Aug. 25--It turns out well-known panhandler Victor Frost isn't the only person who has been violating Palo Alto's controversial ban on sitting or lying down on its downtown sidewalks. So have the hundreds of customers who grab coffee or dinner each day in the outdoor seating areas of local restaurants.

Now some of the same merchants who pushed for the sit-lie ban are being told by the city they have to cough up $135 to avoid violating it themselves. That's because the 1997 rule was couched in terms of pedestrian safety, so it applies equally to any sort of physical obstacle -- homeless or not.

The double standard in enforcement is the focus of a new legal brief from Frost's public defender, Susan Shores, who is helping the street beggar-turnedpolitical activist fight charges he repeatedly violated the city's sit-lie ban. Frost, a familiar fixture with his milk crate, sign and change cup on the sidewalk outside Whole Foods on Homer Avenue, acknowledged in an Aug. 4 hearing that he routinely panhandles downtown. But Shores argues her client is unfairly singled out by the city's rule, which some nicknamed the "Victor Frost ordinance" when it was expanded to the Whole Foods area in 2007.

"Although the prosecution says that it will now take steps to rectify the situation, this does not excuse the blatant violation of Mr. Frost's rights and the discriminatory treatment that he has received from the Palo Alto Police Department," Shores wrote in a brief ahead of a Sept. 15 hearing in Santa Clara County Superior Court. "He cannot be singled out for punishment because of who he is or what he represents."

In their response, the city's attorneys -- acting as the prosecution in the case -- pleaded ignorance to the unequal treatment.

For decades, the city has required businesses to get special permits to put chairs or tables on public sidewalks, Assistant City Attorney Donald Larkin explained. But as he acknowledged in the brief, it turned out the defense was correct that few University Avenue restaurants have ever actually acquired the permits.

"The City Attorney's Office was not aware of these violations at the time of the hearing, and is now undertaking efforts to correct the violations," Larkin wrote. "However, the existence of other violations of (the ordinance)

does not excuse defendant's conduct."

Still, the city is scrambling to close the loophole. Last week, local restaurant owners got an e-mail from the Palo Alto Downtown Business and Professional Association informing they had to get a permit as soon as possible or their outdoor seating areas would be shut down.