state response to wandering dago
TRANSCRIPT
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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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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