Miami Commissioners Advance New Alcohol Rules

Businesses that intend to serve alcohol past 3 a.m. in most parts of Miami will need to make their case to the city commission.

Owners of bars, nightclubs and other businesses that want to serve liquor after 3 a.m. in most parts of Miami will have to get permission from the Miami City Commission.

With little discussion, four of the five commissioners Thursday tentatively approved a proposed ordinance -- part of a package of zoning revisions as the city commission moves a step closer to enacting Miami 21, the city's new zoning code, in May.

Commissioner Frank Carollo was absent and did not vote on the measure. It will come up for a final vote April 22.

Under the current rules, Miami's zoning board handles all requests from businesses wishing to open an establishment serving liquor in the city.

The new ordinance would work exactly the same way -- unless bars, restaurants, hotels, bottle clubs and private clubs want to serve alcohol after 3 a.m.

But businesses in some parts of Miami -- such as downtown, the Southwest Overtown/Park West and the Omni CRA areas, will not have to get commission approval.

As for Coconut Grove, where the closing time of bars, restaurants, hotels and nightclubs has been a hot topic, the proposed ordinance would not change the 3 a.m. last call for businesses within the central Grove business district.

In June 2008, Commissioner Marc Sarnoff, who represents the Grove, led a successful effort to roll back last call from 5 a.m. to 3 a.m.

The move has split the community.

Patrick Sessions, a chairman of the Coconut Grove Village Council, asked the commission to defer any vote on the measure until the council could get input from residents.

In his opinion, the new measure is a bad idea.

``This ordinance politicizes the approval process for 5 a.m. clubs, which is something we don't need,'' Sessions said.

John El-Masry, the owner of Mr. Moe's Restaurant & Bar, said the 3 a.m. cutoff in the center Grove has been ``devastating.''

``I had 120 employees, now I'm down to 56 employees and my business has gone down 40 percent,'' El-Masry said.

``I'm pleading with you guys for parity. If you make it 3 a.m., make it 3 a.m. for everybody,'' he said.

At least one Grove resident, Nathan Kurland, defended the rollback.

``Our crime is down, our vandalism is down, our noise is down,'' Kurland said.

``Thank you for treating us differently in the Grove.''

After the vote, Commissioner Richard Dunn asked City Attorney Julie Bru how he could implement a 3 a.m. last call in his district, which includes neighborhoods such as Little Haiti, Overtown and Liberty City.

``I know this initiative is not popular,'' Dunn said.

``I don't care. I'm greatly disturbed by the crime in my district.''

BY TANIA VALDEMORO
tvaldemoro@MiamiHerald.com

Miami-Dade Has New Wage Theft Ordinance

Miami-Dade has become the first county in the nation to adopt a countywide wage theft law, and hopefully it will not be the last. The Ordinance, which became effective on March 1, 2010, applies to private sector employees and employers, prohibits wage theft, and provides administrative procedures and private causes of action. An employer found to be in violation of the wage theft Ordinance will be required to pay the actual administrative processing and hearing costs as well as restitution to the employee, which would include back wages owed as well as liquidated damages of double that amount and possibly treble damages.

What this means for employers in Miami-Dade County is that a simple oversight or misunderstanding regarding which employees can be classified as exempt or as independent contractors under the Fair Labor Standards Act ("FLSA"), may now lead to a finding that the employer has committed "wage theft."

According to a report from the Office of Commission Auditor, which accompanied the Ordinance, for the past five years the Southern District of Florida (the federal trial court with jurisdiction over Miami-Dade County) has had a disproportionately high number of FLSA cases filed. Nevertheless, the summary that accompanied the Ordinance reflects the Commission's belief that the requirement for employees to opt-in to a FLSA class action lawsuit hampers their ability to seek remedial action in courts. Thus, the summary states that the Ordinance "is intended to be a tool to root out violations of U.S. labor laws occurring in Miami-Dade County."

According to the Ordinance, a "wage theft violation" occurs when an employer fails to pay any portion of the wages due to an employee, according to the wage rate applicable to the employee, within a reasonable time from the date on which that employee performed the work for which the wages are compensation. The Ordinance defines reasonable time as no later than 14 calendar days from the date the work was performed; however, this time may be modified to no longer than 30 days by an express agreement between the employer and employee that has been reduced to writing and signed by the employee.

The Ordinance defines wage rate as "any form of monetary compensation which the employee agreed to accept in exchange for performing work for the employer, whether daily, hourly, or by piece." Thus, this provision could be interpreted more broadly than the employee's "regular rate" under the FLSA. Once an employee brings a timely claim that wage theft has occurred, the accused employer will have to defend itself before a county-appointed hearing examiner.

The Ordinance does not set out requirements or qualifications a person must possess to be appointed a hearing examiner; thus, it is possible the hearing examiner may not be a judge or attorney or have a background in labor and employment law. The mechanics of the hearing, as set out in the Ordinance, will be like a trial, including discovery in accordance with the Florida Rules of Civil Procedure. Employers will have to be very careful with this process because an employee can choose at any time to stop the proceedings under the Ordinance and file a civil action in State or Federal Court (for violation of state or federal wage/hour laws, which would likely be the basis for the wage theft allegation).

Also, should a hearing examiner find the employer in violation of the wage theft Ordinance, the hearing examiner can award damages of up to three times the amount of the unpaid wages.

Employers' Bottom Line: Employers in Miami-Dade County need to be more vigilant than ever to ensure that employees are properly classified and promptly paid for all work performed. A stringent review of employees currently classified as exempt or as independent contractors, conducted at the direction and supervision of experienced employment law counsel, is recommended to ensure complete compliance with the FLSA.

Employers should also set out in writing when wages will be paid and have the employees sign this written timeline of payments. (Note that the Ordinance only permits the employer to extend the time for payment of wages to up to 30 days from the date the work is performed and then only with the written agreement of the employee.) Additionally, employers will need to review their time keeping polices and make sure that accurate time records are being kept and that all time worked by employees is being recorded. While most employers only keep time records for nonexempt employees, it may be prudent to require exempt employees to do so as well. If a hearing officer determines that an employee is improperly classified as exempt, the employer will have the burden of proving actual time worked. Without accurate records, the employee can estimate the time and the hearing officer will base the wage calculation on that estimated time.

Do I Have The Right To Know Where My Tips Go?

Do I Have The Right To Know Where My Tips Go?

Many hospitality workers rely on tips as their main source of income and restaurants make up the bulk of the employers who hire them. The Fair Labor Standards Act (“FLSA”) allows an employer to pay its employees a reduced hourly wage if they make enough in tips to bring them to the level of minimum wage. The maximum amount of “tip credit” an employer is allowed to take is $3.02/hr.

Many restaurants have policies that servers must share their tips with other employees such as bussers and bartenders. Policies which require mandatory sharing of tips is proper if the person who gets a taste of the server’s tips normally receives at least $30 in tips monthly and whose job description entails contact with the customer.

Becoming more and more popular is the practice of pooling tips for the entire restaurant and then distributing them based on a points system. The idea behind a “pooled restaurant” is that the service will be better since everyone on the floor is participating in the tip the customer leaves. A majority of “pooled restaurants” require that all of the tips (including cash) be deposited with the house so they can be tallied and then distributed, usually at a later date. Some states require that the entire staff must agree to be pooled. Others states such as Florida have no laws whatsoever and employers are free to make the decision without any employee input. But if the house is in charge of the tips, some in cash, how does everyone know there is no funny business going on?

The number one question I get from prospective clients is “Do I have the right to know where my tips go?” My answer is, Yes. However, just because you have that right doesn’t always mean you can exercise it easily. I am not aware of any method, other than a lawsuit, that a tipped employee can use to exercise their right to know.

Sure you could always ask for an accounting from the manager or owner, but without the monthly income reports there would not be any way to verify the amounts were even close to being accurate. It should be easy to verify the credit card tips, but what manager is going to hand over all of the restaurant credit card receipts for you to add them up? And what about the cash tips? I know of several pooled restaurants that only accept cash. Why they do this I am not exactly sure, but I have pretty good idea why (IRS?) and you expect the employees to trust them not to steal from them?

The only idea that I can come up with to solve this problem is an amendment to the laws which regulate the industry and/or the FLSA. If a business such as a restaurant wants to be pooled then make them register with a local or state government agency and pay a yearly fee. The agency can then require the business to inform its employees of the policy in writing and act as an overseer should there be an issue with the distribution of tips.

I plan to put together a group of like minded persons and begin a non-profit lobbying group. The group’s main purpose will be to author and then propose legislation to our local, state, and federal government representatives to secure the rights of hospitality workers throughout the United States. The first area of concern will be the transparency of tip collection and the allocation of those tips in pooled restaurants.

I have spent many hours over the last few weeks trying to come up with a name for the “cause.” Please feel free to suggest a name. You can email me your suggestions to me at lowell at kuvinlaw.com  If your name suggestion is used, you will receive a permanent acknowledgment on the website.