State Response to Wandering Dago

7/29/2019 State Response to Wandering Dago

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

WANDERING DAGO INC.

Plaintiff,

v.

AFFIDAVIT

Civil Action No.

1:13-cv-01053-MAD-RFT

NEW YORK STATE OFFICE OF GENERAL SERVICES,

ROANN M. DESTITO, JOSEPH 1. 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

State ofNew Yark )

) ss.:

County ofAlbany )

William F. Bruso, Jr., being duly sworn deposes and says under penalties of perjury the

following:

1. I am an Associate Attorney at the New York State Office ofGeneral Services

("OGS") and in that capacity I work closely with the OGS Convention and Cultural

Events Office. I am fully aware ofthe facts and circumstances of this matter. I

submit this Affidavit in opposition to the Order to Show Cause for a Preliminary

Injunction filed by Plaintiff, Wandering Dago, Inc. ("Wandering Dago" or

"Plaintiff'), seeking to direct OGS to grant Wandering Dago a permit to participate

in the 2013 Summer Food Vending Program at the Empire State Plaza ("the Summer

Food Vendor Program").

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Case 1:13-cv-01053-MAD-RFT Document 29 Filed 09/11/13 Page 1 of 28



2. Plaintiff seeks to overturn OGS' determination denying Wandering Dago a permit to

participate in the Summer Food Vendor Program. The Summer Food Vendor

Program invites food vendors from throughout the Capital Region to apply for a

permit to provide lunchtime food service from vending trucks on the Plaza Level of

the Empire State Plaza ("Plaza") and the Harriman State Office Building Complex.

3. OGS operates the Summer Food Vending Program pursuant to its statutory and

regulatory responsibilities with respect to the custody and control of State property

under its jurisdiction. OGS' general statutory authority with respect to state

buildings and state property is set forth in Executive Law §200, Public Buildings

Law §§2 and 3 and Public Lands Law §3.

4. OGS' regulatory authority with respect to the use of the Empire State Plaza is

contained in 9 NYCRR Parts 300 and 301.

The Empire State Plaza

5. The State ofNew York, through OGS, operates and manages various State offices

and parking facilities located throughout the State. In addition to being a workplace

for portions of the State workforce, certain OGS-operated State properties are open

to commercial vendors and made available to the public for specific, limited

purposes.

6. The specific purpose of the Summer Food Vendor Program is to provide a variety of

lunchtime food options on the Plaza to State workers and visitors to the Empire State

Plaza. The Plaza is surrounded by the Coming Tower, four Agency Buildings, the

Legislative Office Building, the Robert Abrams Justice Building and the Capitol,

that house state employees, as well as the Egg Center for the Performing Arts and

the State Museum, which provide cultural events that draw thousands of residents

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and visitors to the Capital Region throughout the year. The State Education

Building, the Swan Street Building and the Alfred E. Smith State Office Building are

also located in the immediate vicinity ofthe Plaza.

7. I am thoroughly familiar with past and present uses ofthe Plaza, as well as the

surrounding grounds and other state facilities. I have responsibility for reviewing or

supervising legal issues with respect to permit applications of vendors seeking to

participate in cultural events at the Empire State Plaza including concerts, family

events days, food festivals, the farmer's market, the winter food program, the July 4 th

NYS Celebration, the holiday tree lighting and various other programs sponsored by

the OGS Convention and Cultural Events Office. For the past ten years, I have been

involved in reviewing applications of groups and individuals seeking permits for

various political events, protests and rallies on state property surrounding the

Capitol.

8. OGS issues permits for First Amendment expressive activities in West Capitol Park

(located between the Alfred E. Smith State Office Building and the Capitol), and in

East Capitol Park (which lies directly east of the State Capitol Building). We have

also issued permits (on a few occasions) for expressive activities in Lafayette Park

which lies directly across the street from East Capitol Park.

9. To the best of my recollection, the Plaza level ofthe Empire State Plaza has

generally not been made available or used for political events, protests, and/or

political speech except in a few limited instances. Instead, with the intent of

"granting equal access to .. . all citizens" (9 NYCRR 300-1.1), the Plaza has been

reserved for the peaceful use and enjoyment by State employees and the public and

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commercial activity directly related thereto, as well as to the specific events stated

above. Per 9 NYCRR 300-3.2(e), "[n]o person shall engage in any commercial

activity on [OGS] property without authorization by the commissioner." In the case

of the Plaza, this authorization has not been granted where "the applicant's intended

use or activity is inconsistent with the designated purpose of the [Plaza]" (9 NYCRR

301.7(i)).

10. I, together with another program attorney, oversee the review of permit applications

for activities at the Plaza to ensure that before a vendor is granted a permit to enter

upon New York State property at the Plaza, it has the required insurance and

governmental licenses and permits and has complied with all legally required

governmental filings.

The Application Process with Wandering Dago and the Denial of the Permit

11. Upon information and belief, in February and March 2013, Plaintiff communicated

with Aaron Walters and Jason Rumpf of the OGS Convention and Cultural Events

Office indicating that it was interested in participating in the 2013 Summer Vendor

Food Program, and it was added to a list of interested applicants.

12. Thereafter, on or about May 3, 2013, the OGS Convention and Cultural Events

Office announced that it was soliciting applications from vendors for a twenty (20)

week period from Monday May 20, 2013 through Friday October 4,2013 for the

2013 Summer Food Vendor Program.

13. The announcement detailed the attractiveness ofparticipating in this State-sponsored

program:

• Convenient location

• Adjacent to the popular Outdoor Farmer's Market

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• Exposure to over 12,000+ daily customer base

• 20 feet of vending space which includes electric hookup and access towater (additional space can be accommodated)

• Inclusion on social media

• Program listed on the OGS website

• Promotional advertising via media partners• Blast email advertising

• Program advertising on Plaza closed-circuit television system

14. The announcement made it clear that interested vendors had to apply to participate in

the program, and an application package was made available to those interested in

applying. The application package required interested vendors to pay a fee and

satisfy program and financial requirements. The cost for full participation, which

was identified as 5 days a week for 20 weeks, is $1,500.00, while participation on

Wednesdays and Fridays only, for 20 weeks, costs $1,000.00.

A true copy of the Summer Food Vendor Program Announcement and Application

Package is annexed hereto as Exhibit A.

15. On May 17,2013, I was asked by program staff to review Plain tiffs application.

Staff highlighted for me areas where the application was deficient. This included the

following: the first page was missing from the application, the application was

submitted after the official deadline for submittal, and the Wandering Dago could

not participate in the program from July 8th

to September 3rd

•

16. On or about May 17,2013 and May 20,2013, I met with OGS program and

executive staff to discuss Plaintiff s application. In addition to the technical issues

that had been raised, OGS management had identified as a concern that the name of

the business itself, the "Wandering Dago," contained an ethnic slur. I looked at the

Wandering Dago's menu online and noted that several menu items included ethnic

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slurs, specifically the items named "Dago", "Polack" and "Mick & Cheese". A copy

of that menu is annexed hereto as Exhibit B.

17. After further review, OGS' Executive Deputy Commissioner Joseph 1. Rabito made

the determination on or about May 20, 2013, not to issue Plaintiff a permit for the

2013 Summer Food Vendor Program.

18. Thereafter, I asked Aaron Walters of the OGS Convention and Cultural Events

Office on May 20, 2013 to advise Plaintiff that its application for the issuance of the

permit for the program was denied.

19. Later that day Mr. Walters sent an e-mail to the Plaintiff stating, "The NYS Office of

General Services appreciates your interest in the Empire Plaza Summer Outdoor

Lunch Program, but we regret that we will be unable to accommodate your

application for space in this year 's program." A true copy ofthat e-mail is annexed

hereto as Exhibit C.

20. Also on May 20,2013, I spoke to Andrea D. Loguidice, President of the Wandering

Dago, on the telephone and explained to her in more detail the reasons that the

application had been denied. I discussed all of the issues noted above.

21. On May 31,2013, I received a letter from Ms. Loguidice, Esq., that advised that she

had been retained by Wandering Dago and was "requesting that your office provide

a detailed explanation for the denial." The letter also requested the following: "In

your response, kindly provide a citation to the articulated public rule that gives the

New York State Office of General Services the power to deny a Food Vendor

Application based on a business name." A copy of this Letter is annexed hereto as

Exhibit D.

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22. On July 1,2013, I forwarded to Ms. Loguidice a response to her letter that stated:

"On May 20, 2013 you were advised by an email from Aaron Walters that

your firm's application was denied. A copy of that email is enclosed herewith

for your easy reference. In addition, I conveyed to you by telephone on May

20,2013, OGS' several reasons for its denial of your firm's application. Thisdenial was made pursuant to the terms of the Food Vendor Application

packet, as well as OOS' Facility Use and Use of State Property regulations,

which are located in parts 300 and 301, respectively, ofTitle 9 of the New

York Codes, Rules and Regulations."

A true copy of the Response Letter is annexed hereto as Exhibit E.

The Reasonableness of OGS' Decision to Deny a Permit to Plaintiff

23. The Empire State Plaza hosts thousands of State employees, members of the public

and visitors from ethnic backgrounds that are as diverse as the population of the

State ofNew York. The purpose of the Summer Lunch Vendor Program is to

provide various food items to these diverse State workers and visitors to the Empire

State Plaza. The public and State employees understand that this is a State-

sponsored activity and expect that the State will comply with the Human Rights Law

and prohibit discrimination on the basis of race, ethnicity and national origin.

24. The State cannot be aligned in any respect with a vendor whose name and menu

consist of ethnic or racial slurs. The Wandering Dago includes the term "Dago" in

its name and its menu uses the terms "Dago," "Mick", and "Polack", which are

ethnic slurs that would be offensive to many visitors to and employees working at

the Empire State Plaza, whether or not they are Hispanic, Italian, Irish or Polish.

25. OGS, in meeting its obligations to the citizens of the State ofNew York, must ensure

that all of the vendors and users of the Empire State Plaza understand that New York

State welcomes all visitors and does not condone a business whose name and menu

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contain discriminatory ethnic slurs. The purpose of the Summer Food Vendor

Program is to provide food in a relaxed and welcoming inclusive environment.

26. OGS made its determination to further the substantial state interests of providing a

visitor- and employee-friendly food vending program and avoiding any appearances

of the State condoning or otherwise being associated with ethnic and racial

discrimination.

27. Finally, OGS made no determination to deny Plaintiff a permit based on Plaintiff's

point of view. Whether or not Plaintiff intended for its name to be derogatory had

no bearing on our decision. Our focus was on the objective meaning of the names of

the company and menu items, based upon commonly accepted and understood

dictionary meanings of those words and our responsibility to ensure the State

property is free from discrimination based upon race, ethnicity and national origin.

WHEREFORE, I respectfully request that this Court deny the request for provisional

relief and uphold the decision of OGS in denying the permit to the Wandering Dago and grant

such other and further relief as this Court deems just and proper.

Dated: September 10,2013

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State Response to Wandering Dago

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