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About Street roots. (Portland, OR) 1998-current | View Entire Issue (March 1, 2013)
3 Street roots March 1, 2013 Business group takes issue of sidewalk authority to Salem BY JOANNE ZUHL inconvenience, annoyance, etc.” The conflict was that the city’s ordinance went further, he Portland Business Alliance has prohibiting obstruction regardless of any brought forth a bill to the Oregon intention, so state law prevailed. In 2009, Legislature that for all intents and Multnomah County Circuit Court Judge purposes is a shot over the bow of the city’s Stephen Bushong came to the same sidewalks — and everyone who uses them. conclusion that it was unconstitutional on House Bill 2963, under the general these grounds. sponsorship of the House Judiciary The current ordinance came into being two Committee, would prohibit the state from years ago and crafted a compromise that preempting a city’s authority to control or people can sit or lie on the sidewalk, at least regulate the use of its sidewalks. This is 8 to 10 feet away from buildings on the curb, significant because Portland’s efforts to with a cleared walking area for pedestrians. It control people’s use of public sidewalks have is enforced from 9 a.m. to 7 p.m. daily. largely been tempered by state statute — Becky Straus, legislative director with the reinforced by the state’s constitution that American Civil Liberties Union of Oregon, says that cities can’t preempt state law. That says the ACLU’s concerns are two-fold. was the case in 2005 and again in 2009, when “It seems that the Portland Business the city’s ordinance was ruled Alliance is asking the Legislature to overrule unconstitutional by appellate and circuit Oregon case law that says that the Portland courts. ordinance — or at least a prior version of the This bill, however, would say that city rules Portland ordinance — is preempted by state trump state laws on the singular issue of law,” Straus said. “The state statute on sidewalk use. disorderly conduct talks about when it is “The intention is to clarify the city’s lawful and when it is unlawful to obstruct authority to regulate a city’s sidewalk traffic, including on a sidewalk. That statute activity,” said PBA spokeswoman Megan is carefully crafted so as not to criminalize Doern. Doern insisted that’s where it begins people who are engaging in protected free and ends at this point, and she denied that expression activity. The safeguards in the any plans or efforts are underway by the PBA state law are crucial but the PBA is saying to change the city’s existing sidewalk that, when it comes to how people use their management ordinance at this time. Doern city sidewalks, that protection isn’t needed. said there was confusion on sidewalk law We disagree.” following mixed decisions by two courts in Straus calls this the first step in a longer 2009. campaign to revisit the flawed sit-lie “Right now we’re working on the first ordinance in Portland. step,” Doern said. “Because of what “The ACLU has had concerns about these happened in 2009, us and Eugene and a few ordinances from the beginning,” she said. “By other cities from across the state want to their very nature they are set up to target clarify state law, so that’s why we’re working certain people in certain places in our city with other chambers around the state on this and that kind of disparate enforcement is piece of legislation. It’s something that other questionable, at best. We cannot support a and groups have spent a lot of time and remain subject to a high bar of energy working to find compromise, not just constitutionality even with this proposal to once but through multiple rounds of keep it local. discussions through the years. We don’t “I’m not generally supportive of these condone intentionally bad behavior, but the kinds of laws, but I do think that it is city already has tools to deal with that. My important to have it at the city council level,” concern about a more punitive approach, said Williamson, who is also a former which I think this bill represents, is that it volunteer attorney with the American Civil will have a disproportionate impact on people Liberties Union. “I’m OK with the proposal who use the sidewalks because they have HB 2936 as it stands now, but very nowhere else to go. More citations and fines concerned about the constitutionality of (sit- for these individuals would be counter lie) laws. Either way, the constitutionality is productive to the goal of ending still a hurdle.” homelessness.” Commissioner Nick Fish, who heads up Mike Boyer, crime prevention program housing and homeless issues, and coordinator with the Commissioner Office of Neighborhood Amanda Fritz, who Involvement, works as championed the a liaison between advisory committee Wry coacera about a more downtown businesses, around the sidewalk p im illv e approach, which 1 neighborhood management Ih iiih this b ill represents^ is associations and the ordinance, both police. He says the declined to comment that It w ill have a number of complaints on the bill. disproportionate Impact on about groups on In an interview people who use the sidewalks intimidating earlier this month pedestrians has gone sidewalks because they have with Street Roots, up steadily in the past Mayor Charlie Hales nowhere else to go." year. called the city’s — M O N IC A GORACKE “In my position I get current sidewalk O R E G O N L A W CENTER regular concerns from ordinance business communities dysfunctional, and that business owners, about the sidewalk shoppers and management plan having a negative affect toward their homeless advocates are equally unhappy with business,” said Mike Boyer, crime prevention the status quo. Hales suggested he was in program coordinator with the Office of favor of moving to a new version of the ordinance that “works better.” Neighborhood Involvement. But he Dana Haynes, the mayor’s communications emphasized that the focus wasn’t on the director, said that while the PBA’s bill was homeless, but rather the behavior of summer not on the mayor’s priority list for this travelers and youths who spend their day on legislative session, “any legislation that the sidewalk, where businesses say they cities a re g rappling w ith .” h a ra ss c u sto m e rs by aggressively STAFF WRITER T F o r m o r e th a n a d e c a d e , P o r tla n d ’s downtown sidewalks have been the battleground between the PBA, who say panhandlers and loitering youths are a deterrent to patrons, and homeless advocates who have fought for equal space in the downtown corridor. In its early years, the battle focused on police enforcement procedures because of the high proportion of homeless people being told to move or receiving citations. Over the years, the ordinance has been modified and procedures massaged as court cases surfaced. One circuit court judge ruled that the 2003 version was “unconstitutionally vague and overbroad.” In 2005, an appellate judge declared it was unconstitutional because it conflicted with the state law regarding disorderly conduct. That state law prohibits obstructing traffic on a sidewalk, but only when there is “intent to cause public proposal w h ere th e ultim ate goal is to fu rth e r e ro d e th e ability of p eo p le in P o rtlan d to engage in innocent, protected activity.” Monica Goracke, an attorney specializing in homeless issues with the Oregon Law Center, says that removing the “intent” requirement of state law “could mean that many more people could be prosecuted for violating the city’s sidewalk ordinance, even unintentionally.” Goracke also notes that while Oregon’s state constitution provides strong protections for free speech, broadening the city’s street ordinance could have an impact on panhandling. “If a new, broader sidewalk management law was enacted, it is possible that speech asking for money could be regulated more aggressively than it is now,” Goracke said. “The issues around use of the sidewalks have been actively debated in Portland for a long time now,” Goracke said. “Many people panhandling. Boyer said this is a group that is unresponsive to outreach work, and while their aggressive behavior is illegal, they are low-level violations that take up police resources, Boyer said. Boyer said the goal is not to be punitive to the homeless community, but the sentiment among business owners is that the current rules don’t “allow them to do what they need to do and operate a safe business,” he said. “The rub is that the business are looking for it to revert back to the old sidewalk management plan,” Boyer said. Which one? “The one that did not allow for any sitting or lying on the sidewalk, period,” he said. Rep. Jennifer Williamson, D-Portland, sits on the House Judiciary Committee, sponsors of the bill, and has watched Portland cycle through numerous versions of sidewalk control laws. She says laws like sit-lie will clarifies th e ru le s reg ard in g p ree m p tio n w ould be a good thing. We generally support legislation that gives us more authority to do things better, but we haven’t yet landed on where we are on this bill.” Janet Byrd, executive director of Neighborhood Partnerships, said the issue of opening the door to yet another sidewalk ordinance proposal is of concern to her and the state’s Housing Alliance, which she represents. “The Housing Alliance doesn’t yet have an official position on HB 2963,” Byrd said. “We are concerned about any bill that would criminalize homelessness. We know that our communities are stronger when everyone has a safe decent place to call home, and when we work together to address community needs. The answer to homelessness is not to brush it aside, out of sight, but to develop housing options that meet the needs our communities face.” Portland’s sidewalk laws: In search of common ground camping and sit-lie ordinances, particularly between 7 a.m. and 9 p.m. The pedestrian zone extends from the building frontage out Potter presents City Council with the Street among the homeless, leading to a two-week encampment around City Hall in April. The bone up on the city’s sidewalk management Access for Everyone (SAFE) Resolution, advocacy community continues to call for its more. For sidewalks less than 10 feet wide, history, Here are just the highlights: creating a workgroup to address street disorder and sidewalk nuisance problems. repeal because of the number of homeless the zone is six feet. The ordinance leaves people caught up in the process. the two feet next to the curb open to non ince it appears a new round of sit-lie debates is coming down the pike, Vz there’s no time like the present to will allow the police to use broader enforcement guidelines. Then-mayor Tom 2004: Portland’s sidewalk ordinance barring Twenty-four organizations spend a year sitting and lying is declared unconstitutional developing the strategy. eight feet for sidewalks 10 feet wide or pedestrian activities. 2009: City Council votes 4-1 to extend the sit-lie ordinance beyond its June sunset until There are exceptions to the prohibitions, 2007: The American Civil Liberties Union of Oct. 23,2009. In June, Multnomah County musicians, and people who for medical Oregon, originally part of the 24 organizations that helped develop the SAFE committee recommendations, withdraws its Circuit Court Judge Stephen K. Bushong support of the ordinance. The ACLU says city’s authority and is preempted by state 2005: A new 18-month pilot sit-lie ordinance the ordinance goes too far in not allowing law. is negotiated. During its 18-month tenure only 19 tickets were issued, eight of which individuals to sit on stools or chairs, and by by Circuit Court Judge Marilyn E. Litzenberger, who called the ordinance unconstitutionally broad and vague. From June 2004 until December 2005 the ordinance is not enforced. were thrown out of court. Of the 11 remaining cases, only one individual was rules that Portland’s sidewalk obstruction ordinance unconstitutionally exceeds the limiting protesters’ rights. The city moves forward with enforcement. Reports from the 2010: The city adopts a new sidewalk Portland Police indicate that the vast majority of people cited under the sit-lie Americans with Disabilities Act and similar management ordinance patterned after the including people waiting for services, street reasons are unable to comply with the ordinance. From the start, the vast majority of those receiving warnings and/or citations have been homeless. 2013: The Portland Business Alliance leads the charge to change state law to eliminate the state statute preemption that made the ordinance are people experiencing legislation. The ordinance prohibits anyone from sitting, lying or keeping possessions homelessness. beyond his or her immediate reach in the approved, it will likely clear the way for a 2006: The business community requests a six-month extension of the sit-lie ordinance “pedestrian use zone” of downtown and new version of the sidewalk management until a new ordinance can be drafted that 2008: Protests arise over the city’s anti Rose Quarter/Lloyd district sidewalks ordinance to appear this summer. found guilty. previous versions unconstitutional. If
