[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12658

Non-Argument Calendar

____________________

ISRAEL ROSELL, 

ROBERTO GONZALEZ, 

for themselves and on behalf of those similarly

situated,

Plaintiffs-Appellants,

ALLAN CHOW, et al.,

Plaintiffs,

versus

VMSB, LLC, 

a Florida Limited Liability Company 

d.b.a. Gianni's

d.b.a. CASA CASUARINA,

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2 Opinion of the Court 23-12658

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:20-cv-20857-KMW

____________________

Before GRANT, BRASHER, and ABUDU, Circuit Judges.

PER CURIAM:

Israel Rosell and Roberto Gonzalez—a bartender and a 

server at Gianni’s, an upscale restaurant housed in the former 

Versace Mansion in Miami Beach, Florida—sued their employer

and owner of the restaurant, VMSB, LLC, for alleged violations of 

the Fair Labor Standards Act and the Florida Minimum Wage Act. 

Their claim that VMSB paid less than minimum wage turns on 

whether an automatic charge applied to all customer bills counts 

as a tip or as a mandatory service charge. We have previously held,

in a case with nearly identical facts, that such a fee is a service 

charge, not a tip, and can lawfully be used to offset an employer 

restaurant’s wage obligations under the Fair Labor Standards Act. 

Compere v. Nusret Miami, LLC, 28 F.4th 1180, 1182 (11th Cir. 2022). 

Rosell and Gonzalez’s contrary arguments are foreclosed by 

Compere. Accordingly, we affirm.

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23-12658 Opinion of the Court 3

I.

Customers at Gianni’s are automatically assessed a fixed 

percentage of the total sales price of their food and drink as a 

service charge. This service charge was set at 20% from 2015 until 

mid-2017, after which it was increased to 22%. VMSB instructs 

waitstaff to inform customers of the automatic service charge upon 

presentation of the menu; restaurant policy also prohibits 

employees from removing this charge from the bill. Despite this 

policy, restaurant staff occasionally removed the service charge 

anyway in response to customer complaints about service.

On a customer’s bill, the restaurant’s point-of-sale system 

displays the service charge as its own line item. Separately from 

this entry, the final check also contains a line for the customer to 

include a discretionary tip. Service charges are shared between the 

restaurant and employees: 90% of the total goes to front-of-house 

employees, while 10% is retained by the restaurant. On the other 

hand, 100% of any gratuity paid by a customer is kept by the 

employee who served that guest.

The federal minimum wage set by the Fair Labor Standards 

Act is $7.25 per hour. During the relevant period, Florida’s 

minimum wage was higher, starting at $8.10 per hour in 2017 and 

rising to $8.65 per hour in 2020. VMSB paid both Rosell and 

Gonzalez a direct wage of $5.65 per hour, plus their share of the 

service charges imposed on each customer’s check. They also kept 

any gratuities from customers they individually received. It is 

undisputed that, while the direct wage of $5.65 per hour was below 

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4 Opinion of the Court 23-12658

the state and federal minimums, if the service charge distributions 

are counted as well, both Rosell and Gonzales were paid well in 

excess of minimum wage.

Rosell and Gonzales sued VMSB on three counts: a violation 

of the federal minimum wage under the Fair Labor Standards Act, 

a violation of Florida’s state minimum wage under the Florida 

Minimum Wage Act, and a violation of the Fair Labor Standards 

Act’s overtime pay obligations. The district court granted partial 

summary judgment to VMSB on both minimum wage counts, and 

the parties settled the overtime count. This is Rosell and 

Gonzales’s second attempt to appeal their minimum wage claims;

the first time around, their attempt to voluntarily dismiss the 

settled overtime count was procedurally defective, leaving it 

pending before the district court and depriving this Court of 

appellate jurisdiction. See Rosell v. VMSB, LLC, 67 F.4th 1141 (11th 

Cir. 2023). This time, Rosell and Gonzales have fixed the problem 

by amending their complaint to drop the overtime claim, meaning 

they have obtained a final judgment as to all their outstanding 

claims. We may now exercise jurisdiction over the appeal.

II.

We review a district court’s grant of summary judgment de 

novo, viewing the evidence in the light most favorable to the 

nonmoving party and drawing all reasonable inferences in its favor. 

Sutton v. Wal-Mart Stores East, LP, 64 F.4th 1166, 1168 (11th Cir. 

2023). Summary judgment is appropriate when “there is no 

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23-12658 Opinion of the Court 5

genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

III.

Rosell and Gonzalez’s minimum wage claims turn on 

whether their service charge distributions can count toward 

VMSB’s minimum wage obligations, or whether the charge should 

count as a tip and be excluded from the minimum wage 

calculation. In Compere v. Nusret Miami, LLC, we analyzed another 

restaurant’s nearly identical service charge arrangement. There, 

we explained that “the critical feature of a ‘tip’ is that ‘[w]hether a 

tip is to be given, and its amount, are matters determined solely by 

the customer.’” Compere, 28 F.4th at 1186 (quoting 29 C.F.R. 

§ 531.52(a)). “Distinct from ‘a payment of a charge, if any made for 

the service,’ a tip is presented by a customer ‘as a gift or gratuity in 

recognition of some service performed for the customer.’” Id. 

(quoting 29 C.F.R. § 531.52(a)). By contrast, a “compulsory charge 

for service,” like a flat percent applied to the total amount of a bill, 

“imposed on a customer by an employer’s establishment, is not a 

tip.” Id. at 1187 (quoting 29 C.F.R. § 531.55(a)).

Applying these principles, we held that the defendantrestaurant’s mandatory service charge of 18% automatically 

applied to all customer bills qualified as “a bona fide service charge 

and not a tip,” and thus “could lawfully be used to offset [the 

restaurant’s] wage obligations under the FLSA.” Id. at 1182, 1189. 

Compere answers this nearly identical case: VMSB’s mandatory fee 

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of 20–22%, applied to all customers’ bills, is a service charge, not a 

tip, and can count towards VMSB’s minimum wage obligations.

Rosell and Gonzalez attempt to escape Compere’s holding by 

arguing that VMSB had reported the service charge fees as 

employee tips rather than as part of its gross receipts on its federal 

tax returns. They argue that VMSB should be estopped in this 

Court from now arguing that the same fees were actually not tips, 

for purposes of the Fair Labor Standards Act.

Compere has already answered this objection. The 

employees there also argued that the classification of a fee as a 

service charge or a tip turned on the restaurant’s tax returns: they 

argued that “a service charge is a tip unless an employer includes 

the service charges in their gross receipts for tax purposes.” Id. at 

1187 (alteration adopted) (quotation omitted). We rejected this 

argument, stating that an employer’s “tax returns are irrelevant to 

determining whether the service charge is a tip.” Id. at 1188 n.14. 

Whether the charge was a tip turned on whether the customer had 

any discretionary say in whether to pay the charge or its amount, 

not how the restaurant had reported the charge to the IRS. Id. at 

1185–88.

Rosell and Gonzalez argue that Compere’s statements about 

the relevance of tax returns are dicta because the “Compere court 

did not have the sworn tax returns before it.” As we have explained 

many times, “a statement that neither constitutes the holding of a 

case, nor arises from a part of the opinion that is necessary to the 

holding of the case is dicta” and “not binding on anyone for any 

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purpose.” Rudolph v. United States, 92 F.4th 1038, 1045 (11th Cir. 

2024) (quotations omitted). And it is true that the record in Compere

did not include whether the restaurant there had reported its 

service charge to the IRS as tips or as part of its gross receipts. 

Compere, 28 F.4th at 1184.

But that does not render Compere’s rejection of the relevance 

of tax returns dicta. The employees in Compere argued that the fact 

that the record did not answer how the restaurant was treating the 

service charge on its tax returns meant that summary judgment 

was premature, and they sought to take the deposition of the 

restaurant’s accountant, who they said would testify about how the 

restaurant characterized the charge in its tax filings. Id. at 1184, 

1189. We affirmed the district court’s grant of summary judgment 

to the restaurant even without this information, reasoning that the 

tax returns were “irrelevant” to the inquiry and that summary 

judgment was appropriate because there existed no genuine 

dispute on any material facts. Id. at 1187. That conclusion was 

therefore “necessary to the holding of” Compere, meaning that it is 

not dicta and is binding on the Court in this case. Rudolph, 92 F.4th 

at 1045 (quotation omitted).

Rosell and Gonzalez also attempt to distinguish Compere by 

arguing that VMSB occasionally waived the service charge in 

response to customer complaints about service. They argue that if 

a restaurant ever removes the service charge, it is not “mandatory” 

and therefore is properly characterized as a discretionary tip. 

Again, Compereforecloses this argument. There, as here, restaurant 

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“managers had discretion to remove the charges on the bills of 

dissatisfied customers.” Id. at 1188. We wrote that that fact was 

“irrelevant,” because “the relevant question is whether the decision 

to pay the given sum is ‘determined solely by the customer’” and the 

“customers had no ability to determine on their own whether they 

would pay the service charge.” Id. (quoting 29 C.F.R. § 531.52(a)). 

So too here.

* * *

VMSB’s service charge is identical to that analyzed in 

Compere in all material respects. Consistent with Compere, then, we 

hold that VMSB’s service charge is not a discretionary tip for 

purposes of the Fair Labor Standards Act and that distributions 

from the service charge to employees may be lawfully counted 

against VMSB’s minimum wage obligations. The district court’s 

grant of summary judgment to VMSB on Rosell and Gonzalez’s 

minimum wage claims is thus AFFIRMED.

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