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Advanced Disposal Services Middle Georgia, LLC v. Deep S. Sanitation, LLC

Supreme Court of Georgia

November 3, 2014

ADVANCED DISPOSAL SERVICES MIDDLE GEORGIA, LLC
v.
DEEP SOUTH SANITATION, LLC. LOWNDES COUNTY
v.
DEEP SOUTH SANITATION, LLC

County ordinance; constitutional question. Lowndes Superior Court. Before Judge Altman.

Jones, Cork & Miller, Robert C. Norman, Jr., for Advanced Disposal Services Middle Georgia.

Langdale Vallotton, Robert A. Plumb, Jr., for Deep South Sanitation.

Elliott, Blackburn & Gooding, Walter G. Elliott II, James L. Elliott, for Lowndes County.

THOMPSON, Chief Justice. All the Justices concur, except Melton, J., who concurs in judgment only as to Division 3.

OPINION

Page 365

Thompson, Chief Justice.

This appeal arises out of complaints filed by appellants Advanced Disposal Services Middle Georgia, LLC, (Advanced Disposal), and Lowndes County, Georgia, (the County), seeking injunctions prohibiting appellee Deep South Sanitation, LLC, (Deep South), from providing solid waste collection and disposal services in the unincorporated areas of Lowndes County in violation of a newly enacted Lowndes County ordinance. The trial court denied appellants' requests for injunctive relief, and they appealed.[1] For the reasons that follow, we reverse.

The record establishes that in December 2012, the Lowndes County Board of Commissioners adopted an ordinance (the Ordinance) authorizing an exclusive franchise for the collection and disposal of solid waste from the estimated 12,000 residential customers living in the unincorporated areas of Lowndes County. The Board, at the same time, approved a franchise agreement (the Exclusive Franchise) granting Advanced Disposal an exclusive franchise for the collection

Page 366

and disposal of solid waste from residential customers [296 Ga. 104] living in the unincorporated areas of the county.[2] The Ordinance and Exclusive Franchise became effective February 1, 2013. Prior to that date, the County had not included curbside residential collection service for unincorporated areas in its waste management plan, but instead, it operated six solid waste collection centers for use by all county residents.

The Ordinance prohibits the provision of solid waste collection and disposal services to residential customers in the unincorporated areas without a franchise or temporary permit issued by the County. Deep South, which was in the business of providing solid waste collection and disposal services to residents of the unincorporated areas prior to enactment of the Ordinance,[3] continued its business after the Ordinance's effective date without a franchise or permit.[4] When Deep South refused to stop conducting its business in violation of the Ordinance, the County filed its complaint for injunctive relief. Advanced Disposal, as intervenor, subsequently filed a separate complaint seeking injunctive relief. Deep South in response claimed that enforcement of the Ordinance against it would: (1) effect a taking of private property in violation of both the United States and Georgia Constitutions; (2) violate its due process rights; (3) create an illegal monopoly in violation of the Sherman Anti-Trust Act, 15 USCA § § 1-3; and (4) violate the Commerce Clause of the United States Constitution. After a hearing, the trial court denied both requests for injunctive relief, concluding that an injunction preventing Deep South from providing residential solid waste collection and disposal services in unincorporated areas of the county would violate Deep South's rights because " Deep South operated the business prior to the enactment of the Ordinance" and " [a] government cannot 'cancel the constitutional enjoyment of citizens in the enjoyment of their property' [296 Ga. 105] by the claimed exercise of police powers." (Emphasis omitted.) The trial court then authorized Deep South " to continue operating its business in the unincorporated areas of Lowndes County, with residential as well as commercial customers, as it is now doing."

1. It is incumbent upon this Court, even when not raised by the parties, to inquire into its own jurisdiction. Nix v. Watts, 284 Ga. 100 (664 S.E.2d 194) (2008). Throughout the trial court proceedings, Deep South asserted on several different grounds that the Ordinance cannot legally or constitutionally be applied to it. The trial court did not rule on all of Deep South's claims, however, finding it unnecessary under the facts of this case to consider the validity of the Ordinance on its face. Instead, without discussion of or citation to any constitutional provision, statute, or case law, the trial court denied appellants' requests for relief based on its determination that the Ordinance does not promote the health, safety, and well-being of county residents and that a " government cannot 'cancel the ...


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