Mesteller v. Gwinnett County

740 S.E.2d 605, 292 Ga. 675, 2013 Fulton County D. Rep. 1035, 2013 WL 1338030, 2013 Ga. LEXIS 297
Supreme Court of Georgia·Decided March 25, 2013·No. S12A1920·Published·Cited by 6 cases

Opinion

HINES, Justice.

Robert Mesteller appeals the superior court’s grant of summary-judgment to Gwinnett County and its Board of Commissioners (“the County”), in this suit challenging Gwinnett County’s Solid Waste Ordinance. For the reasons that follow, we affirm.

The Home Rule provision of the Georgia Constitution authorizes counties to provide “[g] arbage and solid waste collection and disposal” services. Ga. Const, of 1983, Article IX, Section II, Paragraph III (a) (2).1And, OCGA § 12-8-39.3 (a) allows any county that “provides solid waste collection services ... and which levies and collects taxes, fees, or assessments to accomplish [that purpose]” to use the methods “authorized by law for the enforcement of the collection and payment of state taxes, fees, or assessments.”2 Relying upon these provisions, among others, the Gwinnett County Board of Commissioners adopted the Gwinnett County Solid Waste Collection and Disposal Ordinance of 2010 (“Ordinance”). Under the Ordinance, Gwinnett County was divided into five zones, each to be serviced by a private waste management company. The County entered into agreements with [676] these five waste collection service providers, whereby each is compensated for providing solid waste collection services to the properties in its zone based upon the number of properties involved. Each month, the providers send Gwinnett County an electronic summary of the number of “Residential Service Units” in its zone, which is multiplied by the rate of $17.86, which figure reflects the inclusion of an administrative services fee due the County of $1.25 per Residential Service Unit per month. The County collects fees for the waste collection services through annual tax assessment notices, which it then remits to the five service providers, minus the service fee. The Ordinance required the first billing to be included with 2010 taxes extending through the end of 2011, resulting in an initial billing that reflected a period of more than one year.

Robert Mesteller received a property tax bill that showed a fee of $321.48 for solid waste collection services. Acting pro se, Mesteller sued the County and the members of its Board of Commissioners, individually and as members of the Board, alleging the assessment and collection of the fee violated the Georgia Constitution.3 After notice and a hearing, the superior court granted the County’s motion for summary judgment.

1. Mesteller contends that the County is without authority to use the annual property tax bill to assess or collect fees for solid waste services. The gravamen of this argument is that the County, by contracting with private waste management companies to collect solid waste, is not, in fact, “providing] solid waste collection services” within the meaning of OCGA § 12-8-39.3 (a), and therefore the County is not authorized to place the collection fee on the tax bill of a property owner or enforce the collection of the fee as set forth in the statute.4 However, this argument reveals a misunderstanding of the precedents of this Court.

The County, under Article IX, Section II, Paragraph III (a) (2) of the Georgia Constitution, is authorized to provide “[gjarbage and solid waste collection and disposal” services. And, it is authorized to enter into contracts to provide the services specified in that constitutional provision, “even though that particular contractual power is not expressly conferred.” Smith v. Bd. of Commrs. of Hall County, 244 Ga. 133, 138 (259 SE2d 74) (1979) (Emphasis in original.) See also Strykr v. Long County Bd. of Commrs., 277 Ga. 624, 625-626 (3) (593 [677] SE2d 348) (2004). In doing so, the County has “the duty and discretion to examine the methods available to implement that goal and select that method which [it] determine [s] most effectively and efficiently provided [solid waste collection].” Smith, supra. And, in choosing the option of contracting with private solid waste collection companies, the County is, through that method, providing solid waste collection services to Gwinnett County property owners within the meaning of OCGA § 12-8-39.3 (a); the fact that the individuals performing that service are not County employees, but employees of private contractors, is of no moment, insofar as it relates to the present constitutional challenge.

2. Mesteller contends that the County lent its credit to the waste collection service providers in violation of Article IX, Section II, Paragraph VIII of the Georgia Constitution of 1983,5 in that, for a period of two months, the service providers collected the solid waste, and the County paid the service providers, but no fees had yet been collected by way of the property tax bills pursuant to OCGA § 12-8-39.3 (a). However, as noted above, see Division 1, supra, the County is authorized to provide the service at issue, and to enter into contracts with private parties to do so. Paying consideration to the contractors for that service before the associated fees were collected does not violate the Georgia Constitution. See Strykyr, supra at 627-628 (7).

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Mesteller v. Gwinnett County, 740 S.E.2d 605, 292 Ga. 675, 2013 Fulton County D. Rep. 1035, 2013 WL 1338030, 2013 Ga. LEXIS 297 (Ga. 2013).

740 S.E.2d 605 (Mesteller v. Gwinnett County) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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