______________________________________

______________________________________________________________________________ TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL

State of California

DANIEL E. LUNGREN

Attorney General

OPINION :

: No. 94

- 407

of :

: January 27, 1995

DANIEL E. LUNGREN : Attorney General :

:

GREGORY L. GONOT : Deputy Attorney General :

:

THE HONORABLE JUDY K. SKOUSEN, CITY ATTORNEY, CITY OF

BAKERSFIELD, has requested an opinion on the following question:

Would a city ordinance which establishes a misdemeanor offense for loitering for the

purpose of engaging in prostitution or for the purpose of engaging in a drug

- related offense be

preempted by state law?

CONCLUSION

A city ordinance which establishes a misdemeanor offense for loitering for the purpose

of engaging in prostitution would be preempted by state law; a city ordinance which establishes a

misdemeanor offense for loitering for the purpose of engaging in a drug

- related offense would not be

preempted by state law.

ANALYSIS

The question presented for resolution concerns two proposed city ordinances, one

which would make it unlawful for any person to loiter in or near a public place for the purpose of

engaging in prostitution, as such offense is defined in Penal Code section 647, 1 and one which would

1 Penal Code section 647 states in part:

1. 94

- 407make it unlawful for any person to loiter in or near a public place for the purpose of engaging in an

offens e involving the possession, use, or sale of a controlled substance, as such offense is defined in the

Uniform Controlled Substances Act (Health & Saf. Code, ' 11000 et seq.; "Act"). 2 In both instances,

the stated purposes for adoption of the ordinance would be to assist local law enforcement officers in

controlling unlawful activities and to minimize the adverse effect these activities have upon the city.

We are asked to determine whether the adoption of the proposed ordinances would

come within the "police power" authorization of article XI, section 7 of the Constitution, which

provides that "[a] county or city may make and enforce within its limits all local, police, sanitary, an d

other ordinances and regulations not in conflict with general laws." We conclude that the proposed

loitering/prostitution ordinance would be preempted by the state's general laws under directly

applicable case law precedent, but that the loitering/drug activity ordinance would not be preempted.

In keeping with the limitation imposed upon the constitutional grant of authority

contained in article XI, section 7, it has been repeatedly held that where a local police power ordinance

conflicts with general law, it is void. ( Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 290; A &

B Cattle Co. v. City of Escondido (1987) 192 Cal.App.3d 1032, 1038.) For purposes of the

constitutional provision, a "conflict" has been described by the Supreme Court as follows:

"`Conflicts exist if the ordinance duplicates [citations], contradicts [citations], or enters

an area fully occupied b y general law, either expressly or by legislative implication

[citations]. If the subject matter or field of the legislation has been fully occupied by

the state, there is no room for supplementary or complementary local legislation, even

if the subject [ was] otherwise one properly characterized as a "municipal affair."

[Citation.]' [Citations.]" ( Cohen v. Board of Supervisors

, supra , 40 Cal.3d at

290

- 291.)

The California Supreme Court has determined that the regulation of the criminal

aspects of sex ual conduct is a field that has been fully occupied by the state. ( Cohen v. Board of

Supervisors

, supra , 40 Cal.3d at 294; Lancaster v. Municipal Court (1972) 6 Cal.3d 805.) "The

constant attention the Legislature has given to the criminal aspects of sexual activity establishes that in

the absence of an express statutory provision to the contrary, this area of the law is intended to be

wholly within the control of the Legislature and not subject to local regulation." ( Lancaster v. Municipal Court

, supra , 6 Cal.3d at 808.)

In Gates v. Municipal Court (1982) 135 Cal.App.3d 309, the court dealt with a local

ordinance which, like the one here, prohibited loitering for the purpose of soliciting prostitution. The

"Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor:

".

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

"(b) Who solicits or who agrees to engage in or who engages in any act of prostitution.

. . ."

2 All section references herein are to the Health and Safety Code unless otherwise specified.

2. 94

- 407ordinance was held to be preempted by stat e law on the basis that it sought to regulate sexual conduct

and attempted to create a new form of sexual crime. ( Id ., at p. 320.) The court in Gates was especially cognizant of the fact that state law has preempted the field of criminal sexual activity and

that the Legislature intended to keep any sexual conduct not criminalized by state penal statutes free of

criminal sanction. ( Id ., at pp. 317

- 318.) Its preemption analysis, which was cited by the Supreme

Court with approval in Cohen v. Board of Super visors

, supra , 40 Cal.3d at 277, represents current legal

precedent regarding loitering ordinances which seek to regulate the criminal aspects of sexual conduct.

We must therefore conclude that a local ordinance which establishes a misdemeanor offense for

loitering for the purpose of prostitution would be preempted by state law. 3

We now turn to the proposed ordinance which would prohibit loitering for the purpose

of engaging in a drug

- related offense. The ordinance would address the loitering activity which is

often preliminary to the unlawful possession, use, or sale of a controlled substance, as such offense is

defined in the Act. In essence, the ordinance would seek to minimize the adverse effects that

drug

- trafficking has on the community by limiting the means by which such activity can take place. 4

In so doing, the ordinance would neither duplicate nor contradict general law. Would it, however,

enter an area fully occupied by general law?

The Act has been described as providing "a pervasive and unified system to regulate

legitimate uses and control unlawful traffic in and abuse of prescription and nonprescription drugs."

( People v. Alexander (1986) 178 Cal.App.3d 1250, 1253.) Much of the Act is concerned with defining

chemical substances and dividing the various drugs into groups. Schedule I, for example, include s LSD, heroin, peyote, and marijuana, among others. ( ' 11054.) For substances listed on other

schedules, the Act sets out reporting and licensing regulations. ( '' 11100

- 11136.) Among other

things, the Act regulates prescriptions and pharmacists ( '' 11150

- 11208), establishes the Bureau of

Narcotic Enforcement ( '' 11450

- 11454), and creates rules and procedures for the seizure and forfeiture

of property used for drug crimes ( '' 11470

- 11493).

3 We note however that a least one jurisdiction has been successful in eliminating prostitution from certain areas through

the use of temporary restraining orders, which of cou rse are not dependent on criminal laws. (See The Restraining Hook

(Sept. 1994) California Lawyer, at p. 24.)

4 The ordinance describ es its purpose as follows:

"It is the intent of this ordinance to assist law enforcement personnel of this city in abating the sale of

controlled substances. The City Council finds and determines that the sale of controlled substances

constitutes a cont inuing public nuisance which adversely affects the public health, safety and welfare, fuels

fear among the community and is a factor which not only depreciates the value of property upon which

such activity occurs, but also depreciates the value of adjacen t and surrounding properties, and adversely

affects the city's image, business, development and housing costs.

"The purpose of this ordinance is, therefore, to further assist law enforcement to minimize the impact

which drug sales have on the city's quality of life, overall sense of feeling of safety and security of its

citizens, and economic stability. The sale o f controlled narcotic substances breeds criminal and

gang

- related activities and breeds community discontent. This ordinance will serve to mitigate these

adverse effects by further limiting the means by which drug sales can occur."

3. 94

- 407With regard to the possession, use, or sale of controlled substances, the Act contains

provisions establishing criminal penalties for unlawful possession ( ' 11350), unlawful possession for

sale ( ' 11351), and unlawful transportation or sale ( ' 11352); provides criminal penalties for inducing a

minor to make an unlawful sale ( '' 11353, 11354); establishes enhanced penalties for drug offenses

involving a minor ( ' 11353.1) and for drug trafficking on the grounds of certain facilities or wit hin

1,000 feet of an elementary or secondary school ( '' 11353.1, 11353.6); and provides a criminal penalty

for opening or maintaining a place for trafficking in controlled substanc es ( ' 11366).

Neither the Act nor any other state law addresses the problem of loitering for the

purpose of committing a drug offense. Defining the relevant field occupied by a particular statutory

scheme is ofte n crucial to the preemption analysis. (See Candid Enterprises, Inc. v. Grossmont Union

High School Dist. (1985) 39 Cal.3d 878, 886, fn. 4; A & B Cattle Co. v. City of Escondido

, supra , 192

Cal.App.3d at 1043.) Insofar as it relates to the proposed ordina nce here, the area which the Act may

be said to occupy is that of regulating the possession, use, and sale of controlled substances. While the

proposed ordinance may be viewed as an attempt to regulate drug

- related activity, does it enter only

incidentall y the area occupied by the Act?

Although it is true that the ordinance would be keyed to the unlawful use, possession,

or sale of a controlled substance in that the purpose of the loitering must be to engage in one of these

acts, the ordinance would not require that one of the acts first occur in order for a violation to be

proved. The misdemeanor offense would be complete at the time the prohibited loitering has occurred,

not at the point where the Act has been violated.

As the ordinance would not turn on whether a violation of the Act has occurred and as

it would be aimed at the independently significant act of loitering, we find that its subject matter would

not be identical to the regulation of the possession, use, or sale of controlled substa nces. Even if the

ordinance were deemed to have an incidental effect on the enforcement of the criminal provisions of

the Act, it would not be preempted. Preemption by the state of an area of law does not preclude local

legislation enacted for the public safety which only incidentally affects the preempted area. ( People v.

Mueller (1970) 8 Cal.App.3d 949, 954.)

We therefore conclude that a city ordinance which establishes a misdemeanor offense

for loitering for the purpose of engaging in a drug

- relate d offense would not be preempted by state law. 5

* * * * *

5 The question presented does not necessitate an evaluation of whether the ordinance would meet other constitutional

requirements that may be applicable.

4. 94

- 407