STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF HOTELS AND )

RESTAURANTS, DEPARTMENT OF )

BUSINESS REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1879

) HERMOR CORPORATION t/a LUM'S ) RESTAURANT, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on December 12, 1978, in Miami, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This case was presented upon the Administrative Complaint filed by the Division of Hotels and Restaurants against Hermor Corporation t/a Lum's Restaurant alleging that the Respondent corporation has violated Rule 7C-4.02, Florida Administrative code, and Sections 509.032 and 509.292(1)(a)(d), Florida Statutes, by engaging in misleading advertising or unethical business practices.

The Division presented evidence that on or about January 25, 1978, Mrs.

Patricia Wald stopped at Lum's Restaurant at 2338 North Roosevelt Boulevard, Key West, Florida, and ordered two Lumdogs with sauerkraut, which according to the menu was priced at 75 cents each. Upon finishing her meal, she was charged

$1.00 for each Lumdog with sauerkraut and upon complaining to the waitress and assistant manager, requesting a refund, was refused. The president and sole owner of Hermor Corporation testified concerning what his employees, who were on duty that night, had stated to him concerning the incident. He had no personal knowledge of the price of the menu item or when that price was established or the facts of the incident.

FINDINGS OF FACT

1. Hermor Corporation t/a Lum's Restaurant is an establishment licensed by the Division of Hotels and Restaurants, Department of Business Regulation.

   
   

2. On or about January 25, 1978, Mrs. Patricia Wald and a friend stopped at Lum's Restaurant located at 2338 North Roosevelt Boulevard, Key West, Florida, and ordered two Lumdogs with sauerkraut. The menu in effect stated as follows:

   
   

   LUMDOG .75

   Our "All American." Extra large, All Beef Hot Dog on a fresh, warm bun.

   Hot Sauerkraut on request.

3. Wald and her friend were charged 90 cents for each Lumdog with sauerkraut and complained to the waitress and to the assistant manager requesting a refund of the amount charged. This was refused by the manager who, having looked through the menus on hand, produced a menu which had a white sticker added along side the menu item Lumdog stating "Kraut Dog .90"

   
   

   CONCLUSIONS OF LAW

   
   

4. Rule 7C-4.02 provides that no owner, agent, lessee, manager or employee of any public food service establishment shall publish or advertise or permit the publication of advertising of any false or misleading statements relating to food or beverages offered to the public on said premises. This applies to outside and inside advertising, advertising by newspaper or any other publication, advertising by circular, and statements contained in the menu or any other means or method of advertising.

   
   

5. Substantial and competent evidence presented at the hearing shows that Lum's Restaurant located at 2338 North Roosevelt Boulevard, Key West, Florida, did advertise in its menu that is Lumdog was served with hot sauerkraut on request at a price of 75 cents. Although some of the restaurant's menus had been amended to show the price of this item with sauerkraut was 90 cents, apparently Mrs. Wald ordered from a menu which had not been amended. As such, Mrs. Wald was entitled to the item at the price advertised notwithstanding that some of the menus may have been amended. If the restaurant had indeed established the fact that the Lumdog with sauerkraut was a 90 cent item, the presentation of a menu to Mrs. Wald indicating that the item was priced at 75 cents was misleading and a violation of Rule 7C-4.02, Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that a civil penalty in the amount of $300.00 be assessed against Lum's Restaurant.

DONE and ORDERED this 3rd day of January, 1979, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Hermor Corporation t/a Lum's Restaurant

2338 North Roosevelt Boulevard Key West, Florida 33040

Mary Jo Gallay, Esquire Department of Business Regulation Johns Building

725 South Bronough Street Tallahassee, Florida 32304

Charles A. Nuzum, Director Division of Beverage

Department of Business Regulation Johns Building

725 South Bronough

Tallahassee, Florida 32304

Docket for Case No: 78-001879

Orders for Case No: 78-001879