The Portland Business Alliance is asking Salem for permission to return to the bad old days of Portland's judiciary-rejected sit-lie law—an unconstitutional ordinance that banned otherwise law-abiding people from sitting and lying down or generally not-shopping on the city's sidewalks.
A bill introduced under the auspices of the House Judiciary Committee earlier this week would make it so state protections on free speech wouldn't pre-empt cities' right to limit how sidewalks are used. Judge Stephen Bushong, when he cast down sit-lie in 2009, said at the time that a local ban on conduct permitted under state law would run afoul of the Oregon Constitution.
"I ruled that [the sit-lie law] is preempted by state law," says Bushong. "It prohibits conduct permitted by state law, and that's not permitted under article 11, section two of our Oregon Constitution."
Normally, business groups like the PBA love the concept of pre-emption. It's how they keep progressive majorities in places like Multnomah County from passing things like cigarette taxes and real estate transfer taxes and local sales taxes and on and on. But after nearly three years of a slow burn over failing to sweep our sidewalks of people they claim keep suburban shoppers from dropping coin at downtown stores, suddenly, in this one case, pre-emption has become a terrible burden preventing a righteous amount of urban cleansing.
Nothing in the criminal or general law of the state, other than a limitation by express provision, shall be construed to preempt a city's authority to control or regulate, through a civil municipal ordinance or administrative regulation, the use of the sidewalks within the city.
PBA spokeswoman Megan Doern told Street Roots that her group wants to clarify confusing judicial rulings on sidewalk rules. But her comments in the Business Journal were a bit more revealing: Some of the people using the sidewalk are seen as an eyesore and bad for commerce.
"We continue to get complaints from business owners and employees and everyone downtown,” she said. “It’s always the number one business concern downtown.”
The PBA makes a lot of noise around homelessness issues, but all too rarely about the kinds of things that ameliorate it or prevent it. At its downtown summit last April, it set a clear tone for its current direction: a renewed assault on the homeless, whether they're breaking laws or not.
It has agitated against the camping that's been happening for more than a year on the curb line in front of Portland City Hall. Late last year, in a letter to city council about Right 2 Dream Too, it offered unsubstantiated claims the tent refuge was causing a crime spike. And it also tried to make sidewalks an issue in Amanda Fritz's re-election race against ex-State Representative Mary Nolan, including this question in their candidate survey:
Portland has one of the best downtowns in the nation, but we constantly hear from local residents and visitors who find our downtown streets unwelcoming because of the transients who are allowed to sit on sidewalks, frequently with their dogs and belongings, sometimes engaging in aggressive panhandling. How will you address this persistent livability issue? Would you support a stronger sit-lie ordinance? And do you support maintaining - and enforcing - the city's prohibition against camping?
Fritz oversees the city's current sidewalk management plan, a compromise that designates a free-speech zone where anyone can sit down with their stuff (so long as it's in arm's reach) for however long as and whenever they want to. There are still concerns about who's being targeted for enforcement even under the compromise. But the old sit-lie law was even more nakedly aimed at cracking down on the homeless.
Fritz has not yet returned a message left with her office seeking comment.
The bill is not part of the city's state legislative agenda. Although Mayor Charlie Hales previously has told Street Roots he wanted to look at fixing the current sidewalk law. His office, when contacted by Street Roots this morning, said it hadn't come down one way or the other on the current bill.