AIDS Nonprofit Again Sues SF, Wiener

An AIDS nonprofit that's been trying to move a pharmacy in San Francisco's Castro neighborhood is again suing the city and gay Supervisor Scott Wiener, claiming discrimination.

The Los Angeles-based AIDS Healthcare Foundation filed its latest complaint April 28 in San Francisco Superior Court. In court documents, the nonprofit accuses Wiener of opposing its plans because AHF has been an outspoken critic of PrEP, which Wiener takes and which is supported by the San Francisco AIDS Foundation.

AHF also says Wiener has opposed its Castro plans because he favored Strut, the AIDS foundation's gay and bi men's health clinic at 470 Castro Street that opened in January. Wiener's District 8 includes the Castro.

"For at least the last two years, AHF has continuously, very loudly, and very forcefully argued against the adoption of PrEP as a widely used method of attempting to prevent HIV infection," the nonprofit, which expresses safety concerns about the prevention method, says in its complaint.

The nonprofit claims Wiener and others enacted controls against its plans "in retaliation against AHF for engaging in its aforementioned protected First Amendment activities."

In a phone interview Monday, Wiener said AHF's claim about the AIDS foundation is "completely untrue. My action had nothing to do with favoring or disfavoring anyone, and everything to do with closing a loophole so AHF and others could not game the formula retail rules."

He was referring to how, at least at one point, the nonprofit had planned to call the space Castro Pharmacy instead of AHF Pharmacy. By doing so, he said, AHF was "pretending not to be formula retail."

By a 4-1 vote January 28, planning commissioners rejected the nonprofit's plans to relocate its Castro pharmacy from 4071 18th Street into 518 Castro, where it operates a health clinic.

AHF had put its 2014 lawsuit against Wiener and the city on hold as it sought the permit to relocate the pharmacy.

City planning staff initially had granted the agency the permit for relocating its pharmacy in January 2014. But they then reversed course after concluding AHF's pharmacy was covered by the city's formula retail rules, which require chains with 11 or more stores to seek a conditional use permit to open a new location.

AHF lost its appeal of that decision and then sued the city and Wiener, claiming city officials had unfairly targeted it when they passed emergency zoning legislation covering chain stores in the Castro.

In its new lawsuit, AHF refers to the planning commission's January 28 vote disapproving its plans to move to 518 Castro.

The commission "failed to proceed in the manner required by law, its decision is not supported by its findings, and its findings are not supported by substantial evidence," AHF says.

Among other claims, the nonprofit says, "The commission determined that the ability of similar retail uses within the district 'adequately provide the neighborhood's pharmaceutical needs through formula retail outlets,'" but it "failed to consider" that conditional use authorization "would move AHF's current pharmacy to a new location and would not create any additional pharmacies in the area."

AHF is seeking $500,000 in damages from the city, plus other costs.

The city attorney's office said in a news release that the nonprofit missed the 90-day deadline for filing its lawsuit "by one day - apparently neglecting to count 2016's quadrennial 'Leap Day'" February 29.

City Attorney Dennis Herrera stated, "Because AHF's new lawsuit is time-barred, 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. Courts have long recognized local governments' broad authority to regulate land uses in myriad ways, and San Francisco is no exception."

Herrera's office said he "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."

The lawsuit also names the city's planning commission and planning department as defendants.

An AHF spokesman didn't respond to an emailed request for comment.