Gates

Appellant, Linda Gates, was arrested for violation of San Jose Municipal Code 10.40.010 (hereafter the ordinance)—loiter *312 ing for the purpose of soliciting an act of prostitution. She challenges the ordinance on the grounds it is: (1) preempted by state law which fully occupies the field of criminal sexual conduct; (2) unconstitutionally vague for failure to give fair notice of the conduct it proscribes, and defective in its failure to provide uniform enforcement standards; (3) overbroad in making unlawful conduct protected by the First Amendment; and (4) violates federal and state equal protection guarantees by subjecting “known prostitutes and panderers” to discriminatory treatment.

Respondent People dispute appellant’s standing to challenge the vagueness and overbreadth of the ordinance on the ground that her conduct clearly falls within that proscribed by it. Respondent also claims that the ordinance is simply a loitering law—which does not attempt to define criminal sexual conduct, and is thus not preempted by state law. According to respondent, the ordinance is clearly worded, and law enforcement officials are guided in enforcing it by probable cause standards…

I concur but also conclude that the ordinance as enacted is fatally flawed by reason of its vague and standardless scheme sanctioning or encouraging arbitrary and discriminatory enforcement at the whim of local officials. (Papachristou v. City of Jacksonville (1972) 405 U.S. 156, 170 [ 31 L.Ed.2d 110, 119 , 92 S.Ct. 839 ]; Ghafari v. Municipal Court (1978) 87 Cal.App.3d 255, 263 [ 150 Cal.Rptr. 813 , 2 A.L.R.4th 1230 ].)

Robert J. Logan, City Attorney, and George Rios, Deputy City Attorney, for Real Party in Interest and Respondent.

OPINION

NEWSOM, J.

Appellant, Linda Gates, was arrested for violation of San Jose Municipal Code 10.40.010 (hereafter the ordinance) — loitering for the purpose of soliciting an act of prostitution. She challenges the ordinance on the grounds it is: (1) preempted by state law which fully occupies the field of criminal sexual conduct; (2) unconstitutionally vague for failure to give fair notice of the conduct it proscribes, and defective in its failure to provide uniform enforcement standards; (3) overbroad in making unlawful conduct protected by the First Amendment; and (4) violates federal and state equal protection guarantees by subjecting "known prostitutes and panderers" to discriminatory treatment.

Respondent People dispute appellant's standing to challenge the vagueness and overbreadth of the ordinance on the ground that her conduct clearly falls within that proscribed by it. Respondent also claims that the ordinance is simply a loitering law — which does not attempt to define criminal sexual conduct, and is thus not preempted by state law. According to…