Board of Appeals upholds denial of Electric City tobacco permit

The San Francisco Board of Appeals on March 27 upheld the Department of Public Health’s denial of a retail tobacco sales permit for Electric City at 1347 Polk Street, rejecting the shopkeeper’s claim that prior city inaction and a state license allowed tobacco sales.

Deputy City Attorney Henry Lifton told the panel there were “really no disputed facts” that control the case: the site is within 500 feet of a school, within 500 feet of four permitted tobacco retailers, and is located in a supervisorial district that already exceeds the local cap on new tobacco permits. “The law is the law,” Lifton said, arguing none of the health‑code exceptions applies.

Appellant attorney Randy Schmidt and shopkeeper Ahmad Sutani said the business applied in 2018, did not receive timely follow‑up from city staff, obtained a state license, and only began selling tobacco in 2023. Schmidt alleged a competitive “whistleblower” complaint prompted the enforcement action and asked the board to consider estoppel or an exception; Sutani said he was willing to limit sales to the planning department’s 10‑linear‑feet/10% carve‑out but sought either an exception or a one‑time permit.

Senior Inspector Janine Young, who led the DPH inspection, testified the department has not approved a permit when an applicant failed one of the code’s criteria and said the department treats the health‑code density and proximity provisions as mandatory. “We have not approved a permit even if the applicant met every condition but one,” she said.

Planning staff also told the board that Polk Street’s neighborhood commercial rules separately prohibit tobacco paraphernalia at that location. The board concluded the applicant had not identified a statutory exception under San Francisco Health Code Article 19H that would allow issuance of a new retail tobacco permit in this location.

Commissioner Rick Swig moved to deny the appeal; the board voted 5–0 to uphold the Department of Public Health’s denial of permit #97731.

The board’s actions leave in place the city’s enforcement determination; any further relief would require legislative or code changes or separate legal action.