OPINION
FROEB, Judge.
Respondents and real parties in interest Ray Charles Brice and Deborah Anne Davis were arrested in the City of Phoenix on January 23, 1979, and February 13, 1979, respectively, for solicitation of indecent exposure, a violation of Phoenix City Code § 23-66(b). In Phoenix Municipal Court the real parties in interest successfully moved for dismissal of the charges on grounds that the city ordinance was preempted by state statutes dealing with indecent exposure (A.R.S. § 13-1402) and solicitation (A.R.S. § 13-1002). The dismissal was affirmed in Superior Court on special action brought in the name of the state by the city, whereupon the city sought special action relief in this court.
PHOENIX CITY CODE § 23-66 IS IN CONFLICT WITH A.R.S. § 13-1402
The Phoenix City Code § 23-66(a) defines the crime of indecent exposure. Under the ordinance the exposure must have been willful and indecent and done in a public place. Exception is made for “[A] live public performance as defined in [Phoenix City Code] Section 23-67.” Subsection (b) of § 23-66 penalizes solicitation of “[A]ny exposure proscribed by (a).” 1
We find that subsection (a) is in conflict with A.R.S. § 13-1402, the state statute on [161]*161indecent exposure, in a number of ways.2 The statute requires the presence of another person who “[A]s a reasonable person, would be offended or alarmed by the act.” The ordinance contains no requirement of another person, only that the exposure be in a public place or place open to public view. The statute requires that the exposure to the other person be reckless, while the ordinance requires the exposure be willful. Under the statute an indecent exposure could occur in a private place if the “reasonable person” were offended or alarmed by it, whereas the ordinance requires the exposure be in a “public place.”
Since subsection (a) of the ordinance purports to regulate essentially the same behavior specifically covered by the statute, and does so using a definition which conflicts with the statute, it is invalid. Phoenix Respirator and Ambulance Service, Inc. v. McWilliams, 12 Ariz.App. 186, 468 P.2d 951 (1970); People v. Conte, 64 Misc.2d 573, 315 N.Y.S.2d 348 (1969).
The city argues that where there is authority to act, an ordinance may parallel, Flagstaff Vending Co. v. City of Flagstaff, 118 Ariz. 556, 578 P.2d 985 (1978), or even go beyond, Hislop v. Rogers, 54 Ariz. 101, 92 P.2d 527 (1939), State ex rel. DeConcini v. Gatewood, 10 Ariz.App. 274, 458 P.2d 368 (1969), the provisions of a statute. But it is clear that this rule only applies where there is no conflict between the ordinance and the statute, not the case here.
THE PREEMPTION ISSUE
Respondents argue that the crime of indecent exposure has been preempted by the state statute, and that the city may not legislate in the area. The test for preemption has been set out in numerous Arizona cases. Clayton v. State (on rehearing), 38 Ariz. 466, 300 P. 1010 (1931), Flagstaff Vending Co. v. City of Flagstaff, supra, Phoenix Respirator and Ambulance Service, Inc. v. McWilliams, supra, State v. Jacobson, 121 Ariz. 65, 588 P.2d 358 (App.1978). Preemption by the state would prevent any ordinance by the city making indecent exposure a crime, since under the doctrine of preemption the state would have appropriated the area. Clayton v. State, supra. We do not reach that question, however, since we have resolved the issue on the narrower ground of conflict between the ordinance and the statute.
THE SOLICITATION ISSUE
The prosecutions in this case involved subsection (b) of Phoenix City Code § 23-66, prohibiting solicitation of the conduct described in subsection (a) of the ordinance. Since we have held that subsection (a) of the ordinance is invalid, it follows that subsection (b) is of no effect.
The behavior which the City of Phoenix sought to make criminal by code § 23-66 is the solicitation of an indecent act. While the state criminal code defines the crimes of indecent exposure (A.R.S. § 13-1402) and solicitation (A.R.S. § 13-1002),3 it does not address itself to the conduct which § 23-66 sought to criminalize. At least in part, § 23-66 is intended to prohibit one person soliciting an indecent act by another when [162]*162no other person is present. In this situation, no crime is committed under the state criminal code because A.R.S. § 13-1402 requires, for indecent exposure, another person who “[A]s a reasonable person, would be offended or alarmed by the act.” Where only two persons are involved, the offended person would have to be the person making the solicitation. It is obvious that this is a contradiction since the one soliciting could not reasonably claim to be offended or alarmed if the indecent act occurs. There is, therefore, a narrow area here not addressed by state law which is open for criminal sanction by a municipal ordinance. While we have held the city may not enact an ordinance defining the crime of indecent exposure which conflicts with A.R.S. § 13-1402, it may criminalize an act of solicitation not covered by state law. Hislop v. Rogers, supra, State v. Gatewood, supra. The authorization for the City of Phoenix to do so is found in A.R.S. § 9-2404 and the Phoenix City Charter, Chapter IV, §§ 1 and 2(34).5
PENALTY ISSUE
Respondents argue that Phoenix City Code § 23-66 also conflicts with state statutes because it prescribes that a violation of the section is a class one misdemeanor subjecting a person upon conviction to a maximum sentence of 180 days in jail or a fine of $1,000.00 or both, whereas under A.R.S. § 13-1402
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OPINION
FROEB, Judge.
Respondents and real parties in interest Ray Charles Brice and Deborah Anne Davis were arrested in the City of Phoenix on January 23, 1979, and February 13, 1979, respectively, for solicitation of indecent exposure, a violation of Phoenix City Code § 23-66(b). In Phoenix Municipal Court the real parties in interest successfully moved for dismissal of the charges on grounds that the city ordinance was preempted by state statutes dealing with indecent exposure (A.R.S. § 13-1402) and solicitation (A.R.S. § 13-1002). The dismissal was affirmed in Superior Court on special action brought in the name of the state by the city, whereupon the city sought special action relief in this court.
PHOENIX CITY CODE § 23-66 IS IN CONFLICT WITH A.R.S. § 13-1402
The Phoenix City Code § 23-66(a) defines the crime of indecent exposure. Under the ordinance the exposure must have been willful and indecent and done in a public place. Exception is made for “[A] live public performance as defined in [Phoenix City Code] Section 23-67.” Subsection (b) of § 23-66 penalizes solicitation of “[A]ny exposure proscribed by (a).” 1
We find that subsection (a) is in conflict with A.R.S. § 13-1402, the state statute on [161]*161indecent exposure, in a number of ways.2 The statute requires the presence of another person who “[A]s a reasonable person, would be offended or alarmed by the act.” The ordinance contains no requirement of another person, only that the exposure be in a public place or place open to public view. The statute requires that the exposure to the other person be reckless, while the ordinance requires the exposure be willful. Under the statute an indecent exposure could occur in a private place if the “reasonable person” were offended or alarmed by it, whereas the ordinance requires the exposure be in a “public place.”
Since subsection (a) of the ordinance purports to regulate essentially the same behavior specifically covered by the statute, and does so using a definition which conflicts with the statute, it is invalid. Phoenix Respirator and Ambulance Service, Inc. v. McWilliams, 12 Ariz.App. 186, 468 P.2d 951 (1970); People v. Conte, 64 Misc.2d 573, 315 N.Y.S.2d 348 (1969).
The city argues that where there is authority to act, an ordinance may parallel, Flagstaff Vending Co. v. City of Flagstaff, 118 Ariz. 556, 578 P.2d 985 (1978), or even go beyond, Hislop v. Rogers, 54 Ariz. 101, 92 P.2d 527 (1939), State ex rel. DeConcini v. Gatewood, 10 Ariz.App. 274, 458 P.2d 368 (1969), the provisions of a statute. But it is clear that this rule only applies where there is no conflict between the ordinance and the statute, not the case here.
THE PREEMPTION ISSUE
Respondents argue that the crime of indecent exposure has been preempted by the state statute, and that the city may not legislate in the area. The test for preemption has been set out in numerous Arizona cases. Clayton v. State (on rehearing), 38 Ariz. 466, 300 P. 1010 (1931), Flagstaff Vending Co. v. City of Flagstaff, supra, Phoenix Respirator and Ambulance Service, Inc. v. McWilliams, supra, State v. Jacobson, 121 Ariz. 65, 588 P.2d 358 (App.1978). Preemption by the state would prevent any ordinance by the city making indecent exposure a crime, since under the doctrine of preemption the state would have appropriated the area. Clayton v. State, supra. We do not reach that question, however, since we have resolved the issue on the narrower ground of conflict between the ordinance and the statute.
THE SOLICITATION ISSUE
The prosecutions in this case involved subsection (b) of Phoenix City Code § 23-66, prohibiting solicitation of the conduct described in subsection (a) of the ordinance. Since we have held that subsection (a) of the ordinance is invalid, it follows that subsection (b) is of no effect.
The behavior which the City of Phoenix sought to make criminal by code § 23-66 is the solicitation of an indecent act. While the state criminal code defines the crimes of indecent exposure (A.R.S. § 13-1402) and solicitation (A.R.S. § 13-1002),3 it does not address itself to the conduct which § 23-66 sought to criminalize. At least in part, § 23-66 is intended to prohibit one person soliciting an indecent act by another when [162]*162no other person is present. In this situation, no crime is committed under the state criminal code because A.R.S. § 13-1402 requires, for indecent exposure, another person who “[A]s a reasonable person, would be offended or alarmed by the act.” Where only two persons are involved, the offended person would have to be the person making the solicitation. It is obvious that this is a contradiction since the one soliciting could not reasonably claim to be offended or alarmed if the indecent act occurs. There is, therefore, a narrow area here not addressed by state law which is open for criminal sanction by a municipal ordinance. While we have held the city may not enact an ordinance defining the crime of indecent exposure which conflicts with A.R.S. § 13-1402, it may criminalize an act of solicitation not covered by state law. Hislop v. Rogers, supra, State v. Gatewood, supra. The authorization for the City of Phoenix to do so is found in A.R.S. § 9-2404 and the Phoenix City Charter, Chapter IV, §§ 1 and 2(34).5
PENALTY ISSUE
Respondents argue that Phoenix City Code § 23-66 also conflicts with state statutes because it prescribes that a violation of the section is a class one misdemeanor subjecting a person upon conviction to a maximum sentence of 180 days in jail or a fine of $1,000.00 or both, whereas under A.R.S. § 13-1402 and § 13-1002 soliciting and indecent exposure would be a class three misdemeanor subjecting a person upon conviction to a maximum sentence of 30 days in jail or a fine of $300.00 or both. Although the argument may well have merit that the state statute prescribing the penalty for solicitation creates an upper limitation on the penalty for a solicitation crime enacted under a city ordinance, we need not reach this question in view of our determination that the city ordinance is invalid on other grounds.
The legislative powers of the City of Phoenix shall be vested in and exercised by the council except as herein limited or reserved to the electors of the city. The legislative powers of the city shall extend to all rightful subjects of legislation not forbidden by the constitution of the United States, the constitution or laws of the State of Arizona, or the provisions of this Charter.
For the reasons stated, we affirm the determination of the Superior Court that § 23-66 of the Phoenix City Code is invalid. Petitioner’s prayer for relief is denied.
HAIRE and EUBANK, JJ., concur.