Flagler County government and Captain’s Barbecue at Bings Landing are ready to resolve a year-long legal battle over the restaurant’s future in the county park in the Hammock.
The county would make numerous concessions to Captain’s, including allowing it to book and cater events at the Bings pavilion, conducting extensive repairs at the county’s expense, relocate and build new bathrooms, enclose the restaurant’s patio (thus essentially enlarging its interiors) and reimburse Captain’s for certain losses. In exchange, Captain’s agrees to remain at the current location, end its litigation, and pay a somewhat higher rent over time.
The battle since 2018 has divided the Hammock and the larger Flagler community over a popular business’ right to operate on its own terms and a community’s right to keep one of its treasured parks from being overrun by a commercial enterprise.
The battle was in no small measure fueled by the county’s own grave missteps at the outset, when the county administration all but guaranteed Captain’s that it could build a new, much larger building in the middle of the park, even though the County Commission had neither vetted nor approved the plan. The miscalculation, reflective of former County Administrator Craig Coffey’s zeal for deal-making at the expense of political and community concerns, left Captain’s an open target for community ire.
After Coffey was forced out and the commission voted to reject the lease it had approved with Captain’s in November 2018–the lease that would have allowed Captain’s to build the large, new restaurant–Captain’s sued the county for breach of contract.
No hearing was ever held before a judge, but as is common in such civil litigation, the two sides agreed to mediate the issue in an effort to keep it from dragging, or going to trial–an expense neither side relished. Mediation took place in mid-December. On Monday evening, County Attorney Al Hadeed briefed the county commission on the results of that mediation.
“The final words are not yet done. They will be in due course,” Hadeed said. “We want to get an affirmation, or maybe input on the direction that the administrator has taken us relative to the mediation.” The commission unanimously agreed to let Hadeed continue on the course he outlined.
The county had entered into a lease with Captain’s in 2011, with amendments along the way. In 2018, the new lease was developed for the site Captain’s thought it could develop nearer the center of the park. The county commission approved that lease in November 2018.
“Their legal belief is they had a valid, binding lease for November 2018 that entitled them to build on a new site, that it was very, very specific, required very significant expenditures on their part,” Hadeed said, and that they’d relied on the county’s commitment to spend money on engineering and architects to implement that move. They expected to have repairs on the existing facility in the interim–repairs done by the county. The cancellation of that 2018 lease “caused them great damage,” Hadeed said, echoing Captain’s beliefs.
When Captain’s sued, its owners were seeking both to build on the new site and to recover financial damages.
The county’s aim now is to balance Captain’s presence with the character of the park. The county has no intention of building new. “In order for us to be a responsible landlord, we have to bring it up to some suitable operational capability,” Hadeed.
That means the following: The county will reimburse Captain’s costs for the design of the building it did not get to build–up to $50,000, through verified documentation. The county will separate the business’ utilities from those of the county.
Captain’s will be allowed to book special events at the Bings pavilion, where Captain’s will get to cater the events. “We’re trying to do that to give them a greater opportunity to expand their ability to serve Flagler County residents and make up for revenue impairments that result from the fact that we didn’t allow them to build a much larger, expanded restaurant,” Hadeed said.
Finally, Captain’s will agree to completely void the 2018 lease and stick with the previous lease, with a key exception: Captain’s will benefit from the same renewal terms that were in the 2018 lease, which extend Captain’s tenancy 21 years, and potentially to 26 years, but at the current site.
The county will maintain all exterior and interior structural elements, with the first $2,000 in expenses borne by Captain’s, and anything above that paid for by the county.
As for the subsidized lease rate that Captain’s has enjoyed, a sore point with Hammock residents and opponents of the extent of benefits Captain’s was getting from its lease (including no property taxes), that, too, will change. The 2018 lease had locked in a $1,000-a-month rent for the first five years, and no profit sharing with the county above a certain percentage. The settlement would build in increases “that take it much closer to what people would consider to be a market rate over the duration of the lease,” Hadeed said, without specifying the rates.
The county will relocate and modify the restaurant’s bathrooms, which had been built in the mid-1990s, when the building was first modernized. It’s not clear if moving the bathrooms also means an implicit, further enlargement of the restaurant’s floor space. Captain’s will be allowed to install propane gas tanks. The exterior patio area will be enclosed. Removal windows will be installed.
“This benefits the longevity of this building in the county’s interest but also in the interest of the tenant, Captain’s Barbecue,” Hadeed said. The repairs will be conducted outside of business hours to the extent possible, though some work will require closure for about two weeks. Captain’s is pledging not to make a claim for the lost revenue for that period.
If the building is destroyed for whatever reason, or the value of the building is damaged more than 50 percent, the county may elect not to repair the existing building. If the county exercises that option, Captain’s gets the right to build on the same, current site, the successor restaurant, presumably on its own dime (Hadeed did not specify, though the restaurant’s plan to build the new building in 2018 would have been on its own dime).
“Whatever happens out there has got to be consistent with the very unique status of that property,” Hadeed said–its location on the National Scenic Byway, the presence of a National Historic Site on the property, “amazing recreational opportunities on the site that our public has enjoyed,” the county’s substantial spending of money and volunteer hours, and of course the presence of Captain’s Barbecue since 2011. The county has owned the property since 1990 without successfully having a business operate out of that building–until Captain’s.
“I recommend this approach as an appropriate means of resolving the litigation,” Hadeed said. The settlement would be far less time consuming and less expensive than the alternative: going to trial. He said mediation never produces 100 percent happiness for either side. But this settlement is substantially beneficial, he said. Commissioners agreed.