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Wandering Dago, Inc. v. New York State office of Gen. Servs.

United States District Court, N.D. New York

January 15, 2014

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

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For Plaintiff: GEORGE F. CARPINELLO, ESQ., OF COUNSEL, BOIES, SCHILLER & FLEXNER, LLP, Albany, New York.

For 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, Defendants: LAURA A. SPRAGUE, AAG, OF COUNSEL, OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL, Albany, New York.

For New York Racing Association, Inc., Christopher K. Kay, and Stephen Travers, Defendants: HENRY M. GREENBERG, ESQ., CYNTHIA E. NEIDL, ESQ., STEPHEN M. BUHR, ESQ., OF COUNSEL, GREENBERG TRAURIG LLP, Albany, New York.

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MEMORANDUM-DECISION AND ORDER

Mae A. D'Agostino, U.S. 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 tat 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.

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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 exclusive

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right 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 also Dkt. 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

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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 request pursuant to New York's Freedom of Information Law (" FOIL" ). See id .

On May 29, 2013, Plaintiff sent a letter to Defendant Bruso requesting a written explanation for the application's denial, including a citation to the public rule that gives Defendant OGS the authority to deny the application on the basis of Plaintiff's name. See id . at ¶ 36. On June 25, 2013, Plaintiff submitted a FOIL request asking for all documents related to Plaintiff's Empire State Plaza Food Vendor application. See id . at ¶ 37. The following day, Plaintiff received a confirmation from Heather R. Groll, the Director of OGS's Public Information Office, that the FOIL request had been received and that a determination on the request would be made within twenty (20) business days. See id .

On July 1, 2013, Plaintiff received a letter from Defendant Bruso stating, " 'I conveyed to you by telephone on May 20, 2013, OGS' several reasons for its denial of your firm's application.'" See id . at ¶ 38. The letter stated that the denial was made pursuant to the terms of the Food Vendor Application packet, as well as Parts 300 and 301 of Title 9 of the New York Codes, Rules and Regulations. See id .; see also Dkt. No. 1-3. At the time the complaint was filed in the present matter, Plaintiff claims that it had not received any further response to its FOIL request. See id . at ¶ 39.

Plaintiff claims that the Empire State Plaza is the single most desirable and profitable lunchtime location for mobile food vendors in the Capital District because of the high foot traffic and large number of people working in close proximity. See id . at ¶ 41. Since being denied access to the 2013 Empire State Plaza Summer Outdoor Lunch Program, Wandering Dago has operated during lunchtime at various locations in the Capital District, but none have the volume of foot traffic and potential customers present at the Empire State Plaza. See id . at ¶ 42. Plaintiff claims that these locations have less visibility to the public, which leads to fewer private catering jobs and other business opportunities. See id .

B. Saratoga Race Course

On January 28, 2013, Plaintiff began talks with Drew Revella of Centerplate, a hospitality company that manages food vendors at the Saratoga Race Course. See Dkt. No. 1 at ¶ 43. Plaintiff alleges that, upon information and belief, Centerplate's standard commission for vendors at the Saratoga Race Course is thirty-five percent of gross sales. See id . at ¶ 44. After extensive negotiations, Plaintiff eventually reached an agreement with Centerplate to participate as a vendor at the Saratoga Race Course during the seven-week 2013 season. See id . at ¶ 45. Plaintiff agreed to pay Centerplate twenty-five percent of its gross food and beverage sales and to donate an additional five percent to the

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Thoroughbred Retirement Foundation, a non-profit charity. See id .

Plaintiff was listed in promotional material produced by Defendant NYRA and Centerplate as a vendor for the 2013 season. See id . at ¶ 46. On or about July 18, 2013, Centerplate issued a press release listing Plaintiff as " 'one of the country's top barbecue fusion trucks.'" See id . Defendant NYRA listed Plaintiff as one of its vendors both on its website and in its Saratoga Insider Fan Guide. See id . Plaintiff claims that it was offered and turned down numerous business opportunities, including both private catering events and public festivals, because they conflicted with Plaintiff's commitment at the Saratoga Race Course. See id . at ¶ 47.

In preparation for the volume of business anticipated during its seven-week engagement at the Saratoga Race Course, Plaintiff purchased a substantial amount of new cooking equipment, including a six-foot barbeque smoker, a stainless steel prep table, and a deep fryer. See id . at ¶ 48. Plaintiff also hired five employees to work during the track season and obtained the necessary workers compensation insurance. See id .

On July 16, 2013, three days before opening day, Plaintiff brought its truck, smoker, and supplies to the Saratoga Race Course to begin setting up. See id . at ¶ 49. Plaintiff spent three days delivering and setting up its equipment in preparation for opening day. See id . Plaintiff arranged for a third party to deliver and install a 100-gallon propane tank for Wandering Dago's smoker, but for unknown reasons, the third party was not permitted to install the tank. See id . at ¶ 50. Plaintiff immediately contacted Drew Revella, and he arranged for a different party to deliver propane for the smoker. See id . The propane was not installed until the evening of July 18, 2013. See id .

As a result of the unexpected problem with the propane delivery, Plaintiff was unable to smoke its meat for the necessary fourteen hours and, therefore, was not open for business on opening day. See id . at ¶ 51. After resolving the propane problem, Plaintiff began smoking meat and was fully prepared to begin serving food on the morning of July 20, 2013. See id . Plaintiff claims that Drew Revella apologized for the delay and represented in a text message that he would " 'get [Plaintiff] another opportunity for the missed day.'" See id . at ¶ 52.

At or about 10:00 p.m. on the evening of July 19, 2013, Mr. Snooks and Ms. Loguidice received a call from Defendant Travers instructing them to remove Wandering Dago's truck and equipment from the Saratoga Race Course immediately. See id . at ¶ 53. Defendant Travers alleged that this decision had been made because a state official complained about Plaintiff's name. See id . at ¶ 54. Plaintiff pleaded with Defendant Travers to be allowed to stay, offering to cover up its business name everywhere it appeared on its truck and equipment. See id . at ¶ 55. Defendant Travers refused this offer and stated that his " 'hand are tied,'" because Defendant NYRA had been contacted by a high ranking state official. See id . at ¶ 56. Defendant Travers told Plaintiff that the truck would be towed if it was not removed before 10:00 a.m. the following morning. See id . Plaintiff alleges that, " [u]pon information and belief, Travers was acting under the direction of Defendant Christopher K. Kay, other unknown NYRA officials, and officials of the State of New York." See id . at ¶ 57.

In order to quickly remove the equipment that had been set up over a three-day period, Plaintiff was forced to rent a moving trailer, thereby incurring additional expense. See id . at ¶ 58. On the morning

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of July 20, 2013, as Plaintiff was preparing to leave the Saratoga Race Course, Plaintiff was met by Defendant Travers and Drew Revella. See id . at ¶ 59. Mr. Revella presented Plaintiff with a letter stating the purported reason for termination: " [W]e have reached out to you with concern for your business name 'Wandering Dago'. We have received numerous complaints about the Dago part being offensive and think it is in our fans [sic] best interest to remove your truck from the track." See id .; see also Dkt. No. 1-4.

Plaintiff claims that, after being expelled from the Saratoga Race Course, it attempted to book as many public and private events as possible to fill its schedule, but most events, including events that Plaintiff had previously turned down because of its commitment at the race track, were no longer available. See Dkt. No. 1 at ¶ 61. Plaintiff alleges that it has also attempted to fill its lunchtime schedule, but due to the limited number of locations in the Capital District, Plaintiff typically works no more than three lunchtime shifts per week. See id . Moreover, Plaintiff claims that the business that it does during weekday lunch times and occasional booked events " does not come anywhere close to the amount of business it would have done serving the Saratoga Race Course crowd six days a week for the duration of the seven-week track season." See id .

C. Plaintiff's claims and Defendants' arguments in favor of dismissal

On August 27, 2013, Plaintiff commenced this action for damages, an injunction and declaratory relief relating to the denial of its application to participate as a food vendor in the 2013 Empire State Plaza Summer Outdoor Lunch Program and the subsequent termination of its status as a vendor at the Saratoga Race Course. See Dkt. No. 1 at ¶ 1. Plaintiff contends that Defendants' actions were in violation of the First Amendment of the United States Constitution and the Free Speech Clause of the New York State Constitution (Article I, § 8), as well as the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and the Equal Protection Clause of the New York State Constitution (Article I, § 11). See id . at ¶ 2. Additionally, Plaintiff claims that its expulsion from the Saratoga Race Course constituted a tortious interference with Plaintiff's contract with Centerplate, Inc. (" Centerplate" ), the hospitality company in charge of overseeing vendors at the Saratoga Race Course or, in the alternative, a tortious interference with Plaintiff's business relationship with Centerplate. See id . at ¶ 3.

In the OGS Defendants' motion to dismiss, they first argue that Plaintiff has failed to state a claim for a First Amendment violation. See Dkt. No. 28-1 at 12-18.[3] The OGS Defendants claim that, since they were acting in their proprietary capacity and because the Empire State Plaza is a non-public forum, or at best a limited public forum, restrictions on speech are examined only for reasonableness. See id. at 11-14. Further, the OGS Defendants argue that restrictions on ethnic or racial slurs in a non-public forum are deemed " viewpoint neutral," which are permissible. See id. at 16. Finally, the OGS Defendants assert that " a ruling that the State may not deny an application to a vendor who is, by its name and menu items, derogating various ethnic or national origins . . . would be contrary to public

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policy and the State's obligation to prevent the establishment of a hostile work environment." See id. at 17. Such a ruling, according to the OGS Defendants, would subject the State's workers to such a hostile work environment. See id. at 17-18.

Next, the OGS Defendants argue that " Plaintiff's Equal Protection claim sounds in selective enforcement, and rests entirely on the premise that its application was denied solely to inhibit the [P]laintiff's First Amendment rights. As the [P]laintiff has failed to demonstrate any impropriety in the State's regulation of offensive speech on the Empire State Plaza during peak working hours and visitation hours, however, plaintiff's Equal Protection claim must also fail." See id. at 18. Thereafter, the OGS Defendants argue that Plaintiff has failed to state a cause of action against them for its removal from the Saratoga Race Course. See id. at 19. They assert that the allegation that Defendant " Travers 'alleged that his decision had been made because a state official complained about Plaintiff's name'" is insufficient to state a plausible cause of action. See id . Next, the OGS Defendants claim that Defendants New York State and OGS are immune from suit pursuant to the Eleventh Amendment. See id. at 20-21. Finally, the OGS Defendants argue that, since they are entitled to dismissal of all federal claims, the Court should decline to exercise supplemental jurisdiction over Plaintiff's state-law claims. See id. at 21-22.

The NYRA Defendants argue that Plaintiff should be treated as a public employee or government contractor for purposes of its First Amendment claim. See Dkt. No. 36-2 at 17-18. Since a government contractor's speech is only protected if spoken on matters of public concern, the NYRA Defendants contend that the claim must be dismissed. See id. at 18-21. Further, the NYRA Defendants argue that the Saratoga Race Course is a nonpublic forum and that Plaintiff's removal therefrom was reasonable and viewpoint neutral. See id. at 21-29. Moreover, they claim that Defendant NYRA was acting in a proprietary capacity when it prohibited Plaintiff's use of an ethnic and racial slur on its property, which was reasonably related to maintaining the Saratoga Race Course for the purposes to which it was dedicated. See id. at 28.

As to the Equal Protection claim, the NYRA Defendants contend that it must fail because the claim is derivative of Plaintiff's First Amendment claim. See id. at 30. Second, they argue that Plaintiff failed to allege that it was treated differently from others who were similarly situated. See id .

Next, the NYRA Defendants argue that, since the state constitutional claims are subject to the same analysis as the federal constitutional claim, they must be dismissed as well. See id. at 31. Finally, the NYRA Defendants assert that Plaintiff's tortious interference claims must be dismissed because Plaintiff premised the claim on the theory that the NYRA Defendants' rendered performance of the contract impossible and because Plaintiff cannot establish that the NYRA Defendants acted for a wrongful purpose or used dishonest, unfair, or improper means. See id. at 32-33.

III. DISCUSSION

A. Motion to dismiss standard


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