An appeals court Wednesday backed the Florida Department of Health in a dispute that started after health officials moved to block dogs from being in bars in Tampa and Orlando.
A three-judge panel of the 1st District Court of Appeal overturned a 2023 decision by an administrative law judge, who said the Department of Health had improperly reinterpreted a rule to prevent Pups Pub Tampa and Pups Pub Orlando from continuing to allow customers to bring pets to the dog-friendly bars.
The case centered on sanitation certificates that county health departments, which are overseen by the Department of Health, issue to establishments.
Wednesday’s opinion said Pups Pub Tampa applied for a sanitation certificate in 2020 and was allowed to open with the condition that it install a gate to keep dogs out of the bar area. It also received approvals in subsequent health inspections.
But when owners began the process of opening a similar bar in Orlando, an Orange County Health Department official sought guidance from the state Department of Health, the opinion said. Through a training process, a state supervisor told county health departments that dogs, except for service animals and police dogs, were not allowed in such establishments.
While the training process was ongoing, Pups Pub Orlando received a sanitation certificate and opened July 1, 2022, according to the opinion. But the Tampa and Orlando bars were later reinspected and found in violation of the state rule that governed such issues.
In February 2023, operators of the establishments filed what is known as an “unadopted rule” challenge. They contended that the statements made in the training process went beyond the rule and argued, at least in part, 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,” Wednesday’s 11-page opinion said.
Administrative Law Judge Lynne Quimby-Pennock concluded that the department had improperly reinterpreted the rule.
“The question here is simple — did DOH change its interpretation of the rule?” Quimby-Pennock’s 2023 order said. “In this case, the preponderance of the competent and substantial evidence adduced at the final hearing clearly shows that DOH, through its CHDs (county health departments), 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.”
But the appeals-court panel rejected those conclusions, based on the wording of the rule and a related state law. It said 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,” said the opinion, shared by Chief Judge Timothy Osterhaus and Judges Stephanie Ray and M. Kemmerly Thomas. “Therefore, DOH was not required to formally adopt a rule to support its interpretation.”
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