To Mayor Potter and Commissioners Adams, Leonard, Saltzman and Sten:
It was with great disappointment that we watched the City Council proceedings on Wednesday, May 2, regarding the new "Sidewalk Obstructions" ordinance, formerly known as the "High Pedestrian Traffic Area" ordinance and commonly known as the "Sit/Lie" ordinance.
The ACLU of Oregon and Sisters of the Road Cafe, both of whom had helped craft the recommendations from the "Safe Access for Everyone" (SAFE) Workgroup report, testified in opposition to the ordinance. Despite these important partners' dissent, Mayor Potter and Commissioners Adams, Saltzman and Sten all signalled their intention to vote in favor of it next Wednesday, May 9, at the second reading.
Only Commissioner Leonard indicated his opposition. Heeding some of the concerns raised by the ACLU about free speech provisions and taking public policy issues too far, Commissioner Leonard attempted to amend the ordinance. He suggested that in section (B) (1), the language stating it is unlawful to "sit or lie down upon a public sidewalk" exist on its own without the clause "or upon a blanket, chair, stool, or any other object placed upon a public sidewalk." He also suggested removing from the exceptions to the law in section (D) (7) that sitting on a chair or bench was contingent on that chair or bench being "supplied by a public agency or by the abutting private property owner."
Although the ACLU's testimony indicated that the issues went far beyond the question of sitting on objects placed on the sidewalk, nobody seconded Commissioner Leonard's proposal and it died.
His amendment didn't address the restriction that led to a long discussion, in section (D) (6) which requires a person expressing their free speech to be "assembled with others to participate in or observe an expressive event if the assembly has lasted less than eight hours." Deputy City Attorney Dave Woboril explained that the words "with others" explicitly means that the City does not consider any person to be expressing their First Amendment rights (or Oregon Constitution Article I section 8 rights) unless they are in a group of three or more.
This is an outrageous imposition of the state upon individual rights. For the state to dictate to a person what their intent is by sitting or lying on the sidewalk, rather than allowing that person to declare that they are engaging in free speech, flies in the face of a democratic society. Furthermore, Commissioner Leonard's example of one person protesting in a chair, even if joined by a second person, not qualifying as an "expressive event" unless a third person also sets up a chair shows the absurdity of this law.
We also raised in our testimony the concern that even the "drug free zones," as odious as we find them, are based in some sort of statistical analysis to define their boundaries. Drug arrests in certain neighborhoods help define the zones. But Mr. Woboril told Council that the boundaries of the "High Pedestrian Traffic Areas" in the downtown core and the Lloyd Center were chosen arbitrarily. "We know it when we see it," was the phrase he used, borrowing from the Supreme Court's definition of obscenity.
The new ordinance criminalizes the behavior of sitting or lying on the sidewalk. The old ordinance prohibited blocking the sidewalk from the free flow of pedestrian traffic, which made more sense — even if it was complicated and still overly broad. There has been no clear definition or proof of the so-called "street disorder" this ordinance is designed to alleviate. The Council may believe that making this a civil, rather than a criminal offense lets them off the hook. However, the language is specific and says "it is unlawful to sit or lie down upon a public sidewalk." Once the police are able to suspect a person of criminal behavior for simply sitting or lying on the sidewalk, they can then conduct more intrusive searches or criminal investigations. This makes the sit/lie ordinance a means for "pretext stops" and is only another tool for the police to harass poor, young and homeless individuals.
This ordinance will stay in effect even if the other elements of the Workgroup’s plan — bathrooms, benches, and a day center are not in place. The Oversight Committee is only required to return to Council once a year to report, and the Ordinance sunsets in two years. When Commissioner Sten voted against the extension of Drug-Free Zones last month, he changed his vote to avoid "confusion" and bureaucratic problems by suspending that ordinance for a month. Even though the SAFE plan calls for all the elements to move forward together, there is no provision and apparently no chance that Council will suspend sit/lie enforcement if, say, the Day Center closes or loses funding.
At Council, we raised once more the question of why the ordinance is being hurried into place when all the elements of the Workgroup plan are not yet in existence. Nobody testified that the past four months since the old sit/lie ordinance expired there had been a rash of people sitting or lying on the sidewalks. The Workgroup's letter to Council (dated May 1, only one day before the Council hearing) emphasizes that the "spirit" of the recommendations has been met and that it is time to enact the ordinance.
It is pretty clear from Portland Business Alliance (PBA) testimony that they are the driving force pushing for this law. One business owner complained of defecation he found in his doorway — which frankly is unrelated to this ordinance. The ordinance deals with sitting and lying, and is only in effect from 7 a.m. to 9 p.m. There are already laws against urinating and defecating in public.
The PBA has offered $150,000 over the next two years to fund the Day Access Center and the alternative plans to expand it — namely showers and lockers for those without homes. These are clearly much needed amenities that came from discussions with the community.
However, the only homeless people who testified on Wednesday were strongly against the ordinance. The homeless community newspaper, Street Roots, submitted written testimony against the ordinance. Sisters of the Road Cafe testified against the ordinance. Perhaps it is worth considering that putting the day center, showers, and bathrooms in place are good public policy ideas and can exist without the sit/lie ordinance.
Or maybe if we want to see changes made to the ordinance, Portland Copwatch and other grassroots organizations need to offer to pay the City $150,000. It is starting to look as if that is how public policy is defined in a City that professes its concerns about lobbying and "special interests"--money talks.
In summary, the agreement of the SAFE Workgroup was that all the elements would be enacted together. The police will be able to begin moving people off the sidewalk and the courts to impose $250 fines starting next month, while the day center, bathrooms, showers and lockers won't be in place at least until sometime this summer. There is no clear definition for "High Pedestrian Traffic." The ordinance goes too far in curtailing free speech and gives police too much power. Prove there is a problem or wait until there is somewhere for people to go before enacting the ordinance, and before enacting it be sure it is narrowly tailored to address actual sidewalk obstructions and not merely the discomfort of those who do not wish to see that poverty exists.
