Southold Town’s ongoing litigation with Go-Green Sanitation has been bumped into federal court, after the carter claimed the town’s fee for the town-issued yellow bags is unconstitutional and violates federal anti-trust laws because it prevents them from collecting garbage not contained in those bags.
For now, however, Go-Green is telling its customers they must use the yellow bags.
Go-Green first filed a petition to move the case to the U.S. Eastern District Court in Islip on Aug. 2, though an initial conference on the matter did not occur until Oct. 11.
On Nov. 15, Go-Green’s attorneys, Robert Angelillo and Richard Eisenberg of Garden City, filed a motion for a temporary restraining order against the town “maintaining the status quo” of a 120-day stay of the town’s yellow bag requirement that expired last Friday, Nov. 23.
“If the status quo is not maintained, Go-Green will suffer immediate irreparable harm insofar as it will be effectively knocked out of the Southold solid waste collection marketplace by virtue of a law that is unconstitutional on its face,” according to the motion.
In the motion, Go-Green claims that the town’s law requiring carters to collect only garbage contained in town bags — even if they are taking the garbage out of town — is an unconstitutional tax disguised as a user fee.
Representatives from Go-Green could not be reached for comment.
The town’s outside counsel on the matter, Frank Isler of the Riverhead firm Smith, Finkelstein, Lundberg, Isler and Yakaboski, said Justice Arthur Spatt, after hearing arguments from both sides, has since denied the request for the restraining order.
“The next step would be ongoing discovery in the case. Both sides have the right to take depositions. That would have to be undertaken,” Mr. Isler said Wednesday.
Go-Green owner Frank Fisher told his customers in a recent letter that his company had “filed and were granted a motion for an immediate trial and believe this will all be officially resolved in the near future.”
But that’s not accurate, said Mr. Isler. “The court had offered Go-Green an immediate trial on the yellow bag claim if discovery was complete … They weren’t granted it. It’s an open issue.”
Go-Green also claimed in its initial request to move the case to federal court that the town revoked its carter license last February without due process, which, according to town code, requires a hearing.
The company claimed the town is attempting to “shut down Go-Green’s business for the benefit of other carting companies that operate in the town in a manner that the town prefers.” The company says that constitutes an illegal restraint of trade and a violation of the Sherman Anti-Trust Act.
The town’s response admits that there are three other carting companies that provide residential collection in town, but denies that there’s a concerted effort to help other carters.
While the matter continues to be addressed by the courts, Go-Green owner Frank Fisher is asking its customers to comply with the yellow bag law.
“I have no intention of abandoning our business model and we are going to take this to the high court and let them decide the fate of the yellow bags,” Mr. Fisher said in the letter to his customers. “In the meantime, I am asking you to just be a little more patient until the official ruling.”