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SAN FRANCISCO -- An ordinance here prohibiting tobacco sales in drug stores could violate the equal protection clauses of the state and federal constitutions, a state appeal court ruled this week, according to a report by Law.com.
The unanimous decision by San Francisco's 1st District Court of Appeal reverses a demurrer in the city's favor, and allows Walgreen Co. to go ahead with a suit challenging the city's controversial ordinance.
"Should Walgreens ultimately prevail on its equal protection causes of action, the court will be required to determine whether the appropriate remedy is to preclude enforcement of the entire ordinance or to invalidate only the exceptions contained in San Francisco's health codes," Administrative Presiding Justice William McGuiness wrote in the ruling.
The San Francisco law outlaws the sale of tobacco products in drug stores, but exempts supermarkets such as Safeway, and big-box stores such as Costco, that contain pharmacies.
The appeal court said the disparate treatment of various types of stores might not be "rationally related" to a legitimate legislative end. The justices rejected the city's arguments that tobacco sales by pharmacies send a stronger message of acceptance than by other stores, according to the Web site's report.
"There is no plausible reason to believe that members of the public place any greater reliance on implicit advice regarding the healthfulness of tobacco products conveyed by counter clerks, the corporate structure or the product mix of a Walgreens than of a Safeway or Costco," McGuiness wrote in the ruling, released Tuesday.