Peaman expects fine

KAILUA-KONA — Sean “Peaman” Pagett expects his Christmas Day will begin with a criminal citation from the Division of Conservation and Resources Enforcement, the enforcement branch of the Department of Land and Natural Resources.

In fact, he’s counting on it.

A dispute between Peaman and the DLNR over permits and insurance coverage stemming from an informal swim/run event in November threatens to impede the Doc Ferren Hall of Fame Biathlon, the next race in the annual Frozen Pea Production event series, which is scheduled for 8 a.m. on Christmas Day.

But the race — which consists of a half mile swim from the pier followed by a 3.9-mile run on Alii Drive — must go on, said Peaman, who has been conducting his informal event series for the last 29 years. And he’s willing to suffer whatever consequences await.

“I’m not a villain, I’m not Robin Hood, I’m not bucking the system. I’m just standing up for my right to use the ocean as a citizen,” Peaman said. “I don’t want to be involved in any of this, but I feel that strongly about what we’re doing.”

The issue at hand involves Hawaii Administrative Rule Section 13-244-19, which deals with authorization for staging a regatta, marine parade, boat race or exhibition.

The rule defines these events as any “organized water event of limited duration, which is conducted according to a prearranged schedule” that “will introduce extra or unusual hazards to the safety of persons or property on the water.”

Bill Taylor, Division of Boating and Ocean Recreaction Hawaii District manager, explained that the acquisition of a marine event permit requires a detailed description of what the event will entail, including dates, times and number of participants, among other information.

State law further requires the purchase of risk-management insurance to cover such events once a permit is issued, he said.

The department contends that Peaman’s events full under the purview of the rule. Peaman and his legal counsel disagree.

“We believe that DLNR’s application of (the rule) to Peaman’s ‘races’ is based on an overly broad and erroneous interpretation of the rule,” said Jason Braswell, an attorney representing Peaman. “Legally for Peaman, the best way for him to challenge this rule is to be cited for violating it.”

A citation carries with it a penalty of between $50-$1,000, and/or imprisonment for no more than 30 days, according to the DLNR. Braswell said if Peaman is issud a citation, it would amount to being charged with a misdemeanor.

The rule in question has been in effect since February of 1994, which has led Peaman to the question of, “Why is this happening now?”

He acknowledged he’s been approached by the DLNR on multiple occasions over the years about the necessity of a permit, yet he’s never been cited.

“We’ll get that citation, and I’ll plead not guilty,” Peaman said. “I have no doubt that in the end, we will win our case.”

The Peaman series, which has grown into an informal institution in Kailua-Kona over the last three decades, first encountered resistance in November. A DOCARE officer tried to shut down the Post Pigout Peamania swim/run race that is held the first Sunday after Thanksgiving every year.

An altercation ensued, more DOCARE officers were called in, and eventually the race was allowed to continue. However, the officers told Peaman then that if he didn’t acquire the proper permits and provide proof of insurance, further action would be taken.

Peaman and Taylor subsequently spoke over the phone, both telling the West Hawaii Today they were optimistic about meeting somewhere in the middle. Compromises might have included grandfathering Peaman’s races in, as they were conducted for several years prior to the issuing of the administrative rule in question.

Another possible solution involved participants signing waivers in place of Peaman acquiring risk-management insurance coverage.

The permitting process is free, and because of the nature of Peaman’s use of the pier, the DLNR is not pursuing permit requirements or payments for its use. But Peaman described the financial burden of acquiring insurance as onerous, as he pays for each of his free events out of pocket, operating at a loss of several thousands of dollars per year.

Taylor, Peaman and other representatives from both sides of the dispute sat down earlier this month to iron out such details, but Peaman said by then, Taylor and DOBOR were no longer willing to compromise.

“During that time between meetings, we went back and did our research and we found out that waivers couldn’t be applicable to his events,” Taylor said. “It’s not permitted by state law.”

The parties failed to reach an agreement before the meeting concluded. Peaman indicated to Taylor then his intention to hold the race scheduled for Christmas Day, saying the “handshake agreement” between the two was that such action would result in a citation.

Taylor said DOBOR handles the permitting process only, and he therefore can’t speak to how DOCARE officers, who handle enforcement of DLNR rules, might proceed Sunday morning.

DLNR spokesperson Deborah Ward wrote in an email that DOCARE is aware of Peaman’s plans, but “does not comment on possible law enforcement actions.”

To Peaman’s understanding, the citation he’s expecting this Christmas won’t result in the race being shut down. The question that remains, though, is what will become of the Peaman race series once he’s cited and the court proceedings begin?

Peaman said he refuses to bend to the DLNR’s rule. But continuing to stage races after such a refusal would likely result in the piling up of citations, fines and possible jail time.

He can’t continue to sponsor the races on his own without betraying his convictions, but he’s also unwilling to deprive the community of access to them.

That’s where Peoples Advocacy for Trails Hawaii, or PATH, factors into the equation.

Tina Clothier, executive director of PATH, accompanied Peaman to his meeting with DOBOR earlier this month, where she stated her intention to keep the events running.

The difference is that PATH, which has deeper coffers than Peaman, will act in compliance with DLNR regulations, including extending the liability insurance it already procures for its events to future Peaman races it intends to sponsor.

She said PATH will be there to support Peaman events for as long as is needed.

“We see Peaman events as being sort of the premier active living events in Kailua-Kona. It really is very welcoming for people just starting out in terms of physical activity, and it’s great for the whole family,” Clothier said. “I have personally seen kids who started with Peaman grow up to become Ironman triathletes. It’s such a great way introduce people in our community to the sport of swimming and running.”