797 F. Supp. 2d 964
N.D. Cal.2011Background
- Safeway operates fifteen San Francisco grocery stores; ten include licensed pharmacies.
- Amended Ordinance No. 245-10 bans tobacco sales in stores that contain a pharmacy.
- Original Ordinance No. 194-08 prohibited tobacco sales in pharmacies but exempted general grocery and big box stores with pharmacies.
- Walgreen Co. v. City and County of San Francisco informed later repeal of exemptions.
- The amended ordinance revoked Safeway's tobacco-permit at its ten pharmacy stores and affected its business.
- Plaintiff seeks declaration of scope of amendment, constitutional challenges, and preemption defenses; Defendants move to dismiss with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Construction of amended ordinance scope | Safeway argues only in-pharmacy tobacco sales prohibited | Ordinance restricts tobacco sales in any store with a pharmacy | Dismissed; no viable constitutional claims from misread of language. |
| Substantive due process right to operate business | vested rights in pharmacy and tobacco permits; impairment violates due process | police power to protect public health governs; no arbitrary action | Dismissed; ordinance reasonably relates to public health and not arbitrary. |
| Equal protection claim viability | Stores with pharmacies are similarly situated to those without | Health-care role differentiates stores; rational basis supports distinction | Dismissed; rational basis passes even if stores are similarly situated. |
| Substantive due process and due process overlap with Section II | Restates equal protection and due process claims | Claims are duplicative and insufficient | Dismissed; no independent due process claim. |
| Preemption by state pharmacy regulation | Amended ordinance preempts state regulation of pharmacies | Local authority may regulate tobacco sales; no preemption | Dismissed; amendment not preempted by state law. |
Key Cases Cited
- Dobbins v. Los Angeles, 195 U.S. 223 (1904) (police power not arbitrary; general health/safety purpose)
- O'Hagen v. Bd. of Zoning Comm’rs., 19 Cal.App.3d 151 (1971) (permits may be revoked for public nuisance; compelling public necessity required)
- Nollan v. California Coastal Com’n, 483 U.S. 825 (1987) (regulatory conditions must be tied to just compensation/public interest)
- Walgreen Co. v. City and County of San Francisco, 185 Cal.App.4th 424 (2010) (equal protection evaluation of exemptions in pharmacy-related ban)
- Spoklie v. Montana, 411 F.3d 1051 (2005) (substantive due process requires a rational link to public welfare)
- Fraley v. United States Bureau of Prisons, 1 F.3d 924 (1993) (equal protection analysis—similarly situated groups)
- Nordlinger v. Hahn, 505 U.S. 1 (1992) (rational basis scrutiny for economic regulations)
- Walgreen Co. v. City and County of San Francisco, 185 Cal.App.4th 424 (2010) (state equal protection analysis in pharmacy context)