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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
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e
approach,
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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