First Amendment

Do San Francisco's Restrictions on Chain Stores Violate the First Amendment?

Whether a local burrito chain will be able to open another restaurant in San Francisco's North Beach neighborhood could hinge on the precise name of the new location.

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Whether San Francisco's restrictions on chain stores will allow a local burrito business to open another restaurant might hinge on what the owners decide to call their new location. That, in turn, raises some troubling First Amendment implications.

For close to four decades, local favorite El Farolito has made a name for itself serving up Mission-style burritos that are, per Eater, "roughly the size of a neck pillow." The business currently has 11 locations throughout the Bay Area, and is in the process of opening up its 12th in San Francisco's North Beach neighborhood.

"We hope that we are received like we have been received (and) accepted in the other places we're at," said Irene Lopez, the daughter of El Farolito founder Salvador Lopez and the restaurant's current CEO, to the San Francisco Chronicle earlier this month.

If they'll be received at all in North Beach, however, depends on whether El Farolito meets the city's definition of "formula retail" (a.k.a. a chain store).

Since 2004, San Francisco has placed restrictions on formula retail businesses like bars, restaurants, and gyms to try to preserve the viability and character of local businesses. To that end, the city's planning code requires any business deemed a formula retail chain to get a special conditional use permit in order to operate in some areas of the city. In a few Neighborhood Commercial Districts—including North Beach—formula retail is flatly prohibited.

Determining whether a business is formula retail, and thus subject to these restrictions, is normally a pretty cut-and-dry process, says Dan Sider, chief of staff for the San Francisco Planning Department.

"The vast majority of applications that we get for new stores, restaurants, what have you, very clearly fall into the 'yes, this is a nonformula retailer' or 'no, this is a formula retailer' bucket," Sider tells Reason. "Every now and then, one comes along that makes us scratch our heads."

That includes El Farolito.

The city has two criteria to determine whether a business counts as formula retail. The first is whether a "retail establishment" has 11 or more physical locations, which El Farolito does. The other criterion is whether those 11 locations also have a standardized facade, signage, uniform apparel, color scheme, interior decor, or trademark.

If two or more of those features are standardized at 11 or more of a business's physical stores, then it's formula retail and thus subject to all the city's restrictions.

El Farolito's 11 current locations mean it fits the first part of the city's definition of formula retail. The more difficult question—as Mission Local reporter Joe Eskenazi explained in an article last week—is whether those 11 locations have sufficiently standardized branding to meet that second definition.

Two of the restaurants operated by the El Farolito company, notes Eskenazi, are actually called El Favorito. Another two use the name El Farolito but have different branding.

In an affidavit submitted to the Planning Department, Lopez claimed that the company has eight El Farolito stores and that the North Beach location would be called "El Farolito #9."

"We are a corporation, and under this umbrella you will find the 8 El Farolito's and two dinners [sic] with a different name and menu," said Lopez in correspondence with the Planning Department obtained by Mission Local. (Her description appears to exclude an 11th store operated by the company.)

The degree to which that decision depends on what the new location is called raises some troubling free speech implications, says Robert Frommer, an attorney with the Institute for Justice, a public interest law firm.

"It creates an artificial restriction that really infringes on people's First Amendment rights because it all turns on what you decide to call yourself," says Frommer.

While the government can regulate businesses to prevent fraud or protect public health, its ability to police speech—which would include the words on signs and menus—is constrained by the First Amendment.

"The government doesn't have the right to be the speech police and to say lawful businesses can't open because they don't like how they describe themselves," he says.

Standard uniforms, another of the city's formula retail criteria, could also raise free speech issues, says Frommer, but that is more of a gray area.

Sider says he's unaware of anyone raising a First Amendment objection to the city's formula retail regulations.

"The name of the business is really just one of the factors that goes into consideration," he tells Reason, adding that the controls on formula retail are geared around the physicality of the business.

Sider says that his department is awaiting more information from El Farolito's ownership before making a determination on whether it meets the city's definition of formula retail. He notes that the business has yet to apply for the permits it'll need to open up its North Beach location.

"We really want to help these guys move forward but we just don't have the information we need," he says.

First Amendment issues aside, the El Farolito case does reveal the unintended consequences of San Francisco's formula retail regulations.

"While, 17 years ago, this was seen as a means of preventing bastions of family-run businesses like North Beach from being overrun by Starbucks and the Golden Arches," writes Eskenazi, "the rules may keep a San Francisco-born, family-run enterprise like El Farolito out as well."

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  1. “Whether San Francisco’s restrictions on chain stores will allow a local burrito business to open another restaurant might hinge on what the owners decide to call their new location.”

    How about “Overpriced Food for Pussies and Retards”?

    1. To be fair, the city has a ton of great restaurants at all price ranges. Frankly I have no idea how most of them stay in business. Most are great because they’re new immigrants who haven’t yet learned that Americans like their food bland and conformist.

      1. “I don’t understand how these restaurants stay in business selling ethnically diverse foods to Americans.”

        also

        “Stupid Americans don’t like ethnically diverse foods”

        I think I figured out the root of your confusion. Maybe if you cleared the smug from your eyes, you’d see it too?

        1. Brandyshit’s in a constant smugstorm.

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        2. Nothing says “I have a distinguished culinary palette.” like equating drunk/hangover fast food with fine dining. White Castle is clearly superior to aged prime rib because White Castle uses onions. Now, prime rib with horseradish sauce? That’s a different story!

          Might as well say Americans don’t like sportscars because everybody drives pickup trucks.

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      2. Americans like their food bland and conformist.

        Speak for yourself. From what I’ve seen the American palate has greatly evolved over the last 20 years. Personally I give a lot of credit to Food Network and Cooking Channel for instilling a new curiosity in people who grew up eating bland food.

        1. Yes it has been changing. But that doesn’t explain chain like Taco Bell (Mexican cuisine without any Mexican), and the ubiquitousness of flavorless Chinese takeout.

          It’s also regional. I’m in California and there isn’t any Italian food here that comes close to anything in New York or New Jersey. Meanwhile they can’t do any cuisine south of the border if they’re lives depended on it. And then you have places like Ohio whose culinary claim to fame is inventing chili cheese spaghetti.

          1. I’m in Bumfuck Maine and we’ve got a Taco Bell and a couple Chinese places of course, but a Caribbean place just opened up, the Thai place, one of my friends stops for Pho whenever they visit, there’s two sushi joints, a little Jamaican bodega, and more. None of those places (except Taco Bell and Chinese of course) were there ten years ago. They all stayed in business during the lockdowns.

            So I completely reject the notion that Americans prefer bland and conformist food.

          2. “‘But that doesn’t explain chain like Taco Bell (Mexican cuisine without any Mexican), and the ubiquitousness of flavorless Chinese takeout.”

            Because Taco Bell is successful, it must mean americans don’t like REAL AUTHENTIC mexican food, right? Or maybe, Taco Bell stumbled onto a cuisine that stands on its own as decent fast food, at a good price and perfectly suited for the 12o’clock munchies? The glorious thing about a pluralistic society is that Taco Bell and authentic mexican (whatever that is) restaurants can cohabitate AND EVEN HAVE THE SAME CUSTOMERS! That of course is a huge problem with snobs who would have a hard time proving their affluence if they couldn’t judge “superior” from “inferior” things.

            You can tell a good food snob when they start making comparisons to the Italian food in New York to the Mexican food in California. Here is some news for you: If you are eating Italian food in New York, it is 90% likely that you are eating an americanized version. And if you claim to live in San Francisco and you say their (americanized) Italian food isn’t as good as east coast, you are talking out of your ass. You will never find a better eggplant parm outside of the mission district. And- as noted earlier- the cioppino is really the only thing that could possibly tempt me back to that shithole.

            1. You will never find a better eggplant parm outside of the mission district.

              My mother makes the world’s greatest eggplant parm, and I won’t have you insult her legacy with such a wild overstatement.

              1. My mom’s is better, and she’s not even Italian! So nanny nanny boo boo!

                1. Neither is mine, though she learned how to cook at the foot of an old Italian grandmother, because she comes from a long line of women for whom cooking is a distraction from cleaning.

                  Regardless, I’m sure Brandybuck would knock both of mine and yours down several points for lack of authenticity.

                  1. Give Merry a break. He lives in Cali. He can’t help but to be elitist.

                  2. Since people’s Mothers are involved, I won’t say anything nasty about women and eggplants. 🙂

              2. You are right, your mom’s eggplants are the best. Sarcs’ mom’s are more fleshy though. 😉

                I was trying to channel my inner snob there. In case it isn’t obvious I am a food open opportunist. I love fine dining and I love holes in the wall, and I love crass commercialized pop. It is, frankly, a wonder to me that people look at the unmitigated explosion of food choice in our country and think it is a problem.

                And it really gets my hackles up when people try to make these qualitative judgements about americans. When you are rich and living in a coastal city, you can (along with millions of other americans who think they aren’t like THOSE americans) access an embarrassment of fantastic food. You can do that only because you have wealth, a maritime logistics system, and a huge immigrant population.

                People in middle america didn’t eat these food because they dislike them, but largely because they didn’t exist until very very recently. For fucks sake- it was only 150 years ago that you could start to reliably get goods across the country in less than months. Compare that to places like Italy that are sitting at the end of a millenia-old silk road bringing spices from all over the world.

                And yet, Americans still love to try new things. I grew up in Denver, CO which was, until the 90’s pretty much the definition of “large cow town”. And yet it had AMAZING Vietnamese food that has been happily embraced by those white cowboys since the 70s.

                And as you say, it is quite notable that all of our terrible american innovations like taco bell, pizza hut and mcdonalds get embraced by the masses over seas. Its almost as if a giant, competitive melting pot is really, really good at producing foods that a lot of people like to eat even if they don’t have the snob’s official stamp of authenticity.

                1. People in middle america didn’t eat these food because they dislike them, but largely because they didn’t exist until very very recently.

                  Again I give a lot of credit to food shows on cable that started round 2000. I believe they created demand for ingredients that at the time weren’t on the shelf, but are common now.

                2. You are right, your mom’s eggplants are the best. Sarcs’ mom’s are more fleshy though. ????

                  I’m shutting up! I’m shutting up! *Nails lips together*

          3. that doesn’t explain chain like Taco Bell

            I grew up in one of the original centers of East Indian immigration to this country. Those spice heads fucking love Taco Bell. Ain’t that America.

            they can’t do any cuisine south of the border if they’re lives depended on it

            Lolwut. You do realize that we’ve got tons of Mexicans here, right? Also Peruvians, Salvadorans, Cubans, etc. SoCal isn’t unique in this regard, not after the past 25 years of immigration.

            I wish there’s was more Latino-Caribbean cuisine, but we’re not lacking for authentic Mexican.

            And then you have places like Ohio whose culinary claim to fame is inventing chili cheese spaghetti.

            Taking to readily embellished Balkan cuisine is hardly indicative of a bland palate.

            1. I grew up in one of the original centers of East Indian immigration to this country. Those spice heads fucking love Taco Bell. Ain’t that America.

              IME, they love(d) Taco Bell because, for the longest time, it was the one fast food restaurant you could walk into and get unleavaned bread, rice, beans, onion, lettuce, and tomato without a special order and be nearly certain that your food had never touched any meat.

              1. I don’t doubt it. But the drive-thru by my mom’s is still mobbed on a daily basis despite the proliferation of fast-Indian places.

          4. Meanwhile they can’t do any cuisine south of the border if they’re lives depended on it.

            Now there’s a steaming pile of bull. I worked in a couple Mexican restaurants with Mexicans who would make their own food on their breaks. As in authentic south of the border food. It was quite different than the Americanized food on the menu, and it was damn good. So learned how to make some. For example today I’m making a green salsa with roasted tomatillos, onions, and habaneros, which I’ll finish with cilantro, lime juice and salt. Simple, authentic, and delicious. Also so hot it burns on the way out.

            1. Well, you’ve worked Mexicans and butts into the conversation. Did you need some THC suppositories to relieve the pain? If so, it’s a Reason trifecta! 🙂

              1. Wash it down with margaritas made with THC medicated lemonade (google if you haven’t heard of it). Rocks or blended? Salt?

                1. Oh, just as good, and no lube required.

                  I liked mine blended with flavored salt, back when I drank. Blood pressure meds have got me off of alcohol, since I don’t want to risk a bad interaction.

          5. Keep up, guys. Taco Bell won the Fast Food War, so all restaurants in San Angeles are Taco Bell.

            1. Timing is going to be off by a bit, but that movie seems more and more realistic every time I see it.

              1. My favorite is when Spartan barges in on Dr. Kochteau’s Zoom meeting and the doctor forgets to mute.

            2. “Exactamundo!” I was waiting for a Demolition Man reference.

          6. But that doesn’t explain chain like Taco Bell (Mexican cuisine without any Mexican)

            The US as a whole averages one Taco Bell per 44,327 people.

            El Paso County, Texas, (82.9% Hispanic and 24.1% foreign-born) averages one Taco Bell per 41,962 people.

            So, unless your theory of Taco Bell’s food successfully explains why it’s more popular with Hispanics and the foreign-born than it is with the average American, your theory is full of shit.

          7. Taco Bell, like you, is fast and cheap. Something quick and easy when on the go. And again like with you, nobody is expecting quality when they patronize Taco Bell.

            1. Good thing you didn’t say “like your Mom.” I almost did and, like Basil Fawlty, I think I got away with it.

          8. Now, now, Brandybuck. Don’t turn into the Rev. Artie of cuisine. Everyone is getting there at their own pace. Even my small Southern town has Italian, Mexican, Greek, Caribbean, Chinese, Vietnamese, Thai, and is near a big City that includes German, Ethiopian, Jewish, Middle Eastern, and probably countless others.

          9. Just shut up. You look like an even dumber cunt than normal.

          10. The Chinese food is cheap and it fills the belly. You food retards are the worst types of people, I pity your little bird brains. Everyone likes good food, who the fuck doesn’t. Not everyone likes paying for good food from restaurants and many get along fine without restaurants.

        2. Even beyond that, the whole “Hur dur redneck americans dumbing down the flavors” stuff is pretty much the same elitist BS it has always been.

          While there is no doubt that adapting to the local pallet is something that immigrant restaurants have to do, their food doesn’t change just because “americans like their food bland”. It is because (traditionally) the spices and other foods available to the would-be chefs are different from in their home lands. Often, what Food Snobs call “blandness of american food” is just the fact that when they taste the authentic spices of an original dish, they are exposed to new flavor profiles which their brain has not learned to contextualize.

          Being able to get the exact ingredients for authentic ethnic food has traditionally been a perk of being rich, which is why Food Snobs have always been obsessed with telling the difference between spanish and hungarian paprika and the like. It is a way of socially signaling their affluence.

          The real sad thing is that this misplaced focus on cultural purity actually DETRACTS from good food. No doubt snobs like brandybuck would have been lamenting the fact that Lebanese immigrants were dumbing down the food for the peasants in 1930s Mexico City. But because they melded with their population, we have tacos al pastor- the mexican Gyro- and one of the greatest fusions of food ever.

          Hell, pretty much the only thing to redeem San Francisco is cioppino- a thoroughly american creation made by immigrant italian fishermen. Americans seemed to have been loving it and eating it since the 1920s. I’m sure that back then brandybuck would have been equally mystified as to how those shops on the north beach stayed in business…

          1. It is because (traditionally) the spices and other foods available to the would-be chefs are different from in their home lands.

            So true. It’s mind boggling what we have available in the grocery store now compared to thirty or forty years ago.

          2. it really is incredible how much of an out-group preference that leftists have. They’ve found that it’s not just an american thing, lefties all around the world hate who they are and where they are from.

          3. It is a way of socially signaling their affluence.

            And broader stupidity. Scandinavia and Northern Russia/Asia are cultural and intellectual wastelands because their diet varies from boiled fish and vodka to smoked fish and vodka? GTFO.

            No, some people, in fact, do more important things that spend stupid amounts of time and money deconstructing your martini for you.

      3. Methinks thou dost project too much.

        Now add more spice.

      4. Who are you to decide where your neighbors can eat? I hate Starbucks but if people want to go there and pay too much for burned coffee, that is their right. Just as it is my right NOT to go there. If the locals don’t like it, it will go out of business. Let the market decide.

    2. I dunno. A buritto “roughly the size of a neck pillow” sounds very appealing to this here Southern boy from North Cack-A-Lacky who’s never had one that size. That could make me meals and snacks for days!

    3. I am still hoping for the movie theatre chains (AMC, Cinemark, Regal) to reopen in time for Unhinged, HERE►…Click here.

  2. I’m sure the good folks of El Farolito weren’t lobbying for these restrictions back when they passed in 2004 and weren’t subject to them but were able to keep competitors out.

    They got the regulation they wanted, good and hard. Fuck them.

    1. I can’t help but wonder what the Lopez’ personal voting record is. I don’t want to impugn them is being the architect of their own problems, but to be sure, this is a common problem everywhere.

      Victor Davis Hanson talks about this at length– he’s an academic (conservative) who has multi-generational roots in California, and he talks to his neighbors all the time. He notes they’ll complain bitterly about how a policy is hurting them, and then he’ll ask them who they voted for. Inevitably, they’ll indicate the person(s) in power, and VDH will shrug and say, “You voted for it then”. They always seem to act surprised, then dismissively defend their vote on some other secondary policy that the politician in question supported.

      But the fact of the matter is… they voted for it.

      I understand people have to compartmentalize sometimes, especially in a .1 party state or district.

      I wish the Lopez’s the best of luck. But all I can say is, you’re doing business in San Francisco… and you’re successful. Expect them to come for you.

      1. They always seem to act surprised, then dismissively defend their vote on some other secondary policy that the politician in question supported.

        “Being a one-issue voter is crazy, anyway! My guy is working for the Greater Good, and everybody should be willing to make a small sacrifice!”

      2. North Beach seems to be a special haven for washed up restaurants with “history.”

        Why do some small chains overtly number their locations? It seems more common with Mexican restaurants.

        1. So you don’t end up with a situation like the one in NYC where nobody knows which is the real, original “Original Ray’s” pizza place is. Ask five New Yorkers and you’ll get five different answers.

      3. I’d be willing to bet these owners are part of whatever local trade association or lobbying group that got this “assault on free speech” passed.

        McDonald’s and Taco Bell might have been first against the wall but it was foolish of anyone to think they would be the last.

        1. Yes. I am reminded of the American Craft Beer Association that had very strict limits on what qualified as “craft” beer. Aside from hating on corn, it included limits on how many barrels of beer you produce. But then the top dog of the association (Sam Adams) started hitting those limits, and surprise surprise the rules needed to change.

          I love the top “craft brewers”- Sam Adams, New Belgium, etc. But it was clear that they were using the title to get very clear space on aisles at bev mo, crowding out brewers that got investment from big companies (like InBev) or didn’t have the self distribution available to them.

    2. Now, hold off, you don’t know their voting record. They may have been, like many libertarians and conservatives, too busy making a living to pay attention or even vote. If they are wrestling food into burritos the size of neck pillows, that’s probably a struggle.

  3. Writing bills of attainder without them actually being bills of attainder is such a fine needle to thread.

  4. Just build the new store right on the border OUTSIDE of San Fransisco. Problem solved.

    1. In a Colma cemetary?!? That’s the only land available on SF’s border.

    2. Dumb cunt dumb cunts again!

  5. Because the real prob in San Francisco is too many Taco Bells.

    1. In fairness to them, they do have a shitting on the sidewalks problem to consider.

      In fairness to you, that would be acknowledging they have the capacity to consider unintended consequences.

  6. is a good burrito.

  7. If the Founders wanted to guarantee the right to a city permit, they would have included that in the Bill of Rights.

    1. The Founders wouldn’t have asked for a permit, nor would they have given one to a nosy bureaucrat who asked for one…except for a “permit” of a .50 to .60 Caliber Musketball variety.

  8. OK start a new corp and call it something else, get in, then eventually rename it back.

    1. Serialize the name of each location.

      El Farolito 1.0, 2.0 etc.

      1. Serialize

        Still a chain. The correct solution is to use version control hashes.

        El Farolito changeset: ed93288545b1
        El Farolito changeset: a3f4aa775b26
        etc.

        El Farolito changeset: 2c7b87220f17, located in North Beach isn’t a part of the chain, it’s a fork from the original trunk.

        1. Come to think of it, it’s not like these chains have elected leaders or card-carrying members, how can we be sure they even exist?

          1. “El Farolito is just an idea…Now pass the Geritol, Jill. Thanks, I think I’ll keep you.”

    2. If a business opens #11 in SF, then #12 elsewhere; does #11 have to shut down?

      1. That sort of arithmetic is a total mystery to the folks behind these sorts of regulations; this is about feelz and nothing more.

    3. El Farilto #12 can just say: “I identify as The Chiquita Banana woman!”

  9. OT

    As a CA resident who sincerely wants to see Gov Gavin Newsom make like horse shit and hit the trail, I laughed off Lizzie Warren’s pleas to CA voters to make the recall effort fail.

    But now, it looks like my dreams are dashed.
    They’ve enlisted Bernie:

    https://www.cnn.com/cnn/2021/08/30/politics/gavin-newsom-ad-bernie-sanders-california-recall/index.html

    Game over

      1. Oh, no! The two-fisted mitten man!

    1. That’ll certainly change MY vote!

  10. Do San Francisco’s Restrictions on Chain Stores Violate the First Amendment?

    Yes.

    Why is this even a question?

    1. Um, maybe because of all the other laws and regulations that violate the US Constitution?

    2. Just the First Amendment? Hell, the Progressive weeaboos in Commiefornia don’t even respect that Amendment, let alone the rest.

      1. “Wee” in this case means crying. Perhaps an even better choice is Ree-aboos.

  11. So – – cancel culture before the cancel culture got started?

  12. Commiefornia passing statist laws and regulations? Must be fake news, they’re all liberals therel.

  13. San Francisco is insane. Get out.

  14. What does Michael Alan Weiner aka Michael Savage call it? SanFranSicko?

    1. He’s from San Fransisco himself, and used to hang out with Ginsberg and Ferlinghetti. He turned conservative and like all conservatives in SF he went extreme. There simply aren’t any moderates in SF.

      1. You’re either a modern liberal or you want to kill them with fire before they lay eggs?

      2. I always visualized him as a talking wiener snarling his head off over the latest rainstorm creating a rainbow.

  15. This is what happens when frustrated hall monitors, armed with grievance degrees, run a city.

  16. I deliver for Uber Eats; and I think that SF has tons of amazing food. That said, I have picked up food and several North Beach restaurants in the last few months that were dirty and could use some “chain” competition to clean the scene up.

    We need to stop looking at snapshots… think of grocery. Whole Foods used to be good (now it sucks). But they forced the other chains to improve and they set standards that small grocers have met — and now exceeded.

    1. We’ve always had good small grocers, farmers markets, produce vendors, as well as several larger local grocery chains. They competed and improved each long before whole foods came to Pittsburgh, and there’s only a few of those now anyway in the ritzy areas (or the city where it gets robbed all the time). And it’s doubtful they will expand because there’s already too much competition. If anything having farmers markets where you buy direct from the farmer has impacted the chain grocers more, because they all now source local produce from those very farms. I can go to any giant eagle, Pittsburghs largest grocery chain, and buy lamb meat from a farm 5 miles from my house. And although I just buy it direct from the farmer usually, it’s a good thing for him that they sell his meat regionally. And whole foods has nothing to do with it.

      The fact that San Francisco *needed* whole foods to improve its grocers says more about how shitty your city is and how its regulations had already cut out non regulated farmers markets, produce markets/street vendors, and small Bodega style grocers.

      Fuck San Fran and most of its residents. It used to be one of my favorite cities, but now it’s just a shit covered homeless husk of what it used to be. Thanks Nancy, ya dumb bitch.

  17. I am still hoping for the movie theatre chains (AMC, Cinemark, Regal) to reopen in time for Unhinged, HERE►…Click here.

  18. “Since 2004, San Francisco has placed restrictions on formula retail businesses like bars, restaurants, and gyms to try to preserve the viability and character of local businesses. ”

    Since 2004 San Fran has thwarted free market changes that consumers demand to support businesses that consumers would rather not patronize.

    Seems about right…

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