GLOVERSVILLE - Sno Kone Joe can't sell frozen treats in the city, a judge says, but the business may fight the ruling.
State Supreme Court Justice Joseph M. Sise on Monday allowed the city to deny the business's owner a permit.
Sise said owner Amanda Scott - who was charged April 30 with stalking and harassing rival ice cream truck vendor Mr. Ding-A-Ling - was unable to prove her claim the city's decision to deny the permit was "arbitrary and capricious."
Amanda Scott is pictured in court.
Joshua Malatino is shown collecting signatures to try to keep Sno Jone Joe on the streets of Gloversivlle.
Joshua Malatino, who runs the business with Scott and was charged along with her in April, said Sno Kone Joe will continue to operate in other area localities.
"We are disappointed by the outcome, but we will meet with our lawyer and see what our options are," Malatino said after Monday's ruling. "We will keep fighting."
The city denied the renewal of Scott's permit - which expired May 4 - on the recommendation of Police Chief Donald VanDeusen. Scott then took the city to court.
Sise, who dismissed Scott's complaint, said city police showed "patience and reserve" when dealing with Scott and Malatino in incidents dating back to 2009.
The judge's decision followed testimony by another ice cream vendor, Pop Pop's Snack Shack, operated by Robert J. Insognia. Insognia said he stopped trying to sell ice cream in the city after less than a month last year because of encounters he had with Sno Kone Joe drivers.
He said Scott followed him throughout the city, parked behind him as he was selling ice cream and yelled, "Their ice cream is poison. Come get some free ice cream from us."
Attorney Michael Albanese, representing the city, gave 10 instances in which Scott or Malatino required police intervention. He said the city was acting in the best interest of its residents by denying the permit.
"City police have better things to do than negotiate between ice cream vendors," Albanese said.
Scott's attorney, Bill Lorman, said the city based its decision to deny the permit on information it previously had when the city allowed the operator to get a permit in April.
He also pointed out during his closing remarks the information provided by Mr. Ding-A-Ling driver Phillip Hollister that led to the charges against both Scott and Malatino were inconsistent.
In court documents, the city Police Department described incidents involving either Malatino or Scott, who both operate the trucks.
Lorman said most of the incidents involved Malatino and not Scott.
Sise questioned the testimony of Scott and Malatino. He said their claim that Malatino has only been a volunteer over the last eight years is questionable.
He called Malatino a "major actor" in the business because Scott owns neither of the two trucks and she couldn't explain in court how Blasper Inc. of Gloversville - which owns one of the vehicles - was reimbursed for Scott's use of the vehicle.
Sise said the fact the city issued a permit in April didn't clear the record of the Sno Kone Joe operators.
"The granting of the temporary permit didn't wipe the slate clean, nor should it," Sise said.
After the judge's decision, Mayor Dayton King said he is happy the hearing is over and the decision is in the city's favor.
"I was very pleased and I was confident from the beginning we made the right decision," King said.
"For the rest of this year, we won't be seeing Sno Kone Joe in the city of Gloversville," King added.
He said the city is "open-minded" and could allow the business back into the city under different ownership or operators.
The criminal charges against Scott and Malatino are scheduled to be heard in City Court on July 29.
Scott and Malatino, both of 62 East Blvd., were charged with second-degree harassment, a violation, and fourth-degree stalking, a misdemeanor.
Police said Malatino and Scott harassed and stalked the Mr. Ding-A-Ling driver three times in April.
Police said Scott and Malatino followed the rival truck, played their music at a high volume and yelled they have free ice cream in an attempt to draw customers away from the other truck, police said.
Police said Malatino told the Mr. Ding-A-Ling driver that Malatino's business controls the ice cream sales market in the city.
Levi Pascher can be reached at firstname.lastname@example.org.