Palo Alto Weekly

News - March 5, 2010

Judge upholds Palo Alto sit-lie law

Panhandler Victor Frost will have a jury trial on violations charges

by Sue Dremann

Palo Alto panhandler Victor Frost must stand trial for violating the city's sit-lie ordinance, Santa Clara County Superior Court Judge Lucy Koh has ruled in upholding the sit-lie ban.

In a written ruling signed Feb. 26, Koh ruled against Frost on all of his claims: that his First Amendment rights had been violated; that the law was enforced in a discriminatory manner; and that the ordinance violated the state's equal-protection clause.

Koh, who now presides in San Jose, was not present in court on Tuesday, March 2, for a pretrial hearing. Frost says he will continue to fight his citations. A four-day jury trial will begin April 19 in Palo Alto.

Frost is a regular fixture with his milk crate and signs in front of Whole Foods Market. He received 12 citations from city police for violating the sit-lie ordinance but Koh reduced the number to six in an earlier ruling.

Frost is allegedly the only person to have refused compliance with the ordinance. Many other persons have been warned and moved on, but Frost stayed put, the city claims.

The ordinance, which was first adopted in 1997 to cover University Avenue and expanded in 2007 to encompass the downtown area, seeks to prevent persons from obstructing the sidewalk in the downtown retail area between peak hours of 11 a.m. to 11 p.m.

The Palo Alto City Council found the area is unusually congested and individuals sitting or lying create a potential safety hazard and significant risk to the free flow of pedestrians.

But Frost provided the court with photographs of restaurants and patrons sitting at outdoor tables who were likewise violating the law and another sidewalk-encroachment ordinance. The city has admitted the law was not being applied by its code enforcement officers, but again took up enforcement when Frost complained.

Deputy Public Defenders Mark Dames and Meghan Piano, argued the uneven enforcement was proof of the city's discriminatory intent against homeless persons and that homelessness is a protected class under the First Amendment.

But Donald Larkin, assistant city attorney, argued the First Amendment challenge was not yet "ripe" because Frost had not yet been convicted or sentenced.

Koh's ruling denied the First Amendment challenge, based on previous state and federal decisions that a case is not ripe as an "applied challenge" if a defendant has not been convicted and sentenced.

Frost's attorneys claimed prosecutorial discrimination because he is homeless and treated to a different standard than wealthy persons.

Higher courts have ruled if criminal prosecution is deliberately based upon a standard such as race or a "discriminated" or "suspect" classification, the case must be dismissed.

But "classifications based on wealth are not suspect," Koh wrote, citing a federal case, Kadrmas vs. Dickinson Public Schools. And Frost's panhandling also does not support his First Amendment right to free expression, Koh wrote.

But Koh did note that affidavits regarding the city's lack of enforcement of its encroachment ordinance against business violators does constitute "some evidence of discriminatory effect."

"The mere showing" of a failure to prosecute, however, doesn't mean Frost's prosecution was prompted by intentional discrimination, she said, citing appellate decisions.

"Even assuming the defendant has proven discriminatory effect, the defense's motion to dismiss for discriminatory prosecution must be denied for failure to prove discriminatory intent," she wrote.

Defense attorneys said the city ordinance violated the state's equal-protection clause, but Koh disagreed.

Frost's case is analogous to a City of Santa Ana ordinance that was supported by the California Supreme Court, she noted.

In the Santa Ana case the ordinance was against camping and storage of personal property in designated public areas. The court supported the law because it banned the use of public property for purposes for which it was not designated.

Likening the case to Frost's, Koh wrote, "Sitting or lying down is not the customary use of the public sidewalks. The declared purpose of the ordinance does not suggest that it is to be enforced solely against the homeless."

In their declarations to the court, Palo Alto Police Lt. Sandra Brown and Sgt. Natasha Powers said they had given many warnings to violators who were not homeless. Powers said she had given 50 warnings and Brown's included businesses, their patrons, high school and college students, nonprofit solicitors and a group of people performing yoga exercises. All complied and were not given citations, they said.

Frost said he is not giving up.

"My main complaint is I'm being fined for myself and the rest of the panhandlers," he said.

Assistant City Attorney Donald Larkin said Frost has a right to a jury trial.

"I'm pleased with Judge Koh's ruling. Overall, she listened to the argument we made and she gave Victor a fair shot. I think it was a good ruling," he said.

He said the First Amendment argument could resurface following Frost's trial.

The city could look at changing some aspects of the encroachment ordinance to the advantage of businesses, he said. Currently, the ordinance requires an 8-foot sidewalk clearance for push carts to pass through. The city doesn't issue push-cart permits anymore, so there could be an allowance for lesser clearance, he said.

Koh's ruling comes as San Francisco wrestles with a contentious sit-lie proposal. Mayor Gavin Newsom is proposing two ordinances to reduce harassment of pedestrians and merchants by so-called street-persons a citywide ban and a ban along some retail areas. Similar ordinances are in effect in other cities, including Santa Cruz, Seattle, Wash., and Austin, Texas.

Staff Writer Sue Dremann can be e-mailed at sdremann@paweekly.com.

Comments

Posted by Eliot, a resident of Old Palo Alto
on Mar 3, 2010 at 12:11 pm

I was glad to read this. Frost is a pain. Perhaps now he'll move to Redwood City or Mt. View. Palo Alto has had him long enough.


Posted by redd, a resident of Crescent Park
on Mar 3, 2010 at 12:35 pm

How does the Weekly get its news? This decision was handed down by Judge Koh on Monday. It appears first this morning (Wednesday) in the Daily Post. Then hours later its on the Weekly's Palo Alto Online? And it's not yet in the Daily News, but probably will be there tomorrow.


Posted by Sheila Smith, a resident of Downtown North
on Mar 3, 2010 at 2:03 pm

Really? Other panhandler's have moved on? Who knew? I still see the same "homeless" people sitting around in different corners of downtown. People please stop giving them money, if it wasn't profitable, they would go away!

As far as I am concerned, Jack needs to leave the city of Palo Alto alone and stay at his home that is paid by taxpayers money.

Only in silicon valley, does a panhandler gets to take the city to court, what a waste of the taxes we all pay.


Posted by robit noops, a resident of Greenmeadow
on Mar 3, 2010 at 2:26 pm

This guy is a pain, I have heard rude remarks from him a few times at different locations. SF is getting smart, do we want aggressive panhandlers with pitbulls like the Haight currently has?


Posted by Chris, a resident of College Terrace
on Mar 3, 2010 at 2:32 pm

ABOUT TIME


Posted by Dennis, a resident of Downtown North
on Mar 3, 2010 at 2:51 pm

The law is poorly written and equally poorly enforced - otherwise, there'd be a lot more politicians behind bars.


Posted by Why is he still there?, a resident of Downtown North
on Mar 3, 2010 at 2:53 pm

The headlines scream defeat, then how is it that VF is perched today at his usual spot?


Posted by Crescent Park Dad, a resident of Crescent Park
on Mar 3, 2010 at 3:28 pm

Yes!


Posted by Jim, a resident of Midtown
on Mar 3, 2010 at 3:36 pm

Now extend the sit-lie ban to cover the entire city.


Posted by Justice will be done., a resident of Downtown North
on Mar 3, 2010 at 3:37 pm

Frost is merely getting a jury trial. He has not yet lost in court. The judge is a good one. She saw through the attempt to consider Victor's antics (not to mention his act about being 'homeless') the same as customers that sit on tables and chairs at downtown restaurants. The judge based her decision on "What is the purpose of a sidewalk?" It was an excellent call. It should be interesting how the jury rules.

This judge could have tossed it out, not allowing a jury to rule. Until then, we should expect Frost to be at his perch, duping unsuspecting but good-hearted people, and those with money to throw around, that support him, knowing full well his cause is self-serving. $400 a day, tax-free, a paid-for apartment and dozens of places to go for free daily food? Not a bad gig. Justice will be done, with a jury trial.


Posted by Paul Losch, a resident of Community Center
on Mar 3, 2010 at 4:27 pm

I am not a fan of Victor Frost. He comes across to me as "gaming" the system.

I had an experience over the Christmas holidays that did disturb me. My daughter was home from college for a few weeks, and we went to the San Francisco Opera House for a performance of "The Nutcracker." Excellent show in an amazing venue.

Walking back to MUNI (public transportation) to get home via the CalTrain, I counted at least 5 people in sleeping bags between the Opera House and the entrance to the transit station.


Posted by Tired of panhandlers, a resident of Downtown North
on Mar 3, 2010 at 4:31 pm

The panhandlers are getting way too aggressive, I think they all should be banned. Have you been to downtown Palo Alto lately, there are on every corner and vacant building. They think they own all their little squatting places, and they get into fights. Truly ban panhandling!!!!!!!!!


Posted by danny, a resident of Another Palo Alto neighborhood
on Mar 3, 2010 at 5:18 pm

Frost's attorneys should file a motion to vacate Lucy Koh's ruling on grounds relating to judicial disqualification.

Frost's case has been unique in the sense it allows a low county court to independently re-evaluate the 9th Circuit federal appeals court ruling over similar issues (Roulette vs. Seattle). But instead, this judicial opportunity was compromised by the recent nomination of Lucy Koh to the federal district court. In her perceptions, she would have to learn to follow the dictates of the federal appeals court.

I haven't read Koh's ruling yet, but I presume it may have been designed to please Alex Kozinsky, the prevailing author of the Roulette case who ruled in favor of the Seattle sit-lie ordinance. Kozinsky is now presiding judge of the 9th Circuit. According to the dissent in Roulette, an equal protection violation would be an exception to Kozinsky's ruling. The case was never appealed to the U.S. Supreme Court.


Posted by opus, a resident of Old Palo Alto
on Mar 3, 2010 at 7:23 pm

if the city's case is that sidewalks are for pedestrians and therefore a safety issue... whats the difference between trying to navigate around someone feeding their piehole sitting in a chair blocking the sidewalk at an establishment that the city approves and a person sitting on the sidewalk? maybe the local media could better serve us by reporting on how much this fiasco is costing taxpayers. even the ass't city attorney has been quoted that he is uneasy about prosecuting this case with a jury trial. let's hear from the city manager what services will have to be cut to pay for the trial and any legal action that may result from actions initiated by the city.


Posted by Ann, a resident of Downtown North
on Mar 3, 2010 at 9:28 pm

Unbelievable. But hang on Frost. Keep fighting. You are a good man and you are NOT blocking anything.


Posted by Jay Thorwaldson, editor emeritus
on Mar 3, 2010 at 10:07 pm

Jay Thorwaldson is a registered user.

As to the question above, the Weekly and other media (to my knowledge) were given copies of the judge's ruling Tuesday in court. The ruling might have been put into a court clerk's file earlier, or circulated to attorneys on both sides. We had a story in the works Tuesday evening but we weren't able to edit and post it on Palo Alto Online until Wednesday morning about 8:40 a.m. -- in time to go out with our 10 a.m. Express top-headline e-mail. The Daily Post operates on nightside deadlines, so it was able to process the story overnight.


Posted by Walter_E_Wallis, a resident of Midtown
on Mar 4, 2010 at 1:31 am

Walter_E_Wallis is a registered user.

Those defenders of Frosty, what would you do if he set up his operation on your sidewalk? The public title to sidewalks and streets is not absolute, it is to facilitate public access to that property. The erection of a permanent or temporary facility on that sidewalk or street is detrimental to the original purpose of that dedication.
I have written from time to time of the need for all cities to establish caravansaries that provide minimal shelter and sanitary facilities to which homeless can be required to encamp. Apparently Gavin Newsome, frisco's adorable Mayor, is heading toward.


Posted by danny, a resident of Another Palo Alto neighborhood
on Mar 4, 2010 at 8:05 am

Too bad so many people give panhandling and fundraising a bad name. I have to go out there, maybe today. I have a few small bills to pay and no money to pay them with. If I do it, I'll wait until Victor leaves - I'll be his "stand-in" (hehe). (I don't have to sit)


Posted by EcoMama, a resident of Community Center
on Mar 4, 2010 at 8:58 am

Question: Why doesn't Palo Alto have an anti-busking law? Forget the sit-lie ordinance -- plenty of cities have laws banning panhandling, and Palo Alto should, too.

It's my belief that Victor Frost adversely affects business at Whole Foods, La Morenita and neighboring businesses. When I need to grocery shop with kids in tow, I never go there. Why? Frost utters (and yells, on occasion) rude, racist, crass remarks that my kids don't need to hear. I don't shelter my kids from homelessness; my older daughter is a frequent volunteer at church soup kitchens, and I teach them that every human being has worth. But the last thing I want is for them to think that everyone homeless is like Victor Frost. Why hasn't the City gotten an injunction from stopping his panhandling until the jury rules?


Posted by jay lynn, a resident of University South
on Mar 4, 2010 at 1:38 pm

Mr. Frost should sell his vintage Mercedes...


Posted by Sidewalk Options, a resident of Professorville
on Mar 4, 2010 at 3:39 pm

Give Frost the option of either siting or lying down on the sidewalk, but not both!


Posted by robit noops, a resident of Greenmeadow
on Mar 4, 2010 at 3:56 pm

He is a stinky hobo and an eyesore. If he received twelve citations for whatever, he should be gotten rid of. He ruins my Whole Foods experience.

Like I said, in Nepal, they beat pan-handlers. Works for them, it could work for us.


Posted by Walter_E_Wallis, a resident of Midtown
on Mar 4, 2010 at 5:13 pm

Walter_E_Wallis is a registered user.

Perhaps the city should charge rent and require posting a deposit and reporting income. Perhaps we should make giving to panhandlers illegal.


Posted by Bunny, a resident of Greenmeadow
on Mar 4, 2010 at 5:38 pm

Hooray! Frost is an eyesore. I cross the street everytime I see him.
I will enjoy walking on CA Avenue more.


Posted by Super, a resident of Community Center
on Mar 5, 2010 at 10:23 am

Glad to hear. Get rid of that bumn.


Posted by mmmmmMom, a resident of Downtown North
on Mar 5, 2010 at 6:32 pm

Frost is taking advantage of the system - nothing but a con artist with borderline personality disorder. He does not want help. He has refused very sincere efforts to assist him.

Anybody ever notice the giant grease stain where he sits? He has also ruined the flowers planted there.


Posted by A. Carter, a resident of Old Palo Alto
on Jul 23, 2010 at 3:00 pm

For a while in 2008, I was one of the panhandlers on California St. and University Avenue. I tried to be the nicest panhandler I could be, and as soon as I could get into a situation where I didn't have to panhandle, I did it. Long-term panhandlers have become partially dehumanized, as the "work" dehumanizes you, and it also causes you to see others as "marks" rather than comrades. There are some fairly innocuous ones, like the gal holding the sign who wanted to get back to N. Dakota for years, now it says something else, about cancer I believe. She's as inoffensive as they come, although if you get talking to her, every other panhandler and street person is her enemy, and she's brimming with hate for 'em. In fact this kind of hatred for all the others is a common thread in these street people's personalities, and is probably a key to understanding why they're stuck on the street. There's the full spectrum all the way to very aggressive, scary and potentially dangerous types out there. I myself, since I was polite, positive, and tried to be helpful where I could, NEVER had police problems. I've panhandled right under the nose of cops, and almost thought maybe I ought to try panhandling the cops themselves just to see how it'd go, but never did. The cops do not have any problem with people who are not a problem.

The long-term street people are, essentially, broken. They need to be housed and managed in some kind of work/training/"lifemanship" programs. They turn bitter and mean - I had "Homeless Jeff" in Mountain View tell me I have to join a church to keep my faith, and I said, "Are you kidding? Having to do this has increased my faith in the goodness of people extremely. I've always had a general faith in the goodness of most people, but it's increased incredibly. My faith in people gets increased every day." Long-term street people are not wired this way though. The spiral goes the other way. Mr. Frost is an example of the long-term street person mentality. Everyone's a "mark" to him, and although from the sound of it he's making several times what I do (I make a few hundred a month, by working odd jobs, and I refuse to take gov't aid or food stamps) he feels people, or "Society" owes him MORE. Most of the panhandlers I've gotten to know turn out to have SS, military retirement money, pensions, etc coming in and panhandle to paid it out MORE. They are their own tribe ........

I didn't have too much difficulty making $1200 a month panhandling. That's working at it about 2 hours a day. About $40-$50 a day. I could go out and do it now. I won't though, I'm stubborn. I'd rather make $10 a day even if it's just collecting cans or washing windows, than panhandle and make $100 a day. I am not "wired" right to be a longterm street person, so I am not. The long termers have the same worldview as the Roma, or "Gypsies" if it's OK to use that term. Read up on 'em, I always wondered by the Roma were so strongly disliked but after doing the research, wow. We are developing our own counterpart in these long term street people and Mr. Frost (and Robert Nourse in Santa Cruz) is an example of one of the new "Gypsy Kings".


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