The return of commercial activity to the west side of Ocean Front Walk has been escalating over the past week. Last Sunday – for the first time since the new ordinance was enacted – there were several nasty altercations over spaces around the Sunset Pagoda area. Regulars expect this weekend to be even worse. Given that the problem generally arises when illegal vendors insist on their imaginary right to sell commercial goods and “make a living” in this first amendment protected area, and that LAPD has been stymied in halting this activity by the “right to display” clause in the ordinance, a group of us have researched legal aspects of “intent” as a possible means of addressing this loophole.
The following is what we have learned. We make it available to you for your advisement and in the hopes that you will find it useful.
In the meantime, we continue to brainstorm strategies with east side merchants and other first amendment people on the Boardwalk. We will continue to send any useful determinations along to you. Any feedback or suggestions on how we can most effectively interface will also be appreciated. Thank you.
Therese Dietlin, OFW First Amendment Advocate
Intent to Sell on Ocean Front Walk
– by Dave Bradt – Free Expressionist
The police have communicated that they cannot tell the difference between illegal vending and protected free expression because everyone has a right to display any item in the free expression spaces. The city has a compelling interest in determining and eliminating commercial sales in order to reduce violence and allow protected expression on public land. Generally, a wide range of direct and circumstantial evidence is allowed to prove intent.
Such as, cases in which:
1. Displaying one item would convey the same expressive message as displaying many similar items.
2. Displaying items, while being in controlled (i.e. concealed or in the car) possession of similar (limited variations) items (not being displayed and not expressed but available to replace sold items). Such circumstantial evidence would be reasonable and logical to prove intent to sell.
Precedence of circumstantial evidence proving intent:
It is illegal to park on the street in front of a driveway. If the engine is running or the keys are in the ignition that is proof of intent (not to park). To be arrested for drunk driving, one need only show intent. To be in the driver’s seat while intoxicated is not enough to be arrested for DUI, but to put the key in the ignition proves intent.
A shoplifter need not leave the store without paying for an item, or a book or other library materials taken from a library facility, to be guilty of theft. California (as most states) invites evidence of intent (i.e. The CA law 490.5. (4) A merchant…(librarian) having probable cause to believe the person detained was attempting to unlawfully take or has taken any item from the premises. In 33 states ‘to conceal’ (the act that proves intent) is also a violation, in of its self.
The NH law 644:17 Willful Concealment and Shoplifting.
The AS law 11.46.220. Concealment of Merchandise.
The AZ law 13-1805 5. Concealment.
The CO law SECTION 1. 18-4-407 (2)… OR conceals upon his person….
The CT law Sec. 53a-119. (9) A person intentionally concealing unpurchased goods or merchandise of any store or other mercantile establishment, either on the premises or outside the premises of such store, shall be prima facie presumed to have so concealed such article with the intention of converting the same to his own use without paying the purchase price thereof.
The DE law Sec. 53a-119. (3) Conceals any such goods….
The GA law 51-7-60 (1) Conceals or takes possession of the goods or merchandise of any store or retail establishment;
The ID law 18-4626. WILFUL CONCEALMENT OF GOODS. The IL law Sec. 16A-2.1. To “conceal”.
The IA law 808.12 1. Persons concealing property.
The KS law 21-3701. Theft, (2) concealing any merchandise.
The KY law 433.234 Shoplifting (1) Willful concealment of unpurchased merchandise of any store.
The ME law §361-A. Permissible inferences against accused; 2. Proof that the defendant concealed unpurchased property stored.
The MD law § 3-1301 (3) Concealing any merchandise;.
The MA law Chapter 266 Section 30A Shoplifting; penalty; arrest without warrant Section 30A. …or any person who intentionally conceals upon his person…
The MS law SEC. 97-23-93. Shoplifting; (1) (a) Conceals the unpurchased merchandise; The MT law 46-6-506. (4) (a) “Concealment”
The NE law Section 28-511.01 (1) (a) Conceals or takes possession of the goods or merchandise of any store or retail establishment;
The NV law NRS 597.850 Shoplifting: Merchant may request person on premises to keep merchandise in full view.
The NH law 644:17 Willful Concealment and Shoplifting. The NJ law 2C:20-11 Shoplifting A. (6) “Conceal”.
The NM law 30-16-20. Shoplifting (2) willfully concealing merchandise.
The NC law § 14-72.1. Concealment of merchandise in mercantile establishments.
The PA law (2) § 3929. Retail theft. (c) Presumptions.–Any person intentionally concealing unpurchased property of any store or other mercantile establishment.
The RI law § 11-41-20 Shoplifting. (c) The fact that a person conceals upon his person…
The SC law SECTION 16-13-120. Shoplifting; presumptions from concealment of unpurchased goods.
The TN law 39-14-146. Theft of property – Conduct involving merchandise (a) For purposes of § 39-14-103, (1) Conceals the merchandise;
The TX law § 31.02. Consolidation of Theft Offenses… or concealing stolen property.
The UT law 76-6-602. Retail theft, acts constituting. A person commits the offense of retail theft when he knowingly: (1) Takes possession of, conceals..
The VA law § 18.2-103. Concealing or taking possession of merchandise;
The WV law §61-3A-1. Shoplifting defined. (1) Conceals the merchandise upon his or her person or in another manner;
The WI law 943.50 Retail theft. 2. (1m) (d) Intentionally conceals merchandise held for resale by a merchant or property of a merchant.
The WY law 6-3-404. Shoplifting; altering or removing price tags and markers; penalties. (a) A person who willfully conceals the state of one’s mind at the time one carries out an action. Only protected expression is allowed in the free expression spaces California (most states) invites evidence of intent (i.e. The CA law 490.5. (4) A merchant… or an agent thereof, having probable cause to believe the person detained was attempting to unlawfully take or has taken any item from the premises, In 33 states ‘to conceal’ (the act that proves intent) is also a violation, in of its self. © Dave Bradt 2012