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Portland Business Alliance goes to Salem to change sidewalk laws

By Joanne Zuhl, Staff Writer

The Portland Business Alliance has brought forth a bill to the Oregon Legislature that for all intents and purposes is a shot over the bow of the city’s sidewalks — and everyone who uses them.

House Bill 2963, under the general sponsorship of the House Judiciary Committee, would prohibit the state from preempting a city’s authority to control or regulate the use of its sidewalks. This is significant because Portland’s efforts to control people’s use of public sidewalks have largely been tempered by state statute — reinforced by the state’s constitution that says that cities can’t preempt state law. That was the case in 2005 and again in 2009, when the city’s ordinance were ruled unconstitutional by appellate and circuit courts.

This bill, however, would say that city rules trump state laws on the singular issue of sidewalk use.

“The intention is to clarify the city’s authority to regulate a city’s sidewalk activity,” said PBA spokeswoman Megan Doern. Doern insisted that’s where it begins and ends at this point, and she denied that any plans or efforts are underway by the PBA to change the city’s existing sidewalk management ordinance at this time. Doern said there was confusion on sidewalk law following mixed decisions by two courts in 2009.

“Right now we’re working on the first step,” Doern said. “Because of what happened in 2009, us and Eugene and a few other cities from across the state want to clarify state law, so that’s why we’re working with other chambers around the state on this piece of legislation. It’s something that other cities are grappling with.”

For more than a decade, Portland’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 messaged 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 inconvenience, annoyance, etc.” The conflict was that the city’s ordinance went further, prohibiting obstruction regardless of any intention, so state law prevailed. In 2009, Multnomah County Circuit Court Judge Stephen Bushong came to the same conclusion that it was unconstitutional on these grounds.

The current ordinance came into being two years ago allowing a compromise that people can sit or lie on the sidewalk, at least 8 to 10 feet away from buildings on the curb said, with a cleared walking area for pedestrians. It is enforced from 9 a.m. to 7 p.m. daily.

Becky Straus, legislative director with the American Civil Liberties Union of Oregon, says the ACLU’s concerns are two-fold.

“It seems that the Portland Business Alliance is asking the Legislature to overrule Oregon case law that says that the Portland ordinance  — or at least a prior version of the Portland ordinance — is preempted by state law,” Straus said. “The state statute on disorderly conduct talks about when it is lawful and when it is unlawful to obstruct traffic, including on a sidewalk. That statute is carefully crafted so as not to criminalize people who are engaging in protected free expression activity. The safeguards in the state law are crucial but the PBA is saying that, when it comes to how people use their city sidewalks, that protection isn't needed.  We disagree.”

Straus calls this the first step in a longer campaign to revisit the flawed sit-lie ordinance in Portland.

“The ACLU has had concerns about these ordinances from the beginning,” she said. “By their very nature they are set up to target certain people in certain places in our city and that kind of disparate enforcement is questionable, at best.  We cannot support a proposal where the ultimate goal is to further erode the ability of people in Portland 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 required by 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 and groups have spent a lot of time and energy working to find compromise, not just once but through multiple rounds of discussions through the years.  We don’t condone intentionally bad behavior, but the City already has tools to deal with that.  My concern about a more punitive approach, which I think this bill represents, is that it will have a disproportionate impact on people who use the sidewalks because they have nowhere else to go.  More citations and fines for these individuals would be counter-productive to the goal of ending homelessness.

Rep. Jennifer Williamson, D-Portland, sits on the House Judiciary Committee and has watched Portland cycle through numerous versions of sidewalk control laws. She says laws like sit-lie will remain subject to a high bar of constitutionality even with this proposal to keep it local.

“I’m not generally supportive of these kinds of laws, but I do think that it is important to have it at the city council level,” said Williamson, who is also a former volunteer attorney with the American Civil Liberties Union. “I’m OK with the proposal (HB 2936) as it stands now, but very concerned about the constitutionality of (sit-lie) laws. Either way, the constitutionality is still a hurdle.”

Street Roots is still waiting on responses from Commissioner Nick Fish, who heads up housing and homeless issues, and Commissioner Amanda Fritz, who championed the advisory committee around the sidewalk management ordinance.

In an interview earlier this month with Street Roots, Mayor Charlie Hales called the city’s current sidewalk ordinance dysfunctional, and that business owners, shoppers and homeless advocates are equally unhappy with the status quo. Hales suggested he was in favor of moving to a new version of the ordinance that “works better.”

Hales was unavailable for comment this morning, but Dana Haynes, the mayor’s communications director, said that while the PBA’s bill was not on their priority list for this legislative session, “any legislation that clarifies the rules regarding pre-emption would 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.”

Look for more to come in Street Roots.