As we reported in February, the Planning Commission rejected the AIDS Healthcare Foundation’s bid for conditional use authorization to relocate its pharmacy, which was located at 100 Church St. near the corner of Church and Duboce, to join the AHF health clinic at 518 Castro St. Community concerns over the activation of the Castro Street retail space and a lack of AHF representation at the January 28th meeting resulted in a 4-1 vote against granting the proposed conditional use permit. AHF has more than 30 pharmacies worldwide, which designates it as formula retail; however, the chain originally submitted its permit application under a different name.
Following the ruling, Los Angeles-based AHF had 90 days to either appeal the commission’s decision to the Board of Supervisors or to revive its earlier lawsuit against the city and Supervisor Scott Wiener. The AIDS non-profit had previously sued the city and supervisor in federal court in August of 2014 on the grounds that the city had discriminated against them in their bid to open up a third location in the Castro.
According to a recent press release by the City Attorney's Office, the advocacy group, which Newsweek magazine has described as “extremely litigious,” decided to revive the lawsuit, alleging that city officials violated the organization’s constitutional rights by disapproving its conditional use request for a retail pharmacy. The city and Supervisor Wiener were again listed as defendants.
However, the complaint, filed in the U.S. District Court in San Francisco on April 28th by AHF, missed its 90-day deadline following the January 28th Planning Commission meeting, seemingly neglecting 2016’s quadrennial extra day on Feb. 29th.
In the newly filed case, AHF was seeking damages from city taxpayers in the amount of a half a million dollars, plus attorney's’ fees.
“Because AHF’s new lawsuit is time-barred,” said City Attorney Dennis Herrera, “we won’t need to address its utter lack of merit and other procedural infirmities. As with its prior suit, however, AHF is mistaken that the U.S. Constitution allows it to put chain stores wherever it wants."
Herrera, according to his office’s press release, “has not ruled out the possibility of exploring sanctions against the AHF plaintiffs for violating Rule 11 of the Federal Rules of Civil Procedure, which generally intends to deter frivolous and otherwise slipshod pleadings, in order to curb vexatious abuses of the judicial system.”
“Courts have long recognized local governments’ broad authority to regulate land uses in myriad ways,” said Herrera, “and San Francisco is no exception.”
According to District 8 Supervisor Scott Wiener, AHF attempted to game San Francisco's formula retail rules and was "stopped from doing so.”
"Under AHF's logic—that by changing the name of its pharmacy to ‘Castro Pharmacy,’ it stopped being formula retail—McDonald's could rename itself ‘Castro Hamburgers’ and make the same claim," said Wiener.
"Everyone needs to play by the rules, and AHF is no exception."
The case is: AIDS Healthcare Foundation v. City and County of San Francisco, Supervisor Scott Wiener, et al., U.S. District Court for the Northern District of California, No. 3:16-CV-02319-WHA, filed April 28, 2016.
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