Board upholds DPH denial of new tobacco permit at 1200 Geneva after tied vote on temporary remedy

The San Francisco Board of Appeals on the evening of the meeting left in place the Department of Public Health (DPH) decision denying a new tobacco retail permit for 1200 Geneva Avenue, the site doing business as House Auto Inc.

Appellant Shai Wu told the board the new owner did not know about the city’s recently enacted tobacco density rules and described substantial tobacco inventory acquired in the purchase; the appellant urged an equitable solution so the inventory could be sold. June Weintraub, manager of the DPH Environmental Health Branch, told the board that the city’s retail tobacco permit rules are set in Health Code Article 19H, amended in December 2014 and effective in January 2015, and that the department had limited discretion to issue new permits under the density limits. Senior Inspector Janine Young detailed DPH outreach efforts (newspaper stories in Dec. 2014, a March 2015 mailer and inspector visits May–Nov. 2015) and said DPH inspected the site on July 20, 2015 and advised the then‑owner (Mr. Chin) of restrictions.

The central statutory threshold is a district cap (45 permits) combined with a 500‑foot radius rule; DPH staff said the supervisory district in question exceeded the cap and that two existing retailers were within 500 feet of 1200 Geneva. Derek Smith of the Tobacco Free Project explained that the 45‑permit threshold was derived using a method tied to district density comparisons.

Commissioners pressed staff about the precise transaction timeline: DPH inspection notes show contact July 20, 2015; tax records indicate a business registration July 31; the appellant presented escrow/closing paperwork showing a final deposit July 7 and said they had completed the purchase earlier. Commissioners discussed options for clearing inventory, including a limited, conditional permit to permit wholesale sale only. Commissioner Fung moved — later amended to a one‑month allowance — to grant the appeal and issue a permit for a limited period to allow wholesale transfer of inventory. City counsel and the deputy city attorney cautioned that Article 19H’s density cap prohibits issuing a permit under those conditions and that granting a permit contrary to the law could expose the city to legal risk. On roll call the motion resulted in a 2–2 tie and did not pass; the Department’s decision therefore remains in effect by default.

Board members noted the appellant’s potential remedy lies outside the board’s permitting authority — for example, a civil claim against the seller if the seller misrepresented the value of a transferable license. The board did not direct any regulatory exceptions or further action by DPH.