Board of Appeals upholds DPH denial of retail tobacco permit for San Francisco Eagle Bar

The San Francisco Board of Appeals on April 9, 2025, denied an appeal by the San Francisco Eagle Bar and upheld the Department of Public Health ecision to deny a retail tobacco sales permit for the property at 398 Twelfth Street. The board voted 3-0 to deny the appeal.

The board said the denial was governed by the city ensity rules adopted in 2015 and by Health Code Article 19H, which limit new retail tobacco permits where a supervisorial district already meets a permit cap or where a proposed location is within 500 feet of an existing permit holder. Deputy city attorney Adam Radke told the board: "When the density rules went into effect in 2015, new permittees will be denied if they, among other restrictions, are within 500 feet of an existing permittee, are in a district, supervisorial district with 45 or more permits, or where the main purpose of the applicant is offering food and applicant and the department denied that permit in February of 2025 for those reasons."

Why it matters: the decision applies the Board of Supervisors'015 policy to limit new tobacco retail outlets in San Francisco and affects any business in Supervisorial District 6 seeking a retail tobacco permit. The board said it lacked authority to grant relief that would conflict with the ordinance and recommended legislative remedies if the applicant sought an exception.

Board decision and legal basis The Department of Public Health (DPH) denied the permit in February 2025 on three grounds cited in its denial letter: the business is in Supervisorial District 6, which the department said had more than the threshold number of permitted retailers; the location is within 500 feet of an existing permittee; and the location is operated primarily as a bar and tavern, which the department said disqualified it as a new retail tobacco permittee under the density rules. Radke summarized the department's legal view that the Eagle Bar did not qualify as a continuing permittee that could retain or transfer an earlier permit because the prior tobacco permit for that address ended in 2012.

Appellant rguments and department response Appellant counsel, identified in the record as Mr. Smurro, argued that the denial referenced an application dated June 25, 2021, that counsel had not been provided and that the record did not contain such an application. The counsel repeatedly asked the board and the department to produce the referenced application and said he could not respond to a denial of a ocument he had not seen.

DPH and its retail tobacco program inspector disputed that the application was missing. Principal Environmental Health Inspector Michelle Vega said the department did have an application from 2021 but that it was incomplete and had been treated as abandoned under department rules after repeated attempts to elicit the missing information. Vega told the board: "When I onboarded in 2024, we were down 50% of inspectors in the retail tobacco program," and said the program prioritized time-sensitive enforcement work during the pandemic and afterward, which contributed to delays in closing the application file. She said the department later reassigned the file and ultimately issued the denial on the statutory grounds.

The applicant, who identified himself as Jesus Alejandro "Lex" Montielo and said he operates the San Francisco Eagle Bar, described the business as a longtime community venue and termed it a "legacy business." Montielo said the bar resumed operations in 2021 after the COVID closure and that he believed he had pursued the necessary licensing. He asked the board to consider the Eagle's role as a community venue and described limited tobacco sales and cigar-club activity. Montielo also said he had been unable to produce older licensing documents because a former business partner had died and some records were not available.

Board discussion and vote Board members pressed both sides about the 2012 permit lapse, the 2021 application timeline, and why the department issued a denial in 2025. Commissioners noted the department's explanation that inspectors nd enforcement work during the pandemic affected processing time, and questioned whether any equitable relief was available. Radke told the board that the department could not provide equitable relief outside the health code and the 2015 ordinance.

Commissioner Jose Lopez moved to deny the appeal and uphold the department's denial as consistent with law. President Transvinia and Commissioner Rick Swigg voted in favor. The motion carried 3-0 and the appeal was denied.

What the applicant can do next The board and DPH noted the applicant is not barred from reapplying if he can demonstrate he qualifies under the density ordinance and other requirements. DPH staff said they would accept a new, complete application and that legislative relief from the Board of Supervisors would be required to alter the underlying density cap.

Votes at a glance - Motion to adopt minutes of the March 19, 2025 meeting: passed, 3-0. (Commissioners present voted Aye.) - Appeal 25-009 (San Francisco Eagle Bar v. Department of Public Health) ppeal to denial of retail tobacco sales permit for 398 Twelfth Street: denied; motion to uphold DPH denial consistent with the law carried 3-0.

Ending The board concluded the matter and advised the appellant that, absent a change in the enabling ordinance or a showing that the business meets the criteria for an existing-permit transfer, the DPH denial would stand. DPH staff said it would continue to apply the Health Code and the 2015 density rules and would accept a future application if the applicant demonstrates eligibility under those rules.