The owners of Captain’s BBQ at Bing’s Landing filed a four-count lawsuit against Flagler County government, alleging breach of contract and seeking damages in excess of $15,000.
“It was expected,” Dennis Clark, leader of the Scenic A1A Pride Committee, said. The committee has opposed Captain’s plans at Bing’s. Clark is also involved in the Hammock Community Association, another opposition group. Though one of their attorneys had on several occasions said Captain’s was not looking to sue, restaurant owners in recent weeks changed tactic and clearly signaled that they would file suit if some agreement was not reached with the county, namely because they felt the county was breaching the terms of a lease the county commission had approved in November only to reverse course two weeks later–an alleged breach Captain’s calls “politically motivated.”
Despite a negotiated agreement with the county administration that had originated in February 2018, the complaint alleges, “it is now apparent that the county does not intend to perform under the terms of the amended lease. In addition to the action taken on December 3, 2019, county officials have made proposals for the commission unilaterally [to] vote on proposed changes to the amended lease without [Captain’s] approval and consent. Such actions or resolutions by the commission would be an unconstitutional impairment of [Captain’s] contractual rights.”
The complaint overstates and confuses two separate matters: a local government may follow all the recommendations of its administration and make unilateral decisions if it so chooses. A commission’s vote is unilateral by definition. What it may not do is impose that decision on the business it’s leasing to, outside the scope of an approved lease. Captain’s is arguing correctly, on one hand, that the commission approved an amended lease at its November 2018 meeting, then rescinded that approval. On those grounds, Captain’s clearly has a legal case to argue.
On the other hand, Captain’s goes on to claim that the commission had no right to make further decisions on subsequent recommendations that led to last week’s vote, which is not correct: the county could take any decision it pleases, at least on the assumption that it was operating within the scope of the original, un-amended lease, and as long as it was not forcing Captain’s to comply with terms the original lease would not permit. In those regards, commissioners did not feel they were in breach. For Captain’s case to stick, the restaurant will have to convince the court that the rescinding of the amendment was illegal. If it succeeds, the county’s subsequent decisions are nullified. If it doesn’t, Captain’s claims are set aside, and the restaurant will have to comply with terms the commission approved last week.
“It’s one of those things where it’s kind of inevitable though I don’t think they’re going to get much good publicity on this,” Clark said of Captain’s lawsuit, “especially since the county is trying to lean over backward to give them some place that gives them business without interruption.”
The complaint was filed in Flagler County circuit court Friday (June 7), four days after the County Commission voted unanimously to reject Captain’s involvement in the financing, siting or construction of a new building at the county park, should a new building be deemed necessary to house the restaurant. The county hasn’t settled that question yet.
Captain’s had sought to finance a building at its own expense, and to locate it on the “peninsula” a few dozen feet closer to the Intracoastal from where the restaurant is located now. Captain’s and the county agree that the building, county-owned and leased to Captain’s in 2011, is in need of serious repairs. Captain’s believes the building is past its useful life, though the restaurant owners were prepared to occupy it for up to three more years before moving to a new structure.
County officials have sent mixed signals, depending on who was in charge. When Craig Coffey was the administrator, Coffey thought the building irreparable. Since his forced resignation in January, county commissioners have been willing to further examine whether the building could be salvaged, at least until 2026, when the current lease with Captain’s expires.
Current lease, of course, is a bone of contention and one of the issues at the heart of the lawsuit. To Captain’s, what the county considers the current lease was supplanted by a county commission vote approving a new lease, on Nov. 19–at the last meeting attended by then-Commissioner Nate McLaughlin. McLaughlin two weeks earlier had been voted out and would be replaced by Joe Mullins. Coffey’s scheduling of the vote on Nov. 19 meeting was, of course, itself politically motivated: he knew that the lease likely would not win approval if it was delayed to the next meeting.
Mullins had asked commissioners to await his seating before making a decision on Captain’s proposed lease, which by then had become a community-wide controversy, just as Coffey’s tenure was becoming. Commissioners went ahead with a vote anyway: 3-2, with McLaughlin the deciding vote. At the following meeting, the commission voted 4-0 to “sidetrack,” or essentially rescind, the vote on the new lease. If Captain’s believed that the county was in breach of the lease, it could have sued then. It did not do so, instead continuing negotiations with the county.
Captain’s wanted to expand its 98-seat restaurant to 150 seats, with wording in the lease for a liquor license. It would have built a new structure and turned it over to the county while assuming a $1,000-a-month rent, insurance and maintenance costs. The rent would have remained at $1,000 a month for the first five years of the new lease, then it would have increased by 3 percent a year. The lease would have run through 2046, by which time the rent would still be below $2,000 a month.
The Hammock Community Association-led opposition was not against keeping a restaurant at the park, but it was opposed to a restaurant verging on a 5,000 square foot footprint, opposed to a liquor license, and opposed to Captain’s moving to the peninsula, preferring instead that the existing building be repaired. Failing that, the association would concede to construction of a new, 2,500 square foot building, but only at the county’s expense, and not quite on but nearer the peninsula. The peninsula would be reserved for the pavilion that the new restaurant building would replace. That’s the approach the county voted for last week.
“The commission’s actions on June 3, 2019 degraded and disregarded a year’s worth of negotiations and preparations taken by Captain’s to construct a new building, and continue its business operations under the express representation and agreement that the county could not fund the repair of the old building or construction of the new building,” the complaint reads.
Lawsuits’ initial complaints can be as much legal argument as editorial posturing as they attempt to frame an issue in the light most favorable to the plaintiff and most damning to the defendant. It isn’t unusual for such complaints to turn into crafty exercises in facts cherrypicked or silenced, and assertions made without supporting evidence.
What the complaint does not say, for example, is that Coffey’s representations to the restaurant about the building’s viability had been only cursorily documented, if at all. It had not been seriously vetted by the county commission. The complaint then charges that “the conduct” of the county in its reversal on the lease “is politically motivated, and aimed to target and harm an otherwise viable and flourishing local small business.” The charge is contradicted by the record, which includes statements of support for the business by every commissioner.
The complaint also leaves silent all context relating to Bing’s park as county land secured through the county’s taxpayer-supported Environmentally Sensitive Lands program, and blames the commission for reversing itself on the lease “under pressure from an outside public interest group and a minority of private citizens.” The Hammock Community Association, however, has been an integral part of the Hammock community long before Captain’s began operating at the park. The association claims to have gathered more than 2,000 signatures in a petition supporting its aims. The petition has not been independently verified. Captain’s conducted its own petition, though it did so online and with the help of many “outside” patrons who had dined at the restaurant at one time or another. Captain’s own political motivations are documented through its owners’ financial contributions to county commissioners past and present. Mike Goodman, a co-owner of Captain’s with Chris Herrera, was appointed to the county’s planning board last fall, with Coffey’s backing, and just after the board had approved Captain’s site plan at Bing’s.
Within days, the county will answer the complaint with its own version of events and counter-arguments.
The Captain’s complaint is revealing in other ways as it narrates details of Captain’s negotiations with the county that weren’t publicly known until now, including how then-Administrator Craig Coffey “dictated” where the new building would go. He rejected ideas put forth by the restaurant that may have diminished opposition to the project from the outset: Captain’s, the complaint reads, “proposed several options for a location to construct the new building. However, Mr. Coffey dictated the location of the building,” planting it in the center of Bing’s Landing, where it would have required the uprooting of trees and would have blocked sights of the Intracoastal. Coffey, the complaint states, “rejected all alternative locations proposed by [Captain’s], including a location on the peninsula at the south end of Bings Landing.”
The revelation may help the county’s case, in that it clearly states that Captain’s was not as interested in the location the county, or rather Coffey, forced it into accepting by the time the November vote was taken on the lease amendment. Captain’s wanted other options. The rescinding of the lease gave Captain’s those options–but not the size Captain’s was looking for.
The complaint also states that Coffey and other county officials agreed to upgrade the septic system and parking “which was not immediately necessary for the restaurant’s use.” The complaint includes that parenthetical about parking likely to denote what became another flashpoint in the opposition to Captain’s, again seemingly caused by a Coffey tactic: the administrator was using the restaurant’s project to improve or add parking, even though it was not necessary to the restaurant. But that only bundled more public resentment–not against the county, but against the restaurant.
County Attorney Al Hadeed informed county commissioners of the lawsuit, filed by Jacksonville’s Casey Arnold law firm (as opposed to Captain’s local attorney, Jay Livingston), late Friday afternoon. The county is referring the lawsuit to its insurer “for a coverage determination,” Hadeed said. Meanwhile, the two sides, one commissioner said, will likely continue negotiating, with the lawsuit giving Captain’s some leverage to win a settlement more favorable than the plan the county adopted last week.