Third District Court of Appeal

State of Florida 

Opinion filed January 11, 2023.

Not final until disposition of timely filed motion for rehearing.

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No. 3D21-1724

Lower Tribunal No. 18-537

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Yazan Saleh,

Appellant/Cross-Appellee,

vs.

Miami Gardens Square One, Inc., etc., et al.,

Appellees/Cross-Appellants.

An Appeal from the Circuit Court for Miami-Dade County, Peter R. 

Lopez, Judge.

Bret Lusskin, P.A., and Bret L. Lusskin; Scott D. Owens, P.A., and 

Scott D. Owens (Hollywood); Bruce S. Rogow, P.A., and Bruce S. Rogow

(Cedar Mountain, NC); The Law Office of Jibrael S. Hindi, PLLC., and Jibrael 

S. Hindi (Fort Lauderdale); Bruce S. Rogow, P.A., and Tara A. Campion

(Boca Raton), for appellant/cross-appellee.

Akerman LLP, and Christopher S. Carver (Fort Lauderdale); Akerman 

LLP, and Kristen M. Fiore (Tallahassee), for appellees/cross-appellants.

Before EMAS, LINDSEY and GORDO, JJ. 

GORDO, J.
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Yazan Saleh appeals a trial court order granting final judgment in favor 

of Miami Gardens Square One, Inc. d/b/a Tootsie’s Cabaret (“Miami 

Gardens”) and RCI Hospitality Holdings, Inc.’s (“RCI”).1 We have 

jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). Finding no error in the trial court’s 

dismissal of Saleh’s federal statutory claim, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In late December 2016, Saleh visited Tootsie’s Cabaret, an adult 

entertainment nightclub located in Miami Gardens. Prior to leaving, Saleh 

gave his server two different personal credit cards to pay for the services 

provided. Saleh’s server returned his credit cards to him along with two 

printed receipts, each displaying the first six and last four digits of his credit 

card account numbers. Saleh kept both receipts. 

A month later, Saleh filed a lawsuit against Miami Gardens and RCI2

in federal court based on those receipts, arguing Miami Gardens and RCI

willfully violated the Fair and Accurate Credit Transactions Act, 15 U.S.C § 

1681c(g)(1) (“federal FACTA”). A year later, Saleh filed an identical federal 

1 Miami Gardens and RCI filed a cross-appeal of the same order but 

acknowledge this Court need only reach the issues of this cross-appeal in 

the event the Court finds Saleh has standing to bring his federal FACTA 

claim. As we find Saleh lacks standing to maintain his claim, this crossappeal is considered moot. 2 Miami Gardens is a subsidiary of RCI. 
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FACTA based claim in state court. In 2020, the Eleventh Circuit resolved 

the issue of standing in Muransky v. Godiva Chocolatier, Inc., 979 F. 3d 917, 

920 (11th Cir. 2020), finding “a party does not have standing to sue when it 

pleads only the bare violation of a statute.”

In March 2021, Miami Gardens and RCI moved to dismiss the instant 

state action arguing Saleh lacked standing because he failed to assert an 

injury in fact. Saleh filed an amended complaint reasserting standing and 

alleging Miami Gardens and RCI willfully violated federal FACTA because 

they were aware of federal FACTA’s requirements.

3 Miami Gardens and 

RCI again moved to dismiss the claim asserting lack of standing, which

Saleh opposed. In August 2021, the trial court held a hearing on the motion 

3 While the trial court did not rule on the willfulness issue, we note the United 

States Supreme Court has found that under the federal FACTA scheme 

“willfulness” encompasses both knowing conduct and reckless conduct. See

Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57 (2007). To show willfulness, 

a plaintiff must allege a defendant had knowledge of federal FACTA and was 

knowingly violating it. See Crupar-Weinmann v. Paris Baguette Am., Inc., 

2014 WL 2990110, at *4 (S.D.N.Y. June 30, 2014) (finding bare allegations 

“that [the] defendant knew about FACTA’s requirements, [did] not support a 

plausible inference that [the] defendant knew that it was violating FACTA”); 

Seo v. CC CJV Am. Holdings, Inc., 2011 WL 4946507, at *2 (C.D. Cal. Oct. 

18, 2011) (“The fact that information about FACTA was available to CJV 

does nothing to support Defendant’s naked assertion that CJV was notified 

of FACTA’s provisions and knowingly ignored them.”); Torongo v. Roy, 176 

F. Supp. 3d 1320, 1323–24 (S.D. Fla. 2016) (noting “there [we]re no factual 

allegations supporting Plaintiff’s conclusory allegation[s]” of willfulness and 

“[i]f a [FACTA] violation is merely negligent, a plaintiff may recover only 

actual identity theft damages.”).
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to dismiss and ultimately granted the motion aligning itself with the federal 

court’s interpretation in Muransky finding Saleh lacked standing because he 

asserted no legal injury. The trial court thus entered an order granting the 

motion to dismiss and entered judgment in favor of Miami Gardens and RCI. 

This appeal followed.

LEGAL ANALYSIS

We affirm in all respects based on the standing analysis in Southam v. 

Red Wing Shoe Co., Inc., 343 So. 3d 106, 113 (Fla. 4th DCA 2022), review 

denied, SC22-1052, 2022 WL 16848677 (Fla. Nov. 10, 2022) (finding the 

appellant lacked standing to pursue his federal FACTA claim as he did not 

demonstrate an injury in fact “since appellant kept the credit card receipt and 

there is no danger that the credit card number could result in any concrete 

injury to appellant”); see also Spokeo, Inc. v. Robins, 578 U.S. 330, 341 

(2016) (holding that “a bare procedural violation, divorced from any concrete 

harm” does not confer standing); Muransky v. Godiva Chocolatier, Inc., 979 

F. 3d 917, 936 (11th Cir. 2020) (“Although the receipt violated the law 

because it contained too many digits, [Appellant] has alleged no concrete 

harm or material risk of harm stemming from the violation. Because this 

amounts to nothing more than a ‘bare procedural violation, divorced from 
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any concrete harm,’ [Appellant] has failed to allege that he has standing to 

bring this lawsuit.” (quoting Spokeo, 578 U.S. at 341)). 

On appeal, Saleh’s counsel concedes his client did not and cannot 

establish he suffered an actual harm based on the receipts from Tootsie’s

because he retains possession of them. Instead, Saleh asks us to broaden 

Florida’s standing requirements and exercise jurisdiction over the federal 

statutory claim because Muransky only applies to Article III standing under 

the United States Constitution. We find no basis to do so where Florida law 

also imports an injury in fact requirement under our standing framework. See

State v. J.P., 907 So. 2d 1101, 1113 n.4 (Fla. 2004) (stating there are “three 

requirements that constitute the ‘irreducible constitutional minimum’ for 

standing. First, a plaintiff must demonstrate an ‘injury in fact,’ which is 

‘concrete,’ ‘distinct and palpable,’ and ‘actual or imminent.’ Second, a 

plaintiff must establish ‘a causal connection between the injury and the 

conduct complained of.’ Third, a plaintiff must show ‘a “substantial 

likelihood” that the requested relief will remedy the alleged injury in fact.’”)

(internal citations omitted). 

Separately, where Saleh has sued under the federal statute, he is 

required to allege a legally sufficient claim pursuant to the federal FACTA 

statute itself. In 2008, Congress issued the Clarification Act which amended 
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the federal FACTA statutory scheme to include actual harm. See Credit and 

Debit Card Receipt Clarification Act of 2007, Pub. L. No. 110-241 § 2(b), 122 

Stat. 1565, 1565 (2008) (“The purpose of this Act is to ensure that 

consumers suffering from any actual harm to their credit or identity are 

protected while simultaneously limiting abusive lawsuits that do not protect 

consumers but only result in increased cost to business and potentially 

increased prices to consumers.”) (emphasis added). As recognized by the

Eleventh Circuit in Muransky, the Clarification Act demonstrated Congress’s 

“view that some technical FACTA violations caused consumers no harm.” 

Muransky, 979 F. 3d at 921. Thus, mere violation of the statute absent harm 

cannot create a viable claim because, “there is good reason to doubt that 

Congress has deemed every violation of FACTA to pose a material risk of 

identity theft. . . . [as] Congress expressly recognized in the Clarification Act 

that not all violations of the truncation requirement pose a serious threat to 

consumers.” Id. at 932–33 (citing Pub. L. No. 110-241 § 2(b), 122 Stat. at 

1566). Accordingly, because Congress clarified the purpose of the federal 

FACTA statutory scheme is to protect consumers from actual harm, a plaintiff 

must allege an actual harm to pursue a claim under the statute. As Saleh 

acknowledges he suffered no actual harm, we also find the trial court 
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properly dismissed Saleh’s complaint as legally insufficient for failure to 

plead an actual injury under the federal FACTA statutory scheme. 

Affirmed.