Garbage debate heads to court
Arguments continue Friday on Gwinnett's trash plan

LAWRENCEVILLE - Two locally owned garbage haulers had their day in court Wednesday to challenge the legality of the county's new solid waste plan. And the only thing decided by the end of that day was that the haulers, county officials and Gwinnett Clean and Beautiful would all be returning to court Friday at 1:30 p.m.

"We're asking for this preliminary injunction in order to keep the status quo in place," said the hauler's attorney, former Gov. Roy Barnes. "We believe the citizens of Gwinnett can look after their own business better than the government, especially as it pertains to garbage."

With the new waste plan set to take effect Jan 1, haulers Sanitation Solutions and Southern Sanitation were in Judge Michael Clark's Superior Court courtroom seeking the injunction, which would in effect keep them operating in the county as they currently are once their contracts expire at year's end. According to the Gwinnett County Quarter Three Solid Waste Franchise report, Southern Sanitation services 4,805 residences and Sanitation Solutions has 375. Both will service zero in unincorporated Gwinnett when the new plan takes effect.

According to Barnes, before the court were two issues. The first concerned whether Gwinnett County had the legal ability to delegate legislative authority to the nonprofit, private corporation Gwinnett Clean and Beautiful to administer the county's solid waste program. The second issue dealt with whether the request for proposal process conducted by Gwinnett Clean and Beautiful to award the service contracts was completed fairly and competitively.

At one point during the argument concerning legislative authority, attorney Frank Jenkins, representing the county, said, "The county has the right to choose whomever it wants to administer the program."

The plaintiffs took issue with this mentality. Barnes' contention was, how can a private corporation like Gwinnett Clean and Beautiful have the authority to administer fines and fees related to the county's solid waste ordinance?

By the testimony delivered, it was determined that under the ordinance, the Sheriff could technically deputize employees of Gwinnett Clean and Beautiful, which would then give those employees the authority to act as the "garbage police" for the county. Under the new ordinance, the "garbage police" could then potentially levy $500 fines on residents who weren't in compliance with the law.

"I've never heard of a private corporation holding police power," Judge Clark said. "I've never seen an ordinance like this one before."

When Jenkins argued that granting the injunction "would wreak havoc on the county for its garbage hauling services," Judge Clark didn't seem to be bothered by the potential outcome of that action.

"Your argument of consequences is falling on deaf ears," Clark said. "But if what you did is illegal, I will stop it."

When the arguments commenced over what the plaintiffs said was an unfair request for proposal process, owner Buddy Johnson of Southern Sanitation reiterated his statements made previously in this newspaper. He questioned the county's service zones changing during the bid process from eight to six and also called into question the $2 million performance bond required of his company to compete. He also said obtaining reviewed financial statements in such a short time was too costly for a small business owner like himself.

"I knew they needed to level the playing field or it would be tough for a small business to operate," he said. "But we assumed it would be a fair process."

When Jenkins showed him contracts he signed in November 2007 stating he knew the county was making changes to the way it conducted garbage hauling, Johnson responded, "We knew there were changes coming and we thought we'd be a part of those changes. Based on my record in the county, I had no reason to believe I wouldn't receive another contract."

Johnson also reiterated under oath a December 2007 conversation he had with Chairman Charles Bannister following a public hearing concerning the new solid waste plan. At that time, Johnson said Bannister told him, "Nobody is going to put you out of business."

Johnson said if the plan goes forward, he will be forced into bankruptcy as 90 percent of his clientele resides in Gwinnett County.

Bannister was asked if he recalled that conversation.

"I recall speaking to Mr. Johnson at the meeting, but I do not remember what I said to him a year ago as much as the gist of the conversation. It would be uncharacteristic of me to predict an outcome of a process or decision that I was not completely controlling," Bannister wrote in an e-mail. "I recall him believing that a new plan would put him out of business."