Victor Frost's long-running battle with the City of Palo Alto over its sit-lie ordinance resulted in a judgment against him for two infractions and a $50 fine Monday (Aug. 1).
Interim Judge Donald Squires, who is sitting in at Santa Clara County Superior Court and normally presides in Alameda County, heard arguments in Frost's sit-lie case regarding three citations for violating the city's ordinance. Palo Alto' sit-lie ordinance forbids sitting or lying on the sidewalk within 20 feet of a commercial building. Frost was found guilty of violations stemming from sitting near Whole Foods Market on Nov. 22, 2010, and Jan. 11, 2011.
Frost, a well-known panhandler and fixture across from Whole Foods on Homer Avenue and outside Village Stationers and near Mollie Stone's on California Avenue, has been fighting the ordinance's legality since he was first ticketed in 2008. He originally had 12 citations for refusing to budge off is milk crate near the Whole Food's parking lot. The citations were condensed to six and were prosecuted as misdemeanors.
Frost fought the charges on civil-rights claims and argued that the city had violated his First Amendment rights for equal protection.
Frost's attorneys said the city had been enforcing the law unevenly because it allowed businesses to encroach on sidewalks with outside tables and chairs and that enforcement unfairly targets the homeless and creates two classes of treatment for the rich and indigent.
Santa Clara County Superior Court Judge Lucy Koh rejected Frost's claims in March 2010, saying they were not yet ripe to be heard since he had not yet been convicted and sentenced.
A jury deadlocked on the charges on April 23, 2010. The city attorney re-filed the charges then asked the court to dismiss the case on Oct. 5, 2010.
The city filed a new case with the three citations but charged Frost with infractions, which meant that Frost would not have a jury trial and he didn't have a right to an attorney, his new attorney, Stanford Law Lecturer Galit Lipa, said.
Lipa said she believed the city filed the cases as infractions on purpose, since the previous jury trial showed their case might be lost during a new trial.
"They learned their lesson," she said.
Judge Squires stayed Frost's fine until Sept. 6 in the event that he chooses to appeal.
The case could be far from over, Lipa said. Frost will probably file an appeal, she said.
Frost's original equal-protection claims that challenge the ordinance could also be raised in post-trial proceedings, she said.
Lipa said the judge noted the asymmetry in the city's enforcement. Whole Foods is allowed to encroach on the sidewalk with huge bins of produce, while Frost is prosecuted, although he is "clearly not blocking the sidewalk," she said.
The judge, she noted, said the facts showed the case is a "very insignificant breach of the law" and he told both the prosecution and the police officer who cited Frost that "they should talk to their bosses about whether this is what they should be doing with their time," she said.
Frost has 30 days to file an appeal.
Frost could have been required to pay $435 if convicted of all three charges. Assistant City Attorney Donald Larkin said the intention of the prosecution was never to fine Frost heavily and the $25 per conviction is what he expected.
"The convictions speak for themselves. We're pleased the court upheld the City Council's actions regarding the ordinance. We intend to continue that enforcement," Larkin said.
Asked what it has cost the city so far to prosecute Frost, Larkin said he is paid a salary, so it isn't costing more to prosecute the case.