Posted by Jonathan Maus (Publisher/Editor) on April 26th, 2010 at 2:25 pm
Back in February, Portlander Ken Southerland got a ticket for attempting to give a friend a ride on the back rack of his bicycle. In the summer of 2007, I saw two Portland Police officers issue a ticket to a man on Alberta Street for the same offense. In the latter case, the man was operating a tall bike with a home made wooden deck on the back (see photo below).
In Oregon, there's a state law that prohibits "unlawful passengers on a bicycle." With the popularity of Xtracycles and other long-tail bikes where people ride on the rear rack, and the general tendency for "doubling" (which is far from just a Portland phenomenon), I wondered whether or not the examples above expose yet another unfortunate grey-area in Oregon law that could negatively impact people who ride bicycles.
July 2007 for carrying a passenger on the
rear deck of a tall bike.
The law cited in both cases mentioned above is Oregon Revised Statute (ORS) 814.460. It states:
A person commits the offense of unlawful passengers on a bicycle if the person operates a bicycle and carries more persons on the bicycle than the number for which it is designed or safely equipped.
In the case of Mr. Southerland, he had a standard road bike outfitted with a steel pannier rack (made by local builder Mitch Pryor). After getting his $143 ticket, Mr. Southerland posted to the Shift email list looking for advice. He asked,
"What constitutes "the number for which it was designed to carry?"... And what does that say about the recent flood of passengers on extra-cycles? Are these designed to carry more than one person? And if so how does that differ from my bike?"
For insights on this issue, I spoke with Portland bike lawyer Mark Ginsberg (who happens to be representing Southerland in his fight against this ticket). Ginsberg said that people who carry kids and friends on Xtracycle decks have nothing to worry about because those bikes pass the "consumer expectation test."
Ginsberg said that because the manufacturer displays photos of the bike being used to carry people in that manner, consumers have the expectation that the racks are designed for that purpose (he cited the 2001 Oregon Supreme Court case of McCathern v. Toyota Motor Corp. as precedent). "The consumer is allowed to look at the advertisements and rely on them."
In Southerland's case, where the passenger was on a conventional pannier rack, the law states that the bike must be "designed or safely equipped" to handle a passenger. Since pannier racks are clearly not designed for passengers, whether or not they can safely carry one is up to the State to determine, says Ginsberg. "The burden is on the state... innocent until proven guilty... the State has to prove that the rack in question isn't safe."
Ginsberg will get a chance to make that case when he and Southerland go to court in June.
The situation that seems to be most open to interpretation is when the rack/platform is on a "freak bike" and not purchased from a known manufacturer. Ginsberg says in those cases, the State must either prove the rack is unsafe at the time they issue the citation, or they must determine that it was not designed to carry a person. And when it's a home made bike, it's up to the builder to make that determination. "Who's to say it isn't?" says Ginsberg.
I've only heard of two citations being given for 814.460 in the last three years, so I doubt this will become a big issue (like the fixed gear brake saga). In a nutshell, as long as the rack you're using is reasonably sturdy and you're operating in a safe manner, you shouldn't have any trouble with the law. But then again, "safe manner" is open to interpretation, and we've seen what can happen when traffic court judges interpret bike laws.