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NORTHERN CALIFORNIA RECORD

Tuesday, November 5, 2024

SF orders Tenderloin stores to close early to fight crime; City seeking to toss residents' suit over lax law enforcement

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San Francisco City Attorney David Chiu | Votedavidchiu.com

As San Francisco city attorneys seek to pull the plug on a lawsuit demanding they better enforce the law to protect residents of the Tenderloin, the city's leaders have enacted new regulations forcing convenience stores and others in the Tenderloin that sell food and tobacco products to close earlier in the evening, in the name of fighting crime in the community.

On July 9, the San Francisco Board of Supervisors enacted an ordinance establishing what the city calls a "pilot program" that for two years will forbid retail food and tobacco selling establishments from being open to the public between the hours of midnight and 5 a.m. 

The rules would be enforceable through the city's Department of Public Health, which could slap violators with fines; through enforcement actions brought by the City Attorney's office; and through lawsuits from people who can claim they were "harmed by a violation of the hours restriction."

According to documents explaining the action, the City Attorney's office noted the "high rate of drug-related crime in the Tenderloin" and its harmful effects on the community and its residents.

The City Attorney's office said the hours restrictions will help combat that drug-related crime by making it more difficult for drug sellers and others engaged in crime or threatening violence to gather during the overnight hours and reducing places that such criminals can duck into and evade police.

"Individuals are easily lost or concealed in a crowd, particularly when the crowd is comprised of many people engaging in illegal activity. And proximity to open retail businesses enables individuals engaged in criminal activity to take cover inside the open retail business when a police patrol appears," the City Attorney's office wrote.

While conceding the hours restrictions will economically harm some businesses, the City Attorney's office said they, the mayor and the San Francisco Police Department believe the hours restrictions will ultimately aid the local economy by giving police greater ability to reduce crime overnight.

"Eliminating the nighttime safety problems is likely to increase the overall vibrancy of the Tenderloin, which could yield economic benefits to businesses impacted by the restriction on hours of operation," the City Attorney said.

The measure comes, however, at the same time a federal judge is considering a petition from the City Attorney to dismiss a lawsuit brought by residents of the Tenderloin seeking to obtain a court order forcing San Francisco to better address their concerns over rampant crime and open drug use that plagues their community.

That lawsuit was filed March 14 in the U.S. District Court for the Northern District of California by  attorneys with the firms of Walkup Melodia Kelley & Schoenberger, of San Francisco, and Kline & Specter, of Philadelphia, on behalf a group of Tenderloin residents and businesses, including the Phoenix Hotel and the operators of the Best Western Road Coach Inn.

The lawsuit accuses San Francisco city officials of establishing a de facto policy of allowing greater criminal activity within the Tenderloin to essentially corral the crime and drug trade there and stem its spread into other neighborhoods.

The plaintiffs assert this policy since 2019 has allowed the Tenderloin to descend into such a state that the neighborhood has become all but unlivable, and businesses struggle to survive.

The plaintiffs note that sidewalks and streets throughout the Tenderloin are packed not only with homeless individuals, but gang members and others selling and taking drugs of all kinds, including fentanyl and other "potent, highly addictive and deadly opiates," while other criminal activity of all kinds flourishes.

Plaintiffs assert open air drug markets are common right outside of apartment buildings and homes in which children and families live, operating without fear of law enforcement.

"... The consequences of the containment zone policy to the residents of and stakeholders in the Tenderloin have been devastating and constitute a violation of their dignity and fundamental civil rights," the plaintiffs wrote in their March lawsuit. "This is a state-created danger. It is both a public and a private nuisance. It has deprived plaintiffs of equal protection of the law and of fundamental liberty interests protected by the United States and California Constitutions."

The lawsuit remains pending.

However, in late May, the City Attorney asked a federal judge to toss the case. They said the Tenderloin residents have advanced a "novel" legal argument that cannot stand up under the law.

The City Attorney argues the city cannot be sued over its policies to enforce or not enforce the laws within its borders. Criminals have created the public nuisance in the community, the City Attorney argues, and the lawsuit impermissibly seeks to hold the  liable for it.

The City Attorney argues the claims in the lawsuit are "policy and political quarrels," not legal claims for damages that can hold up in court.

The judge has not yet ruled on the city's motion to dismiss.

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