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Persistence the key to Sun City Center man’s continued court success

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image This is the backflow valve that is causing citizens to rebel. Photo Penny Fletcher

In September Brown won the Hillsborough County Commission's Moral Courage Award for fighting bureaucracy.

David Brown keeps pushing ahead no matter what the opposing lawyers throw at him.

Brown – who is not an attorney — started fighting with the Department of Environmental Protection in 2007 over the backflow valves being forced on homeowners who irrigate their lawns with pond or lake water.

At first he filed on behalf of other residents as well, but was not permitted by law to continue as anything but an individual.

So he filed the lawsuit again, this time listing himself as the only petitioner.

When he had trouble finding an attorney who wanted to go up against the DEP he went “pro se,” (without a lawyer) which is every citizen’s right.

He says the backflow valves installed to prevent irrigation water from lakes and ponds getting into the drinking water system is unsafe, costly to homeowners, and should not be the homeowner’s responsibility.

Where he lives in Sun City Center alone, he says more than 1,000 people are affected. And the rules he says are unfair are county-wide.

On Sept. 19, The Observer News and The Current published a story about how Brown had won the Hillsborough County Commission’s Moral Courage Award for fighting bureaucracy.

The fight is still in progress and has taken another turn.

At the time that story was written Brown was awaiting a Nov. 13 court date to prove his case before an administrative judge. He had already overcome many court-related hurdles and managed to stay up with the team of lawyers representing the DEP. That story is still online in these archives for those who wish to read it.

Since that was written, however, two things have happened.

First, Judge Bram E. Canter overturned a DEP motion to dismiss, and then a new hearing date was set for Jan. 27.

Canter is a judge with the Division of Administrative Hearings in Tallahassee.

“This was a big step,” Brown said, referring to the judge’s overturning the DEP’s motion. He is now preparing for the hearing by lining up his 12 witnesses, and writing his list of stipulations. The stipulations are things that he would like to ask the DEP to agree upon beforehand. If they can agree on some points early, the hearing will be smoother and much shorter.

“It could mean I can call fewer witnesses, which would really cut down the time,” Brown said.

Brown and many others who were forced to install the backflow valves on their property because they watered their lawns from lakes and ponds say the way the valves are made and installed is dangerous, not just expensive. And they’re on homeowner’s property, not county easement.

“It’s a real threat because the way they’re made, somebody could dump chemicals right into the water supply and poison people,” Brown said. “The valve could work the other way — not just prevent the water from the pond from coming in.”

Bill Hodges agreed. Hodges, the co-founder of South Shore Toastmasters, and owner of  Hodges Seminars International Inc., has a television show on Tampa Bay Cable Network called Spotlight on Government, on which he has interviewed Brown.

“I’ve gone to several hearings of the water board with David and I feel he has a valid point. This is not just dangerous, but terribly expensive,” Hodges said in a telephone interview. “Just in Sun City Center, there are about 80 ponds. If a lot of people have to buy these, the costs will be outrageous.”

The cost of installing the valve as designed now is about $670. This price does not include any weatherizing or covering for it, or locks; after that it costs owners about $114 a year to maintain. Some homeowners have already installed them, but not all.

Brown has continually objected to the fact that the homeowner has to put the valve on his or her own property, pay for it, and maintain it.

Worse yet, he claims it is very unsafe.

Brown evidently made his case to Judge Canter, because Canter said, “Because the dangerous condition is alleged to be real and immediate and Petitioner’s fear is alleged to be real and immediate, it is determined that Petitioner has alleged a sufficient injury for standing to challenge the rule,” when he overturned the DEP’s  motion to dismiss.

Now Brown is working on two things: a request for mediation and his teleconference that will take place in January if a judge does not send the case to mediation first.

Brown has demonstrated a valve system he feels is safer and would cost $19 instead of more than $600.

“If  the county, instead of the homeowner, has to pay, I am sure it will favor this version,” Brown stated in a telephone interview Nov. 9.

Part of his request for mediation contains the statement: “In other words, if RP’s and DCVA’s (existing valves) provide vandals and terrorists with direct access into the public drinking water supply ­— which they certainly do — it becomes a ‘dangerous condition’ that can cause injury to homeowners.  The judge has set the legal framework for extraordinary liability on the DEP and public water systems for personal injury, wrongful death, property damage, and damages for business interruption, when a contamination event perpetrated by vandals or terrorists may occur.  And remember that negligence does take precedent over sovereign immunity.”

In his prepared statements he cites both U.S. Constitutional law and Florida Constitutional law as precedents.

“All federal law says about needing the valves is that you have to have some kind of a cross-connection program. It does not say what kind of program that has to be,” Brown insists.

“I have been told that postponing the hearings is a tactic agencies use to tire out the petitioners,” Brown said. “But it is just giving me more time to prepare.”

Meanwhile he says he hopes a judge will order the case into mediation and save the time and expense of the hearing, which is expected to last two days.

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