Wandering Dago Inc. v. New York State Office of General Services (992 F. Supp. 2d 102, 2014)

MEMORANDUM-DECISION AND ORDER

MAE A. D’AGOSTINO, District Judge:

I. INTRODUCTION

What’s in a name? To Andrea Loguidice and Brandon Snooks, the owners of Wandering Dago Inc. who wish to operate their food truck at the Empire State Plaza and the Saratoga Race Course, everything is in the name. On August 27, 2013, Plaintiff commenced this civil rights action seeking injunctive and declaratory relief and damages arising from the denial by Defendants New York State Office of General Services (“OGS”), RoAnn M. Destito, Joseph J. Rabito, William F. Bruso, Jr., and Aaron Walters of Plaintiffs application to participate as a food vendor in the 2013 Empire State Plaza Summer Outdoor Lunch Program, and the subsequent termination of Plaintiffs status as a vendor at the Saratoga Race Course by Defendants New York State Racing Association (“NYRA”), Christopher K. Kay, and Stephen Travers. See Dkt. No. 1. Plaintiff alleges that Defendants took these actions under pressure from, or at the direction of, various New York State officials. See id.

The issue in this case asks the Court to determine whether Defendants NYRA and OGS have the right to deny a food truck bearing the name “Wandering Dago” the ability to park its food truck with a logo depicting a pig and the words “Wandering Dago” on its property for the purpose of selling food because of the name’s perceived offensive nature.

It takes neither complicated legal argument, nor complex legal research to determine that the word “dago” is highly offensive to many. It simply takes common sense. For certain, the term “dago” is not a playful or accepted word for most Italians. To the contrary, it is hurtful and indeed painful to many. It conjures memories of a time not long ago when Italian Americans were the subject of widespread discrimination.

The issue in this case involves the parking of a truck on property owned and operated by the State of New York. There is no question in the Court’s mind that, had this case involved the parking of the truck on purely public property, such as a street, a sidewalk, or a public park, the analysis would be rather simple because the right to free speech in such areas is so fundamental to the very foundation of this nation that the government’s right to silence it is subject to the most rigorous of standards. In such traditional public fora, we must accept language that offends our sensibilities, chills our common core, and shocks our conscience. With rare exception, the right to free speech in such traditional public fora, whether commercial or private, is considered a birth right in the United States — a birth right that has been forged by our Constitution and by the lives and deaths of all men and women who have fought to protect this freedom.

As will be discussed, although restrictions on speech in traditional public fora are subjected to the most rigorous standards, such restrictions in the other types of fora identified by the Supreme Court are generally subjected to a less exacting form of review. As such, identifying the relevant fora at issue and each fora’s classification are central to the disposition of this case. Thereafter, the Court must determine whether the rules and policies enforced by the various Defendants against Plaintiff can withstand the applicable level of scrutiny.

II. BACKGROUND

Plaintiff Wandering Dago Inc. (“Plaintiff’ or “Wandering Dago”) is a New York Corporation. See Dkt. No. 1 at ¶ 5. Wandering Dago is operated by Andrea Loguidice and Brandon Snooks, with Ms. Loguidice serving as the corporation’s president. See id. Through Wandering Dago Inc., Ms. Loguidice and Mr. Snooks operate a food truck using the “Wandering Dago” brand from which they serve a variety of foods cooked and prepared on-site in the truck’s mobile kitchen. See id. Ms. Loguidice and Mr. Snooks work as the business’s co-chefs, with Mr. Snooks also serving as the driver. See id. Ms. Loguidice and Mr. Snooks have invested a significant amount of money in the truck and equipment, and Wandering Dago is currently their only source of income. See id.

Defendant New York State Office of General Services (“OGS”) is an administrative agency of the State of New York. See id. at ¶ 6. Defendant OGS is responsible for managing the Empire State Plaza Summer Outdoor Lunch Program. See id. Defendant RoAnn M. Desito is the Commissioner of OGS. See id. at ¶ 7. Defendant Joseph J. Rabito is the Deputy Commissioner of OGS. See id. at ¶ 8. Defendant William F. Bruso, Jr. is an Associate Attorney working for OGS and Defendant Aaron Walters is employed as a Special Events Coordinator for OGS. See id. at ¶¶ 9-10.

Defendant New York Racing Association, Inc. (“NYRA”) is a New York State non-profit corporation, which holds the ex-elusive right to operate the Saratoga Race Course. See id. at ¶ 11. Defendant Christopher K. Kay is NYRA’s Chief Executive Officer and President and Defendant Stephen Travers it is Vice President of Hospitality, Guest Services & Group Sales. See id. at ¶¶ 12-13.

A. Empire State Plaza Outdoor Summer Lunch Program

In early 2013, Plaintiff became interested in participating in the 2013 Empire State Plaza Summer Outdoor Lunch Program. See Dkt. No. 1 at ¶ 20. This program is run by Defendant OGS and allows food vendors to operate at the Empire State Plaza during specified hours on weekdays from late May until early October. See id. Starting in February 2013, Plaintiff was in periodic contact by phone and email with multiple individuals at OGS, including Defendant Walters, Madeline Rizzo, and Jason Rumpf. See id. at ¶ 21. Plaintiff inquired on multiple occasions about participating as a summer vendor at the Empire State Plaza and requested an application for the program at least as early as April 11, 2013. See id.

On May 3, 2013, Defendant Walters sent Plaintiff the application for the Empire State Plaza Summer Outdoor Lunch Program. See id. at ¶22. The application deadline was May 10, 2013. See id.; see also Dkt. No. 1-1. The application states that, “[ujnless prior arrangements have been made with OGS, all vendors are expected to complete the entire season.” See Dkt. No. 1-1 at 2. On or about May 6, 2013, Plaintiff spoke with Defendant Walters by phone to inquire whether Plaintiffs seven-week commitment at the Saratoga Race Course would prevent it from participating in the program. See Dkt. No. 1 at ¶ 23. Defendant Walters told Plaintiff that he would speak with his supervisors to determine whether Plaintiff could participate. See id. On or about May 8, 2013, Plaintiff spoke with Jason Rumpf to follow up and was informed that Defendant Walters was working on getting an answer. See id. at ¶ 24. Mr. Rumpf told Plaintiff that Defendant OGS would be flexible on the deadline for the application because of the delay from their management. See id.

On May 10, 2013, at approximately 3:00 p.m., Plaintiff received a voicemail from Defendant Walters indicating that Defendant OGS would approve Plaintiffs application despite the expected seven-week absence. See id. at ¶ 25. On or about May 13, 2013, Defendant Walters contacted Plaintiff by phone and advised that Plaintiff would have until Friday, May 17, 2013, to submit its application and apologized for the delay caused by OGS. See id. at ¶ 26. On May 17, 2013, at approximately 12:16 p.m., Plaintiff faxed its application to Defendant OGS. See id. at ¶27. Plaintiff selected the option to participate in the program on Wednesdays and Fridays only and provided credit card authorization for the $1,000 fee required to participate in the program. See id.

On May 20, 2013, Plaintiff sent Defendant Walters an email inquiring whether its application had been officially approved. See id. at ¶ 28. Shortly thereafter, Plaintiff received an email reply from Defendant Walters denying the application, stating that Defendant OGS “will be unable to accommodate your application for space in this year’s program.” See id.; see also Dkt. No. 1-2. Upon receipt, Plaintiff immediately called Defendant Walters to ask for an explanation of the denial. See Dkt. No. 1 at ¶ 30. Defendant Walters informed Plaintiff that its application was the only food vendor application for the 2013 Empire State Plaza Summer Lunch Program that was denied by Defendant OGS. See id. Defendant Walters also indicated that he could not tell Plaintiff the reason for the denial and directed it to contact OGS’s legal department. See id.

Thereafter, Plaintiff immediately contacted Defendant OGS’s legal department and spoke to Defendant Bruso. See id. at ¶ 31. Defendant Bruso gave three reasons for the application’s denial: (1) the application was late; (2) the application was incomplete; and (3) the name Wandering Dago had been deemed offensive. See id. at ¶ 32. Plaintiff claims that the first two stated reasons were pretextual. See id. at ¶ 33. Plaintiff asked Defendant Bruso to provide a formal letter stating the reasons for the application’s denial. See id. at ¶ 34. Defendant Bruso refused without a formal request pursuant to New York’s Freedom of Information Law (“FOIL”). See id.

On May 29, 2013, Plaintiff sent a letter to Defendant Bruso requesting a written explanation for the application’s denial, including a citation to the public rule that gives Defendant OGS the authority to deny the application on the basis of Plaintiffs name. See id. at ¶ 36. On June 25, 2013, Plaintiff submitted a FOIL request asking for all documents related to Plaintiffs Empire State Plaza Food Vendor application. See id. at ¶ 37. The following day, Plaintiff received a confirmation from Heather R. Groll, the Director of OGS’s Public Information Office, that the FOIL request had been received and that a determination on the request would be made within twenty (20) business days. See id.

On July 1, 2013, Plaintiff received a letter from Defendant Bruso stating, “ T conveyed to you by telephone on May 20, 2013, OGS’ several reasons for its denial of your firm’s application.’ ” See id. at ¶ 38. 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. See id.; see also Dkt. No. 1-3. At the time the complaint was filed in the present matter, Plaintiff claims that it had not received any further response to its FOIL request. See id. at ¶ 39.

Plaintiff claims that the 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. See id. at ¶ 41. Since being denied access to the 2013 Empire State Plaza Summer Outdoor Lunch Program, Wandering Dago has operated during lunchtime at various locations in the Capital District, but none have the volume of foot traffic and potential customers present at the Empire State Plaza. See id. at ¶ 42. Plaintiff claims that these locations have less visibility to the public, which leads to fewer private catering jobs and other business opportunities. See id.

B. Saratoga Race Course

On January 28, 2013, Plaintiff began talks with Drew Revella of Centerplate, a hospitality company that manages food vendors at the Saratoga Race Course. See Dkt. No. 1 at ¶ 43. Plaintiff alleges that, upon information and belief, Centerplate’s standard commission for vendors at the Saratoga Race Course is thirty-five percent of gross sales. See id. at ¶ 44. After extensive negotiations, Plaintiff eventually reached an agreement with Centerplate to participate as a vendor at the Saratoga Race Course during the seven-week 2013 season. See id. at ¶45. Plaintiff agreed to pay Centerplate twenty-five percent of its gross food and beverage sales and to donate an additional five percent to the Thoroughbred Retirement Foundation, a non-profit charity. See id.

Plaintiff was listed in promotional material produced by Defendant NYRA and Centerplate as a vendor for the 2013 season. See id. at ¶ 46. On or about July 18, 2013, Centerplate issued a press release listing Plaintiff as “ ‘one of the country’s top barbecue fusion trucks.’ ” See id. Defendant NYRA listed Plaintiff as one of its vendors both on its website and in its Saratoga Insider Fan Guide. See id. Plaintiff claims that it was offered and turned down numerous business opportunities, including both private catering events and public festivals, because they conflicted with Plaintiffs commitment at the Saratoga Race Course. See id. at ¶ 47.

In preparation for the volume of business anticipated during its seven-week engagement at the Saratoga Race Course, Plaintiff purchased a substantial amount of new cooking equipment, including a six-foot barbeque smoker, a stainless steel prep table, and a deep fryer. See id. at ¶ 48. Plaintiff also hired five employees to work during the track season and obtained the necessary workers compensation insurance. See id.

On July 16, 2013, three days before opening day, Plaintiff brought its truck, smoker, and supplies to the Saratoga Race Course to begin setting up. See id. at ¶ 49. Plaintiff spent three days delivering and setting up its equipment in preparation for opening day. See id. Plaintiff arranged for a third party to deliver and install a 100-gallon propane tank for Wandering Dago’s smoker, but for unknown reasons, the third party was not permitted to install the tank. See id. at ¶ 50. Plaintiff immediately contacted Drew Revella, and he arranged for a different party to deliver propane for the smoker. See id. The propane was not installed until the evening of July 18, 2013. See id.

As a result of the unexpected problem with the propane delivery, Plaintiff was unable to smoke its meat for the necessary fourteen hours and, therefore, was not open for business on opening day. See id. at ¶ 51. After resolving the propane problem, Plaintiff began smoking meat and was fully prepared to begin serving food on the morning of July 20, 2013. See id. Plaintiff claims that Drew Revella apologized for the delay and represented in a text message that he would “‘get [Plaintiff] another opportunity for the missed day.’ ” See id. at ¶ 52.

At or about 10:00 p.m. on the evening of July 19, 2013, Mr. Snooks and Ms. Loguidiee received a call from Defendant Travers instructing them to remove Wandering Dago’s truck and equipment from the Saratoga Race Course immediately. See id. at ¶ 53. Defendant Travers alleged that this decision had been made because a state official complained about Plaintiffs name. See id. at ¶ 54. Plaintiff pleaded with Defendant Travers to be allowed to stay, offering to cover up its business name everywhere it appeared on its truck and equipment. See id. at ¶ 55. Defendant Travers refused this offer and stated that his “ ‘hand are tied,’ ” because Defendant NYRA had been contacted by a high ranking state official. See id. at ¶ 56. Defendant Travers told Plaintiff that the truck would be towed if it was not removed before 10:00 a.m. the following morning. See id. Plaintiff alleges that, “[u]pon information and belief, Travers was acting under the direction of Defendant Christopher K. Kay, other unknown NYRA officials, and officials of the State of New York.” See id. at ¶ 57.

In order to quickly remove the equipment that had been set up over a three-day period, Plaintiff was forced to rent a moving trailer, thereby incurring additional expense. See id. at ¶ 58. On the morning of July 20, 2013, as Plaintiff was preparing to leave the Saratoga Race Course, Plaintiff was met by Defendant Travers and Drew Revella. See id. at ¶ 59. Mr. Revella presented Plaintiff 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.” See id.; see also Dkt. No. 1^4.

Plaintiff claims that, after being expelled from the Saratoga Race Course, it attempted to book as many public and private events as possible to fill its schedule, but most events, including' events that Plaintiff had previously turned down because of its commitment at the race track, were no longer available. See Dkt. No. 1 at ¶ 61. Plaintiff alleges that it has also attempted to fill its lunchtime schedule, but due to the limited number of locations in the Capital District, Plaintiff typically works no more than three lunchtime shifts per week. See id. Moreover, Plaintiff claims that the business that it does during weekday lunch times 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.” See id.

C. Plaintiffs claims and Defendants’ arguments in favor of dismissal

On August 27, 2013, Plaintiff commenced this action for damages, an injunction and declaratory relief relating to the denial of its application to participate as a food vendor in the 2013 Empire State Plaza Summer Outdoor Lunch Program and the subsequent termination of its status as a vendor at the Saratoga Race Course. See Dkt. No. 1 at ¶ 1. Plaintiff contends that Defendants’ actions were in violation of the First Amendment of the United States Constitution and the Free Speech Clause of the New York State Constitution (Article I, § 8), as well as the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and the Equal Protection Clause of the New York State Constitution (Article I, § 11). See id. at ¶ 2. Additionally, Plaintiff claims that its expulsion from the Sara-toga Race Course constituted a tortious interference with Plaintiffs contract with Centerplate, Inc. (“Centerplate”), the hospitality company in charge of overseeing vendors at the Saratoga Race Course or, in the alternative, a tortious interference with Plaintiffs business relationship with Centerplate. See id. at ¶ 3.

In the OGS Defendants’ motion to dismiss, they first argue that Plaintiff has failed to state a claim for a First Amendment violation. See Dkt. No. 28-1 at 12-18. The OGS Defendants claim that, since they were acting in their proprietary capacity and because the Empire State Plaza is a non-public forum, or at best a limited public forum, restrictions on speech are examined only for reasonableness. See id. at 11-14. Further, the OGS Defendants argue that restrictions on ethnic or racial slurs in a non-public forum are deemed “viewpoint neutral,” which are permissible. See id. at 16. Finally, the OGS Defendants assert that “a ruling that the State may not deny an application to a vendor who is, by its name and menu items, derogating various ethnic or national origins ... would be contrary to public policy and the State’s obligation to prevent the establishment of a hostile work environment.” See id. at 17. Such a ruling, according to the OGS Defendants, would subject the State’s workers to such a hostile work environment. See id. at 17-18.

Next, the OGS Defendants argue that “Plaintiffs Equal Protection claim sounds in selective enforcement, and rests entirely on the premise that its application was denied solely to inhibit the [Pjlaintiffs First Amendment rights. As the [PJlaintiff has failed to demonstrate any impropriety in the State’s regulation of offensive speech on the Empire State Plaza during peak working hours and visitation hours, however, plaintiffs Equal Protection claim must also fail.” See id. at 18. Thereafter, the OGS Defendants argue that Plaintiff has failed to state a cause of action against them for its removal from the Saratoga Race Course. See id. at 19. They assert that the allegation that Defendant “Travers ‘alleged that his decision had been made because a state official complained about Plaintiffs name’ ” is insufficient to state a plausible cause of action. See id. Next, the OGS Defendants claim that Defendants New York State and OGS are immune from suit pursuant to the Eleventh Amendment. See id. at 20-21. Finally, the OGS Defendants argue that, since they are entitled to dismissal of all federal claims, the Court should decline to exercise supplemental jurisdiction over Plaintiffs state-law claims. See id. at 21-22.

The NYRA Defendants argue that Plaintiff should be treated as a public employee or government contractor for purposes of its First Amendment claim. See Dkt. No. 36-2 at 17-18. Since a government contractor’s speech is only protected if spoken on matters of public concern, the NYRA Defendants contend that the claim must be dismissed. See id. at 18-21. Further, the NYRA Defendants argue that the Saratoga Race Course is a nonpublic forum and that Plaintiffs removal therefrom was reasonable and viewpoint neutral. See id. at 21-29. Moreover, they claim that Defendant NYRA was acting in a proprietary capacity when it prohibited Plaintiffs use of an ethnic and racial slur on its property, which was reasonably related to maintaining the Saratoga Race Course for the purposes to which it was dedicated. See id. at 28.

As to the Equal Protection claim, the NYRA Defendants contend that it must fail because the claim is derivative of Plaintiffs First Amendment claim. See id. at 30. Second, they argue that Plaintiff failed to allege that it was treated differently from others who were similarly situated. See id.

Next, the NYRA Defendants argue that, since the state constitutional claims are subject to the same analysis as the federal constitutional claim, they must be dismissed as well. See id. at 31. Finally, the NYRA Defendants assert that Plaintiffs tortious interference claims must be dismissed because Plaintiff premised the claim on the theory that the NYRA Defendants’ rendered performance of the contract impossible and because Plaintiff cannot establish that the NYRA Defendants acted for a wrongful purpose or used dishonest, unfair, or improper means. See id. at 32-33.

III. DISCUSSION

A. Motion to dismiss standard

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the party’s claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir.2007) (citation omitted). In considering the legal sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all reasonable inferences in the pleader’s favor. See ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007) (citation omitted). This presumption of truth, however, does not extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). Although a court’s review of a motion to dismiss is generally limited to the facts presented in the pleading, the court may consider documents that are “integral” to that pleading, even if they are neither physically attached to, nor incorporated by reference into, the pleading. See Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir.2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir.2002)).

To survive a motion to dismiss, a party need only plead “a short and plain statement of the claim,” see Fed.R.Civ.P. 8(a)(2), with sufficient factual “heft to ‘sho[w] that the pleader is entitled to relief,]’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quotation omitted). Under this standard, the pleading’s “[f]actual allegations must be enough to raise a right of relief above the speculative level,” see id. at 555, 127 S.Ct. 1955 (citation omitted), and present claims that are “plausible on [their] face,” id. at 570, 127 S.Ct. 1955. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.” ’ ” Id. (quoting [Twombly, 550 U.S.] at 557, 127 S.Ct. 1955). Ultimately, “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief,” Twombly, 550 U.S. at 558, 127 S.Ct. 1955, or where a plaintiff has “not nudged [its] claims across the line from conceivable to plausible, the[] complaint must be dismissed[,]” id. at 570, 127 S.Ct. 1955.

B. 42 U.S.C. § 1983

Section 1983 imposes liability for “conduct which ‘subjects, or causes to be subjected’ the complainant to a deprivation of a right secured by the Constitution and laws.” Rizzo v. Goode, 423 U.S. 362, 370-71, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) (quoting 42 U.S.C. § 1983). Not only must the conduct deprive the plaintiff of rights and privileges secured by the Constitution, but the actions or omissions attributable to each defendant must be the proximate cause of the injuries and consequent damages that the plaintiff sustained. See Brown v. Coughlin, 758 F.Supp. 876, 881 (S.D.N.Y.1991) (citing Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481, reh. denied, 445 U.S. 920,100 S.Ct. 1285, 63 L.Ed.2d 606 (1980)). As such, for a plaintiff to recover in a section 1983 action, he must establish a causal connection between the acts or omissions of each defendant and any injury or damages he suffered as a result of those acts or omissions. See id. (citing Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979)) (other citation omitted).

C. First Amendment jurisprudence

The First Amendment states that “Congress shall make no law ... abridging the freedom of speech.” U.S. Const, amend. I. “[T]he First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). It is “common ground” that the First Amendment “does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.” Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 647,101 S.Ct. 2559, 69 L.Ed.2d 298 (1981). A violation occurs only when the restricted speech is constitutionally protected and when the government’s justification for the restriction is insufficient. See Frisby v. Schultz, 487 U.S. 474, 479, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988).

The Supreme Court has set forth a three-step, forum-based test for determining whether a state actor violated a plaintiffs First Amendment right to free speech. See Cornelius v. NAACP Legal Defense & Educational Fund, 473 U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). Pursuant to this test, the court must determine “(1) whether plaintiffs speech is protected by the First Amendment; (2) the nature of the forum: public, designated or limited public, or nonpublic; and (3) whether the defendant’s justifications for limiting the plaintiffs speech satisfy the requisite standard.” Piscottano v. Town of Somers, 396 F.Supp.2d 187, 200 (D.Conn.2005) (citing Cornelius v. NAACP Legal Defense & Educational Fund, 473 U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985)).

1. Protected speech

The First Amendment’s protection of free speech, made applicable to the states through the Fourteenth Amendment, extends to a broad range of speech and expressive conduct. See, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). Speech on public issues and political matters lies at the heart of protected speech. See Morris v. Lindan, 196 F.3d 102, 111 (2d Cir.1999), abrogated on other grounds by Lore v. Syracuse, 670 F.3d 127 (2d Cir.2012).

Defendants argue that Plaintiff has not engaged in speech protected by the First Amendment. The Court disagrees. Plaintiffs corporate name, ie. Wandering Dago, is a form of expressive speech protected under the First Amendment. See Kalman v. Cortes, 723 F.Supp.2d 766, 798-99 (E.D.Pa.2010) (finding that a corporation’s name is expressive speech protected under the First Amendment).

2. Forum analysis and application of the applicable standard

The appropriate level of judicial scrutiny depends on the nature of the forum subject to the regulation. “ ‘Traditional public fora’” are places such as “streets and parks which ‘have immemorially been held in trust for the use of the public, and ... have [generally] been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’ ” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) (quoting Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939)). “Speech finds its greatest protection in traditional public fora, and government may not alter their public status without completely changing the fora’s use, e.g. converting a public park to an office building.” Make the Road By Walking, Inc. v. Turner, 378 F.3d 133, 142 (2d Cir.2004). “Content-based restrictions on speech in traditional public fora are subject to strict scrutiny.” Hotel Employees & Rest. Employees Union Local 100 of N.Y. v. City of N.Y. Dep’t of Parks & Recreation, 311 F.3d 534, 545 (2d Cir.2002) (citations omitted). “The government may, however, impose content-neutral time, place and manner restrictions on speech in a traditional public forum so long as those restrictions are ‘narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communications.’ ” Id. (quotation omitted); see also Make the Road By Walking, Inc., 378 F.3d at 142 (citations omitted).

The second category, the designated public forum, “‘refers to government property which, although not a traditional public forum, has been “intentionally opened up for that purpose.” ’ ” Hershey v. Goldstein, 938 F.Supp.2d 491, 507 (S.D.N.Y.2013) (quotations and other citation omitted); see also Perry Educ. Ass’n, 460 U.S. at 46, 103 S.Ct. 948. “ ‘Because the government, as property owner, has opened up a designated public forum to the same breadth of expressive speech as found in traditional public forums, the same standards apply: Amy content-based restrictions on speech must survive strict scrutiny, meaning they must be narrowly tailored to serve a compelling government interest, and content-neutral time, place, and manner restrictions are permissible only if they are narrowly tailored and leave open other avenues for expression.’ ” Hershey, 938 F.Supp.2d at 507 (quotation and other citations omitted); see also Int’l Action Ctr. v. City of N.Y., 587 F.3d 521, 526-27 (2d Cir.2009) (citation omitted). Although the government may decide to close a designated public forum, “so long as a forum remains public, government regulation of speech within it ‘is subject to the same limitations as that governing a traditional public forum.’ ” Make the Road by Walking, Inc., 378 F.3d at 143 (quotation omitted).

The third category, the limited public forum, is often analyzed as a subset of the designated public forum and as a nonpublic forum opened up for specific purposes. See Byrne v. Rutledge, 623 F.3d 46, 55 n. 8 (2d Cir.2010) (“[T]he law of [the Second Circuit] describes a limited public forum as both a subset of the designated public forum and a nonpublic forum opened to certain kinds of speakers or to the discussion of certain subjects” (internal quotation marks and citations omitted)); see also N.Y. Magazine v. Metro. Transp. Auth., 136 F.3d 123, 128 & n. 2 (2d Cir. 1998) (quoting Travis v. Owego-Apalachin Sch. Dist., 927 F.2d 688, 692 (2d Cir.1991)). A limited public forum is created “ ‘where the government opens a non-public forum but limits the expressive activity to certain kinds of speakers or to the discussion of certain subjects.’ ” Make the Road By Walking, Inc., 378 F.3d at 143 (quotations omitted). “Common examples of limited public fora include ‘state university meeting facilities opened for student groups, open school board meetings, city-leased theaters, and subway platforms opened to charitable solicitations.’ ” Hershey, 938 F.Supp.2d at 507 (quotations omitted).

“In limited public fora, strict scrutiny is accorded only to restrictions on speech that falls within the designated category for which the forum has been opened.” Hotel Emps., 311 F.3d at 545 (citations omitted). “ ‘Thus, in a limited public forum, government is free to impose a blanket exclusion on certain types of speech, but once it allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre.’” Id. at 545-46 (quotation omitted). If the expressive activity does not fall within the limited category for which the forum has been opened, however, restrictions on speech need only be reasonable and viewpoint neutral. See id. at 546 (citations omitted).

The final category, the nonpublic forum, consists of property that “the government has not opened for expressive activity by members of the public.” Hotel Emps., 311 F.3d at 546 (citation omitted). Examples of nonpublic fora include airport terminals, government-owned professional sports stadiums, military bases and restricted access military stores, and jailhouse grounds. See id. (collecting cases). Restrictions on speech in such fora must only be “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Perry Educ. Ass’n, 460 U.S. at 46, 103 S.Ct. 948; see also Cornelius, 473 U.S. at 800, 105 S.Ct. 3439; Hotel Emps., 311 F.3d at 546 (“The government may restrict speech in non-public fora subject only to the requirements of reasonableness and viewpoint neutrality”).

The public forum doctrine raises particular challenges in a case such as this, where the plaintiff seeks to classify as a “traditional public forum” a public place that does not easily meet the historic definition of such a forum. In view of such challenges, the Second Circuit does not view the “tripartite approach as a straightjacket, but instead as a useful means of analyzing the parties’ competing interests, informed by such factors as the location, use, and purpose of the property in question.” Hotel Emps., 311 F.3d at 546 (citation omitted). “Indeed, while it has been observed that traditional public fora are not expressly designed to accommodate all forms of speech, ... common to those types of properties deemed to be traditional public fora is that ‘the open access and viewpoint neutrality commanded by the [public forum] doctrine is compatible with the intended purpose of the property.’ ” Id. (internal citation and other quotation omitted).

“In distinguishing between a public and non-public forum, we examine the forum’s physical characteristics and the context of the property’s use, including its location and purpose.” Hotel Emps., 311 F.3d at 547 (citing United States v. Kokinda, 497 U.S. 720, 727-29, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990); United States v. Grace, 461 U.S. 171, 179-80, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983)). “ ‘The primary factor in determining whether property owned or controlled by the government is a public forum is how the locale is used.’” Id. (quoting Int’l Soc’y for Krishna Consciousness, Inc. v. N.J. Sports & Exposition Auth., 691 F.2d 155, 160 (3d Cir.1982)). “Also relevant is the government’s intent in constructing the space and its need for controlling expressive activity on the property, as evidenced by its policies or regulations.” Id. (citations omitted); see also Paulsen v. County of Nassau, 925 F.2d 65, 69 (2d Cir.1991) (holding that the government’s intent can be inferred from “policy and past practice, as well as the nature of the property and its compatibility with expressive activity”); N.J. Sports, 691 F.2d at 160-61 (“Public forum status is not appropriate for a locale where the full exercise of First Amendment rights would be inconsistent with the special interests of a government in overseeing the use of its property” (internal quotation marks omitted)). “Finally, we consider whether the property in question ‘is part of a class of property which by history or tradition has been open and used for expressive activity.’ ” Hotel Emps., 311 F.3d at 547 (citing Warren v. Fairfax County, 196 F.3d 186, 190 (4th Cir.1999); Greer v. Spock, 424 U.S. 828, 838, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976); Venetian Casino Resort, L.L.C. v. Local Joint Exec. Bd., 257 F.3d 937, 943 (9th Cir.2001), cert. denied, 535 U.S. 905, 122 S.Ct. 1204, 152 L.Ed.2d 142 (2002)).

a. The OGS Defendants’ motion to dismiss

The OGS Defendants argue that the outdoor space at the Empire State Plaza is a nonpublic forum for purposes of First Amendment analysis. See Dkt. No. 28-1 at 13. They state that “[t]he forum is public in the traditional sense, in that the public is permitted to freely visit at certain times, but this is not the characteristic upon which classification as a ‘public forum’ is based in the First Amendment context.” See id. Rather, the OGS Defendants contend that the dispositive question is whether the government owner has “ ‘abandoned any claim that it has special interests’ in regulating the speech permitted in the forum.” See id. (quoting Flower v. United States, 407 U.S. 197, 198, 92 S.Ct. 1842, 32 L.Ed.2d 653 (1972)). Plaintiff, however, argues that the Empire State Plaza “is the quintessential traditional public. forum.” See Dkt. No. 40 at 6. Alternatively, Plaintiff argues that “[e]ven if this Court were to decide that the Empire State Plaza is not a quintessential public forum because of its physical characteristics, it will be shown to be a designated public forum by virtue of the fact that (1) the State has treated it as such, allowing all forms of speech; and (2) the OGS Defendants adopted no clearly articulated guidelines delineating the types of speech allowed on the Plaza.” See id.

The Second Circuit’s decision in Hotel Employees, finding that the Lincoln Center Plaza was not a traditional public forum, serves as an instructive counterpoint to the instant case. In Hotel Employees, the Second Circuit found that Lincoln Center Plaza was not a traditional public forum on the basis that it had not been dedicated as a city park and that its location and purpose were not similar to the types of properties that have historically been defined as traditional public fora. See Hotel Emps., 311 F.3d at 550. The court reasoned that Lincoln Center Plaza’s location and purpose were to serve as the centerpiece for and extension of the Lincoln Center performing arts complex and was therefore distinguishable from the “typical recreational park or town square.” Id. The Second Circuit concluded that “plazas that serve as forecourts in performing arts complexes are not the types of public spaces that have traditionally been dedicated to expressive uses, or in which the government’s ability to restrict speech has historically been circumscribed.” Id. at 551. Ultimately, the Second Circuit held that Lincoln Center Plaza “has not historically been open to all types of expression, and while it may share some of the same physical characteristics as sidewalks or parks, its primary function and purpose, together with its historical use, distinguish the Plaza from those types of properties that have heretofore been deemed traditional public fora.” Id. at 551 n. 12.

Like the Plaza at issue in Hotel Employees, the Empire State Plaza has not been designated as a park by the State of New York. See 9 N.Y.C.R.R. § 384.10 (listing all state owned parks, parkways, recreation facilities and historic sites in the SaratogaCapital District Region). Although the Second Circuit did not rule on whether such a designation would automatically render such an area a traditional public forum, it found that certain differences from the Lincoln Center Plaza and a traditional park were relevant to its inquiry in finding that the parcel at issue was physically distinct from those that have been determined to be traditional public fora.

The Empire State Plaza is a seventy (70) acre complex of governmental buildings in downtown Albany. It houses 11,000 New York State employees in a complex of ten buildings. See N.Y.S. Office of Gen. Servs., http://www.ogs.ny.gov/ESP/ (last visited January 9, 2013). “The Plaza offers a world-class modern art collection, New York State’s Museum, Library and Archives, a distinctive performing arts center, convention center and more.” Id. Similar to the Lincoln Center Plaza, the Empire State Plaza connects with walkways leading to surrounding streets and it does not form part of Albany’s transportation grid in the way that traditional streets and sidewalks do. See Hotel Emps., 311 F.3d at 550. Further, the ability of pedestrians to cross the Empire State Plaza as a short-cut between surrounding streets is merely an incidental feature of its principal function as the entrance for the buildings that surround the complex. See id. The buildings are set around a row of three reflecting pools. On the west side are the four Agency towers. On the east side is the performing arts center (the “Egg”) and the Erastus Corning Tower, which has an observation deck on the forty-second floor. On the south end of the Plaza is the Cultural Education center, containing the New York State Museum, Library and Archives. The New York State Capital is on the north end of the Plaza. Finally, the Plaza houses numerous memorials of various types, including memorials dedicated to World War II, the Korean War, the Vietnam War, as well as memorials to women veterans, police, firefighters, and crime victims.

Although many of the physical attributes of the Empire State Plaza are similar to those possessed by traditional public fora, whether the Empire State Plaza is a traditional public forum is not the dispositive inquiry in this case. In defining the relevant forum, the Supreme Court has “focused on the access sought by the speaker.” Cornelius, 473 U.S. at 801, 105 S.Ct. 3439. In its complaint, Plaintiff alleges that the Empire State Plaza Summer Outdoor Lunch Program is a program run by Defendant OGS which allows food vendors to operate at the Empire State Plaza on weekdays from late May until early October. See Dkt. No. 1 at ¶ 20. Further, the complaint alleges that Plaintiffs application to be a vendor at the 2013 Empire State Plaza Summer Outdoor Lunch Program was wrongfully denied in violation of the First Amendment. See id. at ¶¶ 29-42, 62-69. According to the rules appended to the application, each vendor “will be assigned a specific location” and vending hours run from 9:00 a.m. to 2:00 p.m. See Dkt. No. 1-1 at 3. Accordingly, based on Plaintiffs allegations in the complaint, the Court finds that the relevant forum is not the Empire State Plaza in tato as the parties have assumed. Rather, the relevant forum is the more limited Empire State Plaza Summer Lunch Program, which happens to take place within the grounds that comprise the Empire State Plaza. See Calvary Chapel Church, Inc. v. Broward County, Fla., 299 F.Supp.2d 1295, 1301 (S.D.Fla.2003) (finding that the “Holiday Fantasy of Lights,” an annual event hosted by the county that ran from just before Thanksgiving day to the middle of January, was the relevant forum, not the Tradewind Park in which the event takes place).

The case law makes clear that even when a piece of government property may not be a public forum, channels for public communication — or alternative fora — may well exist within the greater piece of government property. See Air Line Pilots Ass’n, Int’l v. Department of Aviation, 45 F.3d 1144, 1151-52 (7th Cir.1995). For example, in Cornelius, the Supreme Court was asked to “decide whether the Federal Government violates the First Amendment when it excludes legal defense and political advocacy organizations from participation in the Combined Federal Campaign (CFC or Campaign), a charity drive aimed at federal employees.” Cornelius, 473 U.S. at 790, 105 S.Ct. 3439. The CFC is an annual charitable fund-raising drive conducted in the federal workplace during working hours largely through the voluntary efforts of federal employees. See id. In attempting to define the relevant forum, the petitioner argued that a “First Amendment forum necessarily consists of tangible government property” and that “[bjecause the only ‘property’ involved here is the federal workplace, ... the workplace constitutes the relevant forum.” Id. at 800-01, 105 S.Ct. 3439. In contrast, the respondents argued that forum should be defined in terms of the access sought by the speaker. See id. at 801, 105 S.Ct. 3439. “Under their view, the particular channel of communication constitutes the forum for First Amendment purposes.” Id.

Agreeing with the respondents, the Supreme Court held that the relevant forum was the CFC, not the entirety of the federal workplace where the CFC takes place. See id. Specifically, the Court found that

[ajlthough petitioner is correct that as an initial matter a speaker must seek access to public property or to private property dedicated to public use to evoke First Amendment concerns, forum analysis is not completed merely by identifying the government property at issue. Rather, in defining the forum we have focused on the access sought by the speaker. When speakers seek general access to public property, the forum encompasses that property. See, e.g., Greer v. Spock, [424 U.S. 828, 96 S.Ct. 1211 (1976) ]. In cases in which limited access is sought, our cases have taken a more tailored approach to ascertaining the perimeters of a forum within the confínes of the government property. For example, Perry Education Assn. v. Perry Local Educators’ Assn., ... examined the access sought by the speaker and defined the forum as a school’s internal mail system and the teachers’ mailboxes, notwithstanding that an “internal mail system” lacks a physical situs. Similarly, in Lehman v. City of Shaker Heights, 418 U.S. 298, 300, 94 S.Ct. 2714, 2715, 41 L.Ed.2d 770 (1974), where petitioners sought to compel the city to permit political advertising on city-owned buses, the Court treated the advertising spaces on the buses as the forum. Here, as in Perry Education Assn., respondents seek access to a particular means of communication. Consistent with the approach taken in prior cases, we find that the CFC, rather than the federal workplace, is the forum. This conclusion does not mean, however, that the Court will ignore the special nature and function of the federal workplace in evaluating the limits that may be imposed on an organization’s right to participate in the CFC.

Cornelius, 473 U.S. at 801-02, 105 S.Ct. 3439 (citation omitted).

The Supreme Court’s holding in Cornelius makes clear that Plaintiff is attempting to define the relevant forum too broadly. If the license at issue was to sell food at the Empire State Plaza at any time, throughout the entire year, as opposed to a program of a more limited nature, the Court may reach a different result. However, Plaintiff applied for a license to be a vendor during the 2013 Empire State Plaza Summer Outdoor Lunch Program. See Dkt. No. 1-1 at 2. The program ran for twenty weeks and vending hours were, limited from 9:00 a.m. to 2:00 p.m. See id. at 3. Businesses wishing to participate in the program were required to pay between $1,000.00 and $1,500.00. See id. Finally, the application contained the condition that “[a]ll vendors are expected, to conduct themselves with courtesy and in an orderly manner. Arguments, harassment, sexual harassment, name-calling, profane language, or fighting are grounds for revocation of the vendor permit.” See id. at 4. These facts clearly establish that the relevant forum is the Empire State Plaza Summer Lunch Program. See Air Line Pilots Ass’n, Int’l, 45 F.3d at 1151-52 (holding that where the speaker seeks access to diorama display cases in an airport, the public forum inquiry focuses on the display cases rather than the airport as a whole); Hubbard Broadcasting, Inc. v. Metropolitan Sports Facilities Comm’n, 797 F.2d 552, 555-56 (8th Cir.1986) (holding that where the speaker seeks access to advertising space in a sports arena, the public forum inquiry focuses on the advertising space rather than entire arena), cert. denied, 479 U.S. 986, 107 S.Ct. 576, 93 L.Ed.2d 579 (1986); Lebron v. National R.R. Passenger Corp., 69 F.3d 650, 655-56 (2d Cir.1995); Freedom from Religion Foundation, Inc. v. City of Warren, Mich., 873 F.Supp.2d 850, 860 (E.D.Mich.2012) (finding that the City’s holiday display housed within a government complex was the relevant forum, not the entire government complex).

Having determined that the relevant forum is the Empire State Plaza Summer Lunch Program, the Court must now determine the type of forum. As noted, although the OGS Defendants did not specifically tailor their arguments to the Empire State Plaza Summer Outdoor Lunch Program, they argue that the Empire State Plaza, as a whole, is a nonpublic forum. See Dkt. No. 28-1 at 13. The OGS Defendants claim that the “dispositive question is whether the government owner has ‘abandoned any claim that it has special interests’ in regulating the speech permitted in the forum.’ ” See id. (quoting Flower v. United States, 407 U.S. 197, 198, 92 5.Ct. 1842, 32 L.Ed.2d 653 (1972)). They cite to several provisions of the Public Buildings Law, Executive Law and regulations promulgated by the Commissioner of OGS as evidence that Defendant OGS has not abandoned its right to regulate expressive activity at the Empire State Plaza. See id. at 14-15 (citing N.Y. Pub. Buildings Law § 2; N.Y. Exec. Law § 202; 9 N.Y.C.R.R. §§ 300-1.1, 300-3.2, 301.5, 301.6, 301.7). Alternatively, the OGS Defendants argue that the Empire State Plaza is a limited public forum and, therefore, the “reasonableness” test applicable to nonpublic fora is applicable. See id. at 15 n. 9 (citation omitted).

Plaintiff disputes the OGS Defendants’ classification of the Empire State Plaza and argues that it is “the quintessential traditional public forum.” See Dkt. No. 40 at 6. Alternatively, Plaintiff claims that even if the Court finds that the Empire State Plaza is not a traditional public forum, “it will be shown to be a designated public forum by virtue of the fact that (1) the State has treated it as such, allowing all forms of speech; and (2) the OGS Defendants adopted no clearly articulated guidelines delineating the types of speech allowed on the Plaza.” See id. (citation omitted). Plaintiff argues that, “[i]f the Empire State Plaza is a public forum, either as a matter of law or of fact, then the State Defendants must meet the test established in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 564[, 100 S.Ct. 2343, 65 L.Ed.2d 341] (1980).” See Dkt. No. 40 at 6. Thereafter, Plaintiff asserts that even if the Empire State Plaza is not a public forum, the OGS Defendants’ denial of Plaintiffs application was nevertheless a violation of the First Amendment for two reasons. See id. “First, the application’s denial was not pursuant to any clearly articulated policy, but was the result of unbridled discretion. Pl. Reply Br. in Supp. of Prelim. Inj. 19-22. Second, the application’s denial was viewpoint discrimination. Pl. Reply Br. in Supp. of Prelim. Inj. 23-25.” See id.

The Second Circuit has instructed that a variety of factors are to be examined in conducting forum analysis, including “the forum’s physical characteristics and the context of the property’s use, including its location and purpose.” Hotel Emps., 311 F.3d at 547. Another relevant factor is “the government’s intent in constructing the space and its need for controlling expressive activities on the property, as evidenced by its policies or regulations.” Zalaski v. City of Bridgeport Police Dept., 613 F.3d 336, 342 (2d Cir.2010) (citing Paulsen v. County of Nassau, 925 F.2d 65, 69 (2d Cir.1991)). The Second Circuit has held that the “ ‘primary factor in determining whether property owned or controlled by the government is a public forum is how the locale is used.’ ” Id. (quotation omitted). Finally, a court should consider whether the property in question “is part of a class of property which by history or tradition has been open and used for expressive activity.” Hotel Emps., 311 F.3d at 547 (citation omitted).

It is clear that the forum analysis that the Court must undertake is a fact intensive analysis. See Zalaski, 613 F.3d at 343 (noting its concerns about the forum analysis conducted by the district court, “[especially in light of the sparse record before [the court] on appeal ... ”). Given the nature of this inquiry and the lack of a developed factual record, the Court finds that it is premature to classify the forum at this time. This finding is particularly appropriate considering the fact that the parties have tailored their arguments to the belief that the relevant forum is the Empire State Plaza rather than the 2013 Empire State Plaza Outdoor Summer Lunch Program. In the absence of a forum classification, the Court is unable to determine whether the policy at issue is constitutional. See N.A.A.C.P. v. City of Philadelphia, No. 11-cv-6533, 2013 WL 2182704, *4 (E.D.Pa. May 20, 2013) (denying motion to dismiss the complaint because a more developed record was necessary to classify the forum at issue).

Based on the foregoing, the Court denies the OGS Defendants’ motion to dismiss insofar as it seeks dismissal of Plaintiffs First Amendment claim.

c. The NYRA Defendants’ motion to dismiss

i. The relevant forum

Plaintiff argues that the NYRA Defendants incorrectly describe the relevant forum as the Saratoga Race Course in its entirety. See Dkt. No. 44 at 12. Rather, Plaintiff claims that its truck, “and thus its protected speech, was located on the exterior grounds of the Saratoga Race Course in a park-like setting.” See id. In their reply memorandum of law, the NYRA Defendants take issue with Plaintiffs statement. See Dkt. No. 45 at 11 n. 3. Specifically, the NYRA Defendants argue as follows:

Profoundly misleading is the statement in Plaintiffs brief (which is not alleged in the Complaint) that the truck was located on “exterior grounds” of the Race Course, implying that the truck may have been accessible to members of the “visiting public” that did not pay admission to the Race Course.... As NYRA averred in connection with Plaintiffs motion for a preliminary injunction — and Plaintiff did not dispute in any of its supporting affidavits — Plaintiffs truck was located on the Race Course grounds in an area accessible only to admission-paying patrons.... Plaintiffs misleading suggestion represents a desperate attempt to liken the present case to Paulsen v. County of Nassau, 925 F.2d 65 (2d Cir.1991). There, the Second Circuit held that grounds outside of the Nassau Coliseum constituted a designated public forum, in a case involving a challenge brought by an evangelical Christian group whose members were arrested on the sidewalk for leafleting during a heavy metal concert. See id. at 66-71. Here, however, the Plaintiffs truck was located inside the perimeter of the Race Course’s grounds and accessible to persons who pay admission to enter. Further, the present case does not involve a restriction on speech that was religious (as in Paulsen) or political in nature.

See Dkt. No. 45 at 11 n. 3. Finally, the NYRA Defendants argue that Plaintiff incorrectly asserts that even if the Race Course’s physical characteristics make it a nonpublic forum, it became a public forum because Defendant NYRA did not have a “ ‘clearly articulated’ policy limiting the kind of speech that can be spoken there.” See id. at 11. The NYRA Defendants claim that Plaintiffs argument lacks any support in First Amendment jurisprudence. See id.

The NYRA Defendants are correct that the complaint does not allege that the food truck was located on the “exterior grounds” of the Race Course in a “park-like setting.” See generally Dkt. No. 1. Rather, the complaint repeatedly states, in general terms, that Plaintiffs truck was located at the “Saratoga Race Course.” See id. at ¶¶ 45, 48 & 53. Although the complaint does not specifically allege where on the grounds of the Saratoga Race Course its food truck was to be located, the allegations are nevertheless sufficient to withstand the motion to dismiss. However, since it is unclear where Plaintiffs food truck was to be located or the access Plaintiff was to be granted through its agreement with Centerplate, the Court is unable to determine at this time whether the applicable forum is the entire property or a more circumscribed forum located within the confines of the larger property. See Cornelius, 473 U.S. at 801, 105 S.Ct. 3439 (holding that “forum analysis is not completed merely by identifying the government property at issue. Rather, in defining the forum we have focused on the access sought by the speaker. Whether speakers seek general access to public property, the forum encompasses that property.... In cases in which limited access is sought, our cases have taken a more tailored approach to ascertaining the perimeters of a forum within the confines of the government property”) (internal citation omitted).

ii. Classification of the forum

The NYRA Defendants argue that the Saratoga Race Course is a nonpublic forum. See Dkt. No. 36-2 at 23. The NYRA Defendants claim that “ ‘[e]xamples of non-public fora include airport terminals, military bases and restricted access military stores, jailhouse grounds, and the Meadowlands Sports Complex.’” See id. (quoting Hotel Emps., 311 F.3d at 546) (emphasis omitted). They assert that “[a] mountain of case law makes clear that sports-related facilities on government property, including racetracks and other gambling venues, constitute nonpublic fora.” See id. at 24-25. Plaintiff, however, argues that “the exterior grounds consist of paved, tree-lined paths surrounding grassy areas in which the visiting public lays out picnic blankets and lawn chairs.” See Dkt. No. 44 at 13. Plaintiff claims that the “exterior grounds of the Saratoga Race Course,” which is a “park-like setting,” is a public forum. See id. at 12-13. Alternatively, Plaintiff argues that, “[i]n any event, even if the Race Course is not found to be, by virtue of its physical characteristics, a public forum, it can become one by virtue of NYRA’s policies (or lack of policies) as to access for various kinds of speech.” See id. at 13. Since the Saratoga Race Course lacks any regularly enforced policies restricting speech on its property, Plaintiff claims that it has created a designated public forum. See id. at 13-14 (citations omitted).

Upon review of the complaint and its attachments, it is clear that the Court is unable to classify the applicable forum at this point. The complaint does not provide specific detail regarding where its food truck was to be placed at the Saratoga Race Course. Although the NYRA Defendants argue that the truck was to be located on the Race Course grounds in an area accessible only to admission-paying patrons, the Court is not permitted to consider such allegations in deciding a motion to dismiss. The complaint simply alleges that Plaintiff had “reached an agreement with Centerplate to participate as a vendor at Saratoga Race Course during the seven-week track season.” See Dkt. No. 1 at ¶ 45. Although the NYRA Defendants are likely correct in their assertion, the Court is obligated to draw all reasonable inferences in Plaintiffs favor. See ATSI Commc’ns, Inc., 493 F.3d at 98 (citation omitted).

Moreover, in determining the classification of an applicable forum, the Court is required to conside