Captain’s BBQ Trial Delayed to February as Both Sides Ask for More Time

Circuit Judge Chris France has granted a joint request by Flagler County government and Captain’s BBQ to delay the trial over the two sides’ four-year-old dispute until next February. Trial had been scheduled to start on June 26.

The two sides asked for the delay jointly, but not necessarily because a resolution is pending. Rather, each side still has adversarial motions that have yet to be heard in court. Captain’s is also attempting to bring the county back to the mediation table. The county had been resisting. A trial would have been premature, the two sides agreed. The judge granted the delay two weeks ago.




Captain’s sued the county in 2019, claiming breach of contract, after the Flagler County Commission in the county’s view rescinded its own approval of an amended lease with the business. The commission had initially approved allowing the business to build a new, larger restaurant, at Captain’s own expense, nearer the center of Bing’s Landing. But it had done so with remarkably limited transparency. Then-County Administrator Craig Coffey had placed the new, replacement lease as a proposal on the “consent” part of the commission’s agenda–where routine items get approved wholesale, because they’re presumed not to be controversial, hoping for swift and uncontested approval.

But the Captain’s expansion was controversial: even in the most objective terms, it would reconfigure the character and complexion of Bing’s. It would enlarge the parking area. It would provide more seating. The item was pulled from the consent portion of the agenda and led to an extended debate between commissioners, with plenty of public opposition. But the 3-2 vote approving the lease was the only time the commission had discussed the proposal until then.

Opposition built swiftly from such groups as the Hammock Community Association.  Commissioners proposed a different location, further out from the center of the park and even closer to the Intracoastal (on land that would subsequently be under water during severe weather events). Captain’s declined. The commission reversed its decision on the lease weeks later. Captain’s never saw the commission’s reversal as amounting to a rescinding of the lease. That’s one of the contentions at the center of the dispute.




The county not only argues that there was a reversal. But even if there wasn’t one, the county never acted under the purview of the newer lease, so it couldn’t have breached it. The county also now argues that Captain’s is in default of the existing lease, offering up what Captain’s may see as a Catch-22 reasoning: the new lease required Captain’s to pull all necessary permits within 12 months of its approval. Captain’s never did so. Therefore, as the county sees it, Captain’s is in default even as it has continued to operate from the old building.

“Assuming the Amended/Restated Lease was ever a valid contract,” the county argued in its pending motion for summary judgment, “Captain’s BBQ is now in default of it, and as Captain’s BBQ did not cure the default, the lease has terminated.” Since it would have been impossible for Captain’s to secure some of the necessary permits from the very agency–the county–that considered the restaurant’s expansion plans dead, it’ll be up to a jury to decide whether it buys into that sort of disingenuous reasoning.

It isn’t the only odd line of reasoning the county is relying on. The county also claims that the county commission broke the law when it approved the new lease, making the lease null and void. Circuit Judge Terence Perkins, who presided over proceedings before France took over, is on record all but ridiculing that claim. (“I’m not sure you get to say that our error excuses us from our contract obligations,” Perkins told the attorney representing the county.)

The county bought the 7.45-acre Bing’s Landing property in the Hammock  in 1989, turning it into a county park. It was already a fish camp with its own bait and tackle shop, as it had been since the 1950s. It was also part of an archeological site. But it was run down. The county rehabilitated the property. It had trouble leasing the bait shop to a reliable business until 2011, when Captain’s took it over and launched its barbecue restaurant, generally to acclaim.




And on very generous terms: $500 a month, increasing each year by an additional $40. Current rent is $980 a month.

For comparison’s sake, Loopers, the restaurant at the Palm Coast city-owned Palm Harbor golf course, pays $1,500 a month. High Jackers, the restaurant operating at the county-owned airport, was paying $1,290 a month when it renewed its lease in 2021. Rent there increased to $3,000 a month last June. (The restaurant just changed ownership.)

The lease for the Funky Pelican at the city-owned Flagler Beach pier, signed the same year Captain’s signed its lease, called for a starting rent of $3,000 a month, increasing by 3 percent a year. The restaurant is now paying $4,227 a month, plus a 2 percent share of profits above $1 million in gross sales. The Funky Pelican is the only restaurant in a government-owned property sharing profits.

Toward the end of Coffey’s term as county administrator, he worked out the new lease proposal with Captain’s, essentially making what the restaurant took to be pledges that all would be well, that the commission would approve the new lease and that the restaurant would expand. Coffey was a master dealmaker, though his deals, lacking a full analysis or the sort of transparency that would invite constructive criticism, at time had unintended consequences. When Coffey presented the proposal to the commission, he said the existing restaurant was falling apart and wouldn’t be worth rebuilding.

Lo and behold, in June 2019, an additional county inspection found that the building wasn’t in such bad shape after all, and that it was repairable for what, at the time, would have cost $60,000.

The county’s renewed motion for summary judgment would, in the unlikely event that it is granted, scrap the need for a trial. When Perkins ruled against a similar motion




A judge already ruled against a similar motion, but left the door open to file another one once Captain’s had deposed all its witnesses. The county also filed a motion demanding answers to a long list of questions, and for documents, from Captain’s.

Captain’s has filed a motion to compel the county to return to the mediation table. The two sides held mediation previously, without ultimate success. The county administration at one point was willing to make generous concessions, but the commission overruled.

In late April, the county renewed its demand for answers to questions it it first sought answered from Captain’s in August 2020, albeit to a different set of attorneys. (“We are working on this,” Hillary Mesa, one of Captain’s attorneys, wrote Dale Scott, one of the attorneys representing the county, in March. “We need some additional time.”)

The request is wide ranging and often vague, as with the request for correspondence relating to the dispute between “you and any other party,” all “documents” related to the issue, damage and relief claims and other documents. It also includes requests for documents the county already has, or that don’t exist, such as mortgages or property tax documents: the property is owned by the county. Captain’s does not pay property taxes there.

Captains told the court it produced the answers on May 3.