EXHIBIT A 

Case 1:22-cv-23074-BB Document 253-1 Entered on FLSD Docket 02/16/2024 Page 1 of 34
 1

Yvette Hernandez, Official Court Reporter

 400 North Miami Avenue, 10-2

 Miami, Florida 33128

 (305) 523-5698

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

CASE NO. 1:22-cv-23074-BB 

OCTAVIO COLLADO, 

for himself and all others 

similarly situated, 

Plaintiffs, March 29, 2023 

9:03 a.m. 

 vs. 

450 NORTH RIVER DRIVE, LLC, 

d/b/a KIKI ON THE RIVER, 

RJ RIVER, LLC, and ROMAN JONES, 

Defendants. Pages 1 THROUGH 33 

______________________________________________________________ 

TRANSCRIPT OF MOTION HEARING 

BEFORE THE HONORABLE BETH BLOOM 

UNITED STATES DISTRICT JUDGE 

Appearances: 

FOR THE PLAINTIFF: FAIRLAW FIRM 

BRIAN H. POLLOCK, ESQ. 

135 San Lorenzo Avenue, Suite 770 

Coral Gables, Florida 33146 

FOR DEFENDANT 450: JACKSON LEWIS, PC 

REYNALDO VELAZQUEZ, ESQ. 

Two South Biscayne Boulevard, Suite 3500 

Miami, Florida 33131 

FOR DEFENDANT LEVINE & PARTNERS 

RJ RIVER: ALLAN S. REISS, ESQ. 

3350 Mary Street 

Miami, Florida 33133 

COURT REPORTER: Yvette Hernandez 

U.S. District Court 

400 North Miami Avenue, Room 10-2 

Miami, Florida 33128 

yvette_hernandez@flsd.uscourts.gov 

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Case 1:22-cv-23074-BB Document 253-1 Entered on FLSD Docket 02/16/2024 Page 2 of 34
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Yvette Hernandez, Official Court Reporter

 400 North Miami Avenue, 10-2

 Miami, Florida 33128

 (305) 523-5698

(Call to order of the Court, 9:03 a.m.) 

COURTROOM DEPUTY: Calling Civil Case Number 22-23074,

Octavio Collado v. 450 North River Drive, LLC, et al.

Counsel, please state your appearances for the record,

beginning with Plaintiffs' counsel.

MR. POLLACK: Good morning, Your Honor. Brian Pollock

for the Plaintiff, Mr. Collado, and the opt-in Plaintiffs.

THE COURT: Hi. Good morning.

MR. VELAZQUEZ: Good morning, Your Honor. Reynaldo

Velazquez on behalf of the Defendants.

MR. REISS: Good morning, Your Honor. Allan Reiss on

behalf of the Defendant RJ River, LLC.

THE COURT: Good morning to each of you as well.

And for hearing this morning is Docket Entry 63, the

Defendants' motion to dismiss the Second Amended Complaint.

There are three counts within the Second Amended Complaint, and

the basis of the motion is with regard to Count 1. It

conflates a claim for unlawful tip retention with a claim for

minimum wage violation.

As to Count 2, the Defendants allege that the

Plaintiff has failed to properly allege that he was paid less

than the minimum wage. 

And Count 3, there is a question as to whether there's

a common law cause of action.

So to that extent, let me dispense very quickly with

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Case 1:22-cv-23074-BB Document 253-1 Entered on FLSD Docket 02/16/2024 Page 3 of 34
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Yvette Hernandez, Official Court Reporter

 400 North Miami Avenue, 10-2

 Miami, Florida 33128

 (305) 523-5698

the Plaintiffs' claim that the Defendant has waived its right

to file this motion to dismiss. And I do not believe that

there's been a waiver. So we'll proceed with the merits of the

motion.

So Mr. Velazquez or Mr. Reiss, since it is your

motion?

MR. VELAZQUEZ: Thank you, Your Honor.

May I approach?

THE COURT: Yes. Of course. 

And if you feel more comfortable at counsel table -- I

know that you may have some items, but whatever is your

pleasure, sir.

MR. VELAZQUEZ: I'll approach.

May it please the Court, Your Honor. Reynaldo

Velazquez on behalf of the Defendants.

So we'll start today, Your Honor, with actually Count

2, because I think it's a good lead-in into the argument with

respect to Count 1. And the main thrust of the argument from

the Defendants with respect to Count 2 is that the Florida

Minimum Wage Act, Your Honor, does not provide a cause of

action to recover tips. It's plain and simple.

And if you look at the structure of the law, it's very

self-explanatory of what the Defendants' position is. And the

law itself says that the Florida Minimum Wage Act -- the

purpose of it is to provide measures appropriate for the

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Yvette Hernandez, Official Court Reporter

 400 North Miami Avenue, 10-2

 Miami, Florida 33128

 (305) 523-5698

implementation of Section 24, Article 10, of the Florida

Constitution. 

And when you look at Section 24, Article 10, of the

constitution, this is what it says, Your Honor, quote:

Employers shall play employees wages no less than the minimum

wage for all hours worked in Florida, end quote. Nothing about

minimum wages there, Your Honor. That's all it says. There's

nothing in the Florida Constitution providing an employee a

constitutional right to recover tips. There's nothing in the

Florida Minimum Wage Act that gives employees a right to

recover tips. And there's nothing in the constitution or the

Florida Minimum Wage Act that provides for a cause of action to

recover tips, Your Honor.

So that leads us to the portion of the allegations of

the actual complaint. If the Florida Minimum Wage Act does not

provide a cause of action to recover tips, then Count 2 must

try to allege a minimum wage violation, if that's what

Plaintiff is intending to do.

THE COURT: That's somewhat belied by the allegations,

where within Count 2 it speaks of distributing a portion of the

tips.

MR. VELAZQUEZ: Absolutely, Your Honor. And if you

look at Count 1, it even confirms what the Court's concern is.

It's replete with allegations of: This case is about

recovering tips. It's not about minimum wage violations. And

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Case 1:22-cv-23074-BB Document 253-1 Entered on FLSD Docket 02/16/2024 Page 5 of 34
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Yvette Hernandez, Official Court Reporter

 400 North Miami Avenue, 10-2

 Miami, Florida 33128

 (305) 523-5698

significantly, with respect to the Florida Minimum Wage Act

count, is that there's allegations in there that says, quote:

"Plaintiffs were paid below" -- strike that. Quote: "The

direct wage," end quote, that Plaintiffs were paid is below the

minimum wage.

But that disregards the very next allegations that are

all over the complaint that says that they also received a

service charge. And the reason why you don't see that, Your

Honor, is because they cannot allege that. When you put the

service charge with the direct wage these individuals were

paid, they are far in excess of the Florida minimum wage and

the federal minimum wage, Your Honor.

THE COURT: All right. And with regard to Count 3 --

because you somewhat had me at hello with regard to Count 1.

And that's clear just based on the prayer for relief with

regard to Count 1, that it certainly appears to conflate the

claim for the unlawful tip retention with the minimum wage

violation. But I do want to address Count 3 with regard to the

common law claim for relief.

And I understand that two of the individuals may have

contracts, but I just want to address the common law claim

where it appears that the FLSA and the Florida Minimum Wage Act

appear to somewhat occupy the area that is the subject of the

Plaintiffs' Second Amended Complaint. Can you address that,

please.

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Case 1:22-cv-23074-BB Document 253-1 Entered on FLSD Docket 02/16/2024 Page 6 of 34
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Yvette Hernandez, Official Court Reporter

 400 North Miami Avenue, 10-2

 Miami, Florida 33128

 (305) 523-5698

MR. VELAZQUEZ: Absolutely, Your Honor. It will be my

pleasure.

So when analyzing a common law claim, whatever the

common law theory is cannot be inconsistent with Florida law,

or federal law, for that matter. And the Supreme Court, Your

Honor, has specifically said, right, that any type of a claim

pertaining to common law has to be consistent.

So what do you do? You start by looking at, then, the

Florida Constitution. And what does the Florida Constitution

refer to when it speaks to wage? It refers to the FLSA and the

regulations, Your Honor. And this is what the FLSA says with

respect to tips and wages. Okay? And -- well, let me quote

the Florida Supreme Court with respect to what it says, because

it's significant. And I found the page here it says, quote:

"For a principle of law to be governed by the common law in

Florida, that principle must not be inconsistent with the

constitution and the laws of the United States or the acts of

the legislature of this state." 

Now -- so we go to the constitution, Your Honor. And

the constitution states as follows, quote: "Wages shall have

the meaning established under the FLSA and its implementing

regulations." 

So now we go to the FLSA. Right? And this is what

the FLSA says with respect to wages, Your Honor. It says,

quote: "In determining wages, an employer is required to pay a

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Case 1:22-cv-23074-BB Document 253-1 Entered on FLSD Docket 02/16/2024 Page 7 of 34
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Yvette Hernandez, Official Court Reporter

 400 North Miami Avenue, 10-2

 Miami, Florida 33128

 (305) 523-5698

tipped employee the required amount paid such employee by the

employee's employer. And it shall be equal to the following:

The cash wage paid by the employer," which is the direct wage

Your Honor, "and an additional amount on account of the tips

received by such employee, which amount is equal to the

difference between the direct wage paid by the employer and the

federal minimum wage."

Now, significantly, you take that -- and that is what

the statute then says, quote: "As used in this section, the

regular rate shall not be deemed to include sums paid as gifts

as a reward for service." Okay? 

Now you take a step further, Your Honor, and you go to

the regulations to see what the regs say, because that's what

the Florida Constitution is telling us to do, Your Honor. And

this is what the regs say: "Any tips received by the employee

in excess of the tip credit need not be included in the regular

rate. Such tips are not payments made by the employer," Your

Honor, "to the employee as remuneration for employment within

the meaning of the act." 

And then there's another regulatory section that

states as follows, quote: "A tip is a sum presented by a

customer as a gift or gratuity" -- by a customer, not the

employer, Your Honor -- "as a gift or gratuity, in recognition

for some service performed for the customer. Whether the tip

is to be given and the amounts are matters determined solely by

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Yvette Hernandez, Official Court Reporter

 400 North Miami Avenue, 10-2

 Miami, Florida 33128

 (305) 523-5698

the customer," end quote.

Your Honor, we respectfully submit when you look at

what the Florida Constitution directs everybody to look at for

purposes of what the definition of wage means, it does not mean

tips that are discretionary, which is what we're talking about

here. Because there is no allegation in this complaint, Your

Honor, that these employees were paid on a tip credit basis.

THE COURT: All right. And if we look at the

definition of wages under Section 448.08, it would appear that

it's the compensation paid by an employer. But tips don't come

from the employer. So are they even encompassed by the Florida

definition of wages?

MR. VELAZQUEZ: The only time, Your Honor, that they

could be encompassed is when an employer takes a tip credit.

That's an -- when they take a tip credit, as you know, Your

Honor, they pay a lesser rate, and then make up the difference

on tips. That's when it's wages.

THE COURT: But that's not pled anywhere within the

Second Amended Complaint.

MR. VELAZQUEZ: Nowhere, Your Honor.

THE COURT: All right. Let me give -- and I thank

you, Mr. Velazquez. I think really Mr. Pollock will need to

ask -- or answer some of the questions that the Court has,

because I do believe that your arguments have merit.

MR. VELAZQUEZ: Thank you, Your Honor. I appreciate

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Case 1:22-cv-23074-BB Document 253-1 Entered on FLSD Docket 02/16/2024 Page 9 of 34
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Yvette Hernandez, Official Court Reporter

 400 North Miami Avenue, 10-2

 Miami, Florida 33128

 (305) 523-5698

the opportunity.

THE COURT: Mr. Pollock, let me just start with Count

1, because it appears that you are intending to set forth a

minimum wage claim, in addition to a tip retention claim. I

know that you have stated in your response that you are not.

But then on Page 8 of your response you say that you are

alleging an FLSA minimum wage claim. 

And if the Court looks directly to the Second Amended

Complaint, and the way that it's pled, even if the Court were

to accept the argument, your prayer for relief asks the Court

to declare that the Defendants are in willful violation of the

minimum wage provision of the FLSA. So it certainly appears,

just looking at the pleading itself, that you're conflating the

claims and that appears to be a shotgun pleading.

So perhaps you can tell me why I'm wrong.

MR. POLLACK: Sure, Judge.

The complaint, starting at Page -- at Paragraph 28,

through Paragraph 33, and then the ad damnum clause at Count 1,

seeks only -- and talks about only entitlement to a backpay

award of the tips and overtips.

There is nowhere within Count 1, nor Paragraphs 28

through 31, where we seek recovery of the difference between

the direct hourly wage paid and the FLSA's minimum wage of 7.25

an hour. Everything talks about recovery of the tips and

overtips.

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Case 1:22-cv-23074-BB Document 253-1 Entered on FLSD Docket 02/16/2024 Page 10 of 34
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Yvette Hernandez, Official Court Reporter

 400 North Miami Avenue, 10-2

 Miami, Florida 33128

 (305) 523-5698

And so my understanding of the FLSA -- and maybe this

is a labeling issue, which does not constitute or transform

these allegations in Count 1 into a shotgun pleading -- it

becomes a labeling issue, which I'll find the case, but that's

not cause for dismissal.

THE COURT: Well, it's not just the labeling. It's

the relief that you're seeking in Count 1.

MR. POLLACK: Right. And the relief that we're

seeking in Count 1, when I go specifically to that, at

Paragraph 76, is Plaintiff and the collective are entitled to a

backpay award of the tips and overtips they earned, but that

Defendants improperly retained, received, distributed, plus an

equal amount as liquidated damages, plus all attorney's fees

and costs. And so then we go to the ad damnum clause at

Paragraph D, and it's: "Awarding Plaintiff and the collective

the tips and overtips improperly withheld/distributed and an

equal amount as damages pursuant to 203(m)(2)(B) and 216(b)."

So there's nowhere within the relief requested that

Plaintiff, on behalf of himself or the other similarly

situated, are seeking the difference between the direct hourly

wage paid and the minimum wage paid. So it does become a

labeling issue at most.

THE COURT: Well, if I look at Paragraph 28:

"Defendants agreed to pay Plaintiff a direct hourly rate of pay

that was less than the applicable Florida federal minimum wage

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Yvette Hernandez, Official Court Reporter

 400 North Miami Avenue, 10-2

 Miami, Florida 33128

 (305) 523-5698

supplemented by a portion of the non-discretionary service

charge" --

MR. POLLACK: Okay.

THE COURT: -- "Defendants received."

So it's unclear what claim you're making in Count 1.

Are you saying that your client was not paid the minimum wage,

or are you claiming that your client did not receive tips and

the employer retained them?

MR. POLLACK: Your Honor, the facts are that my

clients were all paid a direct hourly wage that was less than

the minimum wage. That is a fact. The Defendants don't say

that that's untrue. They don't dispute it. That's a fact

that's borne out by the records in the case.

They were also paid a portion of the service charge.

And they were also paid the tips or overtips. That's what

Paragraph 28 says, that -- it states the facts that we allege.

It doesn't seek recovery of the difference.

In Paragraph 33, where we talk about the unlawful pay

practices: "The result of Defendants' unlawful pay practices

deprive Plaintiff and the other similarly-situated tipped

employees of wages," parenthesis, "tips and overtips that they

earned and should have received in a significant sum when

aggregated." We're not talking about the difference between

the direct hourly wage and the minimum wage.

For that reason, the entirety of Count 1 talks about

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Yvette Hernandez, Official Court Reporter

 400 North Miami Avenue, 10-2

 Miami, Florida 33128

 (305) 523-5698

the tips and the overtips. And yet, the recovery that we seek

in Paragraph 76 and the ad damnum clause all talk about the

tips and overtips. There's nowhere within the prayer for

relief in Count 1 that we're talking about the difference

between the direct hourly wage and the 7.25 an hour.

THE COURT: All right. So let me ask you to respond

directly to the argument that: "The Plaintiff does not allege

that he was paid on a tip credit basis or the direct hourly

rate he was paid, plus the percentage of the service charge he

received that was below the FLSA's minimum wage."

Where would the Court find that within Count 1?

MR. POLLACK: I don't know that we need to go ahead

and aggregate how much we're paid because that's what we talked

about in -- let me go to it.

THE COURT: Because to the extent that it is not

properly alleged, it does appear to the Court that you're

attempting to set forth in Count 1 a tip retention distribution

claim, a minimum wage claim, or both. It seems that you're

conflating both within Count 1, as opposed to separating the

two.

MR. POLLACK: Your Honor, the problem that we have,

right, in this situation, is what we're supposed to do under

the FLSA is -- in order to state a minimum wage claim, what

I've got to do is to allege the failure to pay at least the

minimum wage. Right? 

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Case 1:22-cv-23074-BB Document 253-1 Entered on FLSD Docket 02/16/2024 Page 13 of 34
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Yvette Hernandez, Official Court Reporter

 400 North Miami Avenue, 10-2

 Miami, Florida 33128

 (305) 523-5698

If we were just looking at this under 203 and 216(b),

and we said: "Okay. It's a failure to pay minimum wage

claim," what Your Honor would request that I do, and what the

Defendants would ask that Your Honor require me to do, is to

allege somewhere in the complaint that my clients were paid

less than the minimum wage in order to assert a minimum wage

claim. Right? And so what we have not done in the allegations

is do that. We have not asserted a minimum wage -- a

difference in minimum wage claim.

So the FLSA doesn't talk about a violation of -- it

gives us two options other than child labor, which are minimum

wage and overtime. And then when you talk about where the

definition of wage is at 203(m)(2)(B) -- 203(m) -- I have to

take a look. In 203(m)(1), it talks about wage. And then it

talks about wage includes tips and wage includes the other --

includes the direct hourly wage and then whatever it's

supplemented with.

We're not alleging in this -- in Count 1 a failure to

pay at least the minimum wage of 7.25 an hour. And we don't

seek relief for that. So --

THE COURT: So what is -- that's what's a little

unclear. What is the relief that you're seeking with regard to

Count 1?

MR. POLLACK: The tips. The difference in the tips

that were paid. That's under 203(m)(2)(B). We've specified

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Yvette Hernandez, Official Court Reporter

 400 North Miami Avenue, 10-2

 Miami, Florida 33128

 (305) 523-5698

203(m)(2)(B). We've specified multiple times in the claim what

we're seeking as damages. And we're not seeking anywhere, and

we don't allege that they were paid in the aggregate less than

what was required under the minimum wage. It's labeled as a

minimum wage claim because the FLSA gives you two options. And

then the third option is child labor, which we're not dealing

with.

Unless we're going to say this is a new species under

203(m)(2)(B) based on the 2018 amendment, which is now it's

overtime, minimum wage, and tip confiscation. If that's the

case, it's a mislabeling claim. It's a mislabeling issue, not

a shotgun pleading or a conflating issues claim. Because

there's nowhere in the complaint where we're seeking the

difference. And we don't allege that. And the reason why we

don't allege it is because we're not making that claim. And if

we did allege it, then I could understand the argument. But

because we didn't, Your Honor would dismiss that claim as pled.

THE COURT: All right. Let's move to the FMWA with

regard to Count 2. And you have made an argument that the

FLSA's definition of wage is relevant. So has Mr. Collado

anywhere alleged that he's being paid less than the minimum

wage?

MR. POLLACK: No. He's alleged that the direct hourly

wage was below, but he hasn't quantified the direct hourly wage

plus a service charge.

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Yvette Hernandez, Official Court Reporter

 400 North Miami Avenue, 10-2

 Miami, Florida 33128

 (305) 523-5698

THE COURT: Well, the FMWA requires that employers

shall pay employees wages no less than the minimum wage for all

hours worked. So what allegation would support the cause of

action? 

And then 448.110 states that: "For tipped employees

meeting eligibility requirements for the tip credit under the

FLSA, employers may credit toward satisfaction of the minimum

wage tips up to the amount of the allowable FLSA tip credit." 

So once again, where would the Court find the

allegation that Mr. Collado was paid less than the minimum wage

to sustain a cause of action with regard to Count 2?

MR. POLLACK: Well, I think what we're dealing with

here, and what counsel was doing was kind of that shell game

where you just move things around and you try to --

THE COURT: I'm not trying to move anything around.

MR. POLLACK: No. No.

THE COURT: I'm looking at Count 2, and I'm merely

asking where it's alleged.

MR. POLLACK: And I understand. And I think what the

FLSA talks about and what the FLSA defines -- because the

Florida Minimum Wage Act defers to the FLSA's definition of

wage and minimum wage. And so when you look at

203(m)(2)(A)(2) -- because (m)(1) talks about wage. And then

when you talk about (m)(2), it talks about the wage that an

employee -- an employer is required to pay. And that's from

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Yvette Hernandez, Official Court Reporter

 400 North Miami Avenue, 10-2

 Miami, Florida 33128

 (305) 523-5698

the Fair Labor Standards Act. It's 203(m)(2)(A). And then it

has two subs, (2)(A)(1) and (2)(A)(2). And (2)(A)(2) talks

about -- one is the cash wage, and two an additional amount on

account of the tips received by the employee.

And so here we go back to this falls under the minimum

wage. Because the minimum wage is -- one part is the direct

hourly wage and the second part is the tips that supplement

that wage, that, as long as they're properly pooled or properly

distributed, aggregate to overcome the threshold of going above

Florida's minimum wage.

And so what we're talking about here -- and this is

why they kind of going together -- is whether you want to call

it a minimum wage or a tip confiscation, it all comes under the

same statutory rubric, which is the tips become part of that

wage. And the reason is because the employer's allowed to

utilize the money that -- the gratuities that are left by the

customer to supplement the direct wage, as long as they're

properly handled. And the FLSA contemplates that. 

And what happened here was the employer was not

allowed to retain tips, but there was a question under the FLSA

as to whether supervisors and managers were. And that was the

Ninth Circuit of Cumbie v. Woody Wu. And so what the former

administration did was, in March and April of 2018, they closed

that loophole and prevented employers, supervisors, and

managers from retaining any part of the tips. And so the

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Case 1:22-cv-23074-BB Document 253-1 Entered on FLSD Docket 02/16/2024 Page 17 of 34
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Yvette Hernandez, Official Court Reporter

 400 North Miami Avenue, 10-2

 Miami, Florida 33128

 (305) 523-5698

tips -- the minimum wage -- there's a direct hourly wage and

then it's supplemented by the tips, but it talks about the wage

includes the tips.

THE COURT: Then perhaps we should look at the law.

You cited to the Biller case. And it appears to the Court --

and I think that the Defendants' argument has merit in its

reply -- that, in that case, it's only when the employer is

taking a tip credit to reach the minimum wage. And it's

unclear whether Mr. Collado was paid on a tip credit basis

because there is a failure to allege that the direct hourly

rate paid, plus the percentage of the amount he received, was

below the minimum wage.

So tell me how the law supports the claim as alleged.

And I think, quite frankly, it requires that Mr. Collado allege

that he is being paid less than the minimum wage. And I'm

failing to see how you can actually get around that

requirement.

MR. POLLACK: Okay.

THE COURT: But did you want to make an argument with

regard to Biller, because I think that there is a distinction.

I mean, there was a quote that was taken from the case. But if

we look at the case, it appears to somewhat support the

argument that the Defendant is making.

So in sum and substance, Mr. Pollock, I'm willing to

look at a case that directs this Court to find that Count 2

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under the FMWA is properly pled.

MR. POLLACK: Well, Your Honor, since the

implementation of -- since the revision of the FLSA in 2018, no

state court case has addressed this. And so what we've alleged

is that he was paid -- and in fact, no state court case has

addressed whether service charge can be included in the direct

hour -- in the wage.

THE COURT: I don't think it's a futile claim. You

just haven't pled it properly --

MR. POLLACK: Okay.

THE COURT: -- with regard to Count 2.

And I want to move to Count 3 as well. Because it --

I guess, where should the Court look to for authority on

Florida common law? You cited to actually this Court's case of

Pastrana. But if I look at the definition of wage, it appears

that the FMWA and the FLSA have really occupied the field in

relation to Mr. Collado's claims.

He's not claiming he wasn't paid a certain bonus. I

mean, it seems like the causes of action are statutory in

nature under each of these statutory schemes. And where would

the Court find some authority that there's a cause of action

based on Florida common law?

MR. POLLACK: Well, Florida common law wouldn't be

codified, right?

THE COURT: So is it an FMWA claim?

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MR. POLLACK: No. It's --

THE COURT: Okay. Where would the Court find -- like,

what case would support the claim that's being made here?

MR. POLLACK: Well, there's the Pastrana claim.

Right? The Pastrana case, which this Court evaluated sua

sponte on a default. Right? And that was pled inartfully

under the FMWA. But the allegations in our complaint are much

more in-depth than the allegations in the Pastrana complaint --

in the Pastrana First Amended Complaint, which was Docket Entry

25.

And then, in addition, we have a Hamann v. Little

Italy's Meatballs from the Middle District. And that cited to

the state court cases, which talk about the breadth of what,

under Florida common law, are considered wages. And it looked

at Short. It looked at Coleman. And it looked at the -- which

Coleman, from -- I think that was a Third DCA case, looked to

the Black's Law Dictionary definition of wages, which it

specifically noted included tips. 

And so because this is a common law claim under

Florida law -- because they include the tips as wages under

Florida common law. And so because we're dealing with a

specific -- statutes that are in derogation of the common law

with regard to both the FLSA and the FMWA, they don't talk

about tips being anything other than wages. They don't say

tips aren't wages. The only thing the FLSA says, at 531.60,

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which Defense counsel pointed out, was when you're talking

about the regular rate for overtime, you don't include tips.

And that's 531.60, which Defendants have harped on, but that

talks about the regular rate.

THE COURT: All right. But you yourself have said, on

Page 16 of your response, that: "Common law claims for unpaid

wages can be akin to claims for breach of contract."

MR. POLLACK: They can be.

THE COURT: But in Paragraph 28 of your complaint, you

state that: "The Defendants agreed to pay Plaintiff a portion

of the gratuities left at the discretion of the Defendants'

patrons." 

So doesn't that statement imply that the contract

allowed the Defendant to retain or distribute some portion of

the tips? And if so, how have the Defendants breached a

contract?

MR. POLLACK: No. We don't allege that there's a

contract. I'm saying they can be alleged. And the times when

we see them, when they talk about wages, oftentimes, it's

talked about in a contract setting, but it doesn't have to be.

And in fact, when the Court looked at Pastrana when

you looked at Hamann v. Little Italy, it's not pled in terms of

a contract. Hamann was actually pled as a violation of 448.08,

which is normally how these unpaid wage or unpaid tip claims

are pled. And courts, time and time again, say that 448.08

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 (305) 523-5698

doesn't provide a cause of action. 

What it says is this is viewed under the common law of

Florida, that wages are the property of the employee and can't

be confiscated by the employer. And so it doesn't have to be

pled as a contract claim, nor have the courts required it in

the two district court opinions that talked about 448.08 in the

context of tips.

THE COURT: So if we look at 448.08 and the definition

of wages: "The terms wages involves some compensation paid to

an employee for services rendered to his employer. Broadly

read, this definition embraces salary, commission, bonuses,

vacation pay, and severance pay." That's from the Coleman

case, the Third DCA case. But tips don't come from an

employer. So how are they encompassed by Florida common law's

definition of wages?

MR. POLLACK: Well, the Coleman case also looked to

the Black's Law Dictionary definition of wages, which included

tips.

THE COURT: Right. So I think we're back to the fact

that, at least as pled -- and tips don't come from an employer.

So how are they encompassed by the Florida common law

definition of wages?

MR. POLLACK: Because what we've alleged in this

situation is that the employer maintained dominion and control

over the tips, and then they kept part of them. And so --

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THE COURT: So it's compensation paid by an employer

for the performance of service by an employee.

MR. POLLACK: Hold on.

(Pause in proceedings.) 

THE COURT: Because it would appear -- and I'm just

asking the question with regard to the cause of action under

Florida common law.

MR. POLLACK: Right. I mean, 448, all it says is --

THE COURT: It speaks of wages --

MR. POLLACK: No.

THE COURT: -- are compensation paid by an employer.

MR. POLLACK: Actually, 448.08, all it says is that:

"The court may award to the prevailing party, in an action for

unpaid wages, costs of the action and a reasonable attorney's

fee."

THE COURT: No. No. No. I'm talking about the

definition of wages. 

MR. POLLACK: Right. 

THE COURT: That it's compensation paid to an employee

for services rendered by the employer. So it's paid to the

employee by the employer. But by the very nature of tips, they

don't come from an employer. So how does the cases, the

Hamann -- how do all of these cases support a common law cause

of action for the retention of the tips? I mean, even the

cases cited by Hamann say wages are all compensation paid by an

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employer.

MR. POLLACK: Again, it looks under Coleman. Right?

Coleman talked about -- as part of the definition of wages:

"Every form of remuneration payable for a given period to an

individual for personal services, including salaries,

commissions, vacation pay, dismissal wages, bonuses, and

reasonable value of board, rent, lodging, payments in kind,

tips, and any other similar advantage received from the

individual's employer or directly with respect to work for

him."

And so these tips come about as a direct and proximate

result of the work that was performed by the employee for the

employer.

THE COURT: Well, but the tips aren't paid by the

employer. And I think that's the distinction here. I mean,

Coleman looked at the Black's definition and concluded that

wages are all compensation paid by an employer. So I guess my

question is: If that's the definition under the common law,

then where is the common law cause of action? Because

203(m)(1) of the FLSA defines wage. 203(m)(2)(B) says an

employer may not keep tips. But all cases that describe the

common law say that wages are compensation paid by an employer. 

In the Pastrana case, the Court noted that on Page 4.

Even on a default, the Court said: "Plaintiff's factual

assertions and supporting affidavits, indicating the defendants

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 (305) 523-5698

failed to pay them earned wages, state a claim under any common

law." But this is different. These are tips.

MR. POLLACK: Right. But the tips in this

situation -- what we allege were the tips were the credit card

tips, were left for the employees and paid to the custody of

the employer. And so --

THE COURT: But that's the unlawful retention that you

already have alleged by way of Count 1. That can certainly be

clarified. But I guess I'm just asking how the claim for

common law lies, when you have a claim under one statutory

scheme, another claim for another statutory scheme, that appear

to be proper. I just don't see where the common law comes in.

MR. POLLACK: I think the common law here provides --

THE COURT: I'm just looking at the cases. So if

there's a case that I should look to -- I mean, I've looked at

the case that I authored, I've looked at the cases that were

cited, and it all speaks of compensation paid by the employer.

MR. POLLACK: Well, the tip allows the employer to

shift the burden of paying the employee.

THE COURT: It still doesn't come within definition of

wages.

MR. POLLACK: But it does when you step back and you

look and see what happens to this money when it's time to look

at it as far as the IRS is concerned. Because for an employee,

when an employee receives tips, those tips are reported on a

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 (305) 523-5698

W-2 as income. And so those are reported as wages. They're

not -- it's not 1099 income that's paid by somebody else,

pursuant to their, you know, working as a contractor. That

money is paid to the -- the money is reported to the IRS as

wages earned.

And so that's what it comes down to, is it shifts the

burden of payment from the employer to allow it to shift it

over to the patrons, but it still is considered wages. And so

when we look at the definition of wages under common law,

right, which would encompass how we would look at it under the

IRS statutory rubric, not just the FLSA --

THE COURT: Well, show me -- I'm looking at the Short

case where it says: "Florida law broadly construes wages,

within the meaning of Section 448.08, to include all

compensation paid by an employer for the performance of service

by an employee."

And then the Coleman case: "The term wages involves

some compensation paid to an employee for services rendered to

his employer."

I think we come down to the very simple question that

tips just don't come from an employer. And how are they are

encompassed by Florida's common law's definition of wages? And

if you're saying how the IRS comes into play, I'm not quite --

I'm not quite understanding how that allows the Court to find

under the case law that there's a common law cause of action.

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 (305) 523-5698

MR. POLLACK: Well, if under Florida law tips weren't

wages, but under federal law they are considered wages, then we

would just be giving an out to every server. I'm sure they'd

appreciate it. But they'd have an out as far as saying:

"Look, my tips aren't wages. I don't have to report them to

the IRS. They don't meet the definition of wages." 

But if they do meet the definition of wages under the

IRS -- and they certainly meet the definition of wages under

Florida common law -- it's -- I'm trying to think of the

parallel -- which is under the independent contractor, right?

Because under Florida common law, we look at somebody, whether

there's -- an employee or employer under Florida common law.

And in part of that analysis, we look to how the IRS treats

them, separate and apart under the FLSA statutory mechanism.

THE COURT: But under the FLSA, it doesn't consider

tips wages. It has a separate provision that prohibits tip

retention. So how would that help you?

MR. POLLACK: Well, tips were wages under the FLSA.

THE COURT: Well, if tips are wages under the FLSA,

then you have a cause of action under the FLSA with regard to

Count 1.

MR. POLLACK: Right.

THE COURT: So I think we're back to the Florida

common law. And if the argument is that somehow wages are

defined within the IRS Code, as -- I guess that's kind of the

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 Miami, Florida 33128

 (305) 523-5698

argument you're making. I'm not seeing it in the briefing, but

I'm trying to follow the argument -- I think we're still left

with whether there's a common law cause of action for tips

retained an employer.

MR. POLLACK: Well, whether you put it under breach of

contract, whether you put it under theft -- 

THE COURT: Well, I think that's where you started

least in your briefing, is that you actually said expressly --

MR. POLLACK: They can be akin.

THE COURT: -- that it's akin to a breach of contract.

Which, to that extent, I'm wondering whether you're conceding

that Counts 3B and 3C must be dismissed because you didn't

allege the existence of a contract between the Plaintiff and

Jones or RJ.

Now, there may be. And perhaps that's the cause of

action, that there was a contract or an agreement, but it's not

pled with regard to two of the individuals.

MR. POLLACK: Okay.

THE COURT: So let me say that I believe that there

are viable causes of action. They just haven't been pled

properly. I think they can be. But I think that, to a large

extent, the Defendants' arguments have merit with regard to the

conflating the causes of action with regard to Count 1, the

failure to allege that these individuals were paid less than

the minimum wage.

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 Miami, Florida 33128

 (305) 523-5698

And with regard to Count 3, if there was an agreement,

then I believe that that agreement, whether it's a written

contract, whether it's a verbal agreement, whatever the

agreement may be, I think that there may be a cause of action

that perhaps they were paid on a tip credit basis, or less than

the minimum wage, and there was an agreement by the employer to

pay them, whatever it may be. But I think there is a viable

cause of action. It just needs to be pled properly.

MR. POLLACK: Okay.

THE COURT: Well, Mr. Velazquez, I've somewhat allowed

each of you to know where the Court stands. Is there anything

further that you would like to say?

MR. VELAZQUEZ: No, Your Honor. Thank you for the

opportunity to address the Court.

THE COURT: Yes. Of course.

Mr. Pollock, how much time do you need, sir?

MR. POLLACK: We'll take 20 days.

THE COURT: Okay. Is that sufficient for the

Defendants for a 20-day period?

MR. VELAZQUEZ: No problem, Your Honor.

MR. POLLACK: I'll get it done sooner.

THE COURT: Then let me state, for the record, Docket

Entry 63, the Defendants' motion to dismiss is granted.

Today obviously is the 29th. So 20 days -- I just

want to give you a date certain -- by April 18th. And let me

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 (305) 523-5698

state, Mr. Pollock, since the operative pleading is no longer

the Second Amended Complaint, necessarily, the Court's

determination with regard to a motion for a conditional

certification is premised not only on the pleading, but the

affidavit.

So to that extent, since the Second Amended Complaint

is no longer the operative pleading, Docket Entry 65 will be

dismissed -- or denied without prejudice.

MR. POLLACK: That's fine. 

And we'll probably go ahead and expand the definition

of the class because we've got almost 30 people who have opted

in.

THE COURT: Okay. Then it certainly is proper.

MR. POLLACK: My concern is the issue of tolling

because the statute continues to run for those who haven't been

notified and opted in. So we may be coming back to address

that issue.

THE COURT: Well, I don't know how much time is left,

but do you need 20 days to amend the complaint?

MR. POLLACK: That's why I said probably will do it

sooner. 

THE COURT: Okay.

MR. POLLACK: But my concern is, you know, what's

happened -- you know, we've had -- we're going to have

responses. You know, then we're going to have regurgitated a

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lot of the arguments. So -- 

THE COURT: Well, hopefully not.

MR. POLLACK: I would hope not. But you know, the

same arguments have been regurgitated now once, and I'm looking

at them probably being regurgitated now twice.

THE COURT: Well, I think Mr. Velazquez recognizes, by

way of the Court's statements, that I believe that there is a

minimum wage violation. I believe that there is a cause of

action under the FLSA and the FMWA. It just needs to be pled

properly.

Common law, dependent upon whether there is an

agreement, then perhaps an action may lie. So to that extent,

we may not have another round of briefings with regard to a

motion to dismiss. But then again, somewhat premature to know.

Okay. Is there anything further?

MR. VELAZQUEZ: Your Honor, if we may in advance

request from the Court, instead of the traditional 10 days to

respond, 20 days, just in case. Because I get the distinct

feeling that we may be seeing a lot of the same allegations

that we've already had numerous issues with, but maybe subtly

pled differently. And we want to have adequate time to analyze

those properly.

THE COURT: You want 20 days to respond to the Third

Amended Complaint?

MR. VELAZQUEZ: Yes, Your Honor.

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THE COURT: Any objection to that?

MR. POLLACK: I mean, I would just request a

commensurate tolling of the limitations period if this is going

to delay the Court's adjudication of the motion for conditional

cert. Because, you know, what our plan would be is to probably

file either simultaneously, or nearly simultaneously, the

Second Renewed Motion for Conditional Cert and the Third

Amended Complaint, so as to not delay. And then, when we've

done -- we've addressed extensions in the past, which I have

not opposed, I've discussed with counsel the tolling

limitations period to address the running.

THE COURT: Mr. Velazquez?

MR. VELAZQUEZ: Your Honor, Mr. Pollock has been very

gracious with respect to extensions of time. And we've

cooperated with him in that regard in terms of tolling issue.

But in this instance, Your Honor, we're here because of the way

that complaint was pled, and we're not prepared to -- at least

for the period of time that we're seeking, which is the 10

additional days, or the 10 days before that, is toll the

statute. It's the way the complaint was pled.

And to be clear, Your Honor, we filed a motion to

dismiss the Amended Complaint, which was essentially similar.

We agreed for him to go ahead and file a Second Amended

Complaint, and essentially came back with the same thing.

THE COURT: All right. Well, why don't we cross that

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bridge when we arrive at the park.

MR. VELAZQUEZ: Fair enough.

THE COURT: Okay?

MR. POLLACK: And we can do it within 10 days, Judge.

So ...

THE COURT: All right, then.

Good to see each of you. Have a pleasant afternoon.

MR. POLLACK: Thank you, Judge.

MR. VELAZQUEZ: Thank you, Your Honor.

(Proceedings concluded at 9:52 a.m.) 

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Yvette Hernandez, Official Court Reporter

 400 North Miami Avenue, 10-2

 Miami, Florida 33128

 (305) 523-5698

UNITED STATES OF AMERICA )

ss: 

SOUTHERN DISTRICT OF FLORIDA ) 

C E R T I F I C A T E 

I, Yvette Hernandez, Certified Shorthand Reporter in 

and for the United States District Court for the Southern 

District of Florida, do hereby certify that I was present at, 

and reported in machine shorthand, the proceedings had the 29th 

day of March, 2023, in the above-mentioned court; and that the 

foregoing transcript is a true, correct, and complete 

transcript of my stenographic notes. 

I further certify that this transcript contains pages 

1 - 33. 

IN WITNESS WHEREOF, I have hereunto set my hand at 

Miami, Florida, this 1st day of May, 2023. 

/s/Yvette Hernandez 

Yvette Hernandez, CSR, RPR, CLR, CRR, RMR 

400 North Miami Avenue, 10-2 

Miami, Florida 33128 

(305) 523-5698 

yvette_hernandez@flsd.uscourts.gov 

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