UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

WANDERING DAGO INC. Plaintiff, v. Civil Action No. 1:13-cv-01053-MAD-RFT NEW YORK STATE OFFICE OF GENERAL SERVICES, ROANN M. DESTITO, JOSEPH J. RABITO, WILLIAM F. BRUSO, JR., AARON WALTERS, NEW YORK RACING ASSOCIATION, INC., CHRISTOPHER K. KAY, STEPHEN TRAVERS, JOHN DOES 15, and THE STATE OF NEW YORK Defendants.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS 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

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 Wandering Dago Was Expelled From Saratoga Race Course ................................ 6 Wandering Dago Has Attempted to Find Alternate Locations and Events ............ 8

II. III.

Argument ........................................................................................................................................ 8 I. Wandering Dago Will Be Irreparably Harmed Absent a Preliminary Injunction ................................................................................................................ 9 Wandering Dago Is Likely to Succeed on the Merits ............................................. 9 A. Wandering Dagos Free Speech Rights Under the First Amendment and Article I, 8 Have Been Violated ...................................................... 10 1. 2. 3. Plaintiffs Speech Is Not Misleading or Unlawful ........................ 10 Defendants Cannot Assert a Legitimate Government Interest ..... 11 Defendants Ban Does Not Directly Advance Any Government Interests .................................................................... 14 Any Purported Regulatory Justification For Defendants Actions Is Unconstitutionally Vague ............................................ 15

II.

4.

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 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 The Court Should Not Require a Bond ................................................................. 20

IV.

V.

Conclusion .................................................................................................................................... 22 i

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 ii

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 iii

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

iv

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 Yorks Office of General Services (OGS) concerning participation as a food truck vendor in the Empire State Plaza (ESP) Outdoor Summer Lunch Program, Wandering Dagos application was unexpectedly denied only days before the start of the program. In response to Wandering Dagos request for an explanation, OGS stated that the application had been denied because Wandering Dagos 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 Dagos First Amendment rights for two distinct reasons. First, Wandering Dagos name is commercial speech. Such speech may

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 Dagos speech was not undertaken pursuant to any narrow, objective, and definite standards as required by the Supreme Courts case law. The constitution does not permit vesting government officials with the unguided authority to restrict speech on vague bases like offensiveness. OGSs action in denying Wandering Dagos permit is unconstitutional on this ground, independent of the scope of the states 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 Dagos 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

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 trucks mobile kitchen. Loguidice and Snooks are ItalianAmericans 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. 1214) On May 10, 2013, at approximately 3:00 p.m., Wandering Dago received a voicemail from Walters indicating that OGS would approve Wandering Dagos 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. 1517) 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 years 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 OGSs legal department. (Loguidice Aff. 1819)

Wandering Dago immediately contacted OGSs legal department and spoke to William F. Bruso, Jr., an OGS Associate Attorney. Bruso gave three reasons for the applications denial: (1) the application was late; (2) the application was incomplete; and (3) Wandering Dagos 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 Dagos application was complete, and Bruso has never provided any explanation of his claim of incompleteness. (Loguidice Aff. 2022) During the May 20, 2013 call with Bruso, Wandering Dago asked him to provide a formal letter stating the reasons for the applications denial. Bruso refused to provide a written explanation without a formal request under New Yorks Freedom of Information Law (FOIL). On May 29, 2013, Wandering Dago sent a letter to Bruso requesting a written explanation for the applications denial, including a citation to the public rule that gives OGS the authority to deny the application on the basis of Wandering Dagos 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 OGSs 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. 2325) 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 firms 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

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 Dagos] application was not appropriate because the name of the business was found to be an offensive ethnic slur by any standard. (Loguidice Aff. 2628) 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 countrys 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, 3133) 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

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 Dagos 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, 3640) At or about 10:00 p.m. on the evening of July 19, 2013, Wandering Dago received a call from Stephen Travers, NYRAs 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 Dagos 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. 4143) 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

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. 4445) 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

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 Dagos 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.

A.

Wandering Dagos Free Speech Rights Under the First Amendment and Article I, 8 Have Been Violated. Wandering Dagos 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. Plaintiffs Speech Is Not Misleading or Unlawful.

Central Hudsons 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 Dagos 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 Dagos name. We must assume therefore that the interest served by OGSs 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 names 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 Amendments 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

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 states 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 NYRAs trustees, and some are directly appointed by the Governor, id. at 173; (4) the state granted NYRAs 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 states money, id.; and (6) NYRAs recent reorganization involved the States 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 NYRAs books and accounts at its discretion. Garcia, 2011 WL 3841524, at *9.
2

Wandering Dagos 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 mans vulgarity is anothers 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 7071. 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 Sambos 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 Sambos cases, cited by the Hornell case, are Sambos Restaurants, Inc. v. City of Ann Arbor, 663 F.2d 686 (6th Cir. 1981) and Sambos 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 Sambos 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 Sambos name:

13

If they are offended by the word Sambos 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 Dagos 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 states 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 childrens 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 States effort to restrict offensive speech directly advanced some substantial government interest, the denial of Wandering Dagos 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 Dagos 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 constitutions 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 Citys denial of a permit for a rally unconstitutional because it was taken

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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 Dagos 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. Brusos authorities, however, provide no support for OGSs 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 Dagos 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 Publg Co., 486 U.S. 750, 769-70 (1988) (To allow these illusory constraints to constitute the standards necessary to bound a

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.

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licensors 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 Dagos 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 Dagos 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 Dagos 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 Dagos claim. The balance of equities also tips decidedly in Wandering Dagos 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 Dagos 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 Dagos favor and there are serious questions going to the merits of Wandering Dagos 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 speakers interest in self-expression. By protecting those who wish to enter the marketplace of ideas from government attack, the First Amendment protects the publics 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. Commn 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 Dagos 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

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society. On one side of this debate are those, like Defendants, who believe that certain words should be forever banished from the publics 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 Dagos 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. Doctors Assocs., Inc. v.

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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 Commrs, 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).

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CONCLUSION For all the foregoing reasons, Plaintiffs 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

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