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Column: How a legal loophole allows antiabortion prosecutors to obtain women's secret health data

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Column: How a legal loophole allows antiabortion prosecutors to obtain women's secret health data

The American legal system has a message for women concerned about their abortion rights: Don’t make the mistake of thinking that your pharmacist is your friend.

Thanks to a gaping loophole in federal healthcare regulations, some of our leading drug store chains turn over customers’ most sensitive private healthcare information to law enforcement agencies, even without a warrant.

That’s the finding of a subcommittee headed by Sen. Ron Wyden (D-Ore.), which learned that all eight of the nation’s largest pharmacy chains have routinely turned over prescription records of thousands of Americans to law enforcement agencies or other government entities secretly without a warrant.

Medical care procured outside a patient’s home state increasingly leaves a digital trail that will easily make its way back to the patient’s domicile.

— Carleen M. Zubrzycki, University of Connecticut

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The chains are CVS, Walgreens, Cigna, Optum Rx, Walmart, Kroger, Rite Aid and Amazon. CVS, Kroger and Rite Aid, which have a total of about 11,000 locations nationwide, don’t require store staff to run the requests past company lawyers before complying.

Only Amazon notifies customers that it received a subpoena or warrant for their prescription data.

Wyden’s committee sought briefings from the pharmacy chains after the Supreme Court’s 2022 Dobbs decision overturned nationwide abortion rights.

Since then, Wyden told me by email, “Republican states across the country have criminalized abortion.” That placed privacy “under threat like never before.” He said his goal is to urge “the executive branch to do everything in its power to stop far-right prosecutors and politicians from using women’s private records against them.”

The briefings, Wyden and fellow subcommittee Democrats informed Health and Human Services Secretary Xavier Becerra in a Dec. 12 letter, “made clear that these companies’ privacy practices vary widely, in ways that seriously impact patient privacy.”

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None of the pharmacies require a warrant before turning over requested data; all “will turn medical records over in response to a mere subpoena,” which often doesn’t have to be signed by a judge.

That’s a flaw in the Health Insurance Portability and Accountability Act of 1996, or HIPAA, which purports to protect individuals’ health information from disclosure by providers except in narrow circumstances.

CVS spokeswoman Amy Thibault told me by email, “HIPAA does not require law enforcement to obtain a warrant or judge-issued subpoena before they make a lawful request for records containing PHI.” She said that CVS staff “are trained how to appropriately respond to lawful requests from regulatory agencies and law enforcement.”

HIPAA applies to pharmacies as well as physicians and hospitals. What sets them apart, however, is the breadth of their networks— it’s a rare hospital or physician’s practice that maintains a database that can be accessed coast to coast.

Wyden and his colleagues urged Becerra to tighten HIPAA regulations to require pharmacies to “insist on a warrant” before turning over private health data, so that law enforcement agencies have to defend their demands in court.

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Some of America’s leading drug store chains turn over customers medical records to law enforcement agencies without even requiring a warrant, exposing women seeking abortions to prosecution by anti-abortion states.

(Senate Finance Committee)

Health and Human Services isn’t the only agency concerned with the misuse of personal data. The Federal Trade Commission on Tuesday charged the data broker Outlogic with selling consumers’ location information extracted from smartphone apps without their permission.

The geolocation data, the FTC said, “could be used to track people’s visits to sensitive locations such as medical and reproductive health clinics, places of religious worship and domestic abuse shelters.” According to a statement by FTC Chair Lina Khan, in at least one contract the company had tracked “Ohio residents who visited specific doctors, including cardiologists, gastroenterologists, or endocrinologists, and then pharmacies or specialty infusion centers.”

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The FTC’s legal complaint said the result could include “loss of privacy, exposure to discrimination, physical violence, emotional distress, and other harms.”

In a settlement with Outlogic reached Tuesday, the FTC prohibited the company from selling or sharing any “sensitive location data,” including data involving “locations that provide services to LGBTQ+ people such as bars or service organizations,” “locations of public gatherings of individuals at political or social demonstrations or protests” and data that could be used “to determine the identity or location of a specific individual.”

Outlogic will also have to delete or destroy any such data already collected, and provide consumers with easy ways to refuse permission for their data to be sold and to find out to whom it has already been sold.

Becerra hasn’t responded to the committee’s letter, but his agency did launch a rule-making procedure in April aimed at prohibiting the disclosure of personal information about a person’s reproductive healthcare by a provider, including a pharmacy, in a state where the healthcare is legal, but sought for an investigation or prosecution in a state where it’s banned.

But the Health and Human Services initiative is still only a proposal, not a rule. Several factors have made it more urgent.

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The so-called interoperability of medical data is generally reckoned to be a good thing. Pharmacists should have access to the full range of a customer’s prescriptions, for example, so they can watch out for dangerous interactions among medicines that may have been missed by doctors, especially if one patient is treated by multiple physicians.

Those checks have been made even easier by the growth of national drug chains, which have supplanted the mom-and-pop drugstores that used to be common in America. Now one database can provide patient information to thousands of affiliated pharmacists coast to coast.

But the Supreme Court’s overturning of abortion rights in 2022 converted that boon into a potential peril by turning judgments about medical procedures over to the states.

“There are now categories of care in which states have taken dramatically different approaches to whether that care should be available,” says Carmel Shachar, an expert on health law and policy at Harvard Law School. Abortion is the most evident area, but divergences in state law increasingly apply to gender-affirming care and substance abuse treatment.

Those divergences, Shachar told me, make the relevant medical records especially sensitive to the point where they need to be protected from law enforcement.

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But expansive databases may make that difficult — a prosecutor in antiabortion Texas might be prevented by a medical shield law from accessing data about a Texan’s legal treatment in Massachusetts, but theoretically could subpoena it from a pharmarcy chain’s branch in Texas.

The challenge goes beyond simply shielding direct evidence of a legal abortion — such as a prescription for mifepristone — from prying law enforcement eyes in an antiabortion state.

“There’s a perception that abortions or gender-affirming care exist on their own islands separate from other medical care,” Shachar says. “But somebody who is medically literate can read between the lines of a medical record to see if an abortion happened.”

For instance, consider if a medical record showed that a woman was pregnant and records show a bit later that she’s begun to take chemotherapy treatment for cancer that would be incompatible with pregnancy.

“That might be suggestive that she was pregnant and is no longer pregnant, with no baby to show for it,” Shachar says. “How much of a medical record you need to protect to truly protect the privacy of people who have had abortions or gender-affirming care is murky.”

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Placing a legal moat around medical records of an out-of-state abortion may be difficult. “Medical care procured outside a patient’s home state increasingly leaves a digital trail that will easily make its way back to the patient’s domicile,” observed Carleen M. Zubrzycki of the University of Connecticut in a 2022 law review paper.

When any such patient “receives any subsequent medical care — abortion-related or not — in her state of residence,” she wrote, “the odds are high that her home-state providers will access and incorporate her entire medical record into their own records.” That would undermine the efforts of safe-haven states to protect visiting patients by providing “slam-dunk evidence that could be used in out-of-state litigation to punish abortions.”

The determination of antiabortion activist politicians to narrow women’s reproductive healthcare options is explicit and persistent.

On July 7, 2022 — just two weeks after the Supreme Court handed down the Dobbs decision — a dozen right-wing Texas state legislators warned the Dallas law firm Sidley Austin that it might face criminal charges for having “decided to reimburse the travel costs of employees who leave Texas to murder their unborn children” — i.e., who leave Texas to obtain legal abortions elsewhere.

Last February, the attorneys general of 20 red states, led by Missouri Atty. Gen. Andrew Bailey, sent threatening letters to CVS, Walgreens, Rite Aid, Albertsons, Walmart, Kroger and Costco warning them that federal law prohibited them from using the mail to distribute drugs for medication abortion, such as mifepristone.

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The letters cited the antique and long-discredited 1873 statute known as the Comstock Act after its bluenosed progenitor. The law’s applicability to abortion rights has long been dismissed by legal scholars. But it was at the core of a ruling by U.S. District Judge Matthew Kacsmaryk of Texas invalidating the Food and Drug Administration’s approval of mifepristone.

The FDA’s rules on mifepristone, which allow the drug to be taken by patients outside a hospital or doctor’s office, are currently before the Supreme Court.

The quest by antiabortion prosecutors for data pertaining to out-of-state medical procedures is destined to grow. The proportion of patients traveling out of their home states to obtain abortions has doubled over the last three years to 20% in the first six months of 2023 from 10% in the same period in 2020, according to the Guttmacher Institute.

The rate is especially high in safe-haven states bordered by antiabortion states, such as Illinois, where out-of-state patients increased in early 2023 to 18,870 from 5,570 three years earlier. New Mexico and Colorado experienced sharp increases for the same reason. In California, where abortions increased by 15,200 in the statistical period, only 16% of the increase was due to out-of-state patients — presumably because abortion is legal in the nearby states of Nevada, Oregon and Washington.

What is becoming clear as state legislators take advantage of the Supreme Court’s evisceration of medical privacy rights in the Dobbs decision, is that the stakes are destined to become magnified in the absence of federal action. People suffering from infectious diseases linked to what legislators disdain as immoral behavior such as HIV or hepatitis C might face increased discrimination or limits on access to public healthcare programs, for example.

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“In terms of states diverging in what medical care is allowed or isn’t allowed,” Shachar says, “abortion and gender-affirming care might be the tip of the iceberg.”

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In-N-Out Burger outlets in Southern California hit by counterfeit bill scam

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In-N-Out Burger outlets in Southern California hit by counterfeit bill scam

Two people allegedly used $100 counterfeit bills at dozens of In-N-Out Burger restaurants in Southern California in a wide-reaching scam.

Glendale Police officials said in a statement Friday that 26-year-old Tatiyanna Foster of Long Beach was taken into custody last month. Another suspect, 24-year-old Auriona Lewis, also of Long Beach, was arrested in October.

Police released images of $100 bills used to purchase a $2.53 order of fries and a $5.93 order of a Flying Dutchman.

The Los Angeles County District Attorney’s Office charged Lewis with felony counterfeiting and grand theft in November.

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Elizabeth Megan Lashley-Haynes, Lewis’s public defender, didn’t immediately respond to a request for comment.

Glendale police said that Lewis was arrested in Palmdale in an operation involving the U.S. Marshals Task Force. Foster is expected in court later this month, officials said.

”Lewis was found to be in possession of counterfeit bills matching those used in the Glendale incident, along with numerous gift cards and transaction receipts believed to be connected to similar fraudulent activity,” according to a police statement.

A representative for In-N-Out Burger told KTLA-TV that restaurants in Riverside, San Bernardino and San Diego counties were also targeted by the alleged scam.

“Their dedication and expertise resulted in the identification and apprehension of the suspects, helping to protect our business and our communities,” In-N-Out’s Chief Operations Officer Denny Warnick said. “We greatly value the support of law enforcement and appreciate the vital role they play in making our communities stronger and safer places to live.”

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The company, opened in 1948 in Baldwin Park, has restaurants in nine states.

An Oakland location closed in 2024, with the owner blaming crime and slow police response times.

Company chief executive Lynsi Snyder announced last year that she planned to relocate her family to Tennessee, although the burger chain’s headquarters will remain in California.

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Newsom’s budget includes $200 million to make up for Trump’s canceled EV rebates, among other climate items

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Newsom’s budget includes 0 million to make up for Trump’s canceled EV rebates, among other climate items

Gov. Gavin Newsom on Friday doubled down on California’s commitment to electric vehicles with proposed rebates intended to backfill federal tax credits canceled by the Trump administration.

The plan would allocate $200 million in one-time special funds for a new point-of-sale incentive program for light-duty zero-emissions vehicles. It was part of a sweeping $348.9-billion state budget proposal released Friday, which also included items to address air pollution and worsening wildfires, amid a projected $3-billion state deficit.

EVs have become a flashpoint in California’s battle against the Trump administration, which moved last year to repeal the state’s long-held authority to set strict tailpipe emission standards and eventually ban the sale of new gas powered cars.

Last year, Trump ended federal tax credits of up to $7,500 for EV customers that were part of President Biden’s 2022 Inflation Reduction Act. In September, his administration also let lapse federal authorization for California’s Clean Air Vehicle decal program, which allowed solo EV drivers to use carpool lanes.

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“Despite federal interference, the governor maintains his commitment to protecting public health and achieving California’s world leading climate agenda,” Lindsay Buckley, spokesperson for the California Air Resources Board, said in an email. “This incentive program will help continue the state’s ZEV momentum, especially with the federal administration eliminating the federal EV tax credit and carpool lane access.”

Newsom had previously flip-flopped on this idea, first vowing to restore a state program that provided up to $7,500 to buy clean cars and then walking it back in September. That same month, a group of five automakers including Honda, Rivian, Hyundai, Volkswagen and Audi wrote a letter urging Newsom and state legislators to establish a $5,000 EV tax rebate to replace the lost federal incentives, Politico reported.

During his State of the State speech Thursday — one year after the devastating Palisades and Eaton fires in Los Angeles — Newsom said California “refuse[s] to be bystanders” while China and other nations take the lead on electric vehicles and the clean energy transition. He touted the state’s investments in solar, hydrogen, wind and nuclear power, as well as its recent move away from the use of any coal-fired power.

“We must continue our prudent fiscal management, funding our reserves, and continuing the investments Californians rely on, from education to public safety, all while preparing for Trump’s volatility outside our control,” the governor said in a statement. “This is what responsible governance looks like.”

Several environmental groups had been urging Newsom to invest more in clean air and clean vehicle programs, which they say are critical to the state’s ambitious goals for human health and the environment. Transportation is the largest source of climate and air pollution in California and is responsible for more than a third of global warming emissions, said Daniel Barad, Western states policy manager with the nonprofit Union of Concerned Scientists.

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“As federal attacks threaten California’s authority to protect public health, incentives are more essential than ever to scale up clean cars and trucks,” Barad said. “The governor and legislative leaders must act now to fully fund zero-emission transportation and pursue new revenue to grow and sustain climate investments.”

Katelyn Roedner Sutter, California senior director with the nonprofit Environmental Defense Fund, called it “an essential step to save money for Californians, cut harmful pollution, spur innovation, and support the global competitiveness of our auto industry.”

While the budget proposal does not include significant new spending proposals, it contains other line items relating to climate and the environment. Among them are plans to continue implementing Proposition 4, the $10-billion climate bond approved by voters in 2024 for programs geared toward wildfire resilience, safe drinking water, flood management, extreme heat mitigation and other similar efforts.

Among $2.1 billion in climate bond investments proposed this year are $58 million for wildfire prevention and hazardous fuels reduction projects in vulnerable communities, and nearly $20 million to assist homeowners with defensible space to prevent fire. Water-related investments include $232 million for flood control projects and nearly $70 million to support repairs to existing or new water conveyance projects.

The proposal also lays out how to spend money from California’s signature cap-and-trade program, which sets limits on greenhouse gas emissions and allows large polluters to buy and sell unused emission allowances at quarterly auctions. State lawmakers last year voted to extend the program through 2045 and rename it cap-and-invest.

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The spending plan includes a new tiered structure for cap-and-invest that first funds statutory obligations such as manufacturing tax exemptions, followed by $1 billion for the high speed rail project, $750 million to support the California Department of Forestry and Fire Protection, and finally secondary program funding such as affordable housing and low-carbon transit options.

But while some groups applauded the budget’s broad handling of climate issues, others criticized it for leaning too heavily on volatile funding sources for environmental priorities, such as special funds and one-time allocations.

The Sierra Club called the EV incentive program a crucial investment but said too many other items were left with “patchwork strategies that make long-term planning harder.”

“Just yesterday, the Governor acknowledged in his State of the State address that the climate risk is a financial risk. That is exactly why California needs climate investments that are stable and ongoing,” said Sierra Club director Miguel Miguel.

California Environmental Voters, meanwhile, stressed that the state should continue to work toward legislation that would hold oil and gas companies liable for damages caused by their emissions — a plan known as “Make Polluters Pay” that stalled last year amid fierce lobbying and industry pressure.

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“Instead of asking families to absorb the costs, the Legislature must look seriously at holding polluters accountable for the harm they’ve caused,” said Shannon Olivieri Hovis, California Environmental Voters’ chief strategy officer.

Sarah Swig, Newsom’s senior advisor for climate, noted that the state’s budget plan came just days after Trump withdrew the United States from the United Nations Framework Convention on Climate Change, a major global treaty signed by nearly 200 countries with the aim of addressing global warming through coordinated international action.

“California is not slowing down on climate at a time when we continue to see attack after attack from the federal government, including as recently as this week with the Trump administration’s withdrawal from the UNFCCC,” Swig told reporters Friday. “California’s leadership has never mattered more.”

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Abandoned shops and missing customers: Fire-scarred businesses are still stuck in the aftermath

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Abandoned shops and missing customers: Fire-scarred businesses are still stuck in the aftermath

The charred remains of the historic Pacific Palisades Business Block cast a shadow over a once-bustling shopping district along West Sunset Boulevard.

Empty lots littered with debris and ash line the street where houses and small businesses once stood. A year since the Palisades fire roared through the neighborhood, only a handful of businesses have reopened.

The Starbucks, Bank of America, and other businesses that used to operate in the century-old Business Block are gone. All that remains of the Spanish Colonial Revival building are some arches surrounding what used to be a busy retail space. The burned-out, rusty remnants of a walk-in vault squat in the center of the structure.

Nearby, the Shade Store, the Free-est clothing store, Skin Local spa, a Hastens mattress store, Sweet Laurel Bakery and the Hydration Room are among the many stores still shuttered. Local barbershop Gornik & Drucker doesn’t know if it can reopen.

“We have been going back and forth on what it would take to survive,” co-owner Leslie Gornik said. “If we open, we have to start over from scratch.”

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Hundreds gathered around Business Block on the anniversary of he fire on Wednesday to witness a military-style white-glove ceremony to pay respects to the families who lost loved ones. Photos of those killed from the neighborhood were placed at the Palisades Village Green next door.

The Palisades fire burned for 24 days, destroying more than 6,800 structures, damaging countless others and forcing most of the neighborhood’s residents to move elsewhere. About 30 miles northeast, the Eaton fire burned more than 9,400 structures. Combined, the fires killed 31 people.

Remnants of the the Pacific Palisades Business Block, which was completed in 1924 and burned in the Palisades fire.

The few businesses that are back in Palisades serve as a beacon of hope for the community, but owners and managers say business is down and customers haven’t returned.

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Ruby Nails & Spa, located near the Business Block, was closed for eight months before reopening in September. Now business is only half of what it was before the fires, owner Ruby Hong-Tran said.

“People come back to support but they live far away now,” she said. “All my clients, their houses burned.”

Ruby Hong-Tran, owner of Ruby Nails & Spa in Pacific Palisades, says her business is half of what it was since reopening.

Ruby Hong-Tran, owner of Ruby Nails & Spa in Pacific Palisades, says her business is half of what it was since reopening.

It took months to clean all the smoke damage from her shop. The front is still being fixed to cover up burn damage.

The firestorms destroyed swaths of other neighborhoods, including Malibu, Topanga, Sierra Madre and Altadena, where businesses and homeowners also are struggling to build back.

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Some are figuring out whether it is worth rebuilding. Some have given up.

The Los Angeles Economic Development Corporation estimated last year that more than 1,800 small businesses were in the burn zones in Pacific Palisades, Malibu and Altadena, impacting more than 11,000 jobs.

Businesses say they often have been on their own. The Federal Emergency Management Agency tasked the U.S. Army Corps of Engineers to clean up debris at private residences, some public buildings and places of worship — but not commercial properties.

Business owners had to clean up the charred debris and toxic waste on their properties. Many had to navigate complicated insurance claims and apply for emergency loans to stay afloat.

Rosie Maravilla, general manager of Anawalt’s Palisades Hardware, said damage to her store was limited, and insurance covered the cleaning, so she was able to open quickly. The store reopened just one month after the fire.

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Rosie Maravilla, general manager of Anawalt Palisades Hardware, in front of of the store in Pacific Palisades.

Rosie Maravilla, general manager of Anawalt Palisades Hardware, in front of of the store in Pacific Palisades.

Still, sales are 35% lower than what they used to be.

“In the early days, it was bad. We weren’t making anything,” Maravilla said. “We’re lucky the company kept us employed.”

The customer base has changed. Instead of homeowners working on personal projects, the store is serving contractors working on rebuilding in the area.

An archival image of the area in Pacific Palisades hangs over the aisles in Anawalt Palisades Hardware.

An archival image of the area in Pacific Palisades hangs over the aisles in Anawalt Palisades Hardware, where business is down despite a customer base of contractors who are rebuilding.

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Across the street from the Business Block, the Palisades Village mall was spared the flames and looks pristine, but is still closed. Shop windows are covered with tarps. Low metal gates block entry to the high-end outlets. The mall is still replacing its drywall to eliminate airborne contaminants that the fire could have spread.

All of its posh shops still are shut: Erewhon, Lululemon ,Bay Theater, Blue Ribbon Sushi, athletic apparel store Alo, Buck Mason men’s and Veronica Beard women’s boutiques.

Mall owner and developer Rick Caruso said he is spending $60 million to reopen in August.

The need to bring back businesses impacted by the fires is urgent, Caruso said, and not just to support returning residents.

“It’s critical to bring jobs back and also for the city to start creating some tax revenue to support city services,” he said. ”Leaders need to do more to speed up the rebuilding process, such as speeding up the approval of building permits and stationing building inspectors closer to burn areas.”

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Pedestrians walk past the Erewhon market in Palisades Village that plans to reopen this year.

Pedestrians walk past the Erewhon market in Palisades Village that plans to reopen this year.

(Genaro Molina/Los Angeles Times)

Wednesday, on the anniversary of the fire, Caruso sent three light beams into the sky over the mall, which met in one stream to honor the impacted communities of Pacific Palisades, Altadena and Malibu.

The nighttime display will continue through Jan. 31.

Business Block’s history dates to 1924, when it served as a home for the community’s first ventures. In the 1980s, plans to tear it down and build a mall sparked a local uprising to save the historic symbol of the neighborhood’s vibrancy. It was designated a Los Angeles Historic-Cultural Monument in 1984.

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Tiana Noble, a Starbucks spokesperson, said the landlord terminated the company’s lease when the building burned down. Bank of America said it secured a new lease to rebuild nearby.

Business Block’s fate is still unclear. Some people want to preserve its shell and turn it into a memorial.

This week, it was ringed by a fence emblazoned with the words “Empowering fresh starts together.”

Caruso said the ruins should be torn down.

“It needs to be demolished and cleaned up,” he said. “It’s an eyesore right now and a hazard. I would put grass on it and make it attractive to the community.”

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Twisted and scorched remnants of the the Pacific Palisades Business Block still are there a year after the fire.

Twisted and scorched remnants of the the Pacific Palisades Business Block still are there a year after the fire.

A short walk from the Business Block and near a burned-down Ralphs grocery store is the Palisades Garden Cafe, one of the few places in the neighborhood to get food and drink. The small, vibrant cafe was closed for two months after the fire, during which the employees went without pay.

Manager Lita Rodriguez said business is improving, but misses the regulars.

“We used to get tons of students and teachers who live and work here,” she said. “Our customers are mostly contractors now.”

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