concurring.
The issue on review in this tort action for false arrest is whether plaintiff, Stranahan, had a state constitutional right to collect initiative petition signatures at the Fred Meyer store on Southeast 82nd Avenue and Foster Road in Portland. Defendant, Fred Meyer, argues that it cannot be held liable for that tort because Stranahan was committing criminal trespass at the time of her arrest.1 Stranahan *67argues that she was not committing criminal trespass at the time of her arrest because, she asserts, she had a right under Article IV, section 1, of the Oregon Constitution2 to enter and remain on Fred Meyer’s property to collect signatures for an initiative petition. She relies on Lloyd Corporation v. Whiffen, 315 Or 500, 849 P2d 446 (1993) (Whiffen II). Fred Meyer responds that Whiffen II is distinguishable because that case concerned a substantially larger and more complex regional shopping center than its property here.
Fred Meyer argues in the alternative that Whiffen II should be overruled. The majority addresses that latter argument and concludes that this court was incorrect in holding, in Whiffen II, that persons who gather signatures for initiative measures have a constitutional right to engage in that activity in the common areas of large regional shopping centers, subject to reasonable time, place, and manner restrictions. As a consequence, the majority holds that Fred Meyer was entitled to a directed verdict on Stranahan’s false arrest claim. Although I agree with that disposition of the false arrest claim, I do not agree with the majority’s analysis. In particular, I conclude that the holding in Whiffen II is distinguishable and, therefore, does not control this case. The court’s proper disposition of this case, then, is to explain why Whiffen II does not control here, not to overrule the constitutional holding of that case. I do not join in the majority’s unnecessary decision to overrule Whiffen II.
*68The precise issue in Whiffen II was the extent to which members of the public have the right to solicit initiative petition signatures at the Lloyd Center in Portland. The Lloyd Center is a regional shopping mall that houses over 100 separately owned retail stores and 100 professional and business offices. Five public streets cross the property and at least six other public streets run partly into and around it. The Lloyd Center contains a substantial amount of common space, including walkways, flower gardens, benches, information kiosks and open seating areas where the public can gather. See Lloyd Corporation v. Whiffen, 307 Or 674, 677-78, 773 P2d 1294 (1989) (Whiffen I) (describing the Lloyd Center property); Lloyd Corporation v. Whiffen, 89 Or App 629, 631, 750 P2d 1157 (1988) (same).
In Whiffen II, the property owner made two primary arguments. First, the owner insisted that being compelled to provide a forum for petitioners on its own private property amounted to a “taking” as contemplated by the state and federal constitutions. Second, the owner contended that the compulsion violated the state and federal free speech rights of the owner’s tenants.
Rejecting both of those arguments, this court found a right to gather initiative petition signatures on at least some private property, i.e., in “the common areas of large shopping centers,” to be “implicit” in the initiative provisions of Article IV, section 1. Whiffen II, 315 Or at 512. According to the Whiffen II court, because access to people is the “life blood” of the initiative power, the Oregon Constitution must be read to permit the solicitation of initiative petition signatures at some locations that happen to be private property, subject to reasonable time, place, and manner restrictions. Id. at 511-13.3 The Whiffen II court did not hold that those who solicit initiative petition signatures have an unlimited right *69to engage in that activity on private property. Instead, it narrowly circumscribed the right that it recognized.
The court relied on Marsh v. Alabama, 326 US 501, 66 S Ct 276, 90 L Ed 265 (1946), in which the United States Supreme Court held that a Jehovah’s Witness had a First Amendment right to distribute religious literature on a sidewalk in a “company town” that was wholly owned by a local corporation. The Marsh Court based its holding on the fact that the corporation that owned the town essentially had invited the public to treat portions of the town as public property:
“The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation.”
Id. at 506 (emphasis added; citation omitted). After quoting from Marsh, the court concluded that the right to solicit initiative petition signatures on private property is limited to “the facts of {Whiffen II], which involve the common areas of a large shopping center such as the Lloyd Center.” Whiffen II, 315 Or at 514; see also Clackamas Town Center Assoc. v. Wolf, 315 Or 557, 559, 849 P2d 477 (1993) (describing Clackamas Town Center as “a large shopping center similar to the Lloyd Center”).
Under Whiffen II, the scope of the right to solicit initiative petition signatures on private property is determined by the scope of the property owner’s invitation to the public. If a property owner invites the public to treat its property, or portions thereof, as public property, then members of the public who enter that property enjoy the same statutory and constitutional rights that they enjoy while using public property. As this court observed in Huffman and Wright Logging Co. v. Wade, 317 Or 445, 459 n 11, 857 P2d 101 (1993), the result in Whiffen II turned in large part on the unique history of the initiative right in Oregon and the fact that the property *70in Whiffen II was open to broad public use. The broad public use analysis relied on an express or clearly implied invitation from the owner of the Lloyd Center to the public not only to shop,-but to congregate in the shopping center for a variety of business, social, and recreational activities. For example, Lloyd Center invited the public to attend a multiple-screen motion picture theater, to skate at an ice-skating rink, to view artwork, to obtain services at a number of professional offices, (e.g., lawyers, physicians, dentists), to attend meetings at designated meeting rooms, and to stroll or rest on multi-tiered walkways that linked dozens of unrelated retail businesses.
Turning to the facts of this case, the question is whether Stranahan had a right to be on Fred Meyer’s private property for the purpose of collecting initiative petition signatures, such that Fred Meyer’s order to her to leave the property was not lawful. I conclude that Fred Meyer’s private property at issue here is significantly different from the private property at issue in Whiffen II.1 **4 The property at issue bears none of the characteristics of a town square. The space in the store is devoted to Fred Meyer’s retail sales. The property also contains a restaurant and coffee shop, and persons who have purchased food or drink items may consume those items at tables in the restaurant and socialize in that context. However, the public invitation that the property implies is limited to ordinary commercial business, and does not include community socialization or recreational activities apart from the owner’s retail business and that of its tenants.
On this record, I conclude that the focus of defendant’s invitation to the public — commercial activity — distinguishes this case from Whiffen II. Defendant’s use of a “one-stop shopping center” marketing concept has not transformed its private property into a large regional shopping center like the Lloyd Center or the Clackamas Town Center. The record does not support a finding that defendant expressly has invited the public to assemble on any portion of *71its private property for noncommercial purposes. Rather, the scope of defendant’s invitation to the public is to shop for and to purchase its merchandise and that of the independent businesses on its property.
An issue substantially similar to the one decided in Whiffen II was addressed recently by the Supreme Court of Washington. In Alderwood Assoc. v. Wash. Envir. Council, 96 Wash 230, 635 P2d 108 (1981), that court held that the initiative provision of that state’s constitution protected the right of initiative petitioners to gather signatures on the private property of a regional shopping center, which had become “the functional equivalent of a downtown area or other public forum.” Id. at 244; 635 P2d at 116. In Waremart v. Progressive Campaigns, Inc., 139 Wash 2d 623, 989 P2d 524 (1999), property owners asked the Washington Supreme Court to overrule Alderwood. The court declined to do so, stating:
“[W]e are not inclined to overturn Alderwood because the ‘doctrine [of stare decisis] requires a clear showing that an established rule is incorrect and harmful before it is abandoned.’ Waremart has not met this substantial burden[.]”
Id. at 634, 989 P2d at 530 (citation omitted). The Washington court went on to conclude that the Waremart store in question was not the functional equivalent of a downtown area or other public forum and, therefore, that the petitioners in that case enjoyed no state constitutional right to gather signatures on Waremart’s private property. Waremart, 139 Wash 2d at 637, 989 P2d at 531. That is precisely the approach I would take in this case. Accordingly, although I disagree with the majority’s analysis, I concur in the majority’s disposition of plaintiffs false arrest claim.
A person commits criminal trespass in the second degree if that person fails to leave premises that are open to the public after being lawfully directed to do so by the person in charge. ORS 164.245; ORS 164.205(3)(b).
Article IV, section 1, provides, in part:
“(1) The legislative power of the state, except for the initiative and referendum powers reserved to the people, is vested in a Legislative Assembly, consisting of a Senate and a House of Representatives.
“(2)(a) The people reserve to themselves the initiative power, which is to propose laws and amendments to the Constitution and enact or reject them at an election independently of the Legislative Assembly.
“(b) An initiative law may be proposed only by a petition signed by a number of qualified voters equal to six percent of the total number of votes cast for all candidates for Governor at the election at which a Governor was elected for a term of four years next preceding the filing of the petition.
“(c) An initiative amendment to the Constitution may be proposed only by a petition signed by a number of qualified voters equal to eight percent of the total number of votes cast for all candidates for Governor at the election at which a Governor was elected for a term of four years next preceding the filing of the petition.”
In Whiffen 1, 307 Or at 684-85, this court stated:
“One can hardly deny that the statutes recognize a right to sign petitions or to seek the signatures of others and a strong public interest in facilitating that process.
“Shopping malls have become part of American life. Large numbers of the public gather there. Although plaintiff tries to cloak a public mall as a private place, it is the antithesis of a private place.”
The Court of Appeals recently determined that Whiffen II did not entitle initiative petition circulators to gather signatures on the sidewalk outside of defendant’s store at Southeast 39th Avenue and Hawthorne Boulevard in Portland. Fred Meyer, Inc. v. Klein Campaigns, Inc., 168 Or App 259, 5 P3d 1194 (2000).