Oregon law to blame as Portland can ban drinking in public, but not smoking meth or fentanyl


In Portland, it’s illegal to crack a beer or smoke marijuana on sidewalks or in a city park. But state law enshrines people’s right to consume fentanyl, meth, heroin and other hard drugs on public property.

The upshot of that paradoxical legal landscape: Portland officials cannot make open drug use so much as a citation-worthy offense.

The uneven approach to regulating intoxicating substances, which stems from a complex history of lawmaking in Oregon, surfaced in June as Portland Mayor Ted Wheeler sought to suppress rampant street use of hard drugs and surging overdose deaths. He proposed adding a ban on public consumption of hard drugs to the city’s preexisting prohibition on public alcohol use.

Wheeler abandoned the proposal days later, however, claiming that new criminal penalties passed by state lawmakers against fentanyl possession that month would address “our primary concerns about the public health crisis unfolding on our streets.”

But the mayor also conceded his effort would have likely been illegal.

“This ordinance would have undoubtedly been challenged because of a state statute potentially limiting the authority of local governments to create laws regarding the public use of drugs,” he said.

The law ended up that way in large part because Oregon lawmakers more than 50 years ago switched the legal view of alcoholism from a crime to a medical addiction and preempted cities and counties from enacting local penalties for public drinking, according to a review of state legislative records and case law by The Oregonian/OregonLive.

State lawmakers later expanded the statute to encompass drug dependency, including use of controlled substances and cannabis. However, it remained illegal for Oregonians to possess hard drugs, whether in public or in private, so cities’ inability to regulate drug consumption on public property wasn’t questioned.

And after voters approved its recreational sale and use almost a decade ago, lawmakers made public marijuana consumption a class B violation.

That delicate balance of state laws shifted after voters approved Measure 110, which decriminalized possession of small amounts of heroin and other street drugs, leaving Portland and other cities across Oregon with little recourse to prohibit people using them in public spaces.

“It’s absolutely outrageous,” said Commissioner Rene Gonzalez. “There’s nothing more offensive than walking down a sidewalk with your child and to have to inhale fentanyl or meth being smoked on the street or watching people shooting up into their toes and the behaviors that come with it. Yet we can proscribe the outdoor consumption of alcohol? It makes no sense.”

“It is an awful look for the reputation of our city,” he continued. “And, frankly, it undermines our ability to confront the homelessness crisis in Portland.”

Gonzalez said he and Wheeler are now looking to revive the mayor’s proposed public drug use ordinance and bring it before City Council — with a slight twist.

The proposal includes a trigger amendment that would instate a city ban on public drug use “upon the enactment of any state of Oregon legislation permitting local jurisdictions to govern the public consumption of a controlled substance,” according to a draft copy obtained by The Oregonian/OregonLive.

Meanwhile, Wheeler’s office has crafted a separate proposed resolution to direct Portland’s Office of Government Relations to lobby for changes to state law that would align rules on public consumption of controlled substances “with existing regulations governing alcohol and cannabis.”

Gonzalez told The Oregonian/OregonLive he hopes both proposals will go before the City Council by the end of the month.

“Portland City Council is exploring all options to address the drug crisis unfolding on our streets,” Wheeler said in a statement. “Nothing is off the table as we work to find the best ways we can partner with our local and state leaders to make impactful change.”

In 1971, state lawmakers enacted the Uniform Alcoholism and Intoxication Treatment Act.

The statute was created to “end the longstanding practice of dealing with public drunkenness as a criminal offense and to treat it instead as a health problem,” the Oregon Supreme Court wrote in a 1987 ruling that cited the legislation.

“A central aim of this legislative reform was to repeal penal laws against public intoxication and to redirect police responsibility toward taking intoxicated persons to their homes or other safe shelter rather than jailing the person in a police ‘drunk tank’,” the court said.

The statute forbids local governments from enacting any law that penalizes public drinking or drunkenness, with one broad exemption — local governments could institute blanket prohibitions on consuming all types and volumes of alcoholic beverages in specified locations.

That permitted Portland and other Oregon cities to create and enforce ordinances that ban boozing on streets, sidewalks and public rights-of-way. In Portland, a public drinking conviction carries a penalty of up to six months in jail or a $500 fine.

In 1977, six years after the creation of ORS 430.402, lawmakers amended the statute and changed other state laws to no longer make using or being under the influence of drugs a crime except while driving, legislative records show.

That the changes did not create carveouts for local governments to ban open drug use was moot. Drug possession remained illegal until 2020, when voters decriminalized controlled substances through Measure 110.

In June, Oregon lawmakers approved House Bill 2645, which closes a loophole in the new drug law and makes having more than 1 gram of fentanyl or five or more pills that contain that drug a misdemeanor crime.

Gonzalez does not believe that law alone will do enough to address Portland residents’ growing concerns.

“For ordinary Portlanders, it’s the visible consumption that is so objectionable,” Gonzalez said. “We need a direct response to Portlanders’ expectations of public behavior.”

“We also need to send a very clear message nationally,” he said. “Portland is changing.”