowed in a food service
establishment, in vehicles used for transporting
food, or in any other area or facility used to conduct
food service operations, except as provided under
section 413.08, F.S.

The Petition also alleges there is no statutory provision in section

381.0072, Florida Statutes, that prohibits non-service dogs in bars and
lounges in Florida.

On Friday, February 3, 2023, Chief Judge Brian Newman issued an Order

of Assignment, assigning the matter to the undersigned. A telephonic pre-
hearing conference call was held on Monday, February 6, 2023. A Notice of
Hearing and Order of Pre-hearing Instructions were issued later that day,
setting the final hearing for Friday, March 3, 2023, in Tallahassee, Florida,
and reserving Monday, March 6, 2023, for a second hearing day, should it be
necessary.

On Monday, February 13, 2023, DOH filed a Motion for Summary Final
Order (“Summary Motion”). On Thursday, February 16, 2023, DOH filed an
unopposed motion for the undersigned to hear the Summary Motion, and a
Notice of Telephonic Motion Hearing was issued. On Monday, February 20,
2023, Petitioner filed its response in opposition to the Summary Motion. On
Tuesday, February 21, 2023, the duly noticed telephonic Summary Motion
hearing was held. On Wednesday, February 22, 2023, an Order Denying the
Summary Motion was issued.

On Thursday, February 23, 2023, a Joint Motion for Continuance was

filed and granted. The hearing was rescheduled to Tuesday and Wednesday,
March 28 and 29, 2023. The parties were directed to submit their proposed

3
exhibits and a notice of filing the proposed exhibits on or before Tuesday,
March 21, 2023.

On Tuesday, February 28, 2023, DOH filed an Unopposed Motion for

Modification of Deadline to File Joint Pre-Hearing Stipulation (“Unopposed
Motion”). The Unopposed Motion pointed out that the date for filing the joint
pre-hearing stipulation had not been modified when the hearing date was
changed. The Unopposed Motion was appropriate and granted. The deadline
for filing the joint pre-hearing stipulation was extended to Monday,
March 20, 2023.

On Tuesday, March 21, 2023, the parties filed a Joint Pre-hearing

Stipulation in which the parties identified their proposed witnesses and
exhibits. On Thursday, March 23, 2023, the First Amended Joint Pre-
Hearing Stipulation (“Stipulation”) was filed. The Stipulation included the
14 facts that are admitted and are incorporated below to the extent relevant
to the issue. The Stipulation also attached Petitioners’ Second Amended
Exhibit List and DOH’s Second Amended Exhibit List. On March 23, 2023,
DOH filed its Motion for Official Recognition, which was heard before
testimony was taken at the hearing. Over two days, March 23 and 24, 2023,
Petitioners filed multiple amended exhibits. On Monday, March 27, 2023,
Petitioners filed a Third Amended Exhibit List.

The parties offered Joint Exhibits 1 through 11, which were admitted in
evidence. Petitioners listed 61 exhibits on their Third Amended Exhibit List.
Of those, the following were admitted without objection: 1, 13, 17, 34, and 37.
The following exhibits were admitted over objection: 3 through 6; 8 through
12, 14 through 16, 19, 20, 23 (only the Floor Plan), 28, 31, 36, 40 only (Bates
page 475), 41, 43, 45 through 47, 52, 55 through 59, and 61. Petitioners

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Exhibit 51 was taken under advisement, and having now reviewed it, it is
now admitted.

DOH listed 31 exhibits on its Second Amended Exhibit List. Of those, the
following were admitted over objection: 3 through 8,3 15, 16, 26, and 28
through 30. Exhibit 31 was admitted without objection. Exhibit 25 was taken
under advisement and is now admitted. Of the four exhibits attached to
DOH’s Motion for Official Recognition, Exhibits A and B were admitted
without objection, and Exhibit C was admitted over objection. Exhibit D was
taken under advisement. As stated during the hearing, the undersigned has
no authority over criminal statutes and finds that Exhibit D is unnecessary
for this case. Exhibit D is not admitted.

Petitioners presented the testimony of Sheila Suhar and Alex Wright.

DOH presented the testimony of Robin Eychaner and Gina Vallone-Hood.
Both parties listed Douglas King as a witness for their position, and both
parties were allowed latitude in conducting his direct and cross-examination.

The three-volume Transcript of the hearing was filed on April 21, 2023.
Following the granting of one Joint Motion for Extension of Time for Filing
Proposed Final Orders (“PFOs”), both parties timely filed their PFOs on
May 22, 2023. The PFOs have been given due consideration in preparing this
Final Order.

Unless otherwise indicated, all rule and statutory references are to the
current versions.

3 Only the fourth video in Exhibit 7 was admitted.

5
 FINDINGS OF FACT
General Information
1. DOH is a state agency subject to the procedural requirements found in
chapter 120.
2. DOH is charged with regulating food service establishments permitted
or licensed under section 381.0072. As to food service establishments, the
legislature has charged DOH to inspect and regulate specific types of
facilities, including bars and lounges.
3. DOH has a facility program section that contains the food safety and
sanitation program. This program is sometimes referred to as the “food
program” or “food hygiene.” There are a number of different types of food
service establishments, however for purposes of this case, the focus is on bars
and/or lounges.
4. DOH oversees Florida’s 67 County Health Departments (“CHD”).4 Each
CHD has the staff who actually administers the food program. Those
individual 67 CHDs have the direct authority to decide whether to approve or
deny any given application by a food service establishment for a sanitation
certificate pursuant to section 381.0072.
5. Each CHD handles the permitting of bars and lounges from start to
finish. The process begins with each CHD providing an Application for a
Sanitation Certificate (“Application”) to an applicant. Each CHD then collects
the completed Application (which includes a floor plan) and conducts the floor
plan review. After each completed Application is processed and reviewed, an
inspector for the specific CHD is required to perform an opening or routine
inspection. If the bar or lounge receives a satisfactory opening or routine
inspection report, the sanitation certificate is issued and the facility can open
for business. It is common for a sanitation certificate to be issued by the
CHD’s inspector at the time of the satisfactory opening inspection.

4 The CHDs are part of DOH. See § 20.43(5), Fla Stat.

6
 6. Once a satisfactory opening inspection has been completed, and a
sanitation certificate issued, a CHD inspector is assigned to conduct future
routine inspections of that food service establishment. The inspector assigned
to conduct any future routine inspections is typically a different inspector
than the one who conducted the opening inspection, as opening inspections of
bar and lounges are typically conducted by a supervising inspector. Routine
inspection of bars and lounges are conducted once a year.
Witnesses
7. Ms. Suhar and Mr. Wright are the majority owners of Petitioners.
8. Inspector King is currently a Hillsborough County Health Department
(“HCHD”) environmental supervisor II (“ES II”) with over 27 years of
experience in the food hygiene program. He performs the routine inspections
for sanitation certificates for the bars and lounges in Hillsborough County,
Florida, because those bars and lounges have a separate beverage
application5 that requires a DOH supervisor’s signature. In the event a bar
and/or lounge does not pass that initial routine inspection, the sanitation
certificate would not be approved, and the bar and/or lounge could not open.
9. Ms. Vallone-Hood is an environmental administrator for DOH over the
facility program section. Ms. Vallone-Hood has been employed by DOH for
over 33 years. She was initially employed by the Pinellas County Health
Department. In 2006 she was promoted and transferred to the DOH program
office based in Tallahassee, Florida. In or around 2012, Ms. Vallone-Hood
became its administrator.
10. Ms. Eychaner is an ES II, located in the Tallahassee DOH office,
having assumed this position in August 2021. Ms. Eychaner started her DOH
career with the Collier County Health Department, and transferred to DOH
in Tallahassee in 2000. She has been employed by DOH for 29 years and held
numerous positions. Currently, Ms. Eychaner supervises two consultants who

5Alcoholic beverage licenses are issued and regulated by the Florida Department of Business
and Professional Regulation, Division of Alcoholic Beverages and Tobacco.
7
work in the food service safety and sanitation programs and the group care
programs.
Rule 64E-11.003(6)(c)
11. DOH promulgated its current version of rule 64E-11.003(6)(c) in
September 2018. As set forth below, the overwhelming evidence supports
Petitioners’ claim in their Petition that DOH has interpreted this rule to
allow for dog bars to open and operate throughout Florida for years after the
rule’s promulgation. Although Ms. Vallone-Hood testified that quarterly
trainings with the CHDs are held to make sure all DOH employees are
trained in how to apply DOH’s rules, the fact that dog bars have been
operating at least since 2018 across Florida is persuasive of the fact that
DOH has allowed dogs in bars for some time.
Petitioners
12. PP TPA is a Florida limited liability company, which owns and
operates a dog bar in Hillsborough County, Florida. According to Ms. Suhar,
PP TPA issues memberships to dogs, which are considered “VIPs” (very
important pups), and to their owners. Petitioners’ concept for each location is
centered on allowing VIPs to socialize and play inside and outside the bar
facility while their owners socialize as well.
13. PP ORL is a Florida limited liability company, which owns and
operates a dog bar in Orange County, Florida. PP ORL issues VIP
memberships to dogs and their owners, and is operated under the same
business model as PP TPA.
14. Petitioners’ business model is essentially the same in each location.
Petitioners require that the VIPs and owners register upon their arrival
before entering the facility. Either an annual membership or a day pass may
be purchased, and with either type, the dogs must have documentation of up-
to-date vaccinations and submit to a general wellness check prior to entrance
into either location. Patrons may order beverages from the bar and are served
their drinks from the bar.

8
 15. Petitioners do not prepare or serve food. Petitioners prohibit dogs from
entering the bathrooms, storage rooms, and the area behind the bar where
drinks are made and served. Additionally, the dogs are not allowed on the bar
tops.
16. Petitioners serve only beverages. However, beverages are included in
the definition of “food” as defined by the 2013 FDA Food Code. See paragraph
1-201.10(B), Food Code, 2013 Recommendations of the United States Public
Health Service, Food and Drug Administration, NTISP PB2013-110462. As
provided in paragraph 29 below, PP TPA signed a “NO FOOD
PREPARATION AGREEMENT.”
17. Ms. Vallone-Hood testified that she became aware of the “NO FOOD
PREPARATION AGREEMENT” when she was collecting items for the
discovery process6 in this case. At some point after learning of the agreement,
she sent an email to all 67 CHDs, asking each if they had such an agreement
and, if so, to send a copy to her. Ms. Vallone-Hood received a copy of the
agreement from Palm Beach County, Charlotte County, Hillsborough County,
and Manatee County.7
18. During one of the ensuing monthly environmental health director
telephone meetings, Ms. Vallone-Hood then advised “that for any counties
that had no food preparation agreements that they needed to discontinue
using these because this is not incorporated by reference into the rule at all.”
According to Ms. Vallone-Hood, the reason why she said to discontinue the
use of the agreement was simply because it had not been promulgated and
incorporated by reference into the rule, meaning rule 64E-11.003.
19. According to a Google search conducted by Ms. Vallone-Hood and
Ms. Eychaner, 22 facilities with the words “dog bar” (or some derivative of the
term) were found. Of those 22, two facilities just used the words, but did not

6 Discovery for this case began in February 2023.

7The Palm Beach agreement provides the notation: “Revised 01/2021,” and the Charlotte
agreement reflects it was used when Rick Scott was governor.
9
appear to allow dogs, eight (including Petitioners) were identified as allowing
dogs in some capacity and regulated by DOH, and the remainder were
regulated by the Florida Department of Business and Professional
Regulation.
20. Prior to the hearing, three of the DOH regulated dog bars, Two
Shepherds Taproom in Tampa, BRK Republic in West Palm Beach, and
Kanine Social in Jacksonville, were visited by Mr. Wright and his dog,
Bonnie. Each dog bar was operating in a similar fashion to Petitioners. As
confirmed by Ms. Vallone-Hood, Kanine Social, a dog bar in Duval County,
Florida, opened in 2018. Two Shepherds Taproom was inspected by Inspector
King and opened in 2020, approximately six months prior to PP TPA opening.
21. After completing the Google search for dog bars in Florida,
Ms. Vallone-Hood directed Ms. Eychaner to survey the CHDs for dog bar
information within their respective counties. CHDs responded and the
information was placed in a “SharePoint” file.8 Unfortunately, at some point
prior to the discovery period, DOH instituted a “modernization of SharePoint”
and DOH “lost some documents,” i.e., the survey was no longer accessible.
The timing of when this survey was conducted, when it was lost, and why
DOH did not repeat the survey request casts a long shadow on DOH’s
position.
22. Ms. Eychaner confirmed that the DOH environmental health services
office conducts quarterly meetings with CHD supervisors and staff, also
called consistency meetings. These consistency meetings are a combination of
training and “going over things for consistency sake so that no matter what
county you’re in they understand how something’s applied. So that’s kind of
our role.” And, even though Ms. Vallone-Hood agreed there were consistency
meetings, she confirmed that DOH did not have a consistency meeting

8Although not specifically identified, the undersigned is aware that a SharePoint file is a
web-based application that allows entities to store and organize various information in a
systematic method.
10
regarding the meaning of a bar service area, a term that was never explained
or defined to Mr. Wright by any CHD personnel.
23. Ms. Vallone-Hood testified that in or around December 14, 2018, when
the Kanine Social dog bar, located in Duval County, “came to light,” she was
asked to “just draft some language to consider the possibility if we were to
allow dogs inside the bars. And I think we went inside and also on the patios
because we don’t have language at all that addresses that, so that’s what that
was.” Starting with rule 64E-11.003(6)(c) as its base, language was portrayed
in a black, red, and blue color scheme, using strike-through and/or
underscored to designate deleted and/or new language, all involving allowing
dogs in bars and lounges. This drafted rule would have expressly codified the
practice of allowing dogs in facilities licensed by DOH, but it was never
proposed.
24 On direct examination by DOH, Ms. Vallone-Hood claimed that to draft
a rule specifically to prohibit dogs in food service establishments “would not
be practicable because animals [as contained in rule 64E-11.003(6)(c)]
encompasses all the different animals with the exception of the fish, shellfish,
and crustacea, that’s the exception in here, and service animals,” and further,
that a rule to prohibit dogs would be “very lengthy.” DOH postulated that it
would not be practicable or feasible to make a rule just prohibiting dogs in
bars because DOH would have to make lots of rules for lots of different
animals. However, DOH offered no evidence that other animal owners
wanted to have their animals (cats or ferrets) in bars.
PP TPA Sanitation Application and Inspection Reports
25. Mr. Wright credibly testified to the extensive process he and
Ms. Suhar undertook to establish PP TPA. Initially the partners thought of
opening a dog-friendly restaurant because the building they were leasing
came equipped with kitchen appliances. They reviewed other Florida-based
dog bar operations and met with Tampa city officials, including planners and

11
permitting individuals. Mr. Wright spoke with a DOH employee, Vakesha,9
who “made it very clear that no food could be prepared or served if you intend
on having the dogs inside the building.” Mr. Wright readily acknowledged
they “didn’t really want to make food anyway. We’re not good cooks.”
Mr. Wright and Ms. Suhar then scrapped the idea of opening a restaurant in
the Tampa location, and concentrated on the dog bar idea.
26. Mr. Wright then spoke with Inspector King. Mr. Wright had an “in-
person” meeting and went over “in detail what [PP TPA] intended to be.”
Inspector King explained the need to file a sanitation certificate application
along with the floorplan drawing for PP TPA.
27. On or about December 3, 2020, PP TPA applied for a sanitation
certificate to HCHD and a floorplan drawing was then provided to HCHD.
The Application provided the necessary information and clearly selected
“Bar/Lounge” as its food service type. Additionally, in the “Comment/Special
Instructions” section, the words “NO FOOD SERVED” were plainly listed.
Once Inspector King reviewed PP TPA’s sanitation certificate application and
floorplan drawing, he scheduled the opening or routine inspection. This
inspection was to assess whether to issue the sanitation certificate.
28. Inspector King conducted PP TPA’s opening inspection on December 8,
2020. Mr. Wright was present for the inspection as was his dog, Clyde.
Inspector King found PP TPA’s opening inspection to be satisfactory. The
following notation was in the opening inspection report’s “General
Comments” section: “Install gate at bar area before dogs are allowed inside
building. Ensure dogs are not placed on bar counter or bar seats. Dogs cannot
touch bar service area.” Although two violations were found during the
opening inspection, neither had anything to do with dogs being inside the
establishment.

9Vakesha Brown’s last name was not provided until the cross-examination of DOH’s first
witness, Ms. Vallone-Hood. DOH objected to Mr. Wright providing Vakesha’s statement as
she passed away. An exception to the hearsay rule allows the admission of a party-opponent.
See § 90.803(18)(a)(d), Fla. Stat.
12
 29. In 2020, HCHD utilized a “NO FOOD PREPARATION AGREEMENT”
that provided the following:
NO FOOD PREPARATION AGREEMENT

Establishment Name: _____________________________

Establishment Address: ___________________________

City: __________________ Zip: _____________

Establishment Ownership: _________________________

The Sanitation Certificate issued by Florida Department of

Health-Hillsborough to this establishment allows for beverage
service only. No food preparation and/or service is allowed.
If establishment is found to be preparing and/or serving food, it
will need to cease immediately or legal action will be taken.

Florida Administrative Code 64E-11.002 defines food

preparation as the handling of foods intended for human
consumption by such means as washing, slicing, peeling,
chipping, shucking, scooping, and/or portioning. The term
also includes those activities involving temperature changes,
combining ingredients, and opening ready-to-eat food packages.
To prepare and/or serve food, a license with the Department of
Business and Professional Regulation Division of Hotels and
Restaurants is required. Call (850) 487-1395 for information on
their food service license requirements.

_______________________ ___________________
Owner/Manager/Agent Signature Specialist Signature

_________________ _____________________________
Date Establishment Permit Number
10/13

Florida Department of Health -Hillsborough • Environmental Health Services

Telephone: (813) 307-8059• Fax (813) 272-7242
Post Office Box 5135 • Tampa, FL 33675-5135
http://www.hillscountyhealth.org

30. On December 8, 2020, the HCHD form “NO FOOD PREPARATION

AGREEMENT” was completed and executed by Mr. Wright and Inspector
King with the following information:
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 NO FOOD PREPARATION AGREEMENT

Establishment Name: _Pups Pub____________________________

Establishment Address: __2202 E Kennedy_________________________

City: __Tampa________________ Zip: __33606___________

Establishment Ownership: _Pups Pub Tampa LLC_________________

***
_Alex Wright_[signature]_________ Doug King__[signature]______
Owner/Manager/Agent Signature Specialist Signature

12 .8.20_________________ 29-48-22//088[10]_____________
Date Establishment Permit Number

* * *

31. Mr. Wright credibly testified that PP TPA executed the NO FOOD
PREPARATION AGREEMENT, and by so doing, PP TPA was “allowed and
permitted to serve alcoholic beverages and beverages in general ... . [S]odas,
canned beers, anything you’d find in a typical bar.” Further, PP TPA
understood that it could have food trucks in close proximity to its location,
but PP TPA could not profit from the food trucks in any way, and could not
even deliver food from the food trucks.
32. PP TPA was issued a sanitation certificate by the HCHD on
December 8, 2020. Relying on the in-depth conversations between
Inspector King and Mr. Wright, Inspector King’s opening inspection report,
and the sanitation certificate, and after installing the appropriate gate at the
bar as required by Inspector King, PP TPA opened for business. During the
opening inspection, Inspector King discussed the terms “bar area,” “bar
service area,” “dining area,” or “customer seating area,” but at no time during

10The establishment permit number on the Agreement is almost illegible, however an

establishment permit number is present.
14
that inspection did he define them to Mr. Wright. Inspector King “made it
very clear that they [dogs] could not be behind the bar and that he
[Inspector King] did not want them [dogs] on the bar counter.” However,
Inspector King never told Mr. Wright that dogs could not be inside PP TPA or
that dogs had to leave PP TPA. In fact, the comments by Inspector King in
the inspection report stated otherwise, by providing that PP TPA had to
“[i]nstall gate at bar area before dogs are allowed in building.”
33. On March 11, 2022, approximately 15 months after PP TPA opened, a
routine inspection was conducted by Joseph Chackon, another HCHD
inspector. PP TPA received a “Satisfactory” inspection result. Several
violations were noted, but none involving the dogs inside or outside the bar.
The following notation was in the inspection report’s “General Comments”
section: “Location is a dog bar, dogs are not allowed in bar service area or to
be on the counter.”
34. On June 20, 2022, approximately three months after the earlier 2022
inspection, Inspector King inspected PP TPA. PP TPA received a
“Satisfactory” inspection result, but it was cited for Violation #38.11 Yet,
Inspector King still failed to explain to Mr. Wright what defined “bar area,”

11 Violation #38: Insects, rodents, & animals not present

Live animals (dogs) observed inside the bar area on
6.20.22. Keep dogs out of bar service area.
Florida Administrative Code 64E-11, Food Hygiene details
the rules for bars and lounges that do not serve food. 64E-
11.003(6)(c), prohibits animals from being inside facilities
licensed under 64E-11.
Also, the 2013 Food Code has been adopted as part of FAC
64E-11, see section 6-501.115.
6-501.115 Prohibiting Animals.
(A) Except as specified in ¶¶ (B) and (C) of this section,
live animals may not be allowed on the PREMISES of a
FOOD Establishment.
A bar/lounge is considered a food establishment.
CODE REFERENCE: 64E-11.003(5)(f). Effective measure
shall be taken to control the presence of pests in the food
establishment. Unless otherwise approved, live animals
shall not be allowed.

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“bar service area,” “dining area,” or “customer seating area.” Additionally,
Inspector King still did not inform Mr. Wright that dogs could not be inside
PP TPA.
35. Inspector King has worked for HCHD for over 27 years. Through his
multiple HCHD roles he is very familiar with the application process for food
service establishments. He knows the difference between satisfactory and
unsatisfactory inspections and the difference between violations and critical
violations. Yet, he personally reviewed PP TPA’s application for a sanitation
certificate including its floor plan, and performed the opening inspection
himself. Inspector King approved PP TPA’s sanitation certificate.
36. Roughly six and a half months earlier, Inspector King conducted the
opening inspection of Two Shepherds Taproom on May 27, 2020.
Inspector King approved Two Shepherds Taproom’s sanitation certificate. At
the hearing, although Inspector King responded to a hearing question by
saying, “there was certainly the possibility the dogs could be inside the [Two
Shepherds Taproom] building based on the set up,” his deposition testimony
was more direct, acknowledging that he “understood the dogs were going to
be allowed inside the entire establishment.”
37. Inspector King demonstrated he was extremely knowledgeable of
DOH’s inspection process. His attempt to claim his approval of PP TPA and
Two Shepherds Taproom were mistakes was not credible. Instead it is
apparent that DOH changed its interpretation and application of its own
rule. Before, bars and lounges were licensed to operate dog friendly bars, with
specific conditions, No Food Service Agreements, and restricting dogs from
bar service areas by use of gates. Nothing changed in DOH’s statutes or rules
to change this interpretation and application of DOH’s rules for dog friendly
bars. Inspector King’s transparent attempt to “fall on the sword” or “take one
for the team” by claiming it was a “mistake” for him to approve PP TPA (or
Two Shepherds Taproom), is wholly unpersuasive and rejected.

16
PP ORL Sanitation Application and Inspection Report
38. Mr. Wright credibly testified to the extensive process he and
Ms. Suhar undertook to establish PP ORL. They met with multiple city
committees and shared PP TPA’s website via videos and Instagram posts.
After PP ORL got the requisite clearance from the city entities to establish
PP ORL, PP ORL applied for and received a City improvement grant of
$100,000.00.
39. Mr. Wright then contacted and scheduled a meeting with
Judith Hecker, an Orange County Health Department (“OCHD”) ES II.
Mr. Wright met with Ms. Hecker in the OCHD’s conference room to discuss
and explain the dog bar concept. Mr. Wright shared a Google 360 tour of the
PP ORL floor plan with Ms. Hecker.
40. On or about May 31, 2022, PP ORL applied to OCHD for a sanitation
certificate and included the floorplan drawing. The application provided the
necessary information and clearly selected “Bar/Lounge” as its food service
type. Additionally, in the “Comment/Special Instructions” section, the words
“NO FOOD SERVED” were plainly stated.
41. OCHD utilized a “Plans Review Routing Sheet” for PP ORL. A
representative of PP ORL executed that section of the routing sheet on
May 31, 2022. Below PP ORL’s signature, a bold straight line goes across the
page, and below that line in italics are the words: “For Office Use Only.”
There are multiple sections below the dividing line that are blank. However,
the Utility Reviewer’s name, Date, and Remarks are provided. Further, an
“APPROVED” stamp by the OCHD12 was on the document regarding the
onsite sewage site plan. Still below in the “For Office Use Only” section, and
separated by another straight line across the page, is the date “6/28/22,” and
“Hecker” is beside the words “Program Reviewer.” Below Ms. Hecker’s name
in the “Remarks:” section are the words: “Approved as shown” and below
that, the words: “NO DOGS.” The signature is illegible. It is noted that

12 There are two “APPROVED” stamps, however one is upside down.

17
during Ms. Suhar’s testimony, she convincingly testified that she was never
provided a copy of this completed document until her deposition, thus she
was without knowledge that the “NO DOGS” statement was in the remarks
section.
42. Ms. Eychaner testified that in mid-June 2022, Ms. Hecker contacted
her to discuss the PP ORL application. Although Ms. Eychaner testified she
clearly educated Ms. Hecker that DOH did not allow dogs in bars,
Ms. Eychaner “was going to research and find more information about the
other location.” Ms. Hecker approved the sanitation application which
allowed the opening inspection to occur. By this very action, Ms. Hecker tells
a very different understanding or comprehension of the discussion. However,
Ms. Hecker did not testify. Further, at Ms. Hecker’s direction, Mr. Wright
installed a larger gate in the PP ORL facility, and thought PP ORL was “good
to go.” At no time before PP ORL opened was Mr. Wright told that dogs could
not be in PP ORL.
43. On June 29, 2022, the opening or routine inspection of PP ORL was
conducted. Mr. Wright was present for the inspection and walked with the
inspector, Priscilla Castillo, an OCHD employee, while discussing the dog bar
concept. Mr. Wright compellingly testified as to his part of the conversation
and the inspection tour with the inspector. Mr. Wright showed PP ORL’s turf
flooring, its dog waste stations, and a newly installed dog house with a slide,
and they discussed that dogs would be inside the facility. PP ORL was given
a “satisfactory” opening inspection report. The sanitation certificate was
granted and PP ORL opened for business in July 2022. The opening
inspection report did not cite any violations or add any general comments
regarding dogs in the bar/lounge.
44. Within the month, in late July 2022, a different inspector cited PP
ORL with a violation of rule 64E-11.003(6)(c).

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Summation of Evidence
45. DOH, through not one, but at least two of its CHDs,13 approved
sanitation certificates to bars that allowed dogs to be present inside and
outside its operations. In Hillsborough County, two such dog bars were
approved by HCHD, and one dog bar in Orange County was approved to open
by OCHD. Petitioners opened each dog bar relying on their CHD-approved
sanitation inspections and certificates. Petitioners complied with the CHD
directions to install appropriate gates to keep the dogs out of and away from
the bar beverage preparation or service areas, and were licensed to fully
operate their business model.
46. DOH changed its interpretation of its rule in mid-June or early
July 2022, when it began educational or training sessions to educate the
various DOH CHD staff. Such is an interpretation distinction that cannot be
ignored. The weight of the persuasive, credible evidence proves that DOH
began applying a new uniform interpretation and implementation of the rule
so as to prohibit dogs inside dog bar facilities that were previously expressly
approved by DOH CHD personnel.
47. Further, DOH did not establish that rulemaking is impracticable or
not feasible. In late 2018 or early 2019, DOH directed preparation of a rule to
allow dogs in bars, but the effort never went forward. As the saying goes, it
appears to have “died on the vine,” without being adequately pursued to
either fruition or defeat. At the time, DOH had already knowingly approved
operations of dog bars, through its CHD staff, and continued to do so for
several years there after.
48. Mr. Wright persuasively testified that he explained the dog bar
concept to Inspector King, and actually had a dog present in PP TPA during
the opening inspection. Inspector King issued a “satisfactory” opening

13The undisputed evidence was that DOH’s CHDs in Duval County and Palm Beach County
also have approved dog bars, which are operational. Petitioners’ witnesses and DOH’s
witnesses acknowledged that specific locations in both counties were operating with dogs in
the bar or lounge establishments, and that investigations into such operations are ongoing.
19
inspection. Such inspection approval granted the requisite sanitation
certificate to PP TPA with the specific directions to Mr. Wright that a gate
had to be installed prior to PP TPA opening and “before dogs are allowed in
the building.” The gate was installed14 and PP TPA opened shortly thereafter.
49. Approximately 13 months later, Inspector King again inspected PP
TPA and simply noted in the “General Comments” that “Location is a dog
bar, dogs are not allowed in bar service area or to be on the counter.”
Inspector King never advised Mr. Wright or Petitioners that dogs were not
allowed in PP TPA, or that it was in violation of DOH rule 64E-11.003(6)(c)
until after PP TPA had been operational for over 19 months, when he
apparently had been instructed to reverse course and change how he had
been applying DOH’s rule.
50. In Orlando, Mr. Wright again persuasively testified that he explained
the dog bar concept to Ms. Hecker. Ms. Hecker approved PP ORL’s floor plan
and allowed the opening inspection to occur. Mr. Wright explained the dog
bar concept as he walked with the inspector who conducted PP ORL’s opening
inspection. The inspector walked through and inspected the PP ORL facility.
The sanitation certificate was approved and PP ORL opened for business.
Only after PP ORL opened did DOH, through OCHD, again inspect PP ORL,
this time finding a violation of rule 64E-11.003(6)(c).
51. DOH continually harped on the term “food,” and that ice and
beverages are defined as food. Yet, both PP TPA and PP ORL applications for
sanitation certificate specify in all capital letters in the “Comment/Special
Instructions”: section: “NO FOOD SERVICE.” DOH’s insistence on
categorizing ice and beverage as “food” is at odds with the prohibition
regarding food in the sanitation application. It is also at odds with the NO
FOOD SERVICE AGREEMENT used by HCHD, which expressly stated that
PP TPA’s sanitation certificate allowed beverage service only, and no food.

14 Mr. Wright provided that a new gate was currently in place.

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 52. No direct or even indirect evidence was presented that DOH provided
its new changed interpretation of the rule until after PP ORL was opened.
And then it contradicted the actions of the very CHDs charged with the direct
authority to decide whether to approve or deny any given application for a
sanitation certificate to operate food service establishments.

CONCLUSIONS OF LAW
53. DOAH has jurisdiction over the parties and subject matter of this
proceeding pursuant to section 120.56(1) and (4).
54. This proceeding involves Petitioners’ allegation that DOH’s changed
interpretation of rule 64E-11.003(6)(c) is an unadopted rule that
substantially affects its interests, contrary to section 120.56(4).
55. The Florida Administrative Procedure Act, chapter 120 (the “APA”),
imposes limitations and obligations on policymaking by executive agencies.
DOH is an “agency” within the meaning of section 120.52(1) and is subject to
the rulemaking requirements of section 120.54.
56. Section 120.52(16) defines a “rule,” in pertinent part, as:
… each agency statement of general applicability
that implements, interprets, or prescribes law or
policy or describes the procedure or practice
requirements of an agency and includes any form
which imposes any requirement or solicits any
information not specifically required by statute or
by an existing rule.

57. If an agency statement meets this definition but has not been adopted
in accordance with the APA, it is an unadopted rule. § 120.52(20), Fla. Stat.
See Coventry First, LLC v. Off. of Ins. Regul., 38 So. 3d 200, 203 (Fla. 1st
DCA 2010); Jenkins v. State, 855 So. 2d 1219, 1225 (Fla. 1st DCA 2003).
58. Section 120.54(1)(a) provides that “[r]ulemaking is not a matter of
agency discretion. Each agency statement defined as a rule by s. 120.52 shall
be adopted by the rulemaking procedure provided by this section as soon as

21
feasible and practicable.” See also S. Baptist Hosp. of Fla. v. Ag. for Health
Care Admin., 270 So. 3d 488, 503 (Fla. 1st DCA 2019) (“It is well established
Florida law that rulemaking is not a matter of agency discretion.”).
59. An agency statement can be any declaration, expression, or
communication that requires compliance or otherwise has the direct and
consistent effect of law. Fla. Qtr. Horse Racing Ass’n, Inc. v. Dep’t of Bus. &
Pro. Regul., Div. of Pari-Mutuel Wagering, Case No. 11-5796RU, ¶ 57 (DOAH
Fla. DOAH May 6, 2013).
60. The focus in determining whether an agency statement is a rule within
the meaning of section 120.52(16) is the effect of the statement rather than
the label ascribed to it by the agency. Balsam v. Dep’t of HRS, 452 So. 2d 976,
977 (Fla. 1st DCA 1984).
61. Petitioners argue that DOH’s current interpretation of rule 64E-
11.003(6)(c) that prohibits dogs from being in bars and lounges is a different
interpretation than the interpretation that has been in place for over four
years via its authorized agents, the CHDs.
Standing
62. It is well settled that “standing in the administrative context is a
matter of subject matter jurisdiction and cannot be conferred by the parties.”
Abbott Labs. v. Mylan Pharms., Inc., 15 So. 3d 642, 651 n.2 (Fla. 1st DCA
2009). Stated another way, “Standing is a jurisdictional, threshold issue in a
chapter 120 proceeding.” Harris Corp. v. Dep’t of Mgmt. Servs., Case No. 18-
1781BID, 2018 WL 4326947, RO at ¶ 131 (Fla. DOAH Sept. 5, 2018; Fla.
DMS Oct. 5, 2018). Therefore, DOAH lacks jurisdiction to consider a
petition’s merits until a petitioner affirmatively establishes standing. Id.
(citing Westinghouse Elec. Corp. v. Jacksonville Transp. Auth., 491 So. 2d
1238, 1240-41 (Fla. 1st DCA 1986)).
63. To establish standing, a petitioner must demonstrate that it is
substantially affected by the challenged rules. In particular, a petitioner
must first prove that the rules will result in a real and sufficiently immediate

22
injury in fact. Ward v. Bd. of Trs. of Int. Imp. Trust Fund, 651 So. 2d 1236,
1237 (Fla. 4th DCA 1995). A petitioner must further establish that the
alleged interest is arguably within the zone of interest to be protected or
regulated. Id.
64. Petitioners have established standing to bring this proceeding under
section 120.56(4) because they have demonstrated they are substantially
affected by this new interpretation, and they are entities by DOH. See Jacoby
v. Fla. Bd. of Med., 917 So. 2d 358, 360 (Fla. 1st DCA 2005); NAACP, Inc. v.
Fla. Bd. of Regents, 863 So. 2d 294, 300 (Fla. 2003).
Burden of Proof
65. Petitioners have the burden to prove that DOH’s current
interpretation of the rule meets the definition of a rule that DOH has not
adopted by the rulemaking procedures. See § 120.56(1)(a), (4)(a), Fla. Stat.
Sw. Fla. Water Mgmt. Dist. v. Charlotte Cnty., 774 So. 2d 903, 908 (Fla. 2d
DCA 2001); see also Ag. for Pers. with Disab. v. C.B., 130 So. 3d 713, 717 (Fla.
1st DCA 2013).
66. Section 120.56(1)(e) provides that a hearing held under this statute is
de novo, and the standard of proof is by a preponderance of the evidence.
67. “A ‘preponderance’ of the evidence is defined as ‘the greater weight of
the evidence,’ ... or evidence that ‘more likely than not’ tends to prove a
certain proposition.” Gross v. Lyons, 763 So. 2d 276, 280 n.1 (Fla. 2000)
(citations omitted).
68. If Petitioners meet their burden, DOH then has the burden of proving
that rulemaking is not feasible and practicable as provided in section
120.54(1)(a).
Scope of the Proceeding
69. Petitioners and DOH both attempted to introduce evidence and
argument as to the substantive merits of rule 64E-11.003(6)(c) in support of
their respective positions. Petitioners asserted that they applied through the
appropriate application phase, were granted the opening or routine

23
inspection, and were each issued a sanitation certificate. Further, PP TPA
executed a NO FOOD PREPARATION AGREEMENT and installed the
requisite gate to secure the bar preparation area. PP ORL opened its dog bar
relying on the OCHD approved sanitation inspection and followed OCHDs
direction to install an appropriate gate to keep the dogs out of and away from
the bar preparation or service areas. DOH asserted it never changed its
interpretation of the rule as written.
Statutes
70. Section 20.43(5), Florida Statutes, provides, in pertinent part:
The department [DOH] shall plan and administer
its public health programs through its county
health departments[.]

71. Section 381.0072 provides, in pertinent part:

(1)(a) It shall be the duty of the Department of
Health to adopt and enforce sanitation rules
consistent with law to ensure the protection of the
public from food-borne illness. These rules shall
provide the standards and requirements for the
storage, preparation, serving, or display of food in
food service establishments as defined in this
section.

* * *

(2)(c) “Food service establishment” means ... bars

and lounges, ... where food is prepared and
intended for individual portion service, including
the site at which individual portions are provided,
regardless of whether consumption is on or off the
premises and regardless of whether there is a
charge for the food ... .

* * *
(3) DUTIES.

* * *

24
 (b) The department shall adopt rules, including
definitions of terms which are consistent with law
prescribing minimum sanitation standards and
manager certification requirements as prescribed
in s. 509.039,[15] and which shall be enforced in food
service establishments as defined in this section ... .
bars and lounges, civic organizations, and any
other facility that is not regulated under this
section are exempt from the rules developed for
manager certification ... .

(c) The department shall carry out all provisions

of this chapter and all other applicable laws and
rules relating to the inspection or regulation of food
service establishments as defined in this section,
for the purpose of safeguarding the public’s health,
safety, and welfare.

(4)(a) Licenses; annual renewals. Each food service

establishment regulated under this section shall
obtain a license from the department annually.
Food service establishment licenses shall expire
annually and are not transferable from one place or
individual to another ... .

(b) Application for license. Each person who plans

to open a food service establishment regulated
under this section and not regulated under chapter
500[16] or chapter 509[17] shall apply for and receive
a license prior to the commencement of operation.

72. Rule 64E-11.002 defines bars and lounges as follows:

(5) Bars and Lounges – A facility which possesses a
consumption on premises alcoholic beverage license

15Section 509.039, Florida Statutes, provides for the Division of Hotels and Restaurants of
the Department of Business and Professional Regulation (“DBPR”) “to adopt, by rule, food
safety protection standards for the training and certification of all food service managers who
are responsible for the storage, preparation, display, or serving of foods to the public in
establishments regulated under this chapter.”

16Chapter 500, Florida Statutes, provides the Florida Department of Agriculture and
Consumer Services with its duties.

17 Chapter 509 provides DBPR with its duties.

25
 from the Division of Alcoholic Beverages & Tobacco;
where food service is limited to:

(a) The preparation of drinks; or

(b) The service of snack foods (such as, chips,

popcorn and pretzels); or

(c) The service of time/temperature control for

safety foods and no preparation of
time/temperature control for safety food occurs.

Analysis
73. In a de novo proceeding, it is incumbent on Petitioners to prove that
the statement is now an unadopted rule—that the statement currently meets
the definition of a rule in that it is now a statement being uniformly applied
by DOH.
74. In this proceeding, Petitioners have the burden to prove by a
preponderance of the evidence that the changed interpretation of the existing
rule has not been adopted via the rulemaking procedures. Cleveland Clinic
Fla. Hospital d/b/a Cleveland Clinic v. Ag. for Health Care Admin., 679 So.
2d 1237 (Fla. 1st DCA 1996) (recognizing that an administrative agency is
not bound by its initial construction of a statute so long as the agency
implements its changed interpretation by validly adopting subsequent rule
changes.). Petitioners have demonstrated this fact.
75. It is undisputed that DOH, through its 67 CHDs, issues sanitation
certificates to food service establishments pursuant to section 381.0072.
76. The question here is simple—did DOH change its interpretation of the
rule?
77. In this case, the preponderance of the competent and substantial
evidence adduced at the final hearing clearly shows that DOH, through its
CHDs, interpreted the rule for over four years to allow dogs in bars with
certain restrictions in place. The evidence clearly established that in mid-
2022, DOH changed its interpretation to prohibit dogs in bars.

26
Attorney’s Fees
78. Section 120.56(4) authorizes any person who is substantially affected
by an agency statement to seek an administrative determination that the
statement is actually a rule whose existence violates section 120.54(1)(a),
because the agency has not formally adopted the statement. Section
120.54(1)(a) declares that “[r]ulemaking is not a matter of agency discretion”
and directs that “[e]ach agency statement defined as a rule by s. 120.52 shall
be adopted by the rulemaking procedure provided by this section as soon as
feasible and practicable.”
79. Section 120.595(4) provides:
(a) If the appellate court or administrative law
judge determines that all or part of an agency
statement violates s. 120.54(1)(a), or that the
agency must immediately discontinue reliance on
the statement and any substantially similar
statement pursuant to s. 120.56(4)(f), a judgment or
order shall be entered against the agency for
reasonable costs and reasonable attorney’s fees,
unless the agency demonstrates that the statement
is required by the Federal Government to
implement or retain a delegated or approved
program or to meet a condition to receipt of federal
funds.

80. Simply contending that its past interpretations of its existing rule to
allow dogs in bars with certain restrictions were somehow all “mistakes” and
that DOH has “changed its mind” is insufficient. See Cleveland Clinic, 679
So. 2d at 1239; Courts v. Ag. for Health Care Admin., 965 So. 2d 154 (Fla. 1st
DCA 2007). Here, as in Cleveland Clinic, “there is no good reason why the
agency’s abrupt change of established policy, practice and procedure should
be sanctioned[,]” without rulemaking to promulgate DOH’s changed
interpretation.

27
 81. Petitioners, via its Petition, requested an award of attorneys’ fees and
costs in this proceeding.

ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, it is
ORDERED the Department of Health’s current interpretation of rule 64E-
11.003(6)(c) is a statement meeting the definition of a rule that has not been
adopted pursuant to section 120.54(1). DOH must immediately discontinue
all reliance upon the statement or any substantially similar statement as a
basis for agency action.

The undersigned reserves jurisdiction to determine, if necessary, the

amount of attorney’s fees and costs Petitioners should be awarded. Should
the parties be unable to amicably resolve this issue, Petitioners shall file a
motion, no later than 30 days from the date of this Order, with the
undersigned seeking resolution of this matter.

DONE AND ORDERED this 15th day of June, 2023, in Tallahassee, Leon
County, Florida.

S
LYNNE A. QUIMBY-PENNOCK
Administrative Law Judge
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings
this 15th day of June, 2023.

28
COPIES FURNISHED:

John A. Wilson, General Counsel Tana D. Storey, Esquire

(eServed) (eServed)

Amanda Marci Hessein, Esquire Maggie M. Schultz, Esquire

(eServed) (eServed)

Katelyn Rose Boswell, Esquire Jillian E. Pratt, Esquire

(eServed) (eServed)

Wanda Range, Agency Clerk Joseph A. Ladapo, M.D, Ph.D.

(eServed) State Surgeon General
(eServed)
Ken Plante, Coordinator
(eServed) Anya Owens, Program Administrator
(eServed)
Margaret Swain
(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial
review pursuant to section 120.68, Florida Statutes. Review proceedings are
governed by the Florida Rules of Appellate Procedure. Such proceedings are
commenced by filing the original notice of administrative appeal with the
agency clerk of the Division of Administrative Hearings within 30 days of
rendition of the order to be reviewed, and a copy of the notice, accompanied
by any filing fees prescribed by law, with the clerk of the district court of
appeal in the appellate district where the agency maintains its headquarters
or where a party resides or as otherwise provided by law.

29