dissenting.
I do not believe that the ordinance gives a “person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” United States v. Harriss, 347 U. S. 612, 617 (74 SC 808, 98 LE2d 989) (1954). Furthermore, the ordinance illegally places “unfettered discretion in the hands of the police.” Thornhill v. Alabama, 310 U. S. 88 (60 SC 736, 84 LE 1093) (1940).
Subsection (d) of the ordinance states: “It shall be unlawful for any person to remove waste or litter from public containers or to place in such containers any material other than garbage.” The ordinance forbids three acts. It forbids any person from: 1) removing “waste” from inside a public container; 2) removing “litter” from inside a public container; and 3) putting any material other than “garbage” into a public container. The express terms of the ordinance make it unlawful only to remove “waste” or “litter” that has been illegally placed inside the public containers. It is not unlawful to climb into a public container and remove garbage that has been placed inside nor is there any prohibition on removing “waste” or “litter” that has been placed outside of the public containers. It is difficult to see how this ordinance protects the “health and safety” (Majority opinion p. 168) of the citizens of Lowndes County.
If the purpose of the ordinance is to prevent the scattering of the contents of the container around the container by those who wish to look through the contents, that purpose has already been established by OCGA § 16-7-47 (c) which provides in pertinent part: “It shall be unlawful for any person to . .. indiscriminately scatter or disperse the contents of, or otherwise vandalize any containers. . . .”
The appellee asserts that guidance as to the meaning of the ordinance can be found in OCGA § 16-7-42 (1); however, the definitions in the statute must not have been considered in drafting the ordinance. The statute provides that litter “means [among other things] all . . . waste. . . .” OCGA § 16-7-42 (1). Lowndes County could not have used the statutory definitions in drafting its ordinance because if “litter” means all “waste” it is unnecessary and redundant to forbid the removal of “waste” or “litter” when “litter” is all “waste.” If the statutory definitions had been incorporated, the ordinance would use the all inclusive term “litter,” and the forbidden conduct would simply be the removal of “litter.”
The lack of fair notice is further established by the citation given the appellant. Although the only forbidden activity is the removal of “waste” or “litter” from the inside of a public container, the appellant was issued a citation for removing “refuse.” The word “refuse” cannot be found in subsection (d) of the ordinance. If the enforcing authorities cannot correctly contemplate and recite the forbidden conduct in issuing a citation, then it cannot be said that a person of ordinary *170intelligence has fair notice under this ordinance of what conduct is forbidden. According to the appellant’s brief, one item Mr. Sliney obtained was an American flag. I for one refuse to classify an American flag as “waste” or “litter” or “refuse.”
Decided May 17, 1990. William R. Folsom, Luke E. Closson, Jr., for appellant. Richard W. Shelton, Solicitor, for appellee.I am authorized to state that Justice Benham joins in this dissent.