The Wandering Dago food truck has filed a lawsuit in federal court over the truck being denied the opportunity to vend at the Empire State Plaza and Saratoga Race Course this summer. In the suit, it contends the truck was bounced because of its name, an action it argues violated the owners' 1st Amendment rights.
The complaint is embedded after the jump. It lays out Wandering Dago's arguments and its view of the events that led up to its denial to vend at the ESP and Saratoga Race Course.
Here's the situation, as depicted in the lawsuit, in short:
WD says it believed it was on track to vend at the ESP after getting an extension on the deadline for its vendor application. But the application ended up being denied, and WD says it was told by a member of the Office of General Services' legal department it was bounced because it was late and incomplete (WD says it was returned by the extended deadline and not incomplete) -- and because the business name was offensive. The complaint also cites comments made by an OGS spokesperson to AOA about the situation -- "Among other reasons, it was determined that their application was not appropriate because the name of the business was found to be an offensive ethnic slur by any standard."
Regarding the Saratoga Race Course, WD says it had an agreement with the hospitality company that manages food vendors at the Track allowing it to vend there this summer. But shortly before the season started it was told by a NYRA official it would not be allowed to vend because an unnamed "high-ranking state official" had complained about the truck's name, and NYRA's "hands are tied" because of the official's complaint.
1st Amendment rights
Wandering Dago argues the actions of both OGS and NYRA were "blatantly unconstitutional." From a memo filed in support of WD's request for an injunction that would allow it to vend at both venues:
This [denial for a permit at the Empire State Plaza] is an unconstitutional violation of Wandering Dago's First Amendment rights for two distinct reasons. First, Wandering Dago's name is commercial speech. Such speech may be restricted only if the restriction directly advances a substantial government interest. Case law is clear that the government has no legitimate interest in banning speech merely because it is "offensive," much less a substantial one. In fact, the case law is so clear that Defendants have no good faith defense for their conduct. Moreover, even assuming the existence of a substantial government interest, the exclusion of vendors from the Summer Outdoor Lunch Program fails to directly advance that interest.
Second, the curtailment of Wandering Dago's speech was not undertaken pursuant to any narrow, objective, and definite standards as required by the Supreme Court's case law. The constitution does not permit vesting government officials with the unguided authority to restrict speech on vague bases like "offensiveness." OGS's action in denying Wandering Dago's permit is unconstitutional on this ground, independent of the scope of the state's authority to regulate commercial speech.
And for the situation at the Saratoga Race Course:
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.
The memo is embedded below if you'd like to read about the previous cases cited in support of Wandering Dago's argument. One of cases involved a brewery that had its brand label rejected by the New York State Liquor Authority because it featured
In addition to OGS, NYRA and officials for both agencies, the complaint also names "John Does 1-5" as defendants -- "officials of the State of New York and/or NYRA who directly participated in the decision to exclude Plaintiff from both Saratoga Race Course and OGS's Summer Outdoor Lunch Program" -- presumably Wandering Dago's attorney will be seeking to find out who the unnamed state official (or officials) was who complained.
Wandering Dago is seeking an injunction that would allow it start vending at both the ESP and the Saratoga Race Course. It also seeking "lost profits and the diminution of the value of its business" as well as other expenses.
A spokesperson for OGS says the agency is reviewing the lawsuit and does not comment on pending litigation. And a NYRA spokesperson had no comment.
Pulling back on the specifics of this situation a bit, this lawsuit touches on the issue of how the state makes determinations of what is and isn't offensive. It's unclear what process the state uses to make those judgements for vendor names. Is there a panel? Is it one person? Can a single complaint from an official block a vendor?
It will be interesting to see if details about that decision-making process come out in the course of this lawsuit.
Sticking with the name
The owners of the Wandering Dago -- Andrea Loguidice and Brandon Snooks -- started the food truck last year in Schenectady. The term "dago" has been used as a slur against people of Italian descent, and sometimes people from Spain and Portugal as well. But Loguidice and Snooks have said they picked the name as a nod to their Italian heritage and an effort to reclaim the word.
Their choice of name has met a range of strong opinions, from strong support for keeping the name, to concern about the name's effect on business, to outright disagreement with use of the name. Earlier this month Loguidice and Snooks announced they were keeping the name.
The complaint filed by Wandering Dago:
Memo filed in support of Wandering Dago's request for a preliminary injunction:
Earlier on AOA
The Saratoga Race Course advertises on AOA.
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