dissenting: The issue is whether Section 66-27(2) of the city’s ordinance is void for vagueness. The answer lies in whether the term “an unsightly appearance” is so vague and subjective to render enforcement unconstitutional.
In Grayned v. City of Rockford, 408 U.S. 104,108-09, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972), the United States Supreme Court enumerated reasons for requiring enactments to convey reasonably definite warnings of proscribed conduct:
“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give tire person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. *82Vague laws may trap die innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms.’ Uncertain meanings inevitably lead citizens to ‘ “steer far wider of die unlawful zone” . . . than if the boundaries of the forbidden areas were clearly marked.’ ”
This court has stated that “[a]t its heart the test for vagueness is a commonsense determination of fundamental fairness.” State v. Kirby, 222 Kan. 1, 4, 563 P.2d 408 (1977). “[I]n determining whether an ordinance is void for vagueness, the following two inquiries are appropriate: ‘(1) whether the ordinance gives fair warning to those persons potentially subject to it, and (2) whether the ordinance adequately guards against arbitrary and discriminatory enforcement.’ [Citations omitted.]” City of Wichita v. Wallace, 246 Kan. 253, 259, 788 P.2d 270 (1990). In my view, Section 66-27(2) does neither.
The ordinance at issue in City of Rockford was an anti-noise ordinance prohibiting any person making or assisting in the making of noise adjacent to a school “which disturbs or tends to disturb” the school classes or sessions. The United States Supreme Court found the vagueness question to be a close call. 408 U.S. at 109. The Court stated: “Were we left with just the words of the ordinance, we might be troubled by the imprecision of the phrase ‘tends to disturb.’ ” 408 U.S. at 111. However, because the ordinance specified disturbance of school activity, the Court concluded: “We do not have here a vague, general ‘breach of the peace’ ordinance, but a statute written specifically for the school context, where the prohibited disturbances are easily measured by their impact on the normal activities of the school.” 408 U.S. at 112. Given that context, the Supreme Court concluded it gave fair notice of what was prohibited. 408 U.S. at 114.
It would serve no useful purpose here to review the cases cited by the majority. In my view, each of the cases can be distinguished from the present case. Some deal with administrative regulations, *83others with ordinances that have different wording or additional language from the Topeka ordinance.
Here, Boyles was charged with violating a specific section, Section 66-27(2). He was not charged with violating any other section of the ordinance. The compliance complaint stated that Boyles’ violation was for maintaining items on his property which created an unsightly appearance. Maintaining the items is not a nuisance. The nuisance, and violation, occurs only when the-items are unsightly.
At the hearing before the district court, the city prosecutor stated:
“I think tire issue before the Court would be can this man keep these — this merchandise in his parking lot as opposed to in a building.
“He has been cited for a violation of the City ordinance that says — Well, we have listed a bunch of stuff that’s pretty much just used merchandise in the parking lot. And it constitutes a nuisance because it has an unsightly appearance. And I think the issue before the Court is are we correct or are we wrong.”
Later, the following colloquy occurred between the court and prosecutor:
“THE COURT: I’m trying to figure out why you think it’s a nuisance.
“MS. MUDRICK: The unsightly is part of it.
“THE COURT: Okay, and-
“MS. MUDRICK: We deal with weeds and animals and whatever. This is a provision that deals with unsightly appearance, which is what our city council has decided to include within the ordinance provisions.
“THE COURT: So the problem with it is that it’s not pretty.
“MS. MUDRICK: No, it’s not. That’s exactly right. It’s unsightly.”
I disagree with the majority that the entire Topeka ordinance is to be considered in determining the vagueness of Section 66-27(2). Further, I am at a loss as to how anyone can determine the meaning of “unsightly appearance” by considering the context of the entire ordinance. There is nothing in the ordinance that gives any clue as to the meaning of “unsightly appearance.” “Unsightly” is not defined or limited in any way. The dictionary definition provided by the majority does not limit its general meaning and provides no less subjective standard than the word itself.
*84I find City of Independence v. Richards, 666 S.W.2d 1 (Mo. App. 1983), directly on point and persuasive. The Missouri Court of Appeals reversed Richards’ conviction for violating an ordinance with language similar to the ordinance here.
The Missouri Court of Appeals noted that it had not been alleged that Richards’ accumulation of items on her property was dangerous or detrimental to fife or health. 666 S.W.2d at 7. The complaint alleged only that the accumulation of refuse was unsightly and annoying. There was no ordinance definition for either “unsightly” or “annoying.” The Missouri court considered and rejected the proposition that “accumulation,” which removes the possibility of prosecution for momentary visual blight, reduced the uncertainty of the ordinance’s standard. 666 S.W.2d at 8-9. Among the aesthetic regulation cases reviewed by the Missouri court was City of Collinsville v. Seiber, 82 Ill. App. 3d 719, 38 Ill. Dec. 75,403 N.E.2d 90 (1980), which involved a municipal ordinance making it a misdemeanor for any person to “ ‘maintain an unsightly yard or premises where there is an accumulation ... of .. . junk. . . .’” Richards, 666 S.W.2d at 10. Finding that the purpose of regulating unsightly property necessarily embraced health and safety issues, the Illinois Court of Appeals declined to hold that the ordinance was unconstitutionally vague. City of Collinsville, 82 Ill. App. 3d at 725-26.
Unlike the Illinois court, the Missouri Court of Appeals refused to supply “context or ulterior reference to infuse meaning to unsightly, accumulation, or other undefined terms” in the Independence ordinance. Richards, 666 S.W.2d at 11. In particular, the Missouri court noted that the Independence ordinance provided for citation of a person who permitted refuse to accumulate or remain upon his or her premises to an extent or in such manner as to be dangerous or detrimental to fife, health, property or safety of any person but that Richards was cited for permitting refuse to accumulate so that it was simply unsightly. The court stated:
“There is no precondition that the unsightly condition be a source of danger, or a detriment to the life, health, property or safety of any person. The ordinance terms are in the disjunctive — and render actionable an unsightly premise, for unsightliness — simpliciter. [They render actionable, quite separately, an accu*85mulation of trash detrimental to life, health, or safety.] . . . The prosecutor concedes that the ordinance clause the complaint undertakes to enforce has no motive other than to regulate against unsightly use of property — that breach of the public safety was neither charged nor at stake.” Richards, 666 S.W.2d at 11.
The Missouri court concluded:
“The term unsightly ... in the absence of definition, does not suffice as a standard of regulation. It conveys no determinable criterion, but rather invites the vagary of personal response. Nor does the context of the ordinance supply what otherwise lacks. The other operative terms, accumulation . . . and trash . . . invest no more certainty to the context than the ordinance conveys without them. It is the unsightly accumulation of trash the enactment regulates, and not merely the accumulation of trash. It remains a term without definition' — and in the absence of definition or [as in City of Collinsville . . . ] the aid of context — is too vague to be enforceable.
“An average person presented with the terms of the ordinance and careful compliance will not understand from the text whether a proposed conduct will incur a penalty. ‘Ordinances should not be so worded as to leave their substantive elements to the caprices of either judge or jury.’ [Citation omitted.] Such ordinances are void for vagueness and uncertainty. [Citations omitted.]” Richards, 666 S.W.2d at 11.
Independence’s ordinance, like the Topeka ordinance, contained sections or provisions concerning other nuisances, including conditions detrimental to health and safety. However, Richards, like Boyles, was cited strictly on aesthetic grounds and not on any other grounds. The Missouri court expressly rejected the contention that any other clause or provision would furnish sufficient certainty to the portion of the ordinance under which Richards was charged. See Richards, 666 S.W.2d at 11. The same is true as to Boyles. The only dividing line between acceptable items on a person’s property and unacceptable items is drawn at items that create “an unsightly appearance.” Section 66-27(2). As the Missouri court stated: “[U]nsightly ... in the absence of definition, does not suffice as a standard of regulation. It conveys no determinable criterion, but rather invites the vagary of personal response.” Richards, 666 S.W.2d at 11.
In Kolender v. Lawson, 461 U.S. 352, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983), the Supreme Court struck down as vague a California loitering statue which required a loiterer to provide “cred*86ible and reliable” identification. In so doing, the Supreme Court held: “Although the [void-for-vagueness] doctrine focuses both on actual notice to citizens and arbitrary enforcement, . . . the more important aspect of vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement.’ [Citation omitted.]” 461 U.S. at 357-58.
Section 66-27(2) includes no health or safety issues. It is aimed solely at aesthetic regulations and gives no fair warning of proscribed conduct to persons subject to it. Unsightly appearance, like beauty, exists only in the eye of the beholder. The term does not define a standard whereby a person of ordinary intelligence may determine whether he or she is violating the ordinance. The term is incapable of a definition which would provide a meaningful standard to prevent arbitrary enforcement. As in the Richards case, it contains no safeguard against arbitrary and discriminatory enforcement. Section 66-27(2) is prone to unjust application, violates commonsense fundamental fairness, and is unconstitutional.
The judgment of the district court should be reversed.
Lockett and Davis, JJ., join in the foregoing dissenting opinion.