Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: TUESDAY, March 23, 1993 TAG: 9303230036
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: By LAURENCE HAMMACK STAFF WRITER
DATELINE: LENGTH: Medium
MAN DEFEATS ROANOKE'S ANTI-PROSTITUTION WEAPON
FOR SEVERAL YEARS, Roanoke authorities used their own law to ease the burden of proof and convict dozens of prostitutes. Until they ran into Paul Holt.
A Roanoke judge ruled Monday that a city ordinance used to arrest prostitutes is "fatally flawed" - at least as it was applied to one streetwalker who challenged the law.
Circuit Judge Clifford Weckstein dismissed a soliciting charge against Paul Holt, a transvestite accused of propositioning a police informant on a stretch of Salem Avenue Southwest known as a gathering spot for male prostitutes in drag.
Weckstein stopped short of striking the ordinance, as Holt had requested. But his ruling appears to gut a law that has drawn controversy since it was passed by City Council in 1990.
The law's "fatal flaw" is that it is more restrictive than a similar state law dealing with prostitution.
Specifically, state law requires that for someone to be convicted of attempted prostitution, there must be a "substantial act in furtherance" of the offer, such as the exchange of money or preliminary sexual activity.
The city ordinance requires no "substantial act" - in effect allowing people to be convicted based solely on what they say.
The ordinance thus "attempts to authorize what the legislature has forbidden," Weckstein said in a written ruling.
"What the City of Roanoke has done . . . is to lighten the prosecution's burden in cases of offers or negotiations to commit sodomy for a price, by relieving the prosecutor of the burden - imposed by general state law - of proving a substantial overt act," Weckstein wrote.
"This, the city may not do."
When council passed the ordinance in 1990, it was hailed as a way to fight prostitution. The law makes it a misdemeanor - punishable by up to a year in jail - to offer or accept an offer of sex for money in a public place.
It was unclear Monday whether city officials will try to continue using the ordinance in light of Weckstein's ruling. Commonwealth's Attorney Donald Caldwell and Wanda DeWease, an assistant commonwealth's attorney who argued in support of the ordinance in Holt's case, said they could not comment until they read the opinion.
Holt was the first person to challenge the law as it applies to prostitutes.
"I think the impact of the ruling is going to be felt pretty clearly," said Michael Hart, a Roanoke lawyer appointed to represent Holt.
Roanoke authorities are still free to use the state law to arrest prostitutes, as long as there is a "substantial act" as the law requires for a conviction.
Holt's case focused not so much on what he was accused of doing - offering oral sex for sale - as it did on the way City Council outlawed such behavior.
"I think it's important that this decision is about the way we enact laws," Hart said. "It's not about whether particular conduct is right or wrong."
Part of Holt's challenge was based on the premise that council violated the state's Dillon Rule, which limits powers of localities to those granted by the General Assembly. But Weckstein based his ruling on a statute that prohibits Holt localities from passing ordinances that are inconsistent with similar state law.
Holt could not be reached for comment Monday.
When he first raised his challenge of the law in December, Holt said it was "a shame that the city is accusing me of being a criminal, and then they turn around and break the law themselves."
The solicitation indictment that Weckstein dismissed Monday was hardly the first criminal charge against Holt - who is a regular fixture both on Salem Avenue and in the city's courtrooms.
Holt fights every charge, and he often wins. Court records show that in the past year, Holt was arrested 16 times on charges of assault, prostitution, assault, larceny, soliciting, being drunk in public and impeding the route of a police van that cruised down Salem Avenue.
He was convicted just once, of prostitution, and was fined $100. The rest of the cases were dismissed, dropped or reversed on appeal.
Holt was one of 32 people arrested under the ordinance in a police operation last fall. Most of the others have pleaded guilty and received fines or short jail sentences.
Holt's case was not the first to raise questions about the city's anti-solicitation ordinance. When it was first passed, the ordinance could be applied to private conversations between consenting adults, and required no mention of money for a conviction.
After gay-rights activists and the American Civil Liberties Union complained that police were using the law to target homosexual men in city parks, council amended the ordinance to make it apply only to sex-for-money deals struck in public.
Since then, the ordinance has been used primarily against prostitutes.