Wandering Dago Inc. v. N.Y. State Office of Gen. Servs.

• Decision Date: 15 January 2014
• Docket Number: No. 1:13–cv–1053 (MAD/RFT).,1:13–cv–1053 (MAD/RFT).
• Citation: 992 F.Supp.2d 102
• Parties: WANDERING DAGO INC., Plaintiff, v. NEW YORK STATE OFFICE OF GENERAL SERVICES; Roann M. Destito; Joseph J. Rabito; William F. Bruso, Jr.; Aaron Walters; New York Racing Association, Inc.; Christopher K. Kay; Stephen Travers; John Does 1–5; and the State of New York, Defendants.
• Court: U.S. District Court — Northern District of New York

992 F.Supp.2d 102

WANDERING DAGO INC., Plaintiff,

v.NEW YORK STATE OFFICE OF GENERAL SERVICES; Roann M. Destito; Joseph J. Rabito; William F. Bruso, Jr.; Aaron Walters; New York Racing Association, Inc.; Christopher K. Kay; Stephen Travers; John Does 1–5; and the State of New York, Defendants.

No. 1:13–cv–1053 (MAD/RFT).

United States District Court,

N.D. New York.

Jan. 15, 2014.

Boies, Schiller & Flexner, LLP, George F. Carpinello, Esq., of Counsel, Albany, NY, for Plaintiff.

Office of the New York State Attorney General, Laura A. Sprague, AAG, of Counsel, Albany, NY, for Defendants New York State Office of General Services, RoAnn M. Destito, Joseph J. Rabito, William F. Bruso, Jr., Aaron Walters, and the State of New York.

Greenberg Traurig LLP, Henry M. Greenberg, Esq., Cynthia E. Neidl, Esq., Stephen M. Buhr, Esq., of Counsel, Albany, NY, for Defendants New York Racing Association, Inc., Christopher K. Kay, and Stephen Travers.

MEMORANDUM–DECISION AND ORDER

MAE A. D'AGOSTINO, District Judge:

I. INTRODUCTION

What's in a name? To Andrea Loguidice and Brandon Snooks, the owners of Wandering Dago Inc. who wish to operate their food truck at the Empire State Plaza and the Saratoga Race Course, everything is in the name. On August 27, 2013, Plaintiff commenced this civil rights action seeking injunctive and declaratory relief and damages arising from the denial by Defendants New York State Office of General Services (“OGS”), RoAnn M. Destito, Joseph J. Rabito, William F. Bruso, Jr., and Aaron Walters of Plaintiff's application to participate as a food vendor in the 2013 Empire State Plaza Summer Outdoor Lunch Program, and the subsequent termination of Plaintiff's status as a vendor at the Saratoga Race Course by Defendants New York State Racing Association (“NYRA”), Christopher K. Kay, and Stephen Travers. See Dkt. No. 1. Plaintiff alleges that Defendants took these actions under pressure from, or at the direction of, various New York State officials. See id.

The issue in this case asks the Court to determine whether Defendants NYRA and OGS have the right to deny a food truck bearing the name “Wandering Dago” the ability to park its food truck with a logo depicting a pig and the words “Wandering Dago” on its property for the purpose of selling food because of the name's perceived offensive nature.

IMAGE

It takes neither complicated legal argument, nor complex legal research to determine that the word “dago” is highly offensive to many. It simply takes common sense. For certain, the term “dago” is not a playful or accepted word for most Italians. To the contrary, it is hurtful and indeed painful to many. It conjures memories of a time not long ago when Italian Americans were the subject of widespread discrimination.

The issue in this case involves the parking of a truck on property owned and operated by the State of New York. There is no question in the Court's mind that, had this case involved the parking of the truck on purely public property, such as a street, a sidewalk, or a public park, the analysis would be rather simple because the right to free speech in such areas is so fundamental to the very foundation of this nation that the government's right to silence it is subject to the most rigorous of standards. In such traditional public fora, we must accept language that offends our sensibilities, chills our common core, and shocks our conscience. With rare exception, the right to free speech in such traditional public fora, whether commercial or private, is considered a birth right in the United States—a birth right that has been forged by our Constitution and by the lives and deaths of all men and women who have fought to protect this freedom.

As will be discussed, although restrictions on speech in traditional public fora are subjected to the most rigorous standards, such restrictions in the other types of fora identified by the Supreme Court are generally subjected to a less exacting form of review. As such, identifying the relevant fora at issue and each fora's classification are central to the disposition of this case. Thereafter, the Court must determine whether the rules and policies enforced by the various Defendants against Plaintiff can withstand the applicable level of scrutiny.

II. BACKGROUND

Plaintiff Wandering Dago Inc. (“Plaintiff” or “Wandering Dago”) is a New York Corporation. See Dkt. No. 1 at ¶ 5. Wandering Dago is operated by Andrea Loguidice and Brandon Snooks, with Ms. Loguidice serving as the corporation's president. See id. Through Wandering Dago Inc., Ms. Loguidice and Mr. Snooks operate a food truck using the “Wandering Dago” brand from which they serve a variety of foods cooked and prepared on-site in the truck's mobile kitchen. See id. Ms. Loguidice and Mr. Snooks work as the business's co-chefs, with Mr. Snooks also serving as the driver. See id. Ms. Loguidice and Mr. Snooks have invested a significant amount of money in the truck and equipment, and Wandering Dago is currently their only source of income. See id.

Defendant New York State Office of General Services (“OGS”) is an administrative agency of the State of New York. See id. at ¶ 6. Defendant OGS is responsible for managing the Empire State Plaza Summer Outdoor Lunch Program. See id. Defendant RoAnn M. Desito is the Commissioner of OGS. See id. at ¶ 7. Defendant Joseph J. Rabito is the Deputy Commissioner of OGS. See id. at ¶ 8. Defendant William F. Bruso, Jr. is an Associate Attorney working for OGS and Defendant Aaron Walters is employed as a Special Events Coordinator for OGS. See id. at ¶¶ 9–10.¹

Defendant New York Racing Association, Inc. (“NYRA”) is a New York State non-profit corporation, which holds the exclusiveright to operate the Saratoga Race Course. See id. at ¶ 11. Defendant Christopher K. Kay is NYRA's Chief Executive Officer and President and Defendant Stephen Travers it is Vice President of Hospitality, Guest Services & Group Sales. See id. at ¶¶ 12–13. ²

A. Empire State Plaza Outdoor Summer Lunch Program

In early 2013, Plaintiff became interested in participating in the 2013 Empire State Plaza Summer Outdoor Lunch Program. See Dkt. No. 1 at ¶ 20. This program is run by Defendant OGS and allows food vendors to operate at the Empire State Plaza during specified hours on weekdays from late May until early October. See id. Starting in February 2013, Plaintiff was in periodic contact by phone and email with multiple individuals at OGS, including Defendant Walters, Madeline Rizzo, and Jason Rumpf. See id. at ¶ 21. Plaintiff inquired on multiple occasions about participating as a summer vendor at the Empire State Plaza and requested an application for the program at least as early as April 11, 2013. See id.

On May 3, 2013, Defendant Walters sent Plaintiff the application for the Empire State Plaza Summer Outdoor Lunch Program. See id. at ¶ 22. The application deadline was May 10, 2013. See id.; see alsoDkt. No. 1–1. The application states that, “[u]nless prior arrangements have been made with OGS, all vendors are expected to complete the entire season.” See Dkt. No. 1–1 at 2. On or about May 6, 2013, Plaintiff spoke with Defendant Walters by phone to inquire whether Plaintiff's seven-week commitment at the Saratoga Race Course would prevent it from participating in the program. See Dkt. No. 1 at ¶ 23. Defendant Walters told Plaintiff that he would speak with his supervisors to determine whether Plaintiff could participate. See id. On or about May 8, 2013, Plaintiff spoke with Jason Rumpf to follow up and was informed that Defendant Walters was working on getting an answer. See id. at ¶ 24. Mr. Rumpf told Plaintiff that Defendant OGS would be flexible on the deadline for the application because of the delay from their management. See id.

On May 10, 2013, at approximately 3:00 p.m., Plaintiff received a voicemail from Defendant Walters indicating that Defendant OGS would approve Plaintiff's application despite the expected seven-week absence. See id. at ¶ 25. On or about May 13, 2013, Defendant Walters contacted Plaintiff by phone and advised that Plaintiff would have until Friday, May 17, 2013, to submit its application and apologized for the delay caused by OGS. See id. at ¶ 26. On May 17, 2013, at approximately 12:16 p.m., Plaintiff faxed its application to Defendant OGS. See id. at ¶ 27. Plaintiff selected the option to participate in the program on Wednesdays and Fridays only and provided credit card authorization for the $1,000 fee required to participate in the program. See id.

On May 20, 2013, Plaintiff sent Defendant Walters an email inquiring whether its application had been officially approved. See id. at ¶ 28. Shortly thereafter, Plaintiff received an email reply from Defendant Walters denying the application, stating that Defendant OGS “will be unable to accommodate your application for space in this year's program.” See id.; see also Dkt. No. 1–2. Upon receipt, Plaintiff immediately called Defendant Walters to ask for an explanation of the denial. See Dkt. No. 1 at ¶ 30. Defendant Walters informed Plaintiff that its application was the only food vendor application for the 2013 Empire State Plaza Summer Lunch Program that was denied by Defendant OGS. See id. Defendant Walters also indicated that he could not tell Plaintiff the reason for the denial and directed it to contact OGS's legal department. See id.

Thereafter, Plaintiff immediately contacted Defendant OGS's legal department and spoke to Defendant Bruso. See id. at ¶ 31. Defendant Bruso gave three reasons for the application's denial: (1) the application was late; (2) the application was incomplete; and (3) the name Wandering Dago had been deemed offensive. See id. at ¶ 32. Plaintiff claims that the first two stated reasons were pretextual. See id. at ¶ 33. Plaintiff asked Defendant Bruso to provide a formal letter stating the reasons for the application's denial. See id. at ¶ 34. Defendant Bruso refused without a formal...