Wandering Dagoi plaintiffs

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

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 15, and THE STATE OF NEW YORK

Defendants.

Civil Action No. 13-cv-1053

(MAD)(RFT)

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT

Dated: August 31, 2015 BOIES, SCHILLER & FLEXNER LLP

George F. Carpinello (Bar No. 103750)

John F. Dew (Bar No. 603035)

30 South Pearl Street, 11th Floor

Albany, NY 12207

Ph: (518) 434-0600

Attorneys for Plaintiff Wandering Dago, Inc.

Case 1:13-cv-01053-MAD-RFT Document 158 Filed 08/31/15 Page 1 of 31

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

PRELIMINARY STATEMENT .................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................. 2

ARGUMENT .................................................................................................................................. 6

I. The Empire State Plaza is a Public Forum and the State Cannot Restrict Speech in a Public Forum Merely By Declaring Something a State-Sponsored Program. ................ 6

A. Because the Empire State Plaza is the Forum to which the Plaintiff sought access, the

Plazaand not the Lunch Programis the relevant forum. ........................................ 8

B. Regardless of whether the forum is the Plaza or the Lunch Program, the State cannot deny Wandering Dago access based upon its speech. ................................................ 12

II. The State Is Not Acting in a Proprietary Capacity. .......................................................... 19

III. Wandering Dagos Right to Equal Protection was Violated. ........................................... 20

IV. Defendant Destito is an Appropriate Defendant for Injunctive Relief. ............................ 23

V. Qualified Immunity is Irrelevant. ..................................................................................... 24

Conclusion .................................................................................................................................... 25


ii

TABLE OF AUTHORITIES

Cases

Adler v. Pataki,

185 F.3d 35 (2d Cir. 1999)....................................................................................................... 24

Am. Civil Liberties of Nev. v. City of Las Vegas,

333 F.3d 1092 (9th Cir. 2003) ................................................................................................... 8

Calvary Chapel Church, Inc. v. Broward County, Fla.,

299 F. Supp. 2d 1295 (S.D. Fla. 2003) ........................................................................ 10, 12, 14

Children First Found., Inc. v. Fiala,

2015 WL 2444501 (2d Cir. May 22, 2015) .............................................................................. 14

City of Riverside v. Rivera,

477 U.S. 561 (1986) ................................................................................................................. 24

Cohen v. California,

403 U.S. 15 (1971) ............................................................................................................. 13, 15

Cornelius v. NAACP Legal Defense & Educational Fund,

473 U.S. 788 (1985) ..................................................................................................... 11, 12, 14

Cuffley v. Mickes,

203 F.3d 702 (8th Cir. 2000) .......................................................................................... 2, 21, 22

Deegan v. City of Ithaca,

444 F.3d 135 (2d Cir. 2006)....................................................................................................... 7

DAguanno v. Gallagher, 50 F.3d 877 (11th Cir. 1995) ................................................................................................... 24

Edwards v. South Carolina,

372 U.S. 229 (1963) ................................................................................................................... 7

Gay Veterans Assn, Inc. v. American Legion-New York County Organization, 621 F. Supp. 1510 (S.D.N.Y. 1985)......................................................................................... 10

Helbrans v. Coombe,

890 F. Supp. 227 (S.D.N.Y. 1995) .......................................................................................... 25

Hotel Emps. & Rest. Emps. Union v. City of N.Y. Dept of Parks and Recreation, 311 F.3d 534 (2d Cir. 2002)....................................................................................................... 7

Huminski v. Corsones,

386 F.3d 116 (2d Cir. 2004)............................................................................................... 13, 15

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,

515 U.S. 557 (1995) ............................................................................................................. 9, 20

Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, by Daley v. City of Boston,

No. 921518, 1993 WL 818674 (Mass. Super. Dec. 15, 1993)................................................. 10

LaTrieste Rest. and Cabaret, Inc. v. Village of Port Chester,

40 F.3d 587 (2d Cir. 1994)....................................................................................................... 21


iii

Lederman v. United States,

291 F.3d 36 (D.C. Cir. 2002) ..................................................................................................... 8

Lefemine v. Wideman,

758 F.3d 551 (4th Cir. 2014) ................................................................................................... 25

Lorillard Tobacco Co. v. Reilly,

533 U.S. 525 (2001) ................................................................................................................. 14

Maraschiello v. City of Buffalo Police Dep't,

709 F.3d 87 (2d Cir. 2013)......................................................................................................... 8

Paulsen v. Cnty. of Nassau,

925 F.2d 65 (2d Cir. 1991)......................................................................................................... 8

Perry v. Sindermann,

408 U.S. 593 (1972) ............................................................................................................. 2, 22

Pulliam v. Allen,

466 U.S. 522 (1984) ................................................................................................................. 25

Reed v. Town of Gilbert, Ariz.,

-- U.S. --, 135 S. Ct 2218 (2015) ....................................................................................... 12, 13

Rodriguez-Garcia v. Miranda-Marin,

610 F.3d 756 (1st Cir. 2010) .................................................................................................... 24

Sorrell v. IMS Health Inc.,

-- U.S. --, 131 S. Ct. 2653 (2011) ............................................................................................ 12

State of Mo. ex rel. Missouri Highway and Transp. Comn v. Cuffley, 927 F. Supp. 1248 (E.D. Missouri 1996) ................................................................................. 11

U.S. v. Nathan,

No. CR-88-102E, 1988 WL 91519 (W.D.N.Y. Aug. 31, 1988) .............................................. 18

United States v. Grace,

461 U.S. 171 (1983) ................................................................................................................. 14

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

992 F. Supp. 2d 102 (N.D.N.Y. 2014) ................................................................................. 6, 14

Warren v. Fairfax County,

196 F.3d 186 (4th Cir. 1999) ..................................................................................................... 7

Wright v. Smith,

21 F.3d 496 (2d Cir. 1994)....................................................................................................... 23

Statutes

42 U.S.C. 1988 ..................................................................................................................... 24, 25

Rules

Fed. R. Civ. P. 54(b) ....................................................................................................................... 8


iv

Other Authorities

Adam M. Croom, Slurs and Stereotypes for Italian Americans: A Context-Sensitive Account of

Derogation and Appropriation, 81 J. OF PRAGMATICS 36, 47 (2015) .................................. 17, 18

18B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 4478 and

4478.1 (3d ed.) ............................................................................................................................ 9


1

Plaintiff Wandering Dago Inc. (Wandering Dago) respectfully submits this

memorandum of law in opposition to Defendants Motion for Summary Judgment.

PRELIMINARY STATEMENT

The Defendants are attempting to do by license what they cannot do under the

constitutionregulate speech in a quintessential public forum. By creating a licensing regime

that it dubbed a lunch program, the State argues that it converted a public forum into a

workplace cafeteria. But the law is clear: a public forum by any other name is still a public

forum. The State concedes that the Plaza is open to state employees and public citizens alike,

that it is traversed by thousands of people every single day, and that it has been used repeatedly

by protesters seeking to exercise their First Amendment rights and to be heard by the

government and by the public. The Empire State Plaza is the modern day equivalent of the town

square, and a licensing regime cannot make it a cafeteria.

The Defendants denied Wandering Dago a license to vend food on the Empire State

Plaza based only upon the content of Wandering Dagos name. The rejection of Plaintiffs

application was determined by a single state official, Executive Deputy Commissioner Joseph

Rabito, who found that name personally offensive. Rabito admits that he was applying no

written policy or guidelines to the Plaintiffs application and admits that he was otherwise wholly

uninvolved in reviewing applications for the lunch program. While Defendants, in the course of

this litigation, have concocted a family-friendly policy that they now say governs the Plaza,

they can point to no such policy in any State document. Regardless, Rabito admits that he

rejected Wandering Dagos application only because he personally found the name offensive.

The First Amendment will not tolerate such conduct in any forum.


2

Nor will the Fourteenth Amendment. From the moment that Wandering Dago submitted

its application to the Office of General Services, it was treated differently based only upon the

content of its name. Two state employees singled out the application as offensive and

interrupted Rabitos lunch to get his take on the application. Rabito found the term to be

personally offensive and conducted a quick internet search to confirm his opinion. Then he

denied the application. [S]uch a denial is unconstitutional . . . [f]or if the government could

deny a benefit to a person because of his constitutionally protected speech or associations, his

exercise of those freedoms would in effect be penalized and inhibited. . . . Such interference with

constitutional rights is impermissible and violates the Equal Protection Clause of the Fourteenth

Amendment. Cuffley v. Mickes, 203 F.3d 702, 707 (8th Cir. 2000) (quoting Perry v.

Sindermann, 408 U.S. 593, 597 (1972)).

After months of discovery, the facts of this case are clear: the Empire State Plaza is the

public forum that is at issue in this case, and the Defendants, based on personal animus toward

Plaintiffs name, denied Plaintiff access to the Plaza. This denial violated Plaintiffs First and

Fourteenth amendment rights.

STATEMENT OF FACTS

Plaintiff Wandering Dago Inc. is a New York corporation that operates a food truck for

mobile vending and catering. SOMF1 1. It is owned and operated by Andrea Loguidice and

Brandon Snooks. SOMF 2. Wandering Dago serves food for a variety of types of functions,

including catered events, fairs and festivals, and streetside lunch service. SOMF 3.

1 SOMF refers to Plaintiff Wandering Dago Inc.s Statement of Material Facts Pursuant to

Local Rule 7.1(a)(3) filed on July 31, 2015, Dkt. No. 156-2.)


3

At the relevant times, Defendants were employees of the New York State Office of

General Services (OGS). Defendant RoAnn Destito is the Commissioner of OGS. SOMF 4.

Defendant Joseph Rabito was the Executive Deputy Commissioner of OGS. SOMF 5.

Defendant William Bruso is an associate attorney for OGS. SOMF 6. Defendant Aaron

Walters is a promotions and public affairs agent for OGS. SOMF 7.

The Empire State Plaza is a facility owned by the State of New York and operated by the

Office of General Services. SOMF 8. A complex of government buildings that is visited each

day by thousands of state employees and citizens, the Plaza2 is always open to the public and has

repeatedly been used by various groups as a site for political rallies, marches, and protests.

SOMF 10-13; 17. Although some of these protests are approved and granted permits by OGS,

OGS has a policy of allowing unpermitted protests and demonstrations to occur as long as they

are not causing a health or safety concern. SOMF 15. Indeed, Rabito testified that if protesters

show up without a permit, as long as theres not a public safety issue, and that will be a state

police decision, you know. They make it they just we dont infringe upon their First

Amendment rights.

The Summer Lunch Program3 is a program begun in 2013 under which mobile food

vendors are permitted to operate on the Plaza during the lunch hours from May through October.

SOMF 19. The lunch program was created for the purpose of providing food options to the

public and to State employees on the Empire State Plaza. SOMF 21. Food vendors are not

2 The phrase Empire State Plaza is ambiguously used to refer to the both the entire complex of

buildings and public spaces, and to the outdoor space sometime known as the Plaza Level. This

brief will use the term Plaza throughout to refer only to the outdoor space. 3 OGS refers to this program by various names. For example, promotional materials for the 2013

program referred to it as the Summer Food Vending Program. The 2013 Application was entitled Empire State Plaza 2013 Summer Lunch Program. The 2014 Application was entitled 2014 Summer at the Plaza Lunchtime Food Vending Program. For simplicity this brief will refer to the program throughout as the Summer Lunch Program.


4

allowed to sell food on the Plaza outside of state-sponsored special events or the summer lunch

program. COMF 2. 4

On May 17, 2013, Wandering Dago faxed an application to participate in the Summer

Lunch Program to the Office of General Services. SOMF 24. On Monday, May 20, 2013,

Wandering Dago received an email from Defendant Aaron Walters informing it that its

application had been denied. SOMF 39. Loguidice spoke by phone to Defendant William

Bruso, who informed her that the application had been denied for multiple reasons, including that

Wandering Dagos business name had been deemed offensive. SOMF 40.

From the moment that Wandering Dagos application arrived at OGS, it was singled out

for special treatment. Defendants SOMF 44-49. Two OGS employees brought the

application to Rabito, OGSs executive deputy commissioner, while he was eating lunch and told

him they had an issue with an application and wanted his take on it. July31 SOMF 44; Ex.

16 Rabito Dep. 14:4-11. The employees told Rabito that the issue was the name of the

business. Id. Rabito testified that he was shocked by the use of the word dago, and he

hastily conducted internet research that concurred with his opinion that the word was

offensive. SOMF Ex. 16 24:7-8. Rabito admitted that he just went right back to the [lunch]

table and I said Denied. No. 5 SOMF 30; Ex. 16 Rabito Dep. 25:15-16.

4 COMF refers to Plaintiff Wandering Dago Inc.s Counterstatement of Material Facts

Pursuant to Local Rule 7.1(a)(3). 5 Although Defendants do not deny that Rabitos decision was motivated by Wandering Dagos

name, Defendants have also claimed that certain defects in Wandering Dagos 2013 application would have justified its denial regardless of its name. Wandering Dago contends that the record

demonstrates that Defendants reliance on these defects was purely pretextual. In any event, there is no dispute that Defendants denial of Wandering Dagos 2014 application was based solely on the name.


5

Mr. Rabito was not asked to, and did not, review or consider the applications of any other

applicants to the Summer Lunch Program. SOMF 36. Other than Wandering Dago, every

applicant to the 2013 Summer Lunch Program was accepted. SOMF 38.

A letter sent by Defendant Bruso to Wandering Dago cited generally State regulations

concerning OGSs governance of the Empire State Plaza, but did not refer to any specific

provision that justified the denial of the application. SOMF 43.

In the fall of 2013, the Special Events Office adopted new criteria for outside vendors for

events and programs, including the Summer Lunch Program. SOMF 60. Under the new

policy, each event or program would have explicit criteria by which vendor applications would

be scored, and explicit cutoffs to determine which vendors are accepted. SOMF 61.

On May 5, 2014, Wandering Dago hand delivered an application for the 2014 Summer

Lunch Program to the OGS Special Events Office. SOMF 62. Wandering Dagos 2014

application was complete and timely. SOMF 63. Wandering Dagos application was reviewed

by OGS employees who had been designated the selection committee for the 2014 Summer

Lunch Program, and the application was graded and received a passing score sufficient for

acceptance into the program. SOMF 64. Defendants nevertheless denied the application.

SOMF 65. In a letter from Defendant Bruso dated May 16, 2014, Wandering Dago was

informed that its application had been denied again due to your firms name as previously

described. SOMF 66. Aside from Wandering Dago, every other complete application was

accepted into the 2014 Summer Lunch Program. SOMF 67.


6

ARGUMENT

I. THE EMPIRE STATE PLAZA IS A PUBLIC FORUM AND THE STATE CANNOT RESTRICT SPEECH IN A PUBLIC FORUM MERELY BY DECLARING SOMETHING A STATE-

SPONSORED PROGRAM.

Months of discovery have established that the Empire State Plaza is a quintessential

public forum. As the Court has recognized,

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 fought to protect this freedom.

Wandering Dago, Inc. v. New York State Office of Gen. Servs., 992 F. Supp. 2d 102, 108

(N.D.N.Y. 2014) (DAgostino, J.).

The Empire State Plaza is the contemporary equivalent of the classic village square.

Located in the center of Albany, it is always open to the public and, as the Defendants admit, is

constantly visited and traversed by state employees and non-employees alike. SOMF at 17.

More importantly, it has been repeatedly used as a forum for the exercise of First Amendment

rights. As the Defendants concede, the Empire State Plaza has hosted political protests, rallies,

and marches. SOMF 13. While some of these protesters sought and obtained permits from the

State, others did not. SOMF 15. Even those protests that do not obtain a permit are allowed to

continue so long as they do not present a public safety issue[.] SOMF 15 (quoting Rabito as

saying If they [protesters] show up, as long as theres not a public safety issue, and that will be

a state police decision, you know. They make it they justwe dont infringe on their First

Amendment rights.).


7

The Plazas proximity to state offices and its constant use by the public makes it

particularly important as a location for political speecha place where one can be heard by the

government and citizens alike. Hotel Emps. & Rest. Emps. Union v. City of N.Y. Dept of Parks

and Recreation, 311 F.3d 534, 552 (2d Cir. 2002) (distinguishing the plaza at Lincoln Center

from a quintessential public forum: [B]ecause the Plaza is not surrounded by government

buildings, it is easily distinguished from those plazas and squares in which political speech has

historically been protected.).

The Plaza, then, is undeniably a public forum. Warren v. Fairfax County, 196 F.3d 186,

18990 (4th Cir. 1999) (en banc) (holding that a long, grassy mall that abutted the county

government center complex was the quintessential public forum because its objective use is as a

place of open public access, which is eminently compatible with expressive activity; because it

is part of the outdoor grounds of a seat of legislative and/or executive power; and because it is

a combination of the three prototypical examples of traditional public fora streets, sidewalks,

and parks.); United States v. Grace, 461 U.S. 171, 180 (1983) (holding that a federal statute

prohibiting the display of banners, flags, or devices on the sidewalks surrounding the Supreme

Court was unconstitutional because the sidewalk was a public forum and could not be declared to

be anything other than a public forum by government ipse dixit)6; Edwards v. South Carolina,

372 U.S. 229, 235-38 (1963) (criminal convictions of African-American demonstrators who

peaceably demonstrated on the sidewalk and driveway in front of the South Carolina State

Capitol were unconstitutional); Deegan v. City of Ithaca, 444 F.3d 135, 141 (2d Cir. 2006)

6 Grace makes clear that this analysis is not affected by whether the State has declared the Plaza

a public park. In U.S. v. Grace, 461 U.S. 171 (1983), the Supreme Court held that the sidewalks

around the Supreme Court, though they were part of the Supreme Court property and were not

public sidewalks, must nonetheless be treated as a public forum because they were otherwise

indistinguishable from public sidewalks. Id. at 179-80. Here, the Plaza is indistinguishable from

any other public park that is open to visitors and therefore must be treated as a public forum.


8

(pedestrian mall in downtown Ithaca was the prototypical and quintessential public forum

because it was available for public expression and the free exchange of ideas and had been used

for that purpose); Paulsen v. Cnty. of Nassau, 925 F.2d 65, 69-71 (2d Cir. 1991) (Nassau

Coliseum and surrounding sidewalks and mall are a public forum because County intended the

site to be used for a wide variety of expressive activity and it was so used); Am. Civil Liberties of

Nev. v. City of Las Vegas, 333 F.3d 1092, 1101-02 (9th Cir. 2003) (publicly-owned pedestrian

mall located in the middle of downtown was a public forum because it was open for public

access as a public thoroughfare, and it was entirely compatible with expressive activity such as

leafleting and other First Amendment conduct); Lederman v. United States, 291 F.3d 36, 41-44

(D.C. Cir. 2002) (U.S. Capitol grounds including sidewalk in front of Capitol are a public

forum).

A. Because the Empire State Plaza is the Forum to which the Plaintiff sought access, the Plazaand not the Lunch Programis the relevant forum.

Wandering Dago sought access to the thousands of people who visit the Empire State

Plaza every day, not the Summer Lunch Program. The Lunch Program is nothing more than a

means by which the State regulates and limits food vendors on the Plaza. The Plaza, therefore, is

the relevant forum for First Amendment analysis.

While Defendants argue that the Courts ruling that the Summer Lunch Program is the

relevant forum is law of the case, (Defendants Memo dated July 31, 2015 (Dkt. No. 115-9)),

this argument is meaningless. FRCP 54(b) makes clear that any order or other decision . . . that

adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . . .

may be revised at any time before the entry of a judgment adjudicating all the claims and all the

parties rights and liabilities. See also Maraschiello v. City of Buffalo Police Dep't, 709 F.3d

87, 91 (2d Cir. 2013) cert. denied, 134 S. Ct. 119, 187 L. Ed. 2d 36 (2013) (The doctrine [of


9

law of the case] would not preclude a district court from granting summary judgment based on

evidence that was not available when the court denied a motion to dismiss.); 18B Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure 4478 and 4478.1 (3d ed.). The

law of the case argument is particularly misplaced whereas herediscovery had not been

conducted and neither Defendant nor Plaintiff briefed the issue. See 18B Wright & Miller,

4478.1 (3d ed.) (A major factor[] influenc[ing] a trial courts decision whether to reconsider an

earlier ruling is whether a ruling made early in the proceedings may rest on poorly developed

facts that have been better developed by continuing proceedings.)

Simply put, the Summer Lunch Program is nothing more than a limited license to sell

food on the Plaza. The State admits that no other applicants were turned away, and that the

primary criteria were that the trucks meet various health, safety, and food selection criteria.

SOMF 37. Nor does it matter that the Summer Lunch Program does not operate year round.

Other than at state-sponsored events, the State has limited the sale of food to this four-month

program. COMF 2. The State cannot bootstrap itself into a program by claiming that,

because it has limited the timeframe, the program is, ipso facto, an event. It is not an event,

but instead a limited license to sell on the Plaza, and it is irrelevant whether that license restricts

the number of days, weeks or months per year that participants are allowed to sell their wares.

By analogy, the fact that the State requires people to obtain a permit in order to parade

along a street does not convert the street into a nonpublic forum and does not convert the parade

into state action. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515

U.S. 557, 673-74 (1995) (despite the need for a parade permit, parade organization retains First

Amendment rights and cannot be compelled to express views with which it disagrees). Indeed,

while streets are a quintessential public forum, speakers still need a permit to use them, but the


10

issuance of that permit does not convert a parade into state speech. See id. at 566 (discussing

Massachusetts trial courts decision, Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, by

Daley v. City of Boston, No. 921518, 1993 WL 818674, at *7 (Mass. Super. Dec. 15, 1993), and

its conclusion that issuing a permit does not render a parade a state action, and noting that

[t]he most that can be said of the Citys conduct is that it allowed the Veterans to hold a parade,

for without a permit, a parade is not lawful. But issuing a parade permit is a neutral act.); Gay

Veterans Assn, Inc. v. American Legion-New York County Organization, 621 F. Supp. 1510,

1517 (S.D.N.Y. 1985) (stating the mere issuance of a permit does not constitute state action).

Having created a licensing program to allow food trucks to sell food on the Plaza, the State

cannot then regulate those vendors First Amendment rights any more than it could grant a

permit to an organization to hold a parade on the Plaza and then dictate who may participate in

the parade.

For the purpose of determining the relevant forum, the instant case is distinct from

Calvary Chapel Church, Inc. v. Broward County, Fla., 299 F. Supp. 2d 1295 (S.D. Fla. 2003),

which dealt with a state-sponsored holiday light show to which the speaker sought access. The

light show occurred in a designated area of the park that was open at night, when the rest of the

park was closed. Id. at 1298. In order for the speakers speech to be heard, it required access to

the light show and not the park.

Similarly, any OGS-sponsored concert on the Plaza would be a forum separate from the

Plaza itself, and the State could prohibit political protesers from demonstrating at the OGS-

sponsored concert. Here, the Lunch Program is not a state-sponsored event like a holiday light

show, concert, or fair; it is a regulatory regime that governs the sale of food on the Plaza.

Wandering Dago sought access to the Plaza and its 15,000 daily visitors, thus the Plaza, and not


11

the Lunch Program, is the appropriate forum. Cornelius v. NAACP Legal Defense &

Educational Fund, 473 U.S. 788, 801 (1985) (to determine the relevant forum, the Supreme

Court has focused on the access sought by the speaker); State of Mo. ex rel. Missouri Highway

and Transp. Comn v. Cuffley, 927 F. Supp. 1248, 1258 (E.D. Missouri 1996) (vacated on other

grounds by 112 F.3d 1332 (8th Cir. 1997) (holding that entity that sought to participate in the

states Adopt-A-Highway program was seeking access to the highway and not the program, and

therefore the highway was the relevant forum).

Even if the Summer Lunch Program is the relevant forum, the Court must still take into

account that the Program is operating in the Plazas public forum. Cornelius v. NAACP Legal

Def. & Educ. Fund, Inc., 473 U.S. 788, 801-02 (1985). In Cornelius, the Court determined that

the forum was a charity drive aimed at federal employees that occurred within the federal

workplace. Id. at 801-02. The Court said that it could not ignore the special nature and

functions of the federal workplace in evaluating the limits that may be imposed on an

organizations right to participate in the charity drive. Id. at 802. Because the expressive

activity proposed in Cornelius was in conflict with the principal function of the property i.e.,

an office that the parties agreed was not a traditional public forum the Supreme Court was

particularly reluctant to hold that the government intended to designate a public forum when it

created the charity program. Id. at 804.

The facts learned after months of discovery demonstrate that Cornelius compels a

different outcome here. The Plaza is not the States workplace, but a public forum where the

State has repeatedly allowed the exercise of free expression and keeps open to the public year-

round. Unlike Cornelius, where the purpose of implementing the charity program was an

attempt to lessen[] the amount of expressive activity occurring on federal property[,]


12

Cornelius 473 U.S. at 806 (emphasis in the original), the State concedes that the sole purpose of

the Summer Lunch Program was to provide lunch options for State workers and visitors to the

Plaza. (Defendants Memorandum of Law dated July 31, 2015 at 14-15). While the State thus

may exclude businesses that wish to sell goods or services that are inconsistent with provid[ing]

lunch options for State workers and visitors to the Plaza, it may not discriminate among food

trucks that are capable of meeting the goal of the program based on a food trucks speech.

Calvary Chapel Church, Inc., 299 F. Supp. at 1303-04.

B. Regardless of whether the forum is the Plaza or the Lunch Program, the State cannot deny Wandering Dago access based upon its speech.

Regardless of the nature of the forum, the State cannot exclude Wandering Dago based

on its viewpoint or the content of its speech. Because there can be no dispute that OGS excluded

Wandering Dago from the Summer Lunch Program based only upon the inclusion of the word

dago in its name, there can be no doubt that the State violated Wandering Dagos First

Amendment rights.

The Supreme Court recently made clear that any discrimination based upon the content of

a signs message is subject to strict scrutiny. Reed v. Town of Gilbert, Ariz., -- U.S. --, 135 S. Ct

2218 (2015); see also Sorrell v. IMS Health Inc., -- U.S. --, 131 S. Ct. 2653, 2667-68 (2011)

(heightened standard applies to content-based restrictions on commercial speech such that

government must show that the restriction directly advances a substantial government interest

and that the measure is drawn to achieve that interest). 7 In Reed, a towns Sign Code treated

directional signs, ideological signs, and political signs differently, and applied to signs in

both public and nonpublic forums. Reed, 135 S. Ct. at 2224-25 (noting that the regulations

7 As Plaintiff has argued elsewhere, Defendants cannot meet this standard. Plaintiffs

Memorandum of Law in Support of Its Motion for Summary Judgment at 5-15, Dkt. # 156.


13

applied to signs placed on public property and on private property) and 2236 (Breyer, J., noting

in concurrence that the signs at issue were not in a traditional public forum). The Court

concluded that the Sign Code is a paradigmatic example of content-based discrimination

because it singles out specific subject matter for differential treatment, even if it does not target

viewpoints within that subject matter. Id. at 2230.

The States decision to deny Wandering Dago access to the Plaza was undeniably based

upon the content of Wandering Dagos speech. (E.g., Defendants Memorandum of Law dated

July 31, 2015 at 17-18 (stating that the State excluded Wandering Dago because of its use of

insulting and hurtful words as part of its name and menu); SOMF at 29-31 (Rabitos decision

to reject Wandering Dagos application was based only upon his conclusion that the meaning of

the term dago was offensive).)

In fact, the States denial was based on Wandering Dagos viewpoint, a more blatant and

egregious form of content discrimination. Reed, 135 S. Ct. at 2230. As Plaintiff argues in its

Motion for Summary Judgment, (Defendants Memorandum of Law dated July 31, 2015 at 12-

15), the State prohibited Wandering Dagos language that it deemed to be derogatory toward an

ethnicity or nationality, while allowing speech that references ethnicity in a neutral or positive

way, which is classic viewpoint discrimination.

Even before Reed, the law was clear that content-based or viewpoint-based restrictions,

even in a nonpublic forum, violate the First Amendment. See Cohen v. California, 403 U.S. 15,

25 (1971); (noting that the states restriction on the word fuck in a courthouse seems

inherently boundless. How is one to distinguish this from any other offensive word?); cf.

Huminski v. Corsones, 386 F.3d 116, 154-56 (2d Cir. 2004) (defendants violated plaintiffs First

Amendment rights when they issued trespass notice barring him from engaging in expressive


14

activity in and around nonpublic courthouses and noting that the defendants may also have

punished plaintiff based upon his viewpoint); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525

(2001) (holding a state restriction on tobacco advertisements in retail stores violated plaintiffs

First Amendment rights because it failed to satisfy the Central Hudson test).

In a nonpublic forum, any speech restriction must be made in accordance with well-

established standards in order to eliminate the exercise of unbridled discretion by state officials.

Children First Found., Inc. v. Fiala, __ F.3d __, 2015 WL 2444501, at *10 (2d Cir. May 22,

2015). Second, restriction of speech in a nonpublic forum must be neutral with respect to the

viewpoints being excluded. Cornelius, 473 U.S. at 806. Third, restrictions must be reasonable

in light of the purpose of the forum in question. Id. Defendants actions here fail on all three

grounds.

OGS rejected Wandering Dagos application because one manRabitowas personally

offended by its use of the word dago. SOMF Ex. 16, Rabito Dep. 71:14-19 (stating if

someone would refer to me as a Dago, I would punch them in the mouth). Rabito was not

guided by any policy, rule, or regulation explaining what sorts of speech qualify as offensive, nor

even any policy, rule or regulation stating that offensive speech is prohibited. SOMF 34. The

decision was thus based both on the content of the speech and the viewpoint of the speaker and

therefore violated Wandering Dagos First Amendment rights.

In Calvary Chapel, which the Court relied upon in determining that the Lunch Program

and not the Plaza was the relevant forum, Wandering Dago, Inc., 992 F. Supp. 2d at 120, a

church sought access to a holiday lights festival in order to broadcast its religious message about

Christmas. Calvary Chapel, 229 F. Supp. at 1303. The government created a nonpublic forum,

or at most a limited public forum, in which sponsors may exclude other subject matter. But,


15

whatever the term used to describe this forum, the [government] may not exclude alternative

viewpoints with respect to the holidays included in the light show. Id. at 1303-04.

The restriction on Wandering Dagos speech is unrelated to the goal of the Summer

Lunch Program to provide dining options to State employees and visitors to the Plaza, there is no

risk of disruption to the State workplace because the Plaza is a public forum, not a state office,

and the fact that the Summer Lunch Program is taking place in a quintessential public forum

must be taken into consideration. Against that backdrop, the States admission that it denied

Wandering Dago based only on one government officials reaction to the content of its name is

fatal to the State. See Cohen v. California, 403 U.S. 15, 25 (1971) (holding that in a courthouse,

a classic nonpublic forum,8 [s]urely the State has no right to cleanse public debate to the point

where it is grammatically palatable to the most squeamish among us).

The Second Circuit has continued to apply Cohens logic to nonpublic forums. In

Huminski v. Corsones, 386 F.3d 116, 154 (2d Cir. 2004), a demonstrator repeatedly appeared on

courthouse grounds and in courthouse parking lots to display signs criticizing the conduct of the

court system. Id. at 122-26. The protester also wrote threatening letters to public officials and a

judge, and frequently attended court proceedings. Id. When the state issued Notices Against

Trespass to the protester, he sued, arguing that his First and Fourteenth amendment rights had

been violated. Id. The Second Circuit found that the courthouse, its parking lot, and grounds

were nonpublic forums. Id. at 153-55. But Court held that the state had improperly created a

First-Amendment-Free Zone for the protester, and that such a ban cannot be justified even

[in] a nonpublic forum because no conceivable government interest would justify such an

8 Huminski v. Corsones, 386 F.3d 116, 154 (2d Cir. 2004) (collecting cases and stating that a

courthouse is not a public forum).


16

absolute prohibition on speech. Id. at 155 (quoting Bd. Of Airport Commrs v. Jews for Jesus,

Inc., 482 U.S. 569, 575 (1987).

Defendants cannot justify their actions on the basis of their alleged family friendly

policy. First, this policy has appeared in this case only as a litigation position. Defendants have

never identified any written policy or regulation defining the contours of family-friendliness,

or providing any constraints on Defendants ability to prohibit any speech it chooses in the name

of this so-called policy. Second, Defendants reliance on this policy is entirely circular. They

are entitled to prohibit speech they dont like because they have a policy instructing them to

prohibit speech they dont like. Allowing such a rationale to justify speech restrictions makes a

mockery of the First Amendments protections.

The evanescence of the so-called family friendly policy is demonstrated by the fact that

Wandering Dago was denied access to the Plaza but the truck Slidin Dirty was granted access.

(Dkt. #142-14 Loguidice Dep. 136:12-137:24) Slidin Dirty is an obvious riff using the word

slider, which means a small hamburger or sandwich, and the phrase ridin dirty, defined by

the Urban Dictionary as driving in an automobile while having at least a felony charge worth of

illegal drugs and or unregistered firearms with you. URBANDICTIONARY.COM, Definition of

ridin dirty, available at http://www.urbandictionary.com/define.php?term=ridin+dirty (last

visited August 31, 2015). Likewise, Slidin Dirty evokes the song Ridin, which repeats the

phrase ridin dirty more than 40 times in its chorus while describing a person driving under the

influence of alcohol while using drugs and carrying a handgun.9 METROLYRICS.COM, Lyrics to

9 There is no doubt that a large segment of the population visiting the Plaza would understand

Slidin Dirtys reference and would be familiar with the song Ridin, which spent two weeks at number one on the Billboard Hot 100. BILLBOARD.COM, Chamillionaire Rides to Top of Hot 100, available at http://www.billboard.com/articles/news/58313/chamillionaire-rides-to-top-of-hot-100 (last visited August 31, 2015). The song was sufficiently familiar to audiences that the


17

Ridin by Chamillionaire featuring Krayzie Bone, http://www.metrolyrics.com/ridin-lyrics-

chamillionaire.html (last visited August 31, 2015).

The different treatment accorded Slidin Dirty and Wandering Dago highlights the

impossibility of determining what speech is offensive and what is not. The meaning of words is

inevitably contextual: someone familiar with the phrase ridin dirty understands the pun being

made by Slidin Dirty and may or may not find it an offensive reference to the problems of urban

crime, gun violence, and drug trafficking; someone not familiar with the phrase or the song

misses the meaning entirely. Just so with ethnic slurs, which can be offensive when used in

many contexts, but are often . . . [used] non-derogatorily to convey affiliation with other

members of that minority group, or to weaken the derogatory force that the slur had originally

carried. Adam M. Croom, Slurs and Stereotypes for Italian Americans: A Context-Sensitive

Account of Derogation and Appropriation, 81 J. OF PRAGMATICS 36, 47 (2015) (attached as

Exhibit 1 to the Declaration of George F. Carpinello (Carpinello Decl.)).

The speech here is an appropriative use meant to convey a blue-collar, immigrant

solidarity. Loguidice testified about the choice of name: Well, the wandering part is pretty

obvious. I mean it is a food truck and we wander around from place to place. Dago essentially

was a nod to our Italian heritage. Both of us are Italian. And when our forefathers came here

and they were day laborers, they asked to get paid as the day goes. COMF 29, Loguidice

Dep. 11:20-12:1. We chose a name that represented who we were. . . . because when you have

a small business and you put your blood, sweat and tears into it, it should represent who you

are. COMF 29, Loguidice Dep. 13:6-14. This appropriative use grew to include additional

satirical musician Weird Al Yankovic recorded a parody of it entitled White and Nerdy, which itself became a top ten hit on the Billboard Hot 100. BILLBOARD.COM, Weird Al Yankovic Chart History, available at http://www.billboard.com/artist/431263/weird-al-yankovic/chart (last visited August 31, 2015).


18

menu items that were named with ethnic slurs at the request of various members of those

ethnicities, again signaling a blue-collar, immigrant solidarity. COMF 29; Loguidice Dep.

56:6-16; 61:25-62:14. The use of these words signals to members of other immigrant groups that

this food truck is for them: [W]eve always created everything on this truck around the people

for better or for worse, including as you pointed out earlier the sandwich names. Weve always

felt like we wanted to be the peoples truck. COMF 29 Loguidice Dep. 107:11-14. See

Croom, 81 J. OF PRAGMATICS at 47 (Carpinello Decl. Ex. 1) (the use of ethnic slurs can be used

non-derogatorily to convey affiliation with in-group members).10

Wandering Dago is thus engaging in a practice that has become increasingly common,

appropriating a term once considered offensive in order to remove its sting:

Targeted members or groups may appropriate their own slurs for non-derogatory

purposes, in order to demarcate the group and show a sense of intimacy and

solidarity. . . . [M]any teens and entertainers, among others, are doing what

linguists call melioration reclaiming a word meant to sting by removing its barb. . . . So another basic fact about slurs is that they are often flexibly employed

and of potential use, not only derogatorily to convey offense toward out-group

members, but also non-derogatorily to convey affiliation with in-group members,

or to diminish the derogatory force that the slur had originally carried.

Croom, 81 J. OF PRAGMATICS at 37 (quotations and citations omitted) (Carpinello Decl. Ex. 1).

Finally, Defendants actions must be reasonable in light of the purpose of the forum. As

Defendants themselves have argued however, the program was created for the sole purpose of

providing lunch options to State employees and visitors to the ESP. Defendants Statement of

Material Facts 8. Other than the Summer Lunch Program and various state-sponsored events,

food vendors are not permitted to sell food on the Plaza. COMF 2. Moreover, Defendants

10

Additionally, Defendants claim that the Courts statement that the term dago is offensive is law of the case is wrong. Not only is the Court free to reconsider its opinion (Supra at 8-9) but

the determination of whether a word is offensive is a finding of fact, not of law. See U.S. v.

Nathan, No. CR-88-102E, 1988 WL 91519, at *1 (W.D.N.Y. Aug. 31, 1988) (noting that in

order to determine whether material is offensive [t]here must be a finding of fact).


19

argue that the sole speech contemplated by the program is the display of vendors business

names and menu items. Defendants Br. 15. Wandering Dago was prohibited from engaging in

precisely this type of speech. Wandering Dagos name and menu items were consistent with the

sole purpose of the program as identified by Defendants.

II. THE STATE IS NOT ACTING IN A PROPRIETARY CAPACITY.

The state argues that when it excludes Wandering Dago from the Plaza, it is operating in

a proprietary capacity rather than as a legislator or regulator. It likens the program to a cafeteria

for state employees. However, the State cannot escape the reality that the Plaza is not a

workplace cafeteria but a public forum that has repeatedly been used for First Amendment

expression and is always open to the public. Likewise, the State admits thatunlike a

workplace cafeteriait anticipated that the Summer Lunch Program would serve employees and

public citizens alike. Defendants Memorandum of Law dated July 31, 2015 at 14-15.

Defendants argue that this is irrelevant, because the real issue in this case is not access to

the Plaza, but rather access to the Summer Lunch Program a government program sponsored

by OGS. This, however, is no more than a label applied by the state to obscure the actual nature

of the Summer Lunch Program.

In fact, the Summer Lunch Program is effectively no more than a permitting process for

access to the Plaza. COMF 2. The Summer Lunch Program application process is open to the

general public. COMF 10. Applicants who meet the application criteria are accepted into the

program and allowed to vend on the Plaza. The selection criteria are not stringent or highly

selective. See SOMF 17, Ex. 17 2013 Summer Outdoor Lunch Program Food Vendor

Application. In the years at issue in this case, only a single qualified applicant Wandering


20

Dago was denied. SOMF 38. In effect, any vendor who wishes to operate on the Plaza

simply submits an application, agrees to pay a fee of $1,000 or $1,500, and is granted a permit.

Defendants claim that the Summer Lunch Program is sponsored by OGS, but in reality

there is no sponsorship. OGS does not pay for or subsidize the vendors rather the vendors

pay a fee to OGS to participate in the program. There is no signage around the vendors

identifying them as part of the Summer Lunch Program. SOMF Ex. 16, Rabito Dep. 99:13-16.

In fact, from the perspective of the general public, there is nothing distinguishing the Summer

Lunch Program vendors from the nearby vendors operating on the street under permits issued by

the City of Albany, other than their location on the Plaza. And as Defendants have

acknowledged, simply issuing a permit does not constitute sponsorship. SOMF 18.

If Defendants had issued permits for vendors to operate on the Plaza and then issued a

regulation prohibiting vendors with disfavored names, the unconstitutionality would be obvious.

Defendants cannot evade the constitutions protections by lumping the two actions together and

calling it a government-sponsored program. Just as the State cannot regulate a parade

organizers speech by requiring that all parades obtain permits, the State cannot achieve greater

regulation of speech on the Plaza by requiring that food trucks apply to the Summer Lunch

Program in order to vend there. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of

Boston, 515 U.S. 557, 673-74 (1995)

III. WANDERING DAGOS RIGHT TO EQUAL PROTECTION WAS VIOLATED.

The denial of Wandering Dagos access to the Plaza was based on Wandering Dagos

exercise of its constitutional rights and thereby violated its right to equal protection.

Selective enforcement can be shown when a party has been treated differently from

similarly situated individuals, because of, inter alia, the exercise of constitutional rights.


21

LaTrieste Rest. and Cabaret, Inc. v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994).

Wandering Dago easily meets this standard. Wandering Dago was similarly situated to the class

of vendor applicants for the Summer Lunch Program. Wandering Dago alone was singled out

for differential treatment application denial explicitly on account of its name, which is

commercial speech protected by the constitution. See Cuffley v. Mickes, 208 F.3d 702 (8th Cir.

2000) (holding that state violated the Equal Protection Clause when it prevented an organization

from participating in the states Adopt-A-Highway program based upon that organizations

views). In Cuffley, the Ku Klux Klan sought to participate in the states Adopt-A-Highway

program, which would have allowed the Klan to put its name on a sign along a state highway.

Id. at 705. When the state received the Klans application, the state treated [the application]

differently from the vast majority of applicants based upon who [the application] was from and

what they wanted on the sign. Id. at 706. Because the government may not deny a benefit to a

person because of his constitutionally protected speech or associations, the Court concluded, the

state had violated the Klans right to equal protection. Id. at 707.

The facts here are remarkably similar. Wandering Dago submitted its application to the

State, and the State immediately treated the application differently than the other applicants:

Employees who were not responsible for reviewing the applications for the 2013 Summer Lunch

Program singled out the application as containing potentially offensive language and brought it

to Rabitos attention. SOMF 26-28. Rabito thought the name was offensive and conducted a

short internet search around the word dago, and then concluded that Wandering Dago should

be excluded from the Plaza based solely upon its name. SOMF 36-38. As a result,

Wandering Dago was completely barred from selling food on the Plaza. COMF 2. [S]uch a

denial is unconstitutional . . . [f]or if the government could deny a benefit to a person because of


22

his constitutionally protected speech or associations, his exercise of those freedoms would in

effect be penalized and inhibited. . . . Such interference with constitutional rights is

impermissible. Cuffley, 203 F.3d at 707 (quoting Perry v. Sindermann, 408 U.S. 593, 597

(1972)).

Defendants contend that no other vendors were similarly situated to Wandering Dago

because no other vendors engaged in the same type of derogatory or offensive speech.11

This is pure sophistry. Defendants argue that a party complaining of differential treatment on the

basis of its disfavored speech cannot prevail because it is not similarly situated to parties who did

not engage in disfavored speech. Defendants argument completely excises the exercise of

constitutional rights from the coverage of Equal Protection law. Defendants contend that

Plaintiff cannot show an intent to inhibit the exercise of constitutional rights. But it is

undisputed that Wandering Dagos application was denied for the express purpose of preventing

it from exercising its constitutional rights in the context of the Summer Lunch Program. What

more is needed?

Moreover, Defendants argue that the pretextual reasons given for denial of the

application do not demonstrate bad faith because Plaintiff was advised that its name was the

primary reason for the denial. This is wrong for two reasons. First, it is simply incorrect. In her

phone call with Defendant Bruso, Plaintiffs co-owner Loguidice was informed only that the

application was denied for multiple reasons. SOMF 40. Bruso never identified the name as the

motivating reason, and confirmation from Defendants that the name was the driving factor came

only after the initiation of this litigation. SOMF 40-43.

11

As discussed supra, the veracity of this statement depends on how one feels about the name

Slidin Dirty.


23

Second, it is entirely disingenuous. Defendants continued to rely on the pretextual

reasons as alternate grounds for the denial of the permit during the course of this litigation.12

See

Defendants Memorandum in Support of Summary Judgment dated July 31, 2015 at 7. Discovery

later revealed that nearly every single vendor accepted into the program suffered from at least

one of the deficiencies alleged of Plaintiffs application (i.e., late application, incomplete

application, unable to attend all dates). SOMF 48-59. If this is not bad faith, it is not clear

what is.

IV. DEFENDANT DESTITO IS AN APPROPRIATE DEFENDANT FOR INJUNCTIVE RELIEF.

Defendants argue that Commissioner Destito must be dismissed because she had no

direct involvement in the denial of Wandering Dagos application, citing Second Circuit

precedent that personal involvement is a prerequisite to an award of damages under 1983.

Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). But this is not an action for damages. As

Defendants have acknowledged, this is an action for injunctive relief to end the continued

exclusion of Wandering Dago from participation in the Summer Lunch Program. Destito is a

perfectly appropriate defendant for purposes of injunctive relief.

As Defendant Rabito testified, Commissioner Destito has ultimate authority over the

policies and programs of OGS, including the Summer Lunch Program and access to the Plaza.

COMF 67. Rabito further testified that although he was directly responsible for the decision to

deny Wandering Dagos application for the 2013 Summer Lunch Program, he did so on the basis

of authority delegated to him by Commissioner Destito, and Commissioner Destito has the

authority to overrule his decisions. COMF 66-67, 70. Further, this action was commenced in

August 2013, so there can be no doubt that Commissioner Destito was aware of Plaintiffs

12

The pretextual reasons became moot after Defendants denied the 2014 application and

Plaintiffs dropped their money damages claims.


24

constitutional injury and yet she took no action to prevent a recurrence of that injury in 2014,

when the State again rejected Plaintiffs application. Destito can thus be held liable for the

actions of her subordinates because Plaintiffs constitutional injury results from the direct acts

or omission of [Destito] and from Destitos condonation or tacit authorization of the 2014

rejection. Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756, 768 (1st Cir. 2010).

Wandering Dago seeks an order enjoining Defendants from taking further actions to

exclude it from the Plaza on the basis of its exercise of its constitutional right to free speech.

Defendant Destito has the power to grant such relief in her capacity as Commissioner.

V. QUALIFIED IMMUNITY IS IRRELEVANT.

Qualified immunity protects state officials from personal liability for money damages; it

has no application in an action for injunctive relief. Adler v. Pataki, 185 F.3d 35, 48 (2d Cir.

1999). Wandering Dago has dropped its claim for compensatory damages and now only seeks

injunctive relief and attorneys fees pursuant to 42 U.S.C. 1988, thus qualified immunity is not

relevant.

Defendants, however, suggest in a footnote (p. 23 n.7) that qualified immunity might

shield them from attorneys fees, relying on an Eleventh Circuit case, DAguanno v. Gallagher,

50 F.3d 877 (11th Cir. 1995), holding that attorneys fees qualify as damages for purposes of

qualified immunity.

However, it is impossible to square DAguanno with the Supreme Courts analysis of

1988. The Supreme Court has noted that Congress enacted 1988 specifically to enable

plaintiffs to enforce the civil rights laws even where the amount of damages at stake would not

otherwise make it feasible to do so. City of Riverside v. Rivera, 477 U.S. 561, 577 (1986).

Indeed, the very fact that in some cases, immunity doctrines and special defenses, available


25

only to public officials, preclude or severely limit the damage remedy . . . awarding counsel fees

to prevailing plaintiffs in such litigation is particularly important and necessary if Federal civil

and constitutional rights are to be adequately protected. Id. at 577 (quoting H.R.Rep. No. 94-

1558, p. 9 (1976)); see also Pulliam v. Allen, 466 U.S. 522, 541 (1984) (Congress has made

clear in 1988 its intent that attorneys fees be available in any action to enforce a provision of

1983. . . . Congress intent could hardly be more plain. Judicial immunity is no bar to the award

of attorneys fees under 42 U.S.C. 1988.)

Applying Riverside, the Fourth Circuit held that qualified immunity cannot support the

denial of attorneys fees to . . . a prevailing civil rights plaintiff, even where the defendants

could show that there was no policy or custom of discrimination and where the only relief

awarded was injunctive and declaratory relief. Lefemine v. Wideman, 758 F.3d 551, 555 (4th

Cir. 2014). This is the same approach taken by the Southern District of New York, where it held

that [a]ttorneys fees are available in any action to enforce a provision of 1983 even when

damages would be barred or limited by immunity doctrines and special defenses, available only

to public officials. Helbrans v. Coombe, 890 F. Supp. 227, 232 (S.D.N.Y. 1995) (internal

quotations and alterations omitted).

CONCLUSION

For all the foregoing reasons, Defendants motion for summary judgment should be denied.


26

Dated: August 31, 2015 BOIES, SCHILLER & FLEXNER LLP

By: /s/ George F. Carpinello



30 South Pearl Street, 11th

Floor

Albany, NY 12207

Telephone: 518-434-0600

Facsimile: 518-434-0665

E-mail: [email protected]

[email protected]

Attorneys for Plaintiff Wandering Dago, Inc.


UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

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 15, and THE STATE OF NEW YORK

Defendants.

Civil Action No. 13-cv-1053(MAD)(RFT)

PLAINTIFF WANDERING DAGO INC.S COUNTER-STATEMENT OF MATERIAL

FACTS PURSUANT TO LOCAL RULE 7.1(a)(3)

BOIES, SCHILLER & FLEXNER LLP



30 South Pearl Street, 11th Floor

Albany, New York 12207

(518) 434-0600

Attorneys for Plaintiff Wandering Dago Inc.

Case 1:13-cv-01053-MAD-RFT Document 158-1 Filed 08/31/15 Page 1 of 20

2

Plaintiff Wandering Dago, Inc., respectfully submits this counterstatement in response to

Defendants Rule 56.1 Statement of Undisputed Material Facts. No acknowledgement about the

lack of a genuine dispute concerning a particular fact asserted by Plaintiffs should be deemed an

acknowledgement that such fact is legally material, unless otherwise noted.

COUNTER-STATEMENT OF FACTS

1. In the spring of 2013, the New York State Office of General Services (OGS)

began planning a program that would allow a limited number of vendors to sell food items at

designated spots on the East Roadway, located on the east side of the Empire State Plaza

(ESP), between the reflecting pool and the Egg. (Rabito Dec. 4.)

Response 1: Undisputed.

2. Although an outdoor lunch program had been operated in prior years by Sodexo, a

private company which had a contract to provide food services for the ESP, Sodexos contract

had not been renewed for 2013, and OGS decided to sponsor and run its own summer outdoor

lunch program. (Rabito Dec. 4.)

Response 2: Plaintiff disputes that OGS sponsored the Summer Lunch Program. OGS

charged vendors $1,000-$1,500 to participate in the program. (SOMF Ex. 17, 2013

Summer Outdoor Lunch Program Food Vendor Application.) There was no signage

identifying the vendors as belonging to the Summer Lunch Program. (SOMF Ex. 16,

Rabito Dep. 99:13-16.) Food vendors were not allowed to sell food on the Plaza unless they

received a permit from the Summer Lunch Program to do so. (Carpinello Decl. Ex. 2,

Rabito Dep. 95:23-96:2.)


3

3. OGS operates the ESP Summer Outdoor Lunch Program (Program) and permits

only qualified food vendors to participate in providing food during lunchtime hours to the State

employees and visitors who work or come to the Capitol and adjacent State buildings and parks

during the summer and early fall months. (Rabito Dec. 5.)


4. Vendors who seek to participate in the Program must apply to OGS for a permit,

and OGS determines the applicants eligibility for such participation. (Rabito Dec. 6.)


5. The Program was developed and administered by OGS Special Events Office.

(Dkt # 152-2 pp. 16-17; Dkt # 152-1 p. 9; Dkt # 152-4 p. 11.)


6. The 2013 Program Application states, in pertinent part:

Vendor participation must be confirmed by the New York State Office of General Services.

The Office of General Services is soliciting food vendors for the 2013 Empire State Plaza (ESP) Summer Outdoor Lunch Program to be held daily on the

Plaza at the Empire State Plaza in Albany, New York. The 20 week season

will run from Monday, May 20th through Friday, October 4th.

The Summer Outdoor Lunch Program Package includes: [inter alia] 20 feet of vending space which includes electrical hookup and access to water . . .

The cost for full participation, 5 days a week for 20 weeks, is $1,500.00; participation on Wednesdays and Fridays only, for 20 weeks, is $1,000.00. All

fees are due with your completed application no later than May 10, 2013.

Interested parties must apply for a vending permit and meet all insurance and

financial requirements in order to participate in the 2013 ESP Outdoor Lunch

Program.

Vendors will not be allowed to provide vending services at the Empire State Plaza until they are in receipt of written approval of their application to

participate in the Outdoor Lunch Program.


4


7. Appendix A of the application form, Rules for the Empire State Plaza Vendor Participation, includes, inter alia:

Unless prior arrangements have been made with OGS, all vendors are expected to complete the entire season.

Vending hours are from 9:00 a.m. 2:00 p.m. Vendors will not be allowed to sell prior to or after these hours.

Each vendor will be assigned a specific vending location; all space assigned will be at the discretion of OGS.

The sale or distribution of products other than food or beverage items is prohibited.

Vendors may only sell menu items approved by the Albany County Department of Health and permitted per the Vendors vending permit for the ESP Outdoor Lunch Program. Vendors wishing to add additional items to

their menu must request approval from the Albany County Department of

Health and provide OGS Bureau of Food Services with a copy of the revised permit. OGS reserves the right to prohibit the sale, display or distribution of

certain items if, in its sole opinion, these items may reasonably cause concern

such as public safety.

All vendors are expected to conduct themselves with courtesy and in an orderly manner. Arguments, harassment, sexual harassment, name-calling,

profane language, or fighting are grounds for revocation of the vendor permit.

OGS reserves the right to change the location, dates, hours, or to terminate entirely the operation of the program at any time and without prior notice to

the vendor.

Vendors will not refer to themselves as sponsor, co-sponsor or other terms conferring status other than of a participant.

(Rabito Dec. 7 and 9, and Ex. A.)


8. The Program was created by OGS in 2013 for the sole purpose of providing lunch

options to State employees and visitors to the ESP. (Dkt # 152-4 pp.11-12.)



5

9. The Program was created as an extension of the cafeteria services at the ESP in

order to meet the practical need to provide summer outdoor lunch options, to the approximately

11,000 State employees who work at ESP, as well as visitors to the Capitol, State Museum,

performing arts center (The Egg), and the various monuments and memorial at ESP. (Dkt # 152-

4 p. 27.)

Response 9: Plaintiff disputes that the Summer Lunch Program was an extension of the

cafeteria services at the ESP. This statement is utterly unsupported by Defendants

record citation.

10. The Program is not open to the public. (Rabito Dec. 6.)

Response 10: Aside from Wandering Dago, every other complete application was accepted

into the Summer Outdoor Lunch Program. Ex. 11, Rumpf Dep. 102:618, 108:925.

11. Vendors must apply for a permit to sell food as part of the Program during limited

hours (9:00 am to 2:00 pm); on certain days (Monday through Friday, or Wednesdays and

Fridays); at a specific location on the ESP, assigned by OGS; for a limited period of time (20

weeks, May 20, 2013 through October 4, 2013). (Rabito Dec. 6 and Ex. A.)


12. Vendors must pay a fee of $1,000 or $1,500 for the privilege of participating in

the ESP Summer Outdoor Lunch Program. (Rabito Dec. Ex. A.)


13. OGS retains the right to be the sole sponsor of the Program, to review and

approve what menu items may be offered for sale, and to terminate the Program at any time.

(Rabito Dec. 7 and Ex. A.)


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Response 13: Plaintiff disputes that OGS sponsored the Summer Lunch Program. OGS

charged vendors $1,000-$1,500 to participate in the program. (SOMF Ex. 17, 2013

Summer Outdoor Lunch Program Food Vendor Application.) There was no signage

identifying the vendors as belonging to the Summer Lunch Program. (SOMF Ex. 16,

Rabito Dep. 99:13-16.) Food vendors were not allowed to sell food on the Plaza unless they

received a permit from the Summer Lunch Program to do so. (Carpinello Decl. Ex. 2,

Rabito Dep. 95:23-96:2.).

14. OGSs overall policy that events at the ESP sponsored by OGS be family-

friendly and free from sexually explicit, insulting, or profane language or visual representations,

such that they can be enjoyed by member of the public, regardless of age and sensitivity. (Rabito

Dec. 10.)

Response 14: Plaintiff disputes Defendants claim that there was a family-friendly policy

governing the ESP. There is no evidence in the record to support Defendants claim that

OGS had an overall policy that events at the ESP be family-friendly. Defendants never

cited this alleged family-friendly policy when rejecting Plaintiffs application, and

Defendants can point to no documents in the record or elsewhere demonstrating that such

a policy existed prior to the commencement of this litigation.

15. The purpose of this policy is to create a workplace environment free from

harassment based upon race, ethnicity, or sex, and to foster an environment of respect where all

State employees and visitors to the ESP can be free to enjoy the programing sponsored by the

State through OGS. (Rabito Dec. 10.)

Response 15: Plaintiff disputes Defendants claim that there was a family-friendly policy

governing the ESP. There is no evidence in the record to support Defendants claim that


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OGS had an overall policy that events at the ESP be family-friendly. Defendants never

cited this alleged family-friendly policy when rejecting Plaintiffs application, and

Defendants can point to no documents in the record or elsewhere demonstrating that such

a policy existed prior to the commencement of this litigation.

16. OGS staff routinely reviews musical acts and movies proposed for public viewing

for vulgar, profane or sexually explicit language, nudity, sexual innuendo, or disparaging ethnic

or cultural references. (Rabito Dec. 12.)

Response 16: Plaintiff lacks sufficient information to either admit or deny this statement.

17. Performances that contain this type of language or material are not presented by

OGS. (Rabito Dec. 13.)


18. Performers are advised by OGS that such language or representations may not be

used. (Rabito Dec. 13.)


19. Movies that contain sexual or other inappropriate content are not shown at OGS

sponsored events, regardless of the movies rating. (Rabito Dec. 12.)


20. In instances when artists have violated this rule, OGS has gone so far as to end

the performance, by shutting off the sound and asking the artist to leave the stage. (Rabito Dec.

13.)


21. During African-American Day in 2010, OGS stopped a hip-hop artists act when

the performer used the N-word. (Rabito Dec. 16.)


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22. In, 2008, a singer, appearing as an opening act, was asked to leave the stage when

she appeared wearing only a mans shirt, without pants, and used profanity. (Rabito Dec. 17.)


23. OGS has directed vendors permitted to sell products at the Plaza to remove items

from their stalls which violated OGSs family-friendly policy, including: replica black-face

figurines; panties that had Kiss Me Im Irish printed on them; fertility pendants with a phallus

that became erect when a chain was pulled; and marijuana leaf belt buckles. (Rabito Dec. 18.)

Response 23: Plaintiff lacks sufficient information to either admit or deny that Defendants

have asked vendors permitted to sell products at the Plaza to remove items from their

stalls. To the extent that this occurred, Plaintiff disputes that it was done in conformance

with a so-called family-friendly policy. There is no evidence in the record to support

Defendants claim that OGS had an overall policy that events at the ESP be family-

friendly. Defendants never cited this alleged family-friendly policy when rejecting

Plaintiffs application, and Defendants can point to no documents in the record or

elsewhere demonstrating that such a policy existed prior to the commencement of this

litigation.

24. OGS does not limit speech on the Plaza for events that are not sponsored by

OGS. (Rabito Dec. 19-20.)


25. Demonstrators may obtain a permit to demonstrate through the OGS Real

Property Management and Development Office. The purpose of such a permit is to give OGS

notice of the likely size and location of the protest so that OGS can provide adequate services,


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such as crowd control measures, security, restroom facilities, road closures or parking assistance,

and other logistics. (Rabito Dec. 19.)


26. OGS does not review or limit speech made by protestors in connection with a

permit to demonstrate. OGS does not review or limit speech by individuals or organizations at

ESP which is not part of an OGS sponsored event, or a permit to demonstrate. (Rabito Dec.

19-20.)


27. Andrea Loguidice (Loguidice) is president and owner of 51 percent of the

shares of Wandering Dago, Inc. (Wandering Dago). (Dkt # 152-14 pp. 5 and 10.)


28. Brandon Snooks (Snooks) owns the remaining 49 percent of the shares of

Wandering Dago. (Dkt # 152-14 p. 10.)


29. Neither Loguidice nor Snooks intend the name Wandering Dago to express a

point of view. (Dkt # 152-14 p. 114; Dkt # 152-15 pp. 98-100.)

Response 29: Plaintiff disputes this statement because it mischaracterizes the testimony of

both Loguidice and Snooks. Loguidice testified that name reflects the identity of the truck:

Well, the wandering part is pretty obvious. I mean it is a food truck and we wander

around from place to place. Dago essentially was a nod to our Italian heritage. Both of us

are Italian. And when our forefathers came here and they were day laborers, they asked to

get paid as the day goes. (Dkt # 152-14 at 11:20-12:1.) We chose a name that

represented who we were. . . . because when you have a small business and you put your


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blood, sweat and tears into it, it should represent who you are. (Dkt # 152-14 at 13:6-14.)

This identity grew to include additional menu items that were named with ethnic slurs at

the request of various members of those ethnicities, again signaling a blue-collar,

immigrant solidarity. (Dkt # 152-14 at 56:6-16; 61:25-62:14.) Loguidice testified that the

name and menu items were meant to convey that this was a truck for the people: weve

always created everything on this truck around the people for better or for worse,

including as you pointed out earlier the sandwich names. Weve always felt like we wanted

to be the peoples truck. (Dkt # 152-14 at 107:11-14.) Snooks testified that the name

Wandering Dago describes the identity of the food truck: We wander around and we get

paid as the day goes. Its a playful take on what our ancestors did. We just made it less

formal. (Dkt. #152-15 at 65:6-8.) Wandering Dago was just a name that we felt fit what

we do and who we are. (Dkt. #152-15 at 98:25-99:4.) The name of the food truck also

describes him: My belief was that the name was about me. It was a self-reference to me.

(Dkt. #152-15 at 29:6-7.)

30. It was Snooks expectation that anyone offended by the name of the business

would choose not to do business with it. (Dkt # 152-15 p. 29.)

Response 30: Plaintiff disputes this statement because it mischaracterizes Snooks

testimony. Snooks testified that he believed the name Wandering Dago would help in the

trucks marketing. (Dkt. #152-15 at 27:13-15.) The name impacted our business

immensely. Everyone loved the name. We had people come do business with us that

wanted to take pictures with me by the truck. The name people loved it. Thats how it

impacted our business. ((Dkt. #152-15 at 26:4-8.) Snooks only became aware that some

people would be offended by the name when members of the Sons of Italy posted comments


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to that effect on Wandering Dagos Facebook page. (Dkt. #152-15 at 24:12-16.) Those

comments were posted shortly after Wandering Dago was forced to leave the Saratoga race

track. (Dkt. #152-14 at 103:6-104:23.) Thus it was only Snooks expectation that someone

offended by the name might not do business with Wandering Dago because Wandering

Dago had been denied access to the Empire State Plaza and the Saratoga race track. He

testified that at this point that was my expectation. Not my business plan. (Dkt # 152-15

at 29:17.)

31. In the spring of 2013, Loguidice contacted OGS on behalf of Wandering Dago

and inquired about participation in the 2013 Program. (Walters Dec. 7.)

Response 31: The evidence reflects that Loguidice first contacted OGS on February 27,

2013. (Dkt. #14 at 39:17-40:12.)

32. Wandering Dago planned to be a food vendor at Saratoga Race Track for the

2013 race season which ran from mid-July through Labor Day. (Walters Dec. 8.)


33. Loguidice inquired as to whether Wandering Dago could apply for a permit to

participate in the Program even though it would not be able to participate for approximately 6

weeks due to its commitment at Saratoga Race Track. (Walters Dec. 8.)


34. On Friday May 10, 2013, Aaron Walters of OGSs Special Events Office left a

voicemail message for Loguidice advising her that Wandering Dago could apply for the

Program, even though it would not be present during track season. (Walters Dec. 9.)



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35. On Monday, May 13, 2013, Loguidice called Walters and asked whether

Wandering Dago could receive a discount on the permit fee because it would not be attending the

entire Program. (Walters Dec. 10.)


36. Walters advised that there would be no discount, and Loguidice said she would

have to speak to her investor before making a determination as to whether Wandering Dago

would apply for the Program. (Walters Dec. 11.)


37. Walters advised Loguidice that Wandering Dago had until May 17, 2013 to

apply. (Walters Dec. 12.)


38. On May 15, 2013, Loguidice emailed Walters and stated that Wandering Dago

would submit an application to participate in the Program on Wednesdays and Fridays. (Dkt #

152-1 p. 68.)


39. On Friday May 17, 2013, Loguidice faxed Wandering Dagos application to

OGS; Appendix B of the application was not included in the fax. (Walters Dec. 13 and Ex. A.)

Respo

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