§ 9.08.260. Prohibition of prostitution and prostitution related offenses.

A.

Definitions. The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:

"Commit prostitution" means to engage in sexual conduct for money or other consideration, but does not include sexual conduct engaged in as a part of any stage performance, play or other entertainment open to the public.

"Knowingly" means having or showing awareness or understanding of a fact or circumstance that lead a reasonable person to inquire further or use reasonable care or diligence and should have known and therefore attributable by law to a given person.

"Lewd act" means any act which involves the touching of the genitals, buttocks, or female breast of one person by any part of the body of another person and is done with the intent to sexually arouse and gratify.

"Loiter" means to delay or linger without a lawful purpose for being on the property and for the purpose of committing a crime as opportunity may be discovered.

"Public place" means an area open to the public, or an alley, plaza, park, driveway, or parking lot or an automobile, whether moving or not, or a building open to the general public, including one which serves food or drink, or provides entertainment or the doorways and entrances to a building or dwelling, or the grounds enclosing a building or dwelling.

"Soliciting" means to entice, advice, incite, order, command, encourage or requests another person to engage in specific conduct which would constitute a crime or commit such crime of prostitution. The crime solicited need not actually be committed for solicitation to occur.

B.

Loitering for the Purpose of Engaging in Prostitution, a Misdemeanor. It is unlawful for any person to loiter in any public place with the intent to commit prostitution. This intent is evidenced by acting in a manner and under circumstances which openly demonstrate the purpose of inducing, enticing, or soliciting prostitution, or procuring another to commit prostitution.

1.

Among the circumstances that may be considered in determining whether a person loiters with the intent to commit prostitution are that the person:

(a)

Repeatedly beckons to, stops, engages in conversations with, or attempts to stop or engage in conversations with passerby, indicative of soliciting for prostitution.

(b)

Repeatedly stops or attempts to stop motor vehicles by hailing the drivers, waving arms, or making any other bodily gestures, or engages or attempts to engage the drivers or passengers of the motor vehicles in conversation, indicative of soliciting for prostitution.

(c)

Has been convicted of violating this section, subdivision (a) or (b) of California Penal Code Section 647, or any other offense relating to or involving prostitution under state law or the Oakland Municipal Code within five years of the arrest under this section.

(d)

Circles an area in a motor vehicle and repeatedly beckons to, contacts, or attempts to contact or stop pedestrians or other motorists, indicative of soliciting for prostitution.

(e)

Has engaged, within six months prior to the arrest under this section, in any behavior described in this section, with the exception of paragraph (3), or in any other behavior indicative of prostitution activity.

2.

The list of circumstances set forth in subdivision (a) is not exclusive. The circumstances set forth in subdivision (a) should be considered particularly salient if they occur in an area that is known for prostitution activity. Any other relevant circumstances may be considered in determining whether a person has the requisite intent. Moreover, no once circumstance or combination of circumstances is in itself determinative of intent. Intent must be determined based on an evaluation of the particular circumstances of each case.

C.

Engaging in the Act of Prostitution or Solicitation for the Purpose of Engaging in Prostitution, a Misdemeanor. It is unlawful for any person who solicits or who agrees to engage in or who engages in any act of prostitution. A person agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in prostitution. No agreement to engage in an act of prostitution shall constitute a violation of this subdivision unless some act, in addition to the agreement, is done within this State in furtherance of the commission of an act of prostitution by the person agreeing to engage in that act. As used in this subdivision, "prostitution" includes any lewd acts between persons for money or other consideration.

1.

A person agrees to engage in an act of prostitution when, with specific intent to engage, he or she manifests an acceptance of an offer or solicitation to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in prostitution.

2.

An agreement to engage in an act of prostitution by itself does not constitute a violation of law unless some act, in addition to the agreement, be done in furtherance of the commission of an act of prostitution by the person agreeing to engage in that act. An act in furtherance can consist of words only, if the statements made are unambiguous and unequivocal in conveying that the agreed act of prostitution will occur and move the parties toward completion of the act. However, the timing of the act is immaterial. It may precede, coincide with, or follow the agreement.

3.

In order to prove the crime of solicitation to engage in an act of prostitution, each of the following elements must be proved:

(a)

A person solicited another person to engage in any act of prostitution or agreed with another person to engage in an act of prostitution; and

(b)

That person did so with the specific intent to engage in an act of prostitution;

(c)

In addition to the agreement, the person did an act in furtherance of prostitution.

D.

Controlling, Overseeing, Directing, Supervising, Recruiting, Aiding, or Otherwise Soliciting a Prostitute, a Misdemeanor.

1.

It is unlawful for any person to do either of the following:

(a)

Direct, control, oversee, supervise, recruit, or otherwise aid another person in the commission of a violation of subdivision (b) of section 647 or subdivision (a) of Section 653.22 of the California Penal Code or Subsection 9.08.260 B of the Oakland Municipal Code.

(b)

Collect or receive all or part of the proceeds earned from an act or acts of prostitution committed by another person in violation of subdivision (b) of Section 647 of the California Penal Code or Subsection 9.08.260 B of the Oakland Municipal Code.

2.

Among the circumstances that may be considered in determining whether a person is in violation of subdivision (a) are that the person does the following:

(a)

Repeatedly speaks or communicates with another person who is acting in violation of subdivision (a) of Section 653.22 of the California Penal Code or Subsection 9.08.260 B of the Oakland Municipal Code.

(b)

Repeatedly or continuously monitors or watches another person who is acting in violation of subdivision (a) of Section 653.22 of the California Penal Code or Subsection 9.08.260 B of the Oakland Municipal Code.

(c)

Repeatedly engages or attempts to engage in conversation with pedestrians or motorists to solicit, arrange or facilitate an act of prostitution between the pedestrians or motorists and another person who is acting in violation of subdivision (a) of Section 653.22 or subdivision (b) of Section 647 of the California Penal Code or Subsection 9.08.260 B of the Oakland Municipal Code.

(d)

Repeatedly stops or attempts to stop pedestrians or motorists to solicit arrange or facilitate an act of prostitution between pedestrians or motorists and another person who is acting in violation of subdivision (a) of Section 653.22 of the California Penal Code or Subsection 9.08.260 B of the Oakland Municipal Code.

(e)

Circles an area in a motor vehicle and repeatedly beckons to, contacts, or attempts to contact or communicate, or stop pedestrians or other motorists to solicit, arrange, or facilitate an act of prostitution between the pedestrians or motorists and another person who is acting in violation of subdivision (a) of Section 653.22 of the California Penal Code or Subsection 9.08.260 B of the Oakland Municipal Code.

(f)

Receives or appears to receive money or any consideration from another person who is acting in violation of subdivision (a) of Section 653.22 of the California Penal Code or Subsection 9.08.260 B of the Oakland Municipal Code.

(g)

Engages in any of the behavior described in paragraphs (1) to (6), inclusive, in regard to or on behalf of two or more persons who are in violation of subdivision (a) of Section 653.22 of the California Penal Code or Subsection 9.08.260 B of the Oakland Municipal Code.

(h)

Has been convicted of violating this section, subdivision (a) or (b) of Section 647 subdivision (a) of Section 653.22, Section 266h or 266i of the California Penal Code or Subsection 9.08.260 B of the Oakland Municipal code, or any other offense relating to or involving prostitution within five years of the arrest under this section.

(i)

Has engaged, within six months prior to the arrest under subdivision (a), in any behavior described in this subdivision, with the exception of paragraph (8), or in any other behavior indicative of prostitution activity.

3.

The list of circumstances set forth in subdivision (b) is not exclusive. The circumstances set forth in subdivision (b) should be considered particularly salient if they occur in an area that is known for prostitution activity. Any other relevant circumstances may be considered. Moreover, no one circumstance or combination of circumstances is in itself determinative. A violation of subdivision (a) shall be determined based on an evaluation of the particular circumstances of each case.

4.

Nothing in this section shall preclude the prosecution of a suspect for a violation of Section 266H or 266i of the California Penal Code or Subsection 9.08.260 B of the Oakland Municipal Code or for any other offense, or for a violation of this section in conjunction with a violation of Section 266h or 266i of the California Penal Code or Subsection 9.08.260 B of the Oakland Municipal Code.

E.

Places of Prostitution Prohibited; Constitute a Public Nuisance; Subject to Injunction, Abatement, and Contempt of Court; Violations a Misdemeanor.

1.

Every building or place used for the purpose of lewdness, assignation or prostitution, and every building or place in or upon which acts of lewdness, or prostitution are held or occur, is prohibited and constitutes a nuisance which may be enjoined, abated, and prevented, and for which damages may be recovered, whether it is a public or private nuisance.

(a)

A public nuisance is anything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner of any public park, square, street, or highway is a public nuisance.

(b)

An act which affects an entire community or neighborhood, or any considerable number of persons, as specified above is not less a nuisance because the extent of the annoyance or damage inflicted upon individuals is unequal.

(c)

Whenever there is reason to believe that a nuisance, as defined in this section is kept, maintained, or is in existence within the City, the City Attorney may maintain an action in equity to abate and prevent the nuisance and to perpetually enjoin the person conducting or maintaining it, and the owner, lessee, or agent of the building or place, in or upon which the nuisance exists, from directly or indirectly maintaining or permitting it.

2.

Every person who knowingly owns, operates, maintains, permits, or allows a building or place to be used for the purpose of lewdness, or prostitution, and every person occupying or leasing the property or premises of another who operates, maintains, permits or allows a building or place to be used for lewdness, or prostitution is guilty of a misdemeanor.

(Ord. No. 13057, § 2, 3-1-2011)

Editor's note

Ord. No. 13057, § 2, adopted March 1, 2011, amended Section 9.08.260 in its entirety to read as herein set out. Formerly, Section 9.08.260 pertained to the prohibition of loitering for the purposes of engaging in prostitution and derived from the prior code, §§ 3-19.01, 3-19.02.