northern district of new york 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 1–5, and THE STATE OF NEW YORK

Defendants.

Civil Action No. 1:13-cv-01053-MAD-RFT

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION

Dated: August 27, 2013 BOIES, SCHILLER & FLEXNER LLP George F. Carpinello (Bar No. 103750) Michael Hawrylchak 30 South Pearl Street Albany, NY 12207 Ph: (518) 434-0600

Attorneys for Plaintiff

Case 1:13-cv-01053-MAD-RFT Document 4-1 Filed 08/27/13 of 27

i

TABLE OF CONTENTS Table of Authorities ........................................................................................................................ ii Preliminary Statement ..................................................................................................................... 1 Statement of Facts ........................................................................................................................... 3 I. Wandering Dago Was Denied Access to the Empire State Plaza Outdoor Summer Food Program ............................................................................. 3 II. Wandering Dago Was Expelled From Saratoga Race Course ................................ 6 III. Wandering Dago Has Attempted to Find Alternate Locations and Events ............ 8 Argument ........................................................................................................................................ 8 I. Wandering Dago Will Be Irreparably Harmed Absent a Preliminary Injunction ................................................................................................................ 9 II. Wandering Dago Is Likely to Succeed on the Merits ............................................. 9 A. Wandering Dago’s Free Speech Rights Under the First Amendment and Article I, § 8 Have Been Violated ...................................................... 10 1. Plaintiff’s Speech Is Not Misleading or Unlawful ........................ 10 2. Defendants Cannot Assert a Legitimate Government Interest ..... 11 3. Defendants’ Ban Does Not Directly Advance Any Government Interests .................................................................... 14 4. Any Purported Regulatory Justification For Defendants’ Actions Is Unconstitutionally Vague ............................................ 15 B. Wandering Dago Has Been Denied the Equal Protection of the Laws

Guaranteed By the Fourteenth Amendment and Article I, § 11 ............... 17 III. Wandering Dago Has Demonstrated Serious Questions Going to the Merits of Its Claims and That the Balance of Hardships Tips Decidedly In Its Favor .... 18 IV. A Preliminary Injunction Allowing Wandering Dago to Operate at the ESP and Return to Saratoga Race Course As a Vendor Would Be In the Public Interest................................................................................................................... 19 V. The Court Should Not Require a Bond ................................................................. 20 Conclusion .................................................................................................................................... 22


ii

TABLE OF AUTHORITIES

Cases Alvarez v. Hayward,

2006 WL 2023002 (N.D.N.Y. July 18, 2006) .......................................................................... 11 Ashcroft v. American Civil Liberties Union,

535 U.S. 564 (2002) ............................................................................................................ 11, 16 Bad Frog Brewery, Inc. v. New York State Liquor Authority, 134 F.3d 87 (2d Cir. 1998)........................................................................................ 9, 10, 14, 15 Bery v. City of New York,

97 F.3d 689 (2d Cir. 1996).......................................................................................................... 9 Bolger v. Youngs Drug Prods. Corp.,

463 U.S. 60 (1983) .............................................................................................................. 11, 12 Bronx Household of Faith v. Bd. of Educ. of City of N.Y.,

331 F.3d 342 (2d Cir. 2003).................................................................................................. 9, 18 Central Hudson Gas & Electric Corp. v. Public Service Commission,

447 U.S. 557 (1980) .................................................................................................................. 10 City of Lakewood v. Plain Dealer Publ'g Co.,

486 U.S. 750 (1988) .................................................................................................................. 16 Cohen v. California,

403 U.S. 15 (1971) .............................................................................................................. 11, 14 Doctor's Assocs., Inc. v. Stuart,

85 F.3d 975 (2d Cir. 1996)........................................................................................................ 20 Edenfield v. Fane,

507 U.S. 761 (1993) .................................................................................................................. 14 Elrod v. Burns,

427 U.S. 347 (1976) .................................................................................................................... 9 Forsyth County v. Nationalist Movement,

505 U.S. 123 (1992) .................................................................................................................. 15 Garcia v. New York Racing Association, Inc.,

2011 WL 3841524 (N.D.N.Y. Aug. 29, 2011) ......................................................................... 11 Hornell Brewing Co., Inc. v. Brady,

819 F. Supp. 1227 (E.D.N.Y. 1993) ................................................................................... 12, 13


iii

Johnston v. Tampa Sports Auth., 2006 WL 2970431 (M.D. Fla. Oct. 16, 2006) .......................................................................... 21

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

40 F.3d 587 (2d Cir. 1994)........................................................................................................ 17 Million Youth March, Inc. v. Safir,

18 F. Supp. 2d 334 (S.D.N.Y. 1998) ................................................................................... 15, 17 Million Youth March, Inc. v. Safir,

63 F. Supp. 2d 381 (S.D.N.Y. 1999) ......................................................................................... 12 Oneida Nation of New York v. Cuomo,

645 F.3d 154 (2d Cir. 2011)........................................................................................................ 8 Pac. Gas and Elec. Co. v. Pub. Utils. Comm'n of Cal.,

475 U.S. 1 (1986) ...................................................................................................................... 19 People v. Dietze,

75 N.Y.2d 47, 549 N.E.2d 1166 (1989) .................................................................................... 12 Rivera v. Town of Huntington Hous. Auth.,

2012 WL 1933767 (E.D.N.Y. May 29, 2012) .......................................................................... 21 Sambo's of Ohio, Inc. v. City Council of Toledo,

466 F. Supp. 177 (N.D. Ohio 1979) .......................................................................................... 13 Sambo's Restaurants, Inc. v. City of Ann Arbor,

663 F.2d 686 (6th Cir. 1981) .................................................................................................... 13 Shuttlesworth v. City of Birmingham,

394 U.S. 147 (1969) .................................................................................................................. 16 Smith v. Bd. of Election Comm'rs,

591 F. Supp. 70 (N.D. Ill. 1984) ............................................................................................... 21 Stevens v. New York Racing Association, Inc.,

665 F. Supp. 164 (E.D.N.Y. 1987) ........................................................................................... 11 Terminiello v. Chicago,

337 U.S. 1, 69 S.Ct. 894 , 93 L.Ed. 1131 (1949) ................................................................ 13, 20 Texas v. Johnson,

491 U.S. 397 (1989) .................................................................................................................. 12 Transp. Alternatives, Inc. v. City of New York,

340 F.3d 72 (2d Cir. 2003)........................................................................................................ 15


iv

Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) .................................................................................................................. 10

Westfield High School L.I.F.E. Club v. City of Westfield,

249 F. Supp. 2d 98 (D. Mass. 2003) ......................................................................................... 21

Statutes 42 U.S.C. § 1983 ........................................................................................................................... 11

United States Constitutional Provisions

First Amendment .................................................................................................................. passim Fourteenth Amendment, Equal Protection Clause .................................................................... 9, 17

New York State Constitutional Provisions Article I, § 8 .................................................................................................................................... 9 Article I, § 11 ............................................................................................................................ 9, 17

Rules Rule 65 of the Federal Rules of Civil Procedure .......................................................................... 20

�

Regulations Title 9 of the New York Codes, Rules and Regulations, Parts 300 and 301 ................................. 5


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

Memorandum of Law in support of its Motion for a Preliminary Injunction. Wandering Dago

seeks an injunction ordering Defendants, and all those in concert therewith, to allow Wandering

Dago to participate in the Empire State Plaza Summer Outdoor Lunch Program and to participate

as a vendor at the Saratoga Race Course.

PRELIMINARY STATEMENT

Wandering Dago has been unconstitutionally prevented from operating its business and

conveying its commercial message by two separate state agencies solely because certain

government officials have deemed its name to be inappropriate or offensive. The actions of the

officials are blatantly unconstitutional and are in bad faith. As a result, Wandering Dago

continues to suffer financial and constitutional injuries. The ongoing harm to Wandering Dago

and the merits of its constitutional claims are clear. This Court should therefore grant

preliminary injunctive relief allowing Wandering Dago to convey its commercial message and

sell its products pending the final resolution of this action.

After months of discussions with New York’s Office of General Services (“OGS”)

concerning participation as a food truck vendor in the Empire State Plaza (“ESP”) Outdoor

Summer Lunch Program, Wandering Dago’s application was unexpectedly denied only days

before the start of the program. In response to Wandering Dago’s request for an explanation,

OGS stated that the application had been denied because Wandering Dago’s name had been

determined to be offensive. Despite requests from Wandering Dago, OGS has refused to cite

any specific rule or regulation justifying the denial.

This denial is an unconstitutional violation of Wandering Dago’s First Amendment rights

for two distinct reasons. First, Wandering Dago’s name is commercial speech. Such speech may

1


be restricted only if the restriction directly advances a substantial government interest. Case law

is clear that the government has no legitimate interest in banning speech merely because it is

“offensive,” much less a substantial one. In fact, the case law is so clear that Defendants have

no good faith defense for their conduct. Moreover, even assuming the existence of a substantial

government interest, the exclusion of vendors from the Summer Outdoor Lunch Program fails to

directly advance that interest.

Second, the curtailment of Wandering Dago’s speech was not undertaken pursuant to any

narrow, objective, and definite standards as required by the Supreme Court’s case law. The

constitution does not permit vesting government officials with the unguided authority to restrict

speech on vague bases like “offensiveness.” OGS’s action in denying Wandering Dago’s permit

is unconstitutional on this ground, independent of the scope of the state’s authority to regulate

commercial speech.

Two months after its exclusion from the ESP program, Wandering Dago was preparing to

begin a seven-week engagement as a food truck vendor at Saratoga Race Course. After several

months of extended contract negotiations and logistical arrangements with Centerplate, Inc.

(“Centerplate”), the private hospitality company managing vendors at Saratoga Race Course on

behalf of the New York Racing Association (“NYRA”), and three days of physical setup at the

race track, Wandering Dago was informed by a NYRA official on the evening of Opening Day

that it was being expelled from the track effective immediately and ordered to leave the premises

in a matter of hours. The NYRA official said that this dismissal had been directed by an

unnamed state official offended by Wandering Dago’s name.

The action of NYRA officials and the conspiring state officials in expelling Wandering

Dago from Saratoga Race Course on the basis of its name is a clear violation of the First

2


Amendment, lacking even the thin veneer of a legitimate government regulation of commercial

speech. Like the OGS officials’ conduct, this conduct was willful and knowing and was not

taken in good faith.

STATEMENT OF FACTS

Wandering Dago is a New York corporation formed in January 2012 by Andrea

Loguidice and Brandon Snooks. Through Wandering Dago, Loguidice and Snooks operate a

food truck using the “Wandering Dago” brand from which they serve a variety of gourmet foods

cooked and prepared on-site in the truck’s mobile kitchen. Loguidice and Snooks are Italian-

Americans and chose the “Wandering Dago” name as a playful reference to their Italian heritage.

Loguidice and Snooks have invested a significant amount of money in the truck and equipment

and relocated to the Capital District to run this business. Wandering Dago is currently their only

source of income. (Affidavit of Andrea D. Loguidice (“Loguidice Aff.”) ¶¶ 1, 3, 7)

I. Wandering Dago Was Denied Access to the Empire State Plaza Outdoor Summer Food Program. In early 2013, Wandering Dago also became interested in participating in the ESP

Summer Outdoor Lunch Program, a program run by OGS which allows food vendors to operate

at the Empire State Plaza on weekdays from late May until early October. Wandering Dago was

in periodic contact by phone and email with multiple individuals at OGS, including Aaron

Walters, Madeline Rizzo, and Jason Rumpf, starting in February 2013. Wandering Dago

inquired on multiple occasions about participating as a summer vendor at ESP and requested an

application for the program at least as early as April 11, 2013. (Loguidice Aff. ¶¶ 8, 11)

On May 3, 2013, Aaron Walters sent Wandering Dago the application for the ESP

Summer Outdoor Lunch Program. The application deadline was May 10, 2013. The application

states that “[u]nless prior arrangements have been made with OGS, all vendors are expected to

3


complete the entire season.” On or about May 6, 2013, Wandering Dago spoke with Walters by

phone to inquire whether its seven-week commitment at Saratoga Race Course would prevent it

from participating in the program. Walters said that he would speak with his supervisors to

determine whether Wandering Dago could participate. On or about May 8, 2013, Wandering

Dago spoke with Jason Rumpf to follow up and was informed that Walters was working on

getting an answer. Rumpf said that OGS would be flexible on the deadline because of the delay

from their management. (Loguidice Aff. ¶¶ 12–14)

On May 10, 2013, at approximately 3:00 p.m., Wandering Dago received a voicemail

from Walters indicating that OGS would approve Wandering Dago’s application despite the

expected seven-week absence. On or about May 13, 2013, Walters contacted Wandering Dago

by phone and advised that it would have until Friday, May 17, 2013 to submit its application.

Walters apologized for the delay caused by OGS. On May 17, 2013, at approximately 12:16

p.m., Wandering Dago faxed a complete application to OGS. It selected the option to participate

in the program on Wednesdays and Fridays only and provided credit card authorization for the

$1,000 participation fee. (Loguidice Aff. ¶¶ 15–17)

On May 20, 2013, Wandering Dago asked Walters by email whether the application had

been officially approved yet. It received an email reply from Walters denying the application,

stating that OGS “will be unable to accommodate your application for space in this year’s

program.” Wandering Dago immediately called Walters to ask for an explanation of the denial.

Walters informed Wandering Dago that its application was the only food vendor application for

the Summer 2013 program that was denied by OGS, but stated that he could not tell Wandering

Dago the reason for the denial and directed it to contact OGS’s legal department. (Loguidice

Aff. ¶¶ 18–19)

4


Wandering Dago immediately contacted OGS’s legal department and spoke to William F.

Bruso, Jr., an OGS Associate Attorney. Bruso gave three reasons for the application’s denial:

(1) the application was late; (2) the application was incomplete; and (3) Wandering Dago’s

business name had been deemed offensive. The first two stated reasons were pretextual.

Wandering Dago was in frequent communication with OGS during the application process, was

assured that OGS would be flexible with regard to the deadline, and was eventually given a new

deadline of May 17, 2013. Wandering Dago submitted its application on May 17, 2013.

Further, Wandering Dago’s application was complete, and Bruso has never provided any

explanation of his claim of incompleteness. (Loguidice Aff. ¶¶ 20–22)

During the May 20, 2013 call with Bruso, Wandering Dago asked him to provide a

formal letter stating the reasons for the application’s denial. Bruso refused to provide a written

explanation without a formal request under New York’s Freedom of Information Law (“FOIL”).

On May 29, 2013, Wandering Dago sent a letter to Bruso requesting a written explanation for the

application’s denial, including a citation to the public rule that gives OGS the authority to deny

the application on the basis of Wandering Dago’s name. On June 25, 2013, Wandering Dago

submitted a FOIL request asking for all documents related to its Empire State Plaza Food Vendor

application. The following day, it 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 20 business days. (Loguidice Aff. ¶¶ 23–25)

On July 1, 2013, Wandering Dago received a letter from Bruso stating, “I conveyed to

you by telephone on May 20, 2013, OGS’ several reasons for its denial of your firm’s

application.” 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

5


Regulations. The letter did not cite any specific provision of law justifying the denial.

Wandering Dago received no further response to its FOIL request. Heather Groll was quoted in

an update to a July 22, 2013 article on the website “All Over Albany” saying, “[a]mong other

reasons, it was determined that [Wandering Dago’s] application was not appropriate because the

name of the business was found to be an offensive ethnic slur by any standard.” (Loguidice Aff.

¶¶ 26–28)

II. Wandering Dago Was Expelled From Saratoga Race Course. On January 28, 2013, Wandering Dago began talks with Drew Revella of Centerplate to

discuss the possibility of Wandering Dago being a vendor for the 2013 track season. After

extensive negotiations, Wandering Dago eventually reached an agreement with Centerplate to

participate as a vendor at Saratoga Race Course during the seven-week track season, in exchange

for 25% of its gross food and beverage sales and a 5% donation to a racing-related charity.

Wandering Dago was listed prominently in promotional materials produced by NYRA and

Centerplate as a vendor for the 2013 race track season. On or about July 18, 2013, Centerplate

issued a press release listing Wandering Dago as “one of the country’s top barbecue fusion

trucks.” NYRA listed Wandering Dago as one of its vendors both on its website and in its

Saratoga Insider Fan Guide. Wandering Dago was offered and turned down numerous business

opportunities, including both private catering events and public festivals, because they conflicted

with its commitment at Saratoga Race Course. (Loguidice Aff. ¶¶ 29, 31–33)

In preparation for the volume of business anticipated during its seven-week engagement

at Saratoga Race Course, Wandering Dago purchased a substantial amount of new cooking

equipment, including a six-foot barbeque smoker, a stainless steel prep table, and a deep fryer.

Wandering Dago also hired five employees to work during the track season and obtained the

6


necessary workers compensation insurance. On July 16, 2013, Wandering Dago brought its

truck, smoker, and supplies to Saratoga Race Course to begin setting up in advance of the start of

the track season on Friday, July 19, 2013. Loguidice and Snooks spent three days delivering and

setting up Wandering Dago’s equipment in preparation for opening day. Due to an unexpected

problem with propane delivery, Loguidice and Snooks were initially unable to cook, and

Wandering Dago was not open for business on opening day. They resolved the propane problem

and were prepared to begin serving food the next morning. Drew Revella apologized for the

delay and represented via text message that he would “get [Wandering Dago] another

opportunity for the missed day.” (Loguidice Aff. ¶¶ 34, 36–40)

At or about 10:00 p.m. on the evening of July 19, 2013, Wandering Dago received a call

from Stephen Travers, NYRA’s Vice President of Hospitality, Guest Services & Group Sales,

instructing it to remove its truck and equipment from Saratoga Race Course immediately.

Travers alleged that this decision had been made because a state official complained about

Wandering Dago’s name. Wandering Dago pleaded with Travers to be allowed to stay, offering

to cover up its business name everywhere it appears on the truck and equipment. Travers refused

and stated that his “hands are tied,” because NYRA had been contacted by a high ranking state

official. Travers said that the truck would be towed if it was not removed before 10:00 a.m. the

following morning. (Loguidice Aff. ¶¶ 41–43)

In order to quickly remove equipment that had been set up over a three-day period,

Wandering Dago was forced to rent a moving trailer, incurring additional expense. On the

morning of July 20, 2013, as Loguidice and Snooks were preparing to leave Saratoga Race

Course, they were met by Travers and Drew Revella. Revella presented them with a letter stating

the purported reason for termination: “[W]e have reached out to you with concern for your

7


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.”

(Loguidice Aff. ¶¶ 44–45)

III. Wandering Dago Has Attempted to Find Alternate Locations and Events. 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. Since being denied access to the ESP Summer Outdoor

Lunch Program, Wandering Dago has operated during lunchtime at various locations in the

Capital District, but none has the volume of foot traffic and potential customers present at ESP.

These locations also have less visibility to the public which leads to fewer private catering jobs

and other business opportunities. (Loguidice Aff. ¶¶ 9, 47)

Moreover, after being expelled from Saratoga Race Course, Wandering Dago has

attempted to book as many public and private events as possible to fill its schedule, but most

events, including events that it previously turned down because of its commitment at the race

track, were no longer available. Wandering Dago has also attempted to fill its lunchtime

schedule, but due to the limited number of locations in the Capital District, it typically works no

more than three lunchtime shifts per week. The business Wandering Dago does during weekday

lunchtimes 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. (Loguidice Aff. ¶ 46)

ARGUMENT

“[A] party seeking a preliminary injunction must establish (1) irreparable harm and (2)

either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the

8


merits of its claims to make them fair ground for litigation, plus a balance of the hardships

tipping decidedly in favor of the moving party. Additionally, the moving party must show that a

preliminary injunction is in the public interest.” Oneida Nation of New York v. Cuomo, 645 F.3d

154, 164 (2d Cir. 2011) (internal quotations and citation omitted).

Wandering Dago has satisfied each of those factors.

I. Wandering Dago Will Be Irreparably Harmed Absent a Preliminary Injunction. Wandering Dago’s commercial speech has been censored solely on the basis of its

exercise of its First Amendment rights, which is a per se irreparable injury. Elrod v. Burns, 427

U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of

time, unquestionably constitutes irreparable injury.”); Bronx Household of Faith v. Bd. of Educ.

of City of N.Y., 331 F.3d 342, 349 (2d Cir. 2003) (“Where a plaintiff alleges injury from a rule or

regulation that directly limits speech, the irreparable nature of the harm may be presumed.”);

Bery v. City of New York, 97 F.3d 689, 693-94 (2d Cir. 1996) (“Violations of First Amendment

rights are commonly considered irreparable injuries for the purposes of a preliminary

injunction. . . . By the very nature of their allegations, then, appellants have met the first prong of

the test.”).

II. Wandering Dago Is Likely to Succeed on the Merits.

Under existing case law, Defendants’ actions constitute clear violations of the First

Amendment and the Equal Protection Clause of the Fourteenth Amendment, as well as Article I,

§§ 8 and 11 of the New York State Constitution. Wandering Dago is thus very likely to succeed

on the merits.

9


A. Wandering Dago’s Free Speech Rights Under the First Amendment and Article I, § 8 Have Been Violated.

Wandering Dago’s name, displayed prominently on its truck as a business brand name, is

commercial speech, entitled to the protection of the First Amendment. In Bad Frog Brewery,

Inc. v. New York State Liquor Authority the Second Circuit noted that “[a]dvertising, however

tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to

who is producing and selling what product, for what reason, and at what price.” 134 F.3d 87, 96

(2d Cir. 1998) (quoting Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council,

425 U.S. 748, 765 (1976). In that case, the Second Circuit found a beer label depicting a frog

giving a “middle finger” gesture to be protected speech, holding that “[t]hough the label

communicates no information beyond the source of the product, we think that minimal

information, conveyed in the context of a proposal of a commercial transaction, suffices to

invoke the protections for commercial speech . . . .” Bad Frog, 134 F.3d at 96-97. The same

holds true for the brand name displayed on the side of a food truck.

The permissibility of government restrictions on commercial speech is governed by the

test established by the Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service

Commission, 447 U.S. 557, 566 (1980):

At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted government interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the government interest asserted, and whether it is not more extensive than is necessary to serve that interest.

1. Plaintiff’s Speech Is Not Misleading or Unlawful. Central Hudson’s first prong its easily satisfied. Regardless of whether it may be deemed

by some to be offensive, the Wandering Dago name is used to promote its entirely lawful

10


business and is not in any way misleading or deceptive. See Bad Frog, 134 F.3d at 98.

2. Defendants Cannot Assert a Legitimate Government Interest.

The second prong of the Central Hudson test requires this Court to assess whether the

government seeks to further a substantial government interest by restricting Wandering Dago’s

expression. OGS has yet to provide Wandering Dago with any explanation of the government

interest ostensibly served by the application denial. The denial was justified by OGS on the basis

of the “offensive” character of Wandering Dago’s name. We must assume therefore that the

interest served by OGS’s action is protecting the public from being confronted with offensive

speech. The expulsion of Wandering Dago from Saratoga Race Course by NYRA was similarly

justified by the name’s alleged offensiveness and was presumably taken in service of the same

interest.1

But protecting speech that some find offensive is a core purpose of the First

Amendment’s free speech guarantee. Allowing the government to justify the suppression of

speech by citing the desire to avoid speech that gives offense would be to gut the First

Amendment. As the Supreme Court has clearly held, offensiveness is “classically not a

justification validating the suppression of expression protected by the First Amendment. At least

where obscenity is not involved,2 we have consistently held that the fact that protected speech

1 NYRA is a state actor for purposes of 42 U.S.C. § 1983. See, e.g., Garcia v. New York Racing Association, Inc., 2011 WL 3841524 (N.D.N.Y. Aug. 29, 2011); Alvarez v. Hayward, 2006 WL 2023002 (N.D.N.Y. July 18, 2006); Stevens v. New York Racing Association, Inc., 665 F. Supp. 164 (E.D.N.Y. 1987). NYRA is effectively an arm of the State: (1) NYRA “is merely a conduit through which money passes to the state’s coffers,” Stevens, 665 F. Supp. at 172; (2) the legislature has “placed the power, prestige, and good name of the state behind defendant in order to assure the betting public,” id.; (3) the State must approve and may remove NYRA’s trustees, and some are directly appointed by the Governor, id. at 173; (4) the state granted NYRA’s trustees the power to appoint special policemen, id.; (5) NYRA “is not only loaned state funds to conduct capital improvements, but the capital improvements are paid for with the state’s money,” id.; and (6) NYRA’s recent reorganization involved “the State’s imposition of an oversight board for NYRA, the transfer in responsibility for scheduling races to the State, and the grants of authority to the State both to borrow from itself on behalf of NYRA to fund capital improvements at any of the racetracks, and to audit NYRA’s books and accounts at its discretion.” Garcia, 2011 WL 3841524, at *9. 2 Wandering Dago’s speech does not come close to meeting the legal test for obscenity. See, e.g., Ashcroft v.

11


may be offensive to some does not justify its suppression.” Bolger v. Youngs Drug Prods. Corp.,

463 U.S. 60, 71 (1983) (internal quotations and emendations omitted). See also Cohen v.

California, 403 U.S. 15, 25 (1971) (“Surely the State has no right to cleanse public debate to the

point where it is grammatically palatable to the most squeamish among us. . . . For, while the

particular four-letter word being litigated here is perhaps more distasteful than most others of its

genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it

is largely because governmental officials cannot make principled distinctions in this area that the

Constitution leaves matters of taste and style so largely to the individual.”); Texas v. Johnson,

491 U.S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is

that the government may not prohibit the expression of an idea simply because society finds the

idea itself offensive or disagreeable.”); Million Youth March, Inc. v. Safir, 63 F. Supp. 2d 381,

391 (S.D.N.Y. 1999) (“Even hateful, racist, and offensive speech, however, is entitled to First

Amendment protection.”); People v. Dietze, 75 N.Y.2d 47, 51, 549 N.E.2d 1166, 1168 (1989)

(“Speech is often ‘abusive’ — even vulgar, derisive, and provocative — and yet it is still

protected under the State and Federal constitutional guarantees of free expression unless it is

much more than that.”). Moreover, the Court has made clear that this principle applies just as

fully to commercial speech. Bolger, 463 U.S. at 70–71.

Hornell Brewing Co., Inc. v. Brady, 819 F. Supp. 1227 (E.D.N.Y. 1993) is directly on

point. In that case, Congress passed a statute specifically prohibiting the use of the name Crazy

Horse as related to distilled spirits wines or malt beverages. The statute was passed in response

to a public outcry because a brewer had distributed a product known as Crazy Horse Malt

Liquor. Numerous politicians and Native Americans found the name to be highly offensive to

Native Americans because Crazy Horse was an Indian chief who was known for urging his American Civil Liberties Union, 535 U.S. 564, 574 (2002).

12


people not to drink alcohol. The court explained that “[i]f the only interest asserted by the

government were its desire to abate or avert the perceived offensiveness of the Crazy Horse

name, it would not constitute a substantial interest under the Central Hudson test. Indeed that is

precisely the type of objective that is prohibited by the First Amendment and was rejected by the

courts in both Sambo’s cases” [discussed below]. Id. at 1235.

In holding the statute unconstitutional, the court gave a civics lesson in First Amendment

law that the state officials here would do well to consider:

The Court can well appreciate that the use of the name of a revered Native American leader, who preached sobriety and resisted exploitation under the hand of the United States government, is offensive and may be viewed as an exploitation of Native Americans throughout this country. The choice may be particularly insensitive given the ample documentation of alcohol abuse and its destructive results among Native Americans. Nevertheless, a price we pay in this country for ordered liberty is that we are often exposed to that which is offensive to some, perhaps even to many. It is from our exposure to all that is different that we best learn to address it, change it, and sometimes tolerate and appreciate it. “Freedom of speech may best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1949) (Douglas, J.).

Id. at 1246.

The Sambo’s cases, cited by the Hornell case, are Sambo’s Restaurants, Inc. v. City of

Ann Arbor, 663 F.2d 686 (6th Cir. 1981) and Sambo’s of Ohio, Inc. v. City Council of Toledo,

466 F. Supp. 177 (N.D. Ohio 1979). In both cases, the courts held that cities could not ban the

use of the Sambo’s name despite the fact that it was considered demeaning and offensive to

African Americans and despite the fact that the cities believed that the name would impede racial

harmony and equality. Both courts held that the use of the name was fully protected by the First

Amendment. The Ohio District Court had this to say about the appropriateness of allowing the

use of the Sambo’s name:

13


If they are offended by the word “Sambo’s” not only can they refuse to patronize the plaintiffs, but they, too, can erect signs, carry placards, or publish advertisements designed to persuade others to refuse to patronize the plaintiffs. That is what freedom of speech is all about. One cannot have freedom of speech for himself if it can be denied to others, nor is speech free if only innocuous utterances are permitted…. It would be selling our birthright for a mess of pottage to hold that because language is offensive and distasteful even to a majority of the public, a legislative body may forbid its use.

466 F. Supp. at 180.

3. Defendants’ Ban Does Not Directly Advance Any Government Interests.

Even supposing, contrary to firmly established case law, that shielding the public from

language that gives offense is not just a legitimate government interest, but a substantial one, the

restriction on Wandering Dago’s speech is still unconstitutional because it fails to directly

advance this interest. “To meet the ‘direct advancement’ requirement, a state must demonstrate

that ‘the harms it recites are real and that its restriction will in fact alleviate them to a material

degree.’” Bad Frog, 134 F.3d at 98 (quoting Edenfield v. Fane, 507 U.S. 761, 771 (1993))

(emphasis in Bad Frog). “[A] prohibition that makes only a minute contribution to the

advancement of a state interest can hardly be considered to have advanced the interest to a

material degree.” Id. at 99 (internal quotation omitted).

In Bad Frog, the Second Circuit rejected the state’s attempt to prohibit “vulgar” beer

labels, stating that “[i]n view of the wide currency of vulgar displays throughout contemporary

society, including comic books targeted directly at children, barring such displays from labels for

alcoholic beverages cannot realistically be expected to reduce children’s exposure to such

displays to any significant degree.” Id. at 99. Similarly, there is no shortage of available avenues

by which the public is routinely exposed to speech that some find offensive. In virtually any

outdoor space frequented by the general public, individuals can be seen wearing T-shirts or other

clothing bearing words and images that many would deem offensive. Not only has the state made

14


no attempt to eliminate all such offensive speech, it is constitutionally barred from doing so. See

Cohen, 403 U.S. at 25 (holding that a statute penalizing “offensive conduct” could not be

constitutionally applied to a defendant who had worn a jacket bearing vulgar language). “[A]

state must demonstrate that its commercial speech limitation is part of a substantial effort to

advance a valid state interest, not merely the removal of a few grains of offensive sand from a

beach of vulgarity.” Bad Frog, 134 F.3d at 100.

4. Any Purported Regulatory Justification For Defendants’ Actions Is Unconstitutionally Vague. Moreover, even assuming counterfactually that the State’s effort to restrict offensive

speech directly advanced some substantial government interest, the denial of Wandering Dago’s

application and expulsion from Saratoga Race Course would nevertheless be unconstitutional

because they were exercises of “unbridled discretion” by government officials, which is

prohibited by the First Amendment. Forsyth County v. Nationalist Movement, 505 U.S. 123, 133

(1992) (holding an ordinance unconstitutional because there were “no articulated standards either

in the ordinance or . . . established practice.”); see also Transp. Alternatives, Inc. v. City of New

York, 340 F.3d 72, 78 (2d Cir. 2003) (“Regulations granting such broad and unchecked

discretion to a government official . . . cannot overcome the ‘heavy presumption’ of invalidity to

which prior restraints on speech are subject.”). Despite Wandering Dago’s requests, OGS has

refused to cite any specific statute, rule, or regulation justifying the denial of its application.

Restrictions on speech imposed in an ad hoc manner without the guidance of any statutory or

regulatory framework do not satisfy the constitution’s strict requirements for regulation of

expression. See Million Youth March, Inc. v. Safir, 18 F. Supp. 2d 334, 343 (S.D.N.Y. 1998)

(holding New York City’s denial of a permit for a rally unconstitutional because it was taken

15


pursuant to the “private criteria of a City official,” rather than “pursuant to a properly drawn

ordinance”).

The closest Defendants have come to articulating the source of their authority to deny

Wandering Dago’s application for the ESP Summer Outdoor Lunch Program is a July 1, 2013

letter from Defendant William F. Bruso, Jr., in which he states that the “denial was made

pursuant to the terms of the Food Vendor Application packet, as well as OGS’ Facility Use and

Use of State Property regulations, which are located in Parts 300 and 301, respectively, of Title 9

of the New York Codes, Rules and Regulations.” Bruso’s authorities, however, provide no

support for OGS’s action. First, the only provision of the Food Vendor Application packet which

could be considered even remotely relevant is a provision stating that “[a]rguments, harassment,

sexual harassment, name-calling, profane language, or fighting are grounds for revocation of the

vendor permit.” Wandering Dago’s name does not reasonably fall within any of the proscribed

categories of conduct.3

Only two provisions of Title 9 of the New York Codes, Rules and Regulations are

remotely relevant: Section 300-3.1(d)(1), which defines disorderly conduct to include a person

who “engages in a course of conduct or commits acts that unreasonably alarm or seriously annoy

another person”; and § 301.7, which permits the commissioner to deny an application when “the

use or activity intended would unreasonably interfere with the enjoyment of the location by

others.” Each of these provisions is clearly unconstitutional when applied to prohibit activity on

the basis of speech. See City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 769-70

(1988) (“To allow these illusory ‘constraints’ to constitute the standards necessary to bound a

3 Furthermore, it is clear both from the nature of the prohibited conduct and the stated remedy, that this provision is not a condition on application, but rather is intended to govern the actions of vendors during their participation in the program. At most, it could justify a warning to Wandering Dago that use of its name while participating in the program would lead to revocation. It provides no basis ex ante for denying the application.

16


licensor’s discretion renders the guarantee against censorship little more than a high-sounding

ideal.”); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 153 (1969) (“[A] municipality may

not empower its licensing officials to roam essentially at will, dispensing or withholding

permission to speak, assemble, picket, or parade according to their own opinions regarding the

potential effect of the activity in question on the ‘welfare,’ ‘decency,’ ‘or ‘morals’ of the

community.”); Million Youth March, 18 F. Supp. 2d at 344 (holding that rule allowing permit

denial in the “best interest” of the community “is a virtual prescription for unconstitutional

decision making”). Similarly, the expulsion from Saratoga Race Course was an act of pure

discretion taken without reference to any statutory or regulatory authority.

The denial of Wandering Dago’s application and expulsion from Saratoga Race Track

were violations of its First Amendment rights, first, because they were unconstitutional

restrictions of commercial speech, and second, because they were unconstitutional exercises of

unfettered discretion in limiting speech. Thus, Wandering Dago is likely to prevail on the merits

of its claims.

B. Wandering Dago Has Been Denied the Equal Protection of the Laws Guaranteed By the Fourteenth Amendment and Article I, § 11.

By denying Wandering Dago’s application for the Summer Outdoor Lunch Program and

expelling Wandering Dago from Saratoga Race Course, the Defendants denied Wandering Dago

the equal protection of the laws. A violation of equal protection arises when “(1) the person,

compared with others similarly situated, was selectively treated; and (2) that such selective

treatment was based on impermissible considerations such as . . . intent to inhibit or punish the

exercise of constitutional rights, or malicious or bad faith intent to injure a person.” LaTrieste

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

(internal quotation omitted).

17


Wandering Dago was the only applicant for the Empire State Plaza Summer Outdoor

Lunch Program whose application was denied by OGS. Out of the numerous vendors with whom

Centerplate contracted to sell food and beverages at Saratoga Race Course, NYRA singled out

Wandering Dago to be expelled from the grounds. Both actions were motivated by the

disapproval of Wandering Dago’s name by OGS and/or NYRA employees, and thus present

clear cases of punishment of the exercise of constitutional rights.

III. Wandering Dago Has Demonstrated Serious Questions Going to the Merits of Its Claims and That the Balance of Hardships Tips Decidedly In Its Favor.

Even if the Court finds that Wandering Dago has not shown a likelihood of success on

the merits, Wandering Dago has demonstrated serious questions going to the merits of its claims

and that the balance of hardships tips decidedly in its favor. The minimal justifications

Wandering Dago has received to date for the denial of its application suggest that it did not serve

any legitimate government interest, much less a substantial one. At the very least, whether the

denial serves any substantial government interest surely raises a serious question going to the

merits of Wandering Dago’s claim.

The balance of equities also tips decidedly in Wandering Dago’s favor. Wandering Dago

has been denied access to the highest visibility and most profitable lunchtime location for mobile

food vendors in the Capital District solely on the basis of its speech. Wandering Dago’s owners,

Loguidice and Snooks, have invested heavily in the Wandering Dago truck and equipment and

rely on the business as their only source of income. The denial of access to the Empire State

Plaza and Saratoga Race Course inflicts a very real and continuing financial harm. Moreover,

each day that Wandering Dago is prevented from participating, it suffers a continuing First

Amendment injury. See Bronx Household of Faith, 331 F.3d at 349 (“Where a plaintiff alleges

injury from a rule or regulation that directly limits speech, the irreparable nature of the harm may

18


be presumed.”). A denial of preliminary injunctive relief would allow these harms, both

constitutional and economic, to continue.

Granting the injunction, on the other hand, would require only that the state allow

Wandering Dago access to the Empire State Plaza and Saratoga Race Course, on the same terms

as other food vendors, for the duration of the litigation. The injunction would impose no direct

financial cost on the state, and its terms and appropriateness can be fully revisited at final

judgment.

Because the balance of hardships tilts decidedly in Wandering Dago’s favor and there are

serious questions going to the merits of Wandering Dago’s claims, a preliminary injunction

should be granted.

IV. A Preliminary Injunction Allowing Wandering Dago to Operate at the ESP and Return to Saratoga Race Course As a Vendor Would Be In the Public Interest.

“The constitutional guarantee of free speech serves significant societal interests wholly

apart from the speaker’s interest in self-expression. By protecting those who wish to enter the

marketplace of ideas from government attack, the First Amendment protects the public’s interest

in receiving information. The identity of the speaker is not decisive in determining whether

speech is protected. Corporations and other associations, like individuals, contribute to the

discussion, debate, and the dissemination of information and ideas that the First Amendment

seeks to foster.” Pac. Gas and Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 8 (1986)

(internal quotations and citations omitted).

It is always in the public interest to protect free speech rights. Wandering Dago’s name

serves as a distinctive brand for a food truck, but at the same time, it is part of an ongoing

conversation about the appropriate place of purportedly offensive ethnic descriptors in American

19


society. On one side of this debate are those, like Defendants, who believe that certain words

should be forever banished from the public’s vocabulary. They seek to avoid offense by eternally

policing the language. On the other side are those, like Wandering Dago, who argue that there is

a role for re-appropriation, humor, and self-deprecation. They believe that when the ostensible

targets of a once-offensive word take “ownership” or employ it in gentle mockery, they deprive

the word of any power to hurt that it may once have had. Reasonable people of good faith can

disagree about the merits of these two positions, but it is not the place of the state officials to

declare one side of the debate off limits. See Terminiello v. City of Chicago, 337 U.S. 1, 4

(1949) (“[A] function of free speech under our system of government is to invite dispute. It may

indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction

with conditions as they are, or even stirs people to anger. Speech is often provocative and

challenging. It may strike at prejudices and preconceptions and have profound unsettling effects

as it presses for acceptance of an idea.”)

The publicity and attention that has arisen in the wake of the actions by OGS and NYRA

is itself evidence of the relevance of Wandering Dago’s name to this ongoing debate. The public

interest will be well served by allowing the marketplace of ideas to function unimpeded pending

final resolution of this action.

V. The Court Should Not Require a Bond.

Although Rule 65 of the Federal Rules of Civil Procedure requires the Court to issue a

preliminary injunction only upon the movant “giv[ing] security in an amount that the court

considers proper to pay the costs and damages sustained by any party found to have been

wrongfully enjoined or restrained,” the Second Circuit has held that it is “proper for the court to

require no bond where there has been no proof of likelihood of harm.” Doctor’s Assocs., Inc. v.

20


Stuart, 85 F.3d 975, 985 (2d Cir. 1996) (internal quotation omitted). No bond should be required

here because the Defendants will suffer no costs or damages by virtue of the issuance of the

preliminary injunction. Allowing Plaintiff to participate in the Summer Outdoor Lunch Program

or to set up their facility at the Saratoga Race Track would not cause any damage to Defendants.

They would simply be required to comply with their First Amendment obligations as public

officials.

Furthermore, the Plaintiff is a small business and its owner is of extremely limited means.

The owner has essentially invested all her available funds to purchase the necessary equipment to

operate this business. (Loguidice Aff. ¶ 7) Under similar circumstances, courts have waived the

requirement for a bond. See, e.g., Rivera v. Town of Huntington Hous. Auth., 2012 WL 1933767

(E.D.N.Y. May 29, 2012) (requiring no bond where there was no showing that defendants are

likely to suffer harm and plaintiff was of limited means).

Moreover, courts have held that a bond should not be required when a plaintiff seeks to

vindicate fundamental constitutional rights. See, e.g., Johnston v. Tampa Sports Auth., 2006 WL

2970431, at *1 (M.D. Fla. Oct. 16, 2006) (holding that “imposing a financial burden on a

plaintiff as a condition to protecting fundamental rights would create an unfair hardship on that

plaintiff”); Westfield High School L.I.F.E. Club v. City of Westfield, 249 F. Supp. 2d 98, 129 (D.

Mass. 2003) (holding that “requiring a security bond in this case might deter others from

exercising their constitutional rights,”); Smith v. Bd. of Election Comm’rs, 591 F. Supp. 70, 72

(N.D. Ill. 1984) (holding that requiring a bond “would condition the exercise of plaintiffs’

constitutional rights upon their financial status” and “create an unfair hardship for them and

impact negatively on the exercise of their constitutional rights”).

21


22

CONCLUSION

For all the foregoing reasons, Plaintiff’s motion for a preliminary injunction should be

granted.

Dated: August 27, 2013 Albany, New York BOIES, SCHILLER & FLEXNER LLP

By: /s/ George F. Carpinello George F. Carpinello (Bar No. 103750) Michael Hawrylchak 30 South Pearl Street

Albany, NY 12207 Ph: (518) 434-0600 Attorneys for Plaintiff


northern district of new york wandering dago inc....

Documents