Facts
- The City of Florence, Kentucky enacted Ordinance No. O‑33‑85, making it a local offense to “solicit, invite, influence or encourage” another person, by communication including speech or gesture, to engage in conduct violating KRS 510.100 (sodomy in the fourth degree), with intent to facilitate that conduct.
- Kentucky already regulated solicitation statewide through KRS 506.030, which defines criminal solicitation and assigns punishment levels based on the grade of the offense solicited.
- Under KRS 506.030(2)(d), solicitation to commit a misdemeanor is a Class B misdemeanor, carrying a maximum of 90 days in jail and a $250 fine under the general penalty statutes (KRS 532.090(2) and KRS 534.040).
- Sodomy in the fourth degree (KRS 510.100) is a Class A misdemeanor; therefore, solicitation to commit that offense would fall under the state scheme for solicitation of a misdemeanor.
- Florence’s ordinance authorized a fine from $100 to $500 and/or imprisonment up to one year, and in practice allowed punishment greater than the state scheme for the same conduct.
- Eric Lester Pierce was convicted in Boone District Court under the Florence ordinance for criminal solicitation to commit sodomy, fined $500, and sentenced to six months in the county jail.
- The Boone Circuit Court affirmed. The Kentucky Court of Appeals denied discretionary review.
- The Kentucky Supreme Court granted review to address the validity of the Florence ordinance as applied to Pierce’s solicitation conviction.
Issues
- Under Kentucky’s home rule statute (KRS 82.082), may a city enact an ordinance criminalizing solicitation to commit sodomy when the General Assembly has already set the elements and punishment for criminal solicitation in KRS 506.030?
- Does a municipal ordinance conflict with state law when it both broadens the conduct covered by the state solicitation statute and authorizes penalties greater than those permitted by the state’s solicitation classification and penalty provisions?
Decision
- The Supreme Court of Kentucky reversed Pierce’s conviction under the Florence ordinance and remanded for further proceedings consistent with its opinion.
- The court held the Florence ordinance invalid because it conflicted with state law governing criminal solicitation.
- The court found conflict in two ways: the ordinance used broader operative language than KRS 506.030 and it authorized punishment exceeding the maximum penalties allowed by the state statutory scheme for solicitation of a misdemeanor.
Legal Principles
- Under KRS 82.082 (home rule), a municipality may act for a public purpose only if its action is not in conflict with the Kentucky Constitution or state statutes.
- A local enactment conflicts with state law when it is expressly barred by statute or when the General Assembly has enacted a comprehensive legislative scheme on the same subject and the local law is inconsistent with that scheme.
- Where the state has set the elements and graded punishments for criminal solicitation in KRS 506.030, a municipality may not create a separate solicitation offense that changes the elements for the same underlying conduct.
- A municipality may not authorize penalties for conduct covered by the state criminal code that exceed the punishment levels established by the General Assembly for that conduct.
- A local solicitation ordinance that is more expansive in its terms than KRS 506.030 risks sweeping in behavior not reached by the state statute, which supports a finding of conflict when the state has chosen narrower statutory language.
Conclusion
Pierce v. Commonwealth holds that Florence’s ordinance criminalizing solicitation to commit sodomy was invalid because Kentucky’s Penal Code already provides a statewide, detailed scheme for criminal solicitation and its punishment, and the ordinance both broadened the definition of solicitation and allowed greater penalties than state law permits; accordingly, Pierce’s ordinance-based conviction was reversed and the case remanded.