The Flagler County Commission met behind closed doors for the first time in over three years this morning to discuss a possible settlement of the four-year-old lawsuit by Captain’s BBQ at Bings Landing. The judge in the case ordered the two sides again to go to mediation to avoid a January trial.
Mediation and an attempted settlement that made significant concessions to Captain’s in 2020 failed as commissioners rejected the proposal. The commission
now has two different board members. The judge is different, too: Circuit Judge Chris France has replaced Circuit Judge Terence Perkins on the case.
“We’re not going to question the court’s wisdom that we should engage in the mediation. What the judge is trying to do is to avoid a very complex trial,” Hadeed said, with crossclaims over an unrelated injury to a patron at the restaurant. Even the county believes it’s better to settle, but it is not willing to pull back from its central contention: the Captain’s building is sound, it does not need to be replaced, nor does Captain’s need to build a new structure at the park.
As of early July, the county spent $153,153 on the Captain’s BBQ litigation. The amount includes attorneys fees and costs incurred by the outside attorney, Roper, P.A., of Orlando and the first mediation costs, court reporters and deposition fees, but not the costs of upcoming mediation. The figure is certain to rise, and rise significantly should the matter go to trial.
In comparison, Captain’s is paying the county $980 a month in rent to run its restaurant out of the county-owned park, in the county-owned building. Captain’s leased the property in 2011, starting at a rent of $500 a month. The lease called for a $40 a year increase in rent. The lease expires in 2026. The county at this point, and in light of the long controversy and lawsuit, is intent on running out that clock. Until 2011, the county had had trouble getting a tenant who could make a go of the property as an added amenity at the park. Captain’s continues to be popular.
For now, there’s no indication that the two sides will break their impasse before trial. “The primary pivot point was they wanted to build a new facility. And our position was, well, the building is holding up,” County Attorney Al Hadeed said.
The rare closed-door session today was to include Hadeed and three other attorneys, all five commissioners and either County Administrator Heidi Petito or her deputy, Jorge Salinas.
The shade meeting does not involve decision-making. It’s an odd sort of dynamic from which the lawyer must read the room and devise what direction to take in mediation. The contents of the mediation session will also be confidential: not even commissioners will be allowed to know what took place, other than if a settlement was reached. Commissioners have given their legal team broad latitude in litigation strategy.
But one of the vulnerability they face is the county’s own alliance with Captain’s BBQ in 2018, and the County Commission’s own approval of a new lease that Captain’s says it illegally rescinded shortly afterward.
After Hurricane Matthew in 2016, then-County Administrator Craig Coffey and others in his administration thought the restaurant was “in danger of imminent collapse.” A toilet that collapsed through the floor seemed to make the point dramatically, even to the Hadeed. “I was obviously alarmed. And I was very heartened that there was nobody in the bathroom at the time,” he said.
The incident raised concerns about the viability of the building. Coffey and the owners of Captains worked out a plan that would have the owners build a new, larger restaurant at their expense in a more central portion of the Bings Landing grounds, and have a very long extension to the lease. Coffey at the time devised the plan with little public notice or public airing.
The plan was first presented to the County Commission on the consent portion of their agenda in November 2018–the portion of the agenda that is usually approved wholesale, without discussion, unless someone requests that a particular item be pulled for discussion. The Captains lease was. Debate over it was fierce. By then the Hammock community, including the Hammock Community Association, had mobilized against it and raised sharp concerns about the 5,000-square-foot footprint of the proposed restaurant on the character of Bings Landing. They objected to the potential damage to the park’s archeological value, the loss of trees and the greater traffic impact on what remained a public park. Members of that community also had doubts that Captains was in imminent danger of collapse.
The commission approved the new lease on a 3-2 vote in November 2018. Weeks later, after that year’s election, the commission walked back the vote. Before long Coffey was pushed out, an inspection ordered by Jerry Cameron, the replacement administrator, found the building was not near collapse.
“The previous inspections did not involve destructive testing,” Hadeed said. “In other words, they were just simply looking, looking, probing. There wasn’t any removal of any of the structural members or non structural members so that the durability of the building could actually be assessed.” That inspection found the building to be durable.
The county offered a compromise site for a new building, which Captains rejected. The county was also willing to reimburse Captain’s for the money it spent designing a new building. Captain’s sued, alleging breach of contract. That was in June 2019.
Meanwhile, Hadeed notes, “five years have passed, and that building continues to function without any compromise whatsoever. There hasn’t been a single incident where we’ve had to go out and structurally prop up the building. There have been no toilets that have fallen through there. There hasn’t been that issue. So that’s a very dramatic change.”
France denied the county’s motion for summary judgment in June, reserving a stinging footnote for Hadeed: “The irony within the position is impossible to escape in that a county attorney is a signatory on the Amended and Reinstated lease,” France wrote of the lease in contention. “That person holds the office that is presumed to assure the essential requirements of the law are followed by the County Commission prior to this contract being presented to the commission for approval. The county attorney arguably agreed with the present arguments of the Plaintiff regarding the inapplicability of that statute at the time they signed the amendments to the lease. If not, how can one rightly claim benefit from such malfeasance if true?”
At the time, Hadeed said he was going by the conclusions of the first, visual inspection, not the more rigorous inspection that followed. “It would be a violation of the existing lease not to provide Captains a building suitable and safe for a restaurant,” he wrote. Since the first inspection had concluded that the building was not safe, including noting “the risk of injuries as stated by Craig [Coffey] and General Services,” which was then headed by Petito, now the county administrator, the amended lease reflected that conclusion. (Hadeed outlined the reasoning for an amended lease at a January 7, 2019 workshop, reasoning summed up in the wording of the amended lease.)
“These conclusions on the County side of the ledger regarding the building’s vulnerability were based on observation and history of repairs up until that time,” Hadeed said. “The conclusions were not supported by testing that would have allowed direct access and assessment of the building’s foundation. No so called destructive or intrusive testing of the foundation was performed as of January 2019. Later the soundness of the building was established with that degree of testing and, under the Building Code rules, extensive repairs to the flooring and roof, along with some vertical wall repairs, readied the building for long term use. The cost was under the 50% threshold, thereby not needing a complete reconstruction of the building.”
That, essentially, would be the argument the county will make to a jury, should it go that far.