DeVito South Beach tip scandal

On a cool weeknight in February, DeVito restaurant on South Beach is humming. Beneath giant chandeliers of glowing glass, waitress Angela Suarez skips from the kitchen counter to a dozen different white-marble tables, carrying heaps of porcini gnocchi and pecorino cheese pasta.

Though the perky server is smiling brightly, inside she's boiling with rage. She recalls working about 60 hours the prior week, but the paycheck she picked up earlier showed only 38. So after midnight, when business has died down, she sneaks upstairs to a computer near the manager's office and logs in. Sure enough, the record confirms she's been stiffed, she claims. And part of her tips have been siphoned to a sommelier.

"They basically mistreat everybody around there," she says. "They're bad people."

Last month, Suarez, who is using a pseudonym because she fears retribution from a new employer, sued DeVito for cheating her out of tips and wages. In just the past year, 11 others who worked for the Ocean Drive hot spot have done the same. All have received confidential settlements.

Yet the restaurant claims innocence. "None of these few ex-employees reported any discrepancy to our offices at any time prior to making a legal claim," says David Manero, who owns the eatery with famed actor and director Danny DeVito. "We stand by our hourly timekeeping system, which is industry standard."

DeVito is one of at least five high-end Miami-Dade restaurants — including Da Vittorio in Coral Gables as well as Sushi Samba and Quattro on Lincoln Road — that have been sued in the past two years for stealing employees' hard-earned cash. Three of the cases, including those involving Sushi Samba and Da Vittorio, were recently settled. Others are still in process, but the restaurants have denied the claims.

Of course, the Magic City's eateries are not alone. In 2008, Starbucks lost a $105 million lawsuit after baristas in California complained their tips were being improperly shared with managers. And this past July, two employees sued celebrity chef Mario Batali's Manhattan restaurant, Babbo, for paying subminimum wage and skimming tips. Also in New York, famous restaurateur David Bouley's Japonais restaurant was hit with similar charges last September.

"Wage violations are a regular and recurring type of complaint that we get," says Will Garnitz, district director for the U.S. Department of Labor's Wage and Hour Division. He says his South Florida office caught scores of restaurants and bars in the Miami area shortchanging employees of more than $750,000 in unpaid wages last year.

"Miami is one of the most challenging places for enforcing federal wage law," he says. "Because this is an immigrant community, a lot of employers are confused about the law or have a different attitude about it." Regardless, Garnitz says, many Miami employers pay their staff completely in tips, keep part of those tips, or simply don't pay employees for their hours — all of which are against the law.

The case of a 50-year-old ex-bartender and divorced father of three at Tarpon Bend Food & Tackle, a nautically themed eatery in Coral Gables, exemplifies the kind of claim that often reaches the feds. The bartender says restaurant managers routinely doctored his hours in order to hide overtime pay. And after nearly four years of employment, he was fired this past March and replaced by two young, attractive women.

"For the last five months of my employment, I was harassed [by a manager]," he wrote in an age discrimination complaint to the U.S. Equal Employment Opportunity Commission. "On a daily basis, I heard comments such as, 'You are old enough to be my father' [and] 'We can't have you at the bar without another woman.'"

The bartender, who asked for anonymity, also filed a complaint in April with the U.S. Department of Labor for an estimated $7,000 of unpaid wages. The restaurant recently sent him a check for $137.12. According to a receipt, it was to cover 1,212 hours worked at 4 cents per hour plus $99.99 more for an unspecified reason. The bartender considers it a ploy to get him to waive his right to litigation.

Wayne Eldred, general manager at Tarpon Bend, denies firing the bartender and calls his claims "frivolous." But this past April, state authorities determined the bartender had been "discharged because the employer did not find the claimant to be suited to the work." He is now receiving unemployment benefits.

The local lightning rod for this type of case is Coral Gables attorney Lawrence McGuinness. He is representing Suarez, who says she was fired shortly after complaining about the wage problems. And he won settlements for the 11 others from DeVito. In the past 24 months, he has also sued the following restaurants:

• Vita Restaurant on Collins Avenue in Miami Beach: In a lawsuit filed this past May, nine former employees allege Vita "deducted walk-outs, credit card charges, breakage, food/drink errors from the Plaintiffs," and "illegally paid non-tipped employees from tips." Vita's lawyers declined to comment. The suit is still ongoing.

• Quattro Gastronomia Italiana on Lincoln Road in Miami Beach: In August 2008, four former servers sued Quattro for unpaid hours and tip skimming. The case is still ongoing. Ernesto Gonzalez, CFO for KNR Restaurants, declined to comment.

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