Wandering Dago’s First Amendment case against the New York Racing Association and several officials from the state Office of General Services will advance along with several other claims the owners of the food truck made in their federal lawsuit, a U.S. District Court judge ruled this week.
Judge Mae D’Agostino also ruled owners Andrea Loguidice and Brandon Snooks can bring their state and federal equal protection claims against several state officials involved in the decision to abruptly terminate their contract to sell food at the Saratoga Race Course and the Empire State Plaza last summer.
The 53-page ruling issued Wednesday also allows the owners of the Schenectady business to pursue wrongful interference claims against both NYRA and the state officials.
In her ruling, D’Agostino acknowledged the case posed an important free speech question and that there will always be those who “push the envelope” of the First Amendment. She questioned whether the use of “dago” — a term considered offensive to Italian-Americans — would have been as readily accepted on the side of a food truck were it instead a slur aimed at African Americans, Jewish Americans, Hispanic Americans or Chinese Americans.
“The Court has no doubt that if the truck at issue had been named any one of the above, the outcry from people in all walks of life, regardless of their own ethnicity, would have been so significant that the owners may have willingly changed the name posthaste without the need of government intervention,” she stated in the ruling. “This is not the case here.”
George Carpinello, an attorney representing the food truck operators, was pleased they’ll get a chance to advance the case. He’s hoping to expose how a select few made the final decision to ban the truck from the race course and plaza.
“We think this was an ad hoc decision made by particular public officials who took offense to this language,” he said Thursday.
A spokesman for the state Attorney General’s Office declined to comment on the case. The attorneys representing NYRA did not return a call for comment.
D’Agostino did dismiss several of the claims made in the original lawsuit, which seeks $350,000 in damages. But Carpinello said the crux of their argument will move forward to discovery and depositions.
“The bottom line of the ruling is the case goes forward and we’re very pleased with that,” he said.
Snooks and Loguidice contend they named their truck to be humorous. Snooks claimed the term derives from the time when Italian laborers were paid as the “day goes.”
The owners applied for a permit to sell food at the plaza’s summer outdoor lunch program last year and were verbally told their application was approved. But by mid-spring, state officials started raising questions about the name emblazoned on the side of their truck and doubts about having it on the plaza.
Wandering Dago’s contract with NYRA remained in place until the truck was ordered off the grounds July 19 — the first day of the 2013 thoroughbred meet. In the lawsuit, they claim they had engaged in roughly seven months of negotiation with Centerplate — the private company that manages the track’s food vendors — and the Wandering Dago name was featured in promotional materials before the truck was ordered away from the track.
During a preliminary hearing in the case, an attorney representing the food truck revealed an email from Gov. Andrew Cuomo’s top racing adviser, expressing concerns about Wandering Dago’s name just hours before it was ordered to leave the track.
Snooks and Loguidice filed for an injunction late last summer, but were denied by D’Agostino, who ruled they had waited too long to seek such an order. Carpinello said an appeal is ongoing and anticipates filing a brief in the matter sometime this month.
Carpinello also took issue with D’Agostino’s mention that a greater offense might be taken toward a truck bearing a slur toward another minority group. He said the state regularly condones artists at the Saratoga Performing Arts Center who use derogatory terms toward African Americans. Last summer, SPAC hosted Lil’ Wayne, a black rap artist who frequently employs the N-word in his lyrics.
“Why is it that state officials have no problem with that?” he asked.