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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: 

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

offense 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, and 

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 by 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 sexual 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. 

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ordinance was held to be preempted by state 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 Supervisors, 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, includes 

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 course are not dependent on criminal laws. (See The Restraining Hook 

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

4

The ordinance describes 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 continuing 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 adjacent 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 of 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." 

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With 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 within 

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 substances (' 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 often 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 ordinance 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 

incidentally 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 substances. 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-related 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. 

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