STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLANAGAN'S, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 77-1609RX

)

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Respondent. )

)

FINAL ORDER

This matter was brought to hearing pursuant to Section 120.56, Florida Statutes, on a petition challenging certain forms used by the Respondent, Department of Business Regulation, Division of Hotels and Restaurants.

APPEARANCES

For Petitioner: Russell McGregor

For Respondent: Richard Gentry, Esquire

The Petitioner is a corporation which operates the restaurant in Tallahassee. This proceeding was precipitated after an inspection of the Petitioner's premises by agents of the Respondent, the Division of Hotels and Restaurants. During that inspection, several violations of the division's rules were noticed and formal notice of violations were thereupon filed against the Petitioner.

The Petitioner challenges two forms of the Division of Hotels and Restaurants as being invalid rules. Specifically, they are Form No. 227, which is a checklist used by the Respondent's inspectors and Form No. 225, which is a standard notice of violation used by the Respondent.

The evidence was sufficient to demonstrate that the Petitioner was substantially affected by the forms in question particularly in view of the fact that he had been issued an administrative complaint based on alleged violations noted in these forms. However, nothing was presented at the hearing which would indicate that the forms were in any manner inconsistent with Florida Statutes or other rules of the department. Since a form is only a rule when, according to Section 120.52(14), F.S., it "imposes any requirement or solicits any information not specifically required by statute or by an existing rule," the forms in question can only be invalid if they exceed the requirements of the statutes or other rules.

Form No. 225, the notice to show cause, permits the Respondent to attend a pre-hearing conference on what is generally several days notice and also advises a Respondent of his right to a hearing pursuant to Section 120.57(1), F.S. Nothing in the form itself appears to be contrary to Chapter 120, F.S., or to

impose any requirement not authorized by law. Although the Petitioner objected to having been required to attend an informal meeting to discuss the administrative complaint, the form clearly indicates that final action would not be taken at such a meeting and the form is therefore not contrary to law.

It is therefore ORDERED that the petition is denied.

DONE and ORDERED this 10th day of November, 1977, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Russell M. McGregor Flanigan's, Inc

303 E. Jefferson Street Tallahassee, Florida 32304

Richard Gentry, Esquire Department of Business Regulation The Johns Building

Tallahassee, Florida 32304

Carroll Webb, Executive Director Administrative Procedure Committee

120 Holland Building Tallahassee, Florida 32304

Ms. Liz Cloud Department of State

103 East Gaines Street Tallahassee, Florida 32302

Docket for Case No: 77-001609RX

Orders for Case No: 77-001609RX