Posted at: 08/28/2013 12:57 AM
Updated at: 08/28/2013 1:06 AM
By: Steve Flamisch
ALBANY -- The owners of a food truck that was banned from Empire State Plaza and Saratoga Race Course, allegedly for having an offensive name, filed a federal lawsuit Tuesday claiming their constitutional rights were violated.
Andrea Loguidice and Brandon Snooks own and operate the Schenectady-based Wandering Dago, which sells pulled pork sandwiches and other homemade food. The term Dago refers to Italian day laborers who were paid "as the day goes."
"They don't mean to be offensive," their attorney, George Carpinello of the firm Boies, Schiller, and Flexner, told NewsChannel 13. "They mean to use it proudly -- because they are Italian-Americans -- in a playful and irreverent way, and they should have the constitutional right to do that."
In May, the state's Office of General Services (OGS) rejected Wandering Dago's application to participate in the Empire State Plaza's Summer Outdoor Lunch Program. In July, a New York Racing Association (NYRA) food vendor, Centerplate, notified Loguidice and Snooks they had to vacate Saratoga Race Course after the first day of the summer meet.
In both cases, the lawsuit claims, unnamed state officials had complained about the term Dago.
"State officials have no authority to say, 'This particular name is offensive to a particular ethnic group and therefore we're going to ban it,'" Carpinello said.
The lawsuit, filed in U.S. District Court in Albany, seeks to enjoin state officials from interfering with Wandering Dago's business. In addition to the preliminary injunction, the suit seeks attorney's fees and monetary damages arising from lost business.
"Probably in the tens of thousands of dollars in damages," Carpinello estimated.
The suit names OGS, NYRA, its leaders and lawyers, and five "John Does" believed to have made the complaints. An OGS spokeswoman said her agency does not comment on pending litigation. A NYRA spokesman said officials would have to review the claim before commenting.
Loguidice and Snooks declined to appear on camera, deferring to Carpinello.
Fifteen years ago, Carpinello successfully defended Bad Frog Brewery, whose logo depicts a frog giving the middle finger. The New York State Liquor Authority (SLA) had banned the label, but a federal appeals court struck down the ban.
In writing the Court's decision, Circuit Judge John O. Newman noted that the SLA's ban was not part of a larger effort to crack down on offensive imagery and language.
"Our point is that 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," Newman wrote.
Though Loguidice and Snooks maintain their food truck's name is not vulgar, the Bad Frog ruling is a "leading precedent" because it affirmed that state officials cannot ban commercial advertising they deem offensive, Carpinello said.
Even if a business were to use the n-word, which is offensive to African-Americans, or the f-word, which is offensive to homosexuals, the state would have no authority to ban it, Carpinello said.
"We, in this country, enjoy robust and very often controversial speech," he said, "even if it's commercial speech."
The term Dago is not unique to the food truck.
Peggy Fazio told NewsChannel 13 she owned and operated Dago's Restaurant at 68 Putnam St. in Saratoga Springs from 1999 to 2001. She said the eatery was named after her father's aunt, an Italian native whose last name was Dago.
Fazio said she received no complaints about the name, and that her Italian-American patrons didn't seem to mind.
Carpinello said he is aware of "two or three" other businesses currently using the term Dago. He said that is immaterial to the case, however, unless the same state officials who allegedly objected to Wandering Dago had given approval to the other businesses.
The firm representing Wandering Dago's owners is known for taking on high profile cases involving constitutional rights.
Most recently, managing partner David Boies successfully challenged California's Proposition 8, a statewide ban on same-sex marriage. The Supreme Court ruled in June that Proposition 8's proponents did not have the legal standing to challenge a lower court's decision to overturn the ban.
Same-sex marriages in the state resumed two days later.
The firm is representing Wandering Dago's owners on a pro bono basis, but it is legally entitled to collect attorneys fees from the defendants -- in this case, OGS, NYRA, and its officials -- if Wandering Dago wins the case, Carpinello said.
"If we are successful, we are certainly going to ask the state officials to pay our fees," Carpinello said.