Deli Misconduct Draws Public Censure

An incident in a Manhattan delicatessen has drawn an agreed public censure from the New York Appellate Division for the First Judicial Department.

The charge

On May 15, 2018, respondent unleashed a verbal tirade in a Manhattan delicatessen that was so offensive as to rise to the level of professional misconduct. 

The facts

Respondent went to an establishment in Manhattan known as "Fresh Kitchen" to order a sandwich. Respondent heard a counter worker, Adrian Luna, conversing in Spanish with patron Santo Castillo. Respondent loudly confronted them for not speaking in English which included telling Castillo to "get the [expletive omitted] out of my country." He also asked Castillo, "Why don't you speak English?" "What do you have against my country?" "What's wrong with you?" and "Why don't you like English?" Respondent also told Castillo to "Get a [expletive omitted] dictionary and assimilate."

Upon turning his attention to Luna, respondent said, "You shouldn't be talking Spanish. That's improper. I'll tell your boss and I'll call ICE [Immigration and Customs Enforcement] and have each one of you [expletive omitted] deported." Respondent also addressed Luna as "ICE" when demanding to know the whereabouts of the sandwich he ordered.

Upon respondent's reiterating to Luna that he "shouldn't be talking to customers that way," a patron, Emily Serrano, intervened and told respondent that he "shouldn't be talking to a human being [] that way either, you shouldn't." In response, respondent told Serrano to "assimilate." Serrano replied by stating "assimilate what?" Respondent then retorted, "You don't know what it means? Get a dictionary." Serrano told respondent that he was "very ignorant." The exchange with Serrano deteriorated further [*2]with respondent telling her that he was brighter, better looking, and slimmer than she was. He also suggested more than once that Serrano should refrain from eating so she could "lose some [expletive omitted] weight," and he accused Serrano of threatening him and told her that her husband (whom Serrano referenced during their exchange) should speak English.

Upon returning his attention to Luna, respondent stated, "My complaint is that the staff here should not be speaking Spanish to customers." Luna responded that this was respondent's "personal opinion" at which point the restaurant's manager, Stan Kong Hyunsik, presented himself and inquired as to the problem. Serrano then began recording respondent with her smart phone. Respondent told Hyunsik, "My problem is that your clients and staff are speaking Spanish to customers when they should be speaking English." Respondent then identified at least three people who had spoken Spanish, he stated that he wanted his complaint forwarded to the CEO, and he asserted that he would follow it up. In addition, during the exchange with Hyunsik, respondent guessed that the Fresh Kitchen's workers were "not documented" and his "next call [would be] to ICE to have them kicked out of my country." Additionally, respondent stated, "They have tire balls to come here and live off of my money. I pay for their welfare. I pay for their ability to be here. The least they could do is speak English . And if you intend on running a place in Midtown Manhattan your staff should be speaking English not Spanish."

Someone, possibly Serrano, began to comment on "people like" respondent and the state of "our nation." Respondent interrupted and stated, "Honey, I'm calling ICE." Respondent again suggested to Serrano that she "take a break from the food." In response, Serrano suggested that respondent get hit by a car and used an expletive to refer to him. Serrano also stated that she was going to call the police and respondent replied, "Go ahead, sweetheart." Respondent then stated, "You're gonna let her call the cops on me for voicing my opinion; I'm not subsidizing your establishment."

A video recording of the incident was posted to the internet and widespread dissemination ensued, including coverage by television and print media. Respondent's identity and profession became known and resulted in adverse consequences for him that included expulsion by his commercial landlord, the resignation of his associate, public denunciation by some of his clients, and a crowd-funded Mariachi band playing outside his apartment house.

Approximately one week after the incident at issue, respondent posted an online apology stating —

"[t]o the people I insulted, I apologize. Seeing myself online opened my eyes — the manner in which I expressed myself is unacceptable and is not the person I am. I see my words and actions hurt people, and for that I am deeply sorry. While people should be able to express themselves freely, they should do so calmly [*3]and respectfully. What the video did not convey is the real me. I am not a racist. One of the reasons I moved to New York is precisely because of the remarkable diversity offered in this wonderful city. I love this country and this city, in part because of immigrants and the diversity of cultures immigrants bring to this country. Again, my sincerest apologies to anyone and everyone I hurt. Thank you."

While respondent conditionally admits the above facts, he asserts that he does not have first-hand knowledge of certain of the facts adduced by the AGC but, "for purposes of this [joint] motion [he] accept[s] the [AGC's] representations."

The court granted Respondent's motion to seal two video recordings that he had provided to bar authorities. (Mike Frisch)