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

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

WANDERING DAGO INC. Plaintiff,

AFFIDAVIT Civil Action No. 1:13-cv-01053-MAD-RFT v. 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 of New Yark County of Albany

) ) ss.: )

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 of General 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 of New 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 of participating 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 to water (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 Plaintiffs 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. This denial 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, of Title 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 of New 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 Statesponsored 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 of New 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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