KAILUA-KONA — More than four months after a judge dismissed a case against Sean “Peaman” Pagett after he was cited for running an unpermitted race, Pagett’s attorney said the issue might not be settled just yet.
Pagett’s attorney, Jason Braswell, said they are still waiting to see whether the Division of Boating and Ocean Recreation will bring an administrative action against his client even after the case was dismissed in court.
Pagett, who’s been organizing biathlons for about 30 years, received a citation last December from the enforcement branch of the Department of Land and Natural Resources, which DOBOR is under. Pagett got a ticket for hosting the Doc Ferren Hall of Fame Biathlon. The event is a half-mile swim from the pier on the waterfront in Kailua-Kona followed by a 3.9-mile run on Alii Drive on Christmas Day. About 150 people participated in the run and swim.
The department argued that Pagett’s events fall under administrative rules for regattas, marine parades, boat races or exhibitions. State law also requires the purchase of risk-management insurance to cover those events once a permit is issued.
In March though, prosecutors moved to dismiss the citation against Pagett, saying the man was in compliance with the insurance and that the allegation levied against him didn’t apply.
But that wasn’t the end of it.
DOBOR, Braswell said Friday, then contacted Pagett and told him they were bringing an administrative enforcement action against him.
Unlike citations, which go before a judge, administrative actions play out before the Board of Land and Natural Resources.
Pagett sued in court, saying that DOBOR didn’t have the authority to pass or implement the rule they were trying to cite Pagett over.
A circuit court judge dismissed the suit on Thursday, saying he didn’t have jurisdiction to hear the issue. He didn’t, however, rule on the question of whether DOBOR had the authority to adopt the rule in question.
The judge’s ruling frees DOBOR to move forward.
Should DOBOR put the issue before BLNR, Pagett could face fines for holding future races without the permits. Pagett has maintained over the months that the regatta permit classification doesn’t apply to his free community runs that have been a staple of West Hawaii for the last three decades.
As of yet though, Braswell said DOBOR hasn’t yet taken the official step of putting that action before the Land Board.
“I think all indications are that they will proceed before the Land Board,” Braswell said, “but they haven’t.”
A draft submittal sent to Braswell said that instead of fining Pagett, DOBOR is asking the board to, one, find that Pagett violated administrative rules by holding the events without the required permits and approval from DLNR and, two, issue Pagett a warning letter.
The draft submittal said they are recommending against a fine “because of Mr. Pagett’s willingness to comply with permitting requirements.”
“DOBOR staff recommends that the letter of warning include a notice to Mr. Pagett that any future violations will result in the maximum allowable penalties pursuant to (the law) and any such violations will be considered,” added the letter.
A spokesman for DLNR said the department doesn’t comment on pending legal matters.