wandering dago defendants

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK WANDERING DAGO, INC.,

Plaintiff,

-against- 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.

13-CV-1053

MAD/RFT

MEMORANDUM OF LAW OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants RoAnn M. Destito,

Joseph J. Rabito, William F. Bruso, Jr., and Aaron Walters

The Capitol Albany, New York 12224-0341

Colleen D. Galligan and Louis Jim Bar Roll Nos. 105167 and 517403 Assistant Attorneys General, of Counsel Telephone: (518) 776-2613 Fax: (518) 473-1572 (Not for service of papers) Date: August 31, 2015

Case 1:13-cv-01053-MAD-RFT Document 157 Filed 08/31/15 of 15

Table of Contents

PRELIMINARY STATEMENT…………………………………………………………………1 STATEMENT OF FACTS……………………………………………………………………….2 ARGUMENT…………………………………………………………………………………….2

POINT I…………………………………………………………………………………..2 PLAINTIFF IGNORES THE LAW OF THE CASE AND IMPROPERLY ATTEMPTS TO RELITIGATE MATTERS ALREADY DECIDED BY THE COURT……………………………………………………………………………..2

A. Offensiveness of the Term “Dago”……………………………………...……2

B. Forum Defined as ESP Summer Outdoor Lunch Program………………........2

C. Plaintiff’s Claims Should be Analyzed Under Traditional Forum Analysis….3

POINT II………………………………………………………………………………....3 DEFENDANTS’ DENIAL OF PLAINTIFF’S APPLICATION DID NOT VIOLATE PLAINTIFF’S FIRST AMENDMENT RIGHTS……………………..3 A. Rabito’s Decision Was Not An Exercise of Unfettered Discretion…………..4

B. Defendants Have Not Engaged in Unconstitutional Viewpoint

Discrimination…………………………………………………………………9

C. The Denial of Plaintiff’s Application for a Vendor Permit was Reasonable……………………………………………………………….......12 CONCLUSION…………………………………………………………………………………13

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PRELIMINARY STATEMENT

Plaintiff, Wandering Dago Inc. (“Wandering Dago”), commenced the instant action by

filing a complaint on August 27, 2013, alleging, inter alia, that Defendants William F. Bruso, Jr.,

RoAnn Destito, Joseph Rabito, and Aaron Walters (collectively “Defendants”) violated its right

to free speech under the First Amendment when Defendants denied Plaintiff’s application for a

permit to participate as a vendor in the Empire State Plaza (“ESP”) Summer Outdoor Lunch

Program in 2013; and that Defendants violated Plaintiff’s right to equal protection under the

Fourteenth Amendment by treating Plaintiff differently than similarly situated applicants. (Dkt.

No. 1.) On August 4, 2014, Plaintiff filed an amended complaint alleging, inter alia, that

Defendants violated its free speech and equal protection rights by denying its application to

participate in the ESP Summer Outdoor Lunch Program in 2014. (Dkt No. 86.) Defendants

denied these claims. (Dkt Nos. 57 and 90.)

Essentially, Plaintiff alleges that it was unconstitutional for Defendants to deny Plaintiff a

permit to sell food during the Office of General Services (“OGS”) sponsored ESP Summer

Outdoor Lunch Program (the Program”) on the grounds that Plaintiff’s name contains an

offensive ethnic slur. Plaintiff’s instant motion for summary judgment must be denied on the

grounds that the forum is the Program, the Program is a nonpublic forum, and the denial of

Plaintiff’s application for a vendor permit to participate in the 2013 Program was reasonable in

light of the purpose of the Program, and viewpoint neutral. The denial of Plaintiff’s 2014

application on the same grounds was also reasonable and consistent with OGS’s policy.

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STATEMENT OF FACTS

Defendants adopt and incorporate herein Defendants’ Statement of Material Facts (Dkt.

No. 155-1); Memorandum of Law (Dkt No. 155-9); Declarations of RoAnn Destito (Dkt. No.

155-2), Joseph Rabito (Dkt. No. 155-3), William Bruso, Jr. (Dkt No. 155-4), and Aaron Walters

(Dkt. No. 155-5-7); and Affirmation of Colleen D. Galligan, submitted in support of Defendants’

motion for summary judgment (Dkt. No. 155), as well as Defendants’ Response to Plaintiff’s

Statement of Material Facts and the Declaration of Aaron Wwalters, dated August 28, 2015

(“Second Walters Decl.”), both of which are submitted herewith.

ARGUMENT

POINT I

PLAINTIFF IGNORES THE LAW OF THE CASE AND IMPROPERLY ATTEMPTS TO RELITIGATE MATTERS ALREADY DECIDED BY THE COURT

A. Offensiveness of the Term “Dago”

The Court has already determined, as a matter of law, that the term “dago” is offensive.

(Dkt No. 54 pp. 2-3.) “It takes neither complicated legal argument, nor complex legal research to

determine that the word ‘dago’ is highly offensive to many. It simply takes common sense. For

certain, the term ‘dago’ is not a playful or accepted word for most Italians. To the contrary, it is

hurtful and indeed painful to many. It conjures memories of a time not long ago when Italian

Americans were the subject of widespread discrimination.” Wandering Dago, Inc. v.

N.Y.S.O.G.S., 992 F. Supp. 2d 102, 108 (N.D.N.Y. 2014). (Dkt No. 54, pp. 2-3.)

B. Forum Defined as ESP Summer Outdoor Lunch Program

Plaintiff erroneously asserts that the forum at issue is the Empire State Plaza despite the

fact that te Court has already defined the forum at issue as the Empire State Plaza Summer

Outdoor Lunch Program run by OGS. (Dkt No. 54, p. 26.) “[T]he Court finds that the relevant

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http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=992+F.+Supp.+2d+102%2520at%2520108


forum is not the Empire State Plaza in toto as the parties have assumed. Rather, the relevant

forum is the more limited Empire State Plaza Summer Lunch Program, which happens to take

place within the grounds that comprise the Empire State Plaza.” Wandering Dago, 992 F.

Supp.2d at 120.

C. Plaintiff’s Claims Should be Analyzed Under Traditional Forum Analysis

This Court has already rejected Plaintiff’s argument that this case should be analyzed

under the test for restrictions on commercial speech established in Central Hudson Gas &

Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), and found that this case is

more properly a public forum case. Wandering Dago, 992 F. Supp 2d at 115, n. 4. (Dkt. No. 54,

p. 17.) Therefore, Plaintiff’s reliance on Central Hudson and Bad Frog Brewing, Inc. v. New

York State Liquor Authority, 134 F.3d 87 (2d Cir. 1998), is misplaced as those cases are not

applicable to the case at bar.

POINT II

DEFENDANTS’ DENIAL OF PLAINTIFF’S APPLICATION DID NOT VIOLATE PLAINTIFF’S FIRST AMENDMENT RIGHTS

In the interest of economy, Defendants adopt and incorporate POINT I from their

Memorandum of Law in support of Defendants’ motion for summary judgment (Dkt. No. 155-9).

As explained more fully therein, the forum at issue, the Program, is a nonpublic forum where the

government’s regulation on expressive activity need only be “reasonable in light of the purpose

of the forum and all surrounding circumstances.” Cornelius v. NAACP Legal Defense &

Education Fund, 473 U.S. 788 (1984). The purpose of the Program is to provide lunch options to

the State employees and visitors at the ESP. (Dkt. No. 152-4 pp. 11-12.) The standard imposed

upon the Program, and indeed all programs sponsored by OGS at ESP, is that it be family-

friendly and appropriate for persons of all ages. (Rabito Dec. ¶ 10.) OGS’s family-friendly policy

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prohibits speech and visual representations that are vulgar, profane, sexually explicit, or

derogatory. Id. 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. Id. The denial of Plaintiff’s application for a vendor permit was reasonable

in light of the purpose of the Program and consistent with OGS’s family-friendly policy.

A. Rabito’s Decision Was Not An Exercise of Unfettered Discretion

Plaintiff’s motion for summary judgment must be denied because Plaintiff’s claim that

Joseph Rabito denied Plaintiff’s application to participate in the Program based solely upon

Rabito’s own personal opinion that the name is offensive and without reliance upon any rule or

regulation is not supported by the record. It is not simply Rabito’s personal opinion that the term

dago is offensive. The Court has already found that the term “dago” is offensive as a matter of

law. Wandering Dago, Inc. v. N.Y.S.O.G.S., 992 F. Supp. 2d 102, 108 (N.D.N.Y. 2014). (Dkt No.

54, pp. 2-3.) Additionally, prior to making the decision to deny the application, Rabito confirmed

that his understanding of the offensive nature of the term was correct. (Rabito Dec. ¶¶ 27-28.)

Rabito’s decision was also consistent with OGS’s long standing policy that events at the Empire

State Plaza 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 members of the

public, regardless of age and sensitivity. (Rabito Dec. ¶¶ 10-11.) OGS’s policy was incorporated

into the 2013 Program Rules which expressly provided, “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.”

(Rabito Dec. ¶ 9; Exhibit A.) The term “dago” is offensive on its face. (Dkt No. 54, pp. 2-3.)

4



Rabito understood that a significant number of people who saw the food truck on the Plaza

would recognize the name as a highly offensive term for Italians. (Rabito Dec. ¶¶ 25-26.) Rabito

also knew that State employees and visitors to the ESP would understand that the food truck was

on the Plaza as part of an OGS sponsored program. (Rabito Dec. ¶ 8.) State employees and

visitors to the Plaza would therefor believe that the State, acting through OGS, had sanctioned or

approved the name. (Id.) Because the term is so offensive on its face, Plaintiff could not have

provided an explanation for its use of the word that would ameliorate the understanding that

most people would have when reading the name on the side of the truck. Because Rabito’s

decision was not based solely upon his own personal opinion with regard to the offensiveness of

Plaintiff’s name, and was consistent with OGS’ well-established policy, it was not an exercise of

unfettered discretion.

Additionally, the cases cited by Plaintiff with regard to its allegation of “unbridled

discretion” are not applicable to the facts of the instant action. Those cases involve limits on

speech in traditional public fora, such as streets, parks, and public transportation. Forsyth County

v. Nationalist Movement, 505 U.S. 123, 133 (1992) (involving the restrictions on parades in

public roads); Southeastern Promotion, Ltd. v. Conrad, 420 U.S. 546 (1975) (involving a

restriction on a theatrical performance in a public theater); Shuttlesworth v. City of Burmingham,

394 U.S. 147 (1969) (involving an ordinance which made it an offense to participate in a

parade); City of Lakewood v. Plan Dealer Publishing Co., 486 U.S. 750 (1988) (involving

placement of a news rack on a public street); Coalition for Abortion Rights & Against

Sterilization Abuse v. Niagara Frontier Transportation, 584 F. Supp. 985 (W.D.N.Y. 1984)

(involving advertising space in public transportation); Million Youth March, Inc. v. Safir, placing

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limits on assembly in public park); Davis v. Stratton, 575 F. Supp. 2d 410, rev’d 360 F. App’x

182 (2d Cir. 2010) (involving advertising on public buses).

Here, the Court has already defined the forum as the Program, and not the Empire State

Plaza in toto. Wandering Dago, 992 F. Supp.2d at 120. Application of forum analysis pursuant to

Cornelius v. NAACP Legal Defense & Educational Fund, 473 U.S. 788, 797 (1985), establishes

that the Program is a nonpublic Forum. (See POINT I of Defendants’ Memorandum of Law

submitted in support of Defendants motion for summary judgment.) (Dkt No. 155-9.) Therefore,

the cases relied upon by Plaintiff which involve statutes or regulations that vest government

officials with unbridled discretion to limit speech in traditional public fora are not applicable to

the case at bar.

Plaintiff’s reliance on Children First Fund, Inc. v. Fiala, 790 F. 3d 328 (2015), rev’d by

790 F.3d 328 (2d Cir. 2015), vacated by 2015 U.S. App LEXIS 13633 (August 5, 2015), for

application of the unbridled discretion doctrine to nonpublic fora is likewise misplaced. Children

First involves the denial of a specialty license plate by the Department of Motor Vehicles on the

grounds that some people may find it offensive. Id. On May 22, 2015, the Second Circuit held

that speech on specialty license plates is private speech protected by the First Amendment.

However, on June 18, 2015, the Supreme Court issued a decision in Walker v. Texas Div., Sons

of Confederate Veterans, Inc., which found that speech on specialty license plates is government

speech not afforded the same protections. 135 S. Ct. 2239 (2015). The Walker case overturned

Children First, and thus, Children First and other similar cases relying on this same analysis are

no longer good law.

The record does not support Plaintiff’s claims that the process for approving applications

for the 2013 Program was a “black box” or that Rabito made an ad hoc decision to deny the

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application. In the spring of 2013, OGS decided to develop the Program. (Rabito Dec. ¶ 4.)

Applications were collected and reviewed for completeness by the Special Events Office. (Dkt

No. 152-2 pp. 16-17; Dkt No. 152-1 p. 9; Dkt No. 152-4 p. 11.) On May 17, 2013, after receipt

of Plaintiff’s application, a list of all vendors that had applied for the program was provided to

OGS Director of Convention and Cultural Events Heather Flynn and to OGS Deputy

Commissioner for Operations Joe Cavazos. (Dkt No. 152-2 p. 38.) Heather Flynn was

responsible for supervision of the Program. (Dkt No. 152-4 pp. 7-8, 11-13, and 17.) Joe Cavazos,

who was Heather Flynn’s supervisor, was responsible for oversight of all programs run by the

Special Events Office, including the Program. (Dkt No. 152-9 pp. 9-10.) The name Wandering

Dago raised a red flag and Joe Cavazos, together with OGS Public Information Officer Heather

Groll, raised the issue with Cavazos’s supervisor, Executive Deputy Commissioner Rabito.

(Rabito Dec. ¶ 24.) Plaintiff’s assertion that its application was brought to the attention of Rabito

in an ad hoc manner by persons who were not responsible for the program is simply not

supported by the record.

Nor did Rabito make the decision to deny Plaintiff’s application in an ad hoc manner.

Upon being advised that a vendor named Wandering Dago had applied for the Program, Rabito

immediately recognized “dago” as a high offensive ethnic slur. (Rabito Dec. ¶¶ 25-26.) Before

making the decision to deny Plaintiff’s application, however, Rabito confirmed that his

understanding of the term was accurate. (Rabito Dec. ¶¶ 26-28.) Rabito also checked Plaintiff’s

website and found that its menu contained several other ethnic slurs. (Rabito Dec. ¶29-30.)

Rabito made the decision to deny Plaintiff’s application because he knew that the inclusion of a

food truck with “dago” in its name would violate OGS’s policy to provide family-friendly

programing, free from sexually explicit, insulting, or profane language, or offensive visual

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representations, that can be enjoyed by all. (Rabito Dec. ¶ 10.) Rabito understood that, as the

custodian of the State Capitol and the entire Empire State Plaza, OGS has the authority and

responsibility to issue permits to participate in OGS-sponsored events to only those vendors who

meet the various program requirements. (Rabito Dec. ¶ 8.) Because the Program is marketed by

OGS, State employees and visitors recognize that the Program is provided, sponsored, and

operated by the State. (Rabito Dec. ¶ 8.)

Rabito’s decision was consistent with OGS’s routine application of its family-friendly

policy. For example, OGS staff routinely review musical acts and movies proposed for public

viewing at OGS sponsored events on the Plaza for vulgarity, profane or sexually explicit

language, nudity, sexual innuendo, or disparaging ethnic or cultural references. (Rabito Dec. ¶

12.) OGS staff advises performers before they are booked that such language and references may

not be used. (Rabito Dec. ¶ 13.) Where performers have violated these standards, they have been

asked to leave the stage. (Rabito Dec. ¶¶ 14-17.) OGS has directed vendors at OGS-sponsored

events to remove items from their stalls that violated OGS’s family-friendly policy, including:

replica “black face” figurines, panties with “Kiss Me I’m Irish” printed on them, fertility

pendants with a phallus that becomes erect when a chain is pulled, and marijuana leaf belt

buckles. (Rabito Dec. ¶ 18.)

Similarly, Plaintiff’s assertion that it was not advised of the reason that its application

was denied is not supported by the record. On May 20, 2013, the same day Plaintiff was advised

that its application had been denied, OGS Attorney William Bruso, Jr. spoke with Andrea

Loguidice (“Loguidice”) and advised her that the application had been denied because the

business name contained a derogatory ethnic slur. (Bruso Dec. ¶¶ 20-21; Dkt. No. 152-14 p. 71.)

Bruso also advised Loguidice of additional reasons why the application may have been rejected.

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(Bruso Dec. ¶ 20-21.) Both owners of Wandering Dago, Loguidice and Brandon Snooks

(“Snooks”), testified that as of May 20, 2013 they understood that Plaintiff’s application had

been denied because the name of the food truck is offensive. (Dkt. No. 152-14 p. 71; Dkt No.

152-15 p. 98.) Defendants did not attempt to hide the reason for the denial from Plaintiff. Nor

have Defendants attempted to change the rational for the denial of the application over time.

Likewise, Plaintiff’s claim that other vendors were allowed to submit portions of the

application late is not accurate. As explained by Walters in the attached declaration, OGS was

not correctly named as an additional insured on the certificates of liability insurance originally

provided by the vendors with their applications. (Second Walters Decl. ¶¶ 3-4.) Subsequently,

the Special Events Office asked the Program vendors to provide new certificates of insurance

with the corrected information and the new certificates were then placed in the Program file.

(Walters Dec. ¶¶ 4-6.) However, even if other vendors had been allowed to submit late

documentation, Plaintiff’s denial would not have been affected because the offensive nature of

Plaintiff’s name would have prevented it from participating in the program, even if its

application was acceptable in all other respects.

B. Defendants Have Not Engaged in Unconstitutional Viewpoint Discrimination

The Program application specifically states that, “[a]ll 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.”

(Rabito Dec ¶ 6 and Ex. A.) This language is consistent with OGS’s family-friendly policy.

OGS’s family-friendly policy is viewpoint neutral in that it does not favor one point of view or

opinion over another, and does not seek to prohibit certain derogatory terms, or ethnic slurs,

while allowing others. The appropriateness of OGS’s policy must be viewed in light of the

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purpose for which the Program was created. Cornelius, 473 U.S. 788. Here, the sole purpose of

the Program is to provide lunch options for State employees and visitors to the Empire State

Plaza. By creating the Program, OGS has not created a forum for expressive activities or invited

participants to express a point of view. Because of the very narrow purpose of the Program, and

the fact that it is presented and promoted by OGS as proprietor and employer on behalf of the

State, OGS has the right to require that its vendors refrain from harassment, profane language,

and name-calling. Engquist v. Oregon Dept. of Agr., 553 U.S. 591, 598 (2008).

In attempting to assert a claim of viewpoint discrimination, Plaintiff mischaracterized

OGS’s policy as “prohibiting language deemed to be derogatory toward an ethnicity or

nationality, while allowing speech that references ethnicity in a neutral or positive way.” (Dkt.

No. 156-1 p. 18.) The family-friendly policy, however, as articulated in the Program application

requires that all vendors refrain from harassment, profane language, and name-calling, regardless

of the viewpoint of the offensive language. The policy does not favor one viewpoint above

another, and the Program does not create a forum for expressive activity regarding ethnicity, or

any other subject. The only speech contemplated by the Program is that required to promote the

purpose of the Program, which is the sale of food. Plaintiff’s name is a well-known and highly

offensive derogatory term for people of Italian and Spanish descent. As a property owner and

employer, OGS has a right to choose not to be associated with the highly offensive term. On the

other hand, “Red Poppies – A Polish Kitchen” is a name that describes the type of food being

offered for sale. The description of the type of food offered for sale is consistent with the purpose

of the Program. It is also important to note that this vendor did not use a derogatory term for

those of Polish descent in its name.

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In addition, Plaintiff’s claim of view point discrimination must fail because both owners

of Wandering Dago, Loguidice and Snooks, have testified, that the name Wandering Dago is not

intended to express an opinion or communicate a point of view. (Dkt. No. 152-14 p. 114; Dkt

152-15 pp. 98-100.) In the absence of a point of view there can be no viewpoint discrimination.

Plaintiff’s reliance on cases involving specialty license plates is also misplaced. These

cases, all decided prior to the recent Supreme Court decision in Walker, analyze restrictions in

the context of private speech.1 Since the Supreme Court has now instructed that speech on

specialty license plates is government speech, which is not protected by the First Amendment,

these cases are no longer good law. Walker, U.S. 135 S. Ct. 2239 (2015). (See Point II-A, supra.)

But even if these license plate cases were still good law, they would not be applicable to

the case at bar. In the situation where a state creates a specialty license program, the state invites

individuals or organizations to apply for the creation of a plate which expresses a point of view

by advocating for a particular program, cause, or issue. Where the state invites public discourse

and debate via a program, it must then ensure that restrictions on expression are viewpoint

neutral. Here, however, the Program at issue was not created to encourage public discourse or

debate and the State did not invite vendors to engage in free expression. The permit to participate

in the Program limits the vendor’s participation to the sale of preapproved menu items on

specific days and times, at a specific location. The only speech contemplated by the Program is

that which is necessary for the advertisement and description of the approved menu items.

1 Sons of Confederate Veterans, Inc. v. Comm’n of Virginia Dep’t of Motor Vehicles, 288 F.3d 620 (4th Cir. 2002); Lewis v. Wilson, 253 F.3d 1077 (8th Cir. 2001); Matwyuk v. Johnson, 22 F. Supp. 3d 812 (W.D. Mich. 2014).

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C. The Denial of Plaintiff’s Application for a Vendor Permit was Reasonable.

As explained more fully in Point I of Defendants’ Memorandum of Law in support of

their motion for summary judgment (Dkt No. 155.), the denial of Plaintiff’s application for a

vendor permit was reasonable in light of the circumstances. Cornelius, 473 U.S. at 809. The

purpose of the Program is to provide lunch options to the State employees and visitors at the

ESP. The standard imposed upon the Program, and indeed all programs sponsored by OGS at

ESP, is that it be family-friendly and appropriate for persons of all ages. (Rabito Dec. ¶ 10.)

OGS’s family-friendly policy prohibits speech and visual representations that are vulgar,

profane, sexually explicit, or derogatory. Id. 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. Id. The application for the Program

specifically states that, “[a]ll 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.” (Rabito Dec ¶ 6 and Ex. A.) These

restrictions were reasonable in light of OGS’s position, on behalf of the State, as property owner

and employer, and in light of the purpose of the program to provide lunch options to State

employees and visitors to the ESP.

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CONCLUSION

For the reasons stated herein and the statement of facts, declarations, and memorandum

of law submitted in support of Defendants’ Motion for Summary Judgment, Plaintiff’s instant

motion for summary judgment should be denied as a matter of law.

Dated: Albany, New York August 31, 2015

ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants RoAnn M. Destito,

Joseph J. Rabito, William F. Bruso and Aaron Walters

The Capitol Albany, New York 12224-0341

By: s/ Colleen D. Galligan Colleen D. Galligan Assistant Attorney General, of Counsel Bar Roll No. 105167 Telephone: (518) 776-2613 Fax: (518) 473-1572 (Not for service of papers) Email: [email protected]

TO: George F. Carpinello, Esq. Boies, Schiller Law Firm 30 South Pearl Street, 11th Floor Albany, NY 12207

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK WANDERING DAGO, INC.,

Plaintiff,

-against- 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.

13-CV-1053

MAD/RFT

DEFENDANTS’ RESPONSE TO PLAINTIFF’S STATEMENT PURSUANT TO RULE 7.1(a)(3)

Pursuant to Rule 7.1(a)(3) of the Local Rules of this Court, Defendants RoAnn M.

Destito (“Destito”), Joseph J. Rabito (“Rabito”), William F. Bruso (“Bruso”) and Aaron Walters

(“Walters”) submit this response to plaintiff’s Rule 7.1(a)(3) statement (Dkt. No. 156-2

(“Plaintiff’s 7.1 Statement”)):

1. Defendants ADMIT to paragraph 1 of Plaintiff’s 7.1 Statement.






Case 1:13-cv-01053-MAD-RFT Document 157-1 Filed 08/31/15 Page 1 of 9

7. Defendants ADMIT to paragraph 7 of Plaintiff’s 7. 1 Statement.


9. Defendants DENY paragraph 9 of Plaintiff’s 7.1 Statement. The Empire State

Plaza includes multiple state buildings, including the Corning Tower, four agency buildings, the

Swan Street Building, the Legislative Office Building, the Robert Abrams Justice Building, the

Egg Center for Performing Arts, the Cultural Education Center, which contains the State

Museum and the State Library, and the New York State Capitol Building, all of which are

connected by an underground concourse. Affidavit of Joseph J. Rabito, dated September 6, 2013

(Dkt. No. 27-1) (“Rabito Aff.”).



12. Defendants DENY paragraph 12 of Plaintiff’s 7.1 Statement. Several special

events are held annually on the Empire State Plaza each year. Some examples include African

American Family Day, Hispanic Heritage Month, the Food Festival, and the Fourth of July

Festival. Rabito Dep. (Dkt. No. 152-12) at 59.

13. Defendants DENY paragraph 13 of Plaintiff’s 7.1 Statement to the extent that it

may imply that OGS may sponsor political rallies, marches, and protests. Although OGS may

issue demonstration permits for individuals or organizations that apply to use the Plaza for

political rallies, marches, and protests, the issuance of a demonstration permit does not equate to

OGS sponsorship of the event. Rabito Dep. at 86 (“You – you can approve a permit; that doesn’t

make you a sponsor.”).


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alleges that Defendants individually or OGS “approves” some protests. Rather, OGS issues

demonstration permits to individuals or organizations that apply for a permit to demonstrate on

OGS-controlled property. Rabito Decl. ¶ 19. The purpose of the permit is to provide OGS with

notice of the likely size and location of the demonstration so that OGS can provide adequate

services and operational management. Id. Issuance of a demonstration permit does not equate to

OGS sponsorship of the event. Rabito Dep. at 86 (“You – you can approve a permit; that doesn’t

make you a sponsor.”).

16. Defendants ADMIT to paragraph 16 of Plaintiff’s 7.1.



mischaracterizes the cited portion of the deposition testimony. The context of the deposition

testimony makes it clear that the events being discussed are political demonstrations. Rabito

Dep. at 86-87 (discussing an exhibit that was an article about an education reform rally).

19. Defendants DENY paragraph 19 of Plaintiff’s 7.1 Statement. The Program

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 Decl. ¶ 5. Food vendors may apply to

be present from Monday through Friday or for Wednesdays and Fridays only. Rabito Decl. Ex. A

at 1 (OGS 000061). The participating food vendors would operate at designated spots located

between the reflecting pool and the Egg on the Empire State Plaza. Rabito Decl. ¶ 3. The hours

for the sale of food items by qualified vendors is also restricted by OGS. Rabito Decl. Ex. A at 2

(OGS 000062).

3




22. Defendants DENY paragraph 22 of Plaintiff’s 7.1 Statement. Aaron Walters, a

public affairs and promotions agent for OGS, advised Andrea Loguidice that plaintiff had until

May 17, 2013, to submit an application. Declaration of Aaron Walters, dated July 28, 2015 (Dkt.

No. 155-5) (“Walters Decl.”), ¶ 12.


24. Defendants ADMIT paragraph 24 of Plaintiff’s 7.1 Statement.




28. Defendants DENY paragraph 28 of Plaintiff’s 7.1 Statement. The cited portions

of the deposition transcripts cited in Plaintiff’s 7.1 Statement actually state that Joe Cavazos

(“Cavazos”) did not make the decision concerning the denial of plaintiff’s application, that

Cavazos had not personally reviewed plaintiff’s 2013 Program Application when he brought it to

Rabito’s attention, and that Heather Groll (“Groll”) was not aware of plaintiff’s food truck prior

to plaintiff’s application being denied in 2013.






4


34. Defendants DENY paragraph 34 of Plaintiff’s 7.1 Statement. As set forth in the

2013 Program Rules: “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.” Rabito Decl. ¶ 9. This requirement is

consistent with OGS’s overall policy that OGS-sponsored events at the Empire State Plaza be

“family friendly” and free from sexually explicit, insulting, or profane language, or offensive

visual representations, so that the event can be enjoyed by all members of the public, regardless

of age and sensitivity. Id. ¶ 10. OGS’s “family friendly” policy with regard to events that it

sponsors at the Empire State Plaza has been applied consistently in the past. Id. ¶ 11. Rabito

denied plaintiff’s application because its business name and the names of its menu items violated

OGS’s “family friendly policy.” Id. ¶ 34.

35. Defendants DENY paragraph 35 of Plaintiff’s 7.1 Statement because it

mischaracterizes the cited portion of the deposition transcript. As set forth expressly in the

transcript, Rabito “was concerned that people would take offense to it and people would be hurt

by it . . .” Rabito Dep. at 71. Although Rabito said that “if someone would refer to me [i.e.

Rabito] as a Dago, I [i.e. Rabito] would punch them in the mouth,” id., the context makes it clear

that Rabito was merely providing a hypothetical of a potential personal reaction.



implies the decision to accept the other applicants was made solely within the Special Events

Office. Gail Hammond and Cavazos also had “decision-making authority.” Rabito Dep. at 55-57.



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mischaracterizes the cited portion of the deposition transcript. Bruso advised plaintiff that the

application was denied because it was late, it was incomplete, and plaintiff would be unable to

attend some days of the program. Bruso Dep. at 26-27.







49. Defendants DENY paragraph 49 of Plaintiff’s 7.1 Statement because it incorrectly

states that the application for The Empanada Llama was missing a certificate of insurance. See

Declaration of Aaron Walters, dated August 28, 2015 (“Second Walters Decl.”), submitted

herewith, ¶ 4.

50. Defendants DENY paragraph 50 of Plaintiff’s 7.1 Statement because it incorrectly

states that the application for Red Poppies: A Polish Pantry was missing a certificate of

insurance. See Second Walters Decl. ¶ 4.

51. Defendants DENY paragraph 51 of Plaintiff’s 7.1 Statement. The certificates

received on May 28, 2013, from Mr. Ding-a-Ling were replacement certificates for those that

were received on May 9, 2013. See Second Walters Decl. ¶¶ 4-6.

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52. Defendants DENY paragraph 52 of Plaintiff’s 7.1 Statement. The certificate

received on June 6, 2013, from Farm2Door was a replacement certificate for the one that was

received on May 15, 2013. See Second Walters Decl. ¶¶ 4-6.


received on May 23, 2013, from Flavors of Lebanon was a replacement certificate for the one

that was received on May 17, 2013. See Second Walters Decl. ¶¶ 4-6.


received on May 28, 2013, from My Linh was a replacement certificate for the one that was

received on May 10, 2013. See Second Walters Decl. ¶¶ 4-6.


received on May 22, 2013, from Merican Bandwagan was likely a replacement certificate for the

one that was submitted with the original application. See Second Walters Decl. ¶¶ 4-6.



mischaracterizes the cited portions of the deposition transcript. Walters stated at his deposition

that “[i]n general,” if an application was missing information or had incorrect information, he

would send an e-mail “requesting that [the applicant] make a change to the document.” Walters

Dep. (Dkt. No. 152-1) at 111. When asked if missing information or a known issue with the

vendor’s application would have prevented the applicant from being accepted into the program,

Walters responded “I am not sure, because I don’t have responsibility of approving the vendor or

the application. So I wouldn’t know, but possibly.” Id. at 112.


omits that Rabito testified that he would have provided the applicant with an opportunity to

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remedy the problem of missing pages if the pages were missing due to an error in transmitting

the fax. Rabito Dep. at 21-22.

59. Defendants DENY paragraph 59 of Plaintiff’s 7.1 Statement. Walters testified that

although it would be fine for My Linh to apply to participate for only Tuesday through Thursday,

My Linh was not “guaranteed acceptance into the program, but only that they wouldn’t be

rejected because they would only be able to attend Tuesday through Thursday.” Walters Dep. at

58.









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Dated: Albany, New York August 31, 2015

ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants RoAnn M. Destito, Joseph

J. Rabito, William F. Bruso and Aaron Walters

The Capitol Albany, New York 12224-0341 By: s/ Colleen D. Galligan Colleen D. Galligan Assistant Attorney General, of Counsel Bar Roll No. 105167 Telephone: (518) 776-2613 Fax: (518) 473-1572 (not for service of papers) Email: [email protected]

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wandering dago defendants

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