The opinion
FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D2023-1795
_____________________________
FLORIDA DEPARTMENT OF
HEALTH,
Appellant,
v.
PUPS PUB TPA, LLC, & PUPS
PUB ORLANDO, LLC,
Appellees.
_____________________________
On appeal from the Division of Administrative Hearings.
Lynne A. Quimby-Pennock, Administrative Law Judge.
April 30, 2025
PER CURIAM.
Pups Pub TPA, LLC, and Pups Pub Orlando, LLC (hereinafter
“Pups Pub”), are two limited liability companies formed to open
dog bars—businesses where patrons can order drinks while their
dogs socialize. Below, they challenged statements made by the
Florida Department of Health (DOH) which instructed its county
health departments (CHDs) that dogs are prohibited from entering
a DOH-regulated bar unless they fall within certain exceptions.
After a formal hearing, an administrative law judge (ALJ)
determined that the challenged statements constituted an
unadopted rule that could not be the basis for any agency action.
On appeal, DOH argues that the challenged statements did
not apply an unadopted rule. Rather, they reiterated the plain
language of rule 64E-11.003(6)(c), Florida Administrative Code.
Pups Pub suggests that the language is not so plain, as the rule
and the governing statute can be construed as only prohibiting
non-exempt dogs from certain areas within bars and lounges.
We agree with DOH that the challenged statements applied
the governing law. Therefore, they do not constitute an unadopted
rule in derogation of the statutory requirement that agency rules
be established through the formal rulemaking process.
I.
DOH has regulatory authority over “the storage, preparation,
serving, or display of food in food service establishments . . . .”
§ 381.0072(1)(a), Fla. Stat. (2023). The statutory definition of “food
service establishment” lists several regulated facilities that
includes “bars and lounges.” § 381.0072(2)(c), Fla. Stat. The term
“bars and lounges” is defined by rule 64E-11.002(5), Florida
Administrative Code, as “[a] facility which possesses a
consumption on premises alcoholic beverage license from the
Division of Alcoholic Beverages & Tobacco” that only serves drinks,
snack foods, or “time/temperature control for safety foods” that do
not require preparation. DOH officials testified below that if a bar
serves food beyond the types listed in the rule, it is regulated by
the Department of Business and Professional Regulation (DBPR).
See also § 509.013(5)(b)7., Fla. Stat. (defining a “public food service
establishment” regulated by DBPR to exclude “[a]ny place of
business where the food available for consumption is limited to ice,
beverages with or without garnishment, popcorn, or prepackaged
items sold without additions or preparation”).
Before opening, a DOH-regulated bar must obtain a
sanitation certificate, which requires an application process
culminating in a preopening inspection. See § 381.0072(4), Fla.
Stat. (setting forth the licensing requirements for food service
establishments); Fla. Admin. Code R. 64-11.002(28) (defining
“sanitation certificate” as “[a] license issued by the department to
operate a food service establishment”); Fla. Admin. Code R. 64E-
11.013(2) (explaining the application and renewal process for
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sanitation certificates). The bar must then pass yearly inspections.
The application process and inspections are handled by DOH’s
sixty-seven CHDs.
In 2020, Pups Pub applied for a sanitation certificate to open
a dog bar in Tampa. During the preopening inspection, the
Hillsborough County Health Department inspector was aware
that the bar would be operating under a business model that
allowed dogs to play off-leash in indoor and outdoor play areas.
Drinks would be prepared and served only at the bar area. The
inspector had previously inspected a bar with a similar business
model with a satisfactory result. He likewise approved Pups Pub
Tampa, instructing them in his inspection report to install a gate
to keep the dogs out of the bar area before allowing dogs in the
building. He explained that dogs should not be placed on bar seats
or permitted to touch the bar service area. After complying with
these instructions, Pups Pub Tampa opened for business. The bar
operated without incident for over a year and a half, passing
subsequent DOH inspections.
In 2022, the owners of Pups Pub began the process of opening
a second location in Orlando. In conversations with an official at
the Orange County Health Department, they referenced the
Tampa location as an example of how the business would operate.
That official contacted an Environmental Supervisor at DOH’s
Tallahassee office for guidance.
Upon learning about the two Pups Pub locations, the
Environmental Supervisor began making inquiries into the
operation of similar dog bars. She also conducted a quarterly
training and a consistency call with the CHDs, explaining that rule
64E-11.003(6)(c) prohibited live animals from being in food service
establishments, subject to exceptions that included service
animals and police dogs. But otherwise, dogs were prohibited from
entering food service establishments such as DOH-regulated bars
even to pass through the building to outdoor play areas. She
directed the CHDs to determine if any DOH-licensed bars in their
jurisdictions were operating in derogation of the rule.
While these trainings were ongoing, Pups Pub Orlando
received a sanitation certificate after a satisfactory preopening
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inspection. The bar opened on July 1, 2022. Subsequently, both
Pups Pub locations were reinspected and found in violation of rule
64E-11.003(6)(c) due to the presence of dogs in the building.
On February 2, 2023, Pups Pub filed the instant unadopted
rule challenge. After an evidentiary hearing, the ALJ concluded
that DOH’s 2022 trainings applied a new uniform interpretation
of rule 64E-11.003(6)(c) that constituted an unadopted rule.
II.
This case turns on a question of law which we review de novo.
Grabba-Leaf, LLC v. Dep’t of Bus. & Prof’l Reg., 257 So. 3d 1205,
1207 (Fla. 1st DCA 2018).
Section 120.56(4), Florida Statutes (2023), authorizes a
challenge to an agency statement that qualifies as an unadopted
rule. An “unadopted rule” is “an agency statement that meets the
definition of the term ‘rule,’ but that has not been adopted
pursuant to the requirements of [section 120.54, Florida
Statutes].” § 120.52(20), Fla. Stat. (2023). A “rule” is defined 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 . . . .” § 120.52(16), Fla. Stat.
(2023). “If an administrative law judge enters a final order that all
or part of an unadopted rule violates s. 120.54(1)(a), the agency
must immediately discontinue all reliance upon the unadopted
rule or any substantially similar statement as a basis for agency
action.” § 120.56(4)(e), Fla. Stat. (2023).
Here, DOH argues that the statements made during the 2022
trainings do not constitute an unadopted rule since they simply
apply the plain language of the governing law. DOH observes that
rule 64E-11.003(6)(c) prohibits non-exempt dogs from being
present in a food service establishment and a bar falls within the
statutory definition of a “food service establishment.”
Pups Pub counters that the rule should be viewed in light of
the statutory definition of a “food service establishment,” which
only allows DOH to regulate the areas within a bar where food is
prepared and individual portions are served. In its view, such an
4
interpretation is consistent with initial decisions to allow dogs
inside both Pups Pub locations so long as the dogs were kept out of
the areas where the drinks were prepared and served.
“Agency interpretations and applications must comport with
the laws they are carrying out. And if they cannot be squared with
the laws, their interpretations and applications must give way.”
Grabba-Leaf, 257 So. 3d at 1208. But “[i]f an agency statement
merely reiterates a law, or declares what is ‘readily apparent’ from
the text of a law, . . . the statement is not considered a rule.” Id.;
see also Amerisure Mut. Ins. Co. v. Fla. Dep’t of Fin. Servs., 156 So.
3d 520, 532 (Fla. 1st DCA 2015) (“ ‘[A]n agency interpretation of a
statute which simply reiterates the legislature’s statutory
mandate and does not place upon the statute an interpretation
that is not readily apparent from its literal reading . . . is not an
unpromulgated rule, and actions based upon such an
interpretation are permissible without requiring an agency to go
through rulemaking.’ ” (quoting State Bd. of Admin. v. Huberty, 46
So. 3d 1144, 1147 (Fla. 1st DCA 2010))), superseded on other
grounds by constitutional amendment as stated in Lee Mem’l
Health Sys. Gulf Coast Med. Ctr. v. Ag. for Health Care Admin.,
272 So. 3d 431, 437 (Fla. 1st DCA 2019).
Here, rule 64E-11.003(6)(c) states:
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. 1
The text of the rule broadly prohibits live animals from being in
food service establishments. Section 381.0072(2)(c) provides:
1 Section 413.08, Florida Statutes, applies to service animals.
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“Food service establishment” means detention
facilities, public or private schools, migrant labor camps,
assisted living facilities, facilities participating in the
United States Department of Agriculture Afterschool
Meal Program that are located at a facility or site that is
not inspected by another state agency for compliance with
sanitation standards, adult family-care homes, adult day
care centers, short-term residential treatment centers,
residential treatment facilities, homes for special
services, transitional living facilities, crisis stabilization
units, hospices, prescribed pediatric extended care
centers, intermediate care facilities for persons with
developmental disabilities, boarding schools, civic or
fraternal organizations, bars and lounges, vending
machines that dispense potentially hazardous foods at
facilities expressly named in this paragraph, and
facilities used as temporary food events or mobile food
units at any facility expressly named in this paragraph,
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. The term includes a culinary education program
where food is prepared and intended for individual
portion service, regardless of whether there is a charge
for the food or whether the program is inspected by
another state agency for compliance with sanitation
standards. The term does not include any entity not
expressly named in this paragraph; nor does the term
include a domestic violence center certified and
monitored by the Department of Children and Families
under part XII of chapter 39 if the center does not prepare
and serve food to its residents and does not advertise food
or drink for public consumption.
(emphasis added).
Pups Pub does not contend that bars and lounges are not food
service establishments or that dogs do not qualify as “live animals”
under the language of the rule. Rather, they rely on the
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emphasized statutory phrase—“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”—in arguing that DOH was limited
to regulating the specific area within a food service establishment
where the food is prepared and served. They assert that because
drinks are only prepared and served at the bar counter, DOH could
not regulate other parts of the building such as the customer
seating area.
“When construing a statute, the court must first look to the
plain meaning of the words used by the Legislature.” Brandy’s
Prod., Inc. v. Dep’t of Bus. & Prof’l Reg., 188 So. 3d 130, 132 (Fla.
1st DCA 2016). A fair reading of a statute involves “the application
of a governing text to given facts on the basis of how a reasonable
reader, fully competent in the language, would have understood
the text at the time it was issued.” Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 33 (2012).
“The court must give full effect to all statutory provisions and avoid
readings that would render a part of a statute meaningless;
additionally, the court may not construe an unambiguous statute
in a way that would extend, modify, or limit its express terms or
its reasonable and obvious implications.” Vickery v. City of
Pensacola, 342 So. 3d 249, 253 (Fla. 1st DCA 2022) (quoting
Herman v. Bennett, 278 So. 3d 178, 179–80 (Fla. 1st DCA 2019)). “
‘Context always matters’ because ‘sound interpretation requires
paying attention to the whole law, not homing in on isolated words
or even isolated sections.’” State v. McKenzie, 331 So. 3d 666, 671
(Fla. 2021) (quoting King v. Burwell, 576 U.S. 473, 500–01, 135
S.Ct. 2480, 192 L.Ed.2d 483 (2015) (Scalia, J., dissenting)).
Here, a reasonable reader would not understand the
emphasized phrase to limit DOH’s authority to regulate the listed
facilities. Rather, the phrase stands for the unremarkable
proposition that a food service establishment is an establishment
where food is prepared and served, even if the food is not consumed
on site. Nothing in this language indicates that the scope of the
definition is altered when the food is consumed on site. This
reading is consistent with the exclusion from the definition of “a
domestic violence center certified and monitored by the
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Department of Children and Families under part XII of chapter 39
if the center does not prepare and serve food to its
residents and does not advertise food or drink for public
consumption,” a place that does not offer food service. It is also
consistent with the inclusion of “facilities participating in the
United States Department of Agriculture Afterschool Meal
Program that are located at a facility or site that is not inspected
by another state agency for compliance with sanitation
standards”—facilities with a food service component.
Notably, the emphasized phrase in the statutory definition
includes the site where the portions are provided without
excluding any other area of the facility. Certainly, in the context of
facilities such as schools and hospitals, the phrase can be read to
limit DOH to regulating the areas devoted to food service, such as
the kitchens and cafeterias, rather than the parts of those facilities
with no connection to food service, such as classrooms and hospital
rooms. As DOH officials explained below, most of the listed
facilities in the statute are otherwise regulated by different
agencies. They testified that “bars and lounges” was one of the few
terms that needed to be defined by regulation, as the other terms
are defined elsewhere by law. But while most of the other listed
facilities serve multiple functions unrelated to food service, bars
and lounges arguably serve no other function.
Beyond that, the legislature empowered DOH to regulate “the
storage, preparation, serving, or display of food in food service
establishments . . . .” § 381.0072(1)(a), Fla. Stat. (2023). DOH’s
duties likewise allow it to:
advise and consult with the Agency for Health Care
Administration, the Department of Business and
Professional Regulation, the Department of Agriculture
and Consumer Services, and the Department of Children
and Families concerning procedures related to the
storage, preparation, serving, or display of food at any
building, structure, or facility not expressly included in
this section that is inspected, licensed, or regulated by
those agencies.
8
Id. at (3)(a). DOH was broadly directed to adopt rules concerning:
the construction, operation, and maintenance of the
establishment; lighting, ventilation, laundry rooms,
lockers, use and storage of toxic materials and cleaning
compounds, and first-aid supplies; plan review; design,
construction, installation, location, maintenance,
sanitation, and storage of food equipment and utensils;
employee training, health, hygiene, and work practices;
food supplies, preparation, storage, transportation, and
service, including access to the areas where food is stored
or prepared; and sanitary facilities and controls,
including water supply and sewage disposal; plumbing
and toilet facilities; garbage and refuse collection,
storage, and disposal; and vermin control.
Id. at (3)(b).
This statutory language makes it clear that DOH has
authority to regulate more than just the discrete areas in a food
service establishment where food is prepared and served. DOH’s
authority includes food storage areas; display areas; where
garbage is collected, stored, or disposed; sanitary facilities; places
where chemicals are stored; bathrooms; and vermin control
throughout the facility. To interpret DOH’s regulatory authority
in the fashion proposed by Pups Pub would be to deprive it of power
expressly granted by the legislature.
Under these circumstances, DOH’s interpretation of the rule
prohibiting non-exempt dogs in a food service establishment as
pertaining to the entire interior of a bar—a building wholly
devoted to food service—is readily apparent from the face of the
applicable law. 2 Therefore, DOH was not required to formally
adopt a rule to support its interpretation.
2 Insofar as Pups Pubs argues that certain documents
prepared by some CHDs treat bars that serve drinks differently
than bars that serve limited types of food, there is no textual basis
in the law for that distinction. Pups Pub acknowledged that the
term “food” is defined by regulation to include beverages. See Fla.
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III.
When the rule and the governing statute are read in a logical
manner that does not restrict the authority clearly given to DOH
by the legislature, the challenged statements reiterate what is
readily apparent from the applicable law. Therefore, the ALJ erred
in concluding that those statements represent an unadopted rule
that violates section 120.54(1)(a).
REVERSED and REMANDED.
OSTERHAUS, C.J., and RAY and M.K. THOMAS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Sarah Young Hodges, Chief Appellate Counsel, Florida
Department of Health, Tallahassee, for Appellant.
Admin. Code R. 64E-11.002 (incorporating the definitions in
paragraph 1-201.10(B), Food Code, 2013 Recommendations of the
United States Public Health Service, Food and Drug
Administration, NTISP PB2013-110462 (“Food Code”)); ¶ 1-
201.10(B), Food Code, available at
https://www.flrules.org/Gateway/reference.asp?No=Ref-09894
(defining “food” to include beverages). And the definition of “bars
and lounges” in rule 64E-11.002(5) makes no distinction between
the three categories of bars that fall within DOH’s jurisdiction,
whether they serve drinks, snacks, or time/temperature control for
safety foods. An agency cannot be bound to misinterpret the law.
See M.B. v. Agency for Persons with Disabilities, 13 So. 3d 509, 512
(Fla. 3d DCA 2009) (upholding the denial of benefits that had
previously granted under a Medicaid Waiver Program because
“[t]he benefits in question here are subject to very detailed rules
and limitations, and there is no vested right to continue receiving
services that were not actually authorized”).
10
Tana Storey and Amanda M. Hessein of Rutledge Ecenia, P.A.,
Tallahassee, for Appellees.
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