Nov. 12 update: The hearing scheduled for 3:30 p.m. today was cancelled due to Tropical Storm Eta.
On the eve of a hearing in circuit court that may decide the fate of Captains BBQ’s breach-of-contract lawsuit against Flagler County government Thursday, Captain’s lawyer is asking the court to compel County Attorney Al Hadeed and County Administrator to submit to depositions and answer to the fact that both were intimately aware of various issues relating to the restaurant building, yet are now disputing those very issues.
The surprise move, to which the county objects, may be just another tactical way to exert more pressure on the county in a case filled with similarly wily turns. But if the judge grants it, it would place Hadeed and Cameron on the defensive and under oath in a setting where they’d have little control on the questions asked or the ultimate direction of the deposition.
Gregory Snell, Captain’s lawyer, also filed answers to the county’s claim that the lawsuit should be dismissed. Snell finds the county’s argument legally groundless. Both filings took place Monday. The hearing is scheduled for 3:30 p.m. Thursday before Circuit Judge Terence Perkins.
Captain’s filed its lawsuit after the county commission effectively reversed approval of a lease amendment with Captain’s that would have opened the way for the restaurant to build a bigger facility, more centrally located at Bing’s Landing, the historic county park. Captain’s sees that as a breach of contract. The county in its motion to dismiss the case argues that there was no breach, because the county administration unlawfully recommended approval of the lease amendment without first putting the offer out to bid, so other potential businesses could compete for the space. The county also argues that the commission’s vote was subsequently unlawful.
Second, the county argues that even if the bid was not an issue, the commission did not actually “rescind” the lease amendment, but merely set it aside–and provisions in the lease amendment had not kicked in yet, so there was nothing for the county to breach.
The county’s claims “lack merit,” Snell argues in his answers, while pointing out that the county’s novel arguments, first pout forth in August, upend the county’s previous claims. “Clearly, they are taking a diametrically opposed position now to what they have taken in their pleadings,” Snell argues.
Snell almost ridicules the county’s claim that it broke the law by approving the lease amendment. “Stated otherwise,” he wrote, “the county maintains that they should be excused from performing the obligations they voluntarily agreed to with Captain’s BBQ because they were so incompetent that they did not comply with statutory bidding requirements.”
At the time, Craig Coffey was the county administrator. He was all but fired weeks after the commission approved then reversed its call on the Captain’s lease. Hadeed was the attorney all along, soon to be joined by Jerry Cameron, the administrator who replaced Coffey and quickly made himself appear to be in command of the Captain’s issue.
Snell notes that the bidding process was in fact used when Captain’s was chosen to take over the restaurant in 2011. Captain’s, co-owned by Mike Goodman and Chris Herrera, was one of two bidders. But the county did not put anything out to bid when Captain’s and the county agreed to two subsequent lease amendments, in 2015 and 2016, and of course nor was it put out to bid in 2018.
The difference is that in 2018, the lease amendment amounted to a reconfiguration of the whole lease and the building of a new structure. The county, whose administrator developed the plan with Captain’s secretly and attempted to have the commission approve it without public discussion, was also attempting to circumvent the import of the change by defining it as a mere “amendment.” Hammock residents who have opposed the plan themselves argued that the proposal should have been put out to bid, only to be rebuffed by the county administration and, by extension, the commission, before its reversal.
But Snell argues that nothing in law requires a bidding process when a lease “amendment” is involved. “That is an express exemption to the statutory bidding requirements,” he argues, and goes further, relying for precedent on an Attorney genera Opinion that was the result of a previous, similar Flagler County matter. In 1999, Flagler County was seeking an opinion as to whether it could lease a non-aviation portion of the county airport to a private party without a competitive bid. The Attorney General at the time said yes, “if the governing body determines that such a lease is in the best interest of the county” and statutory conditions are met.
Snell then keyed in on a particular portion of the amended lease with Captain’s, which states that the county and Captain’s “have discovered that the original location suffers from significant structural deficiencies, defects and deterioration, which is well beyond normal wear and tear and not caused by lack of maintenance and repair, that renders the original location unsuitable for [Captain’s] intended use and occupancy for the remainder of the present term of the lease agreement.”
Those lines were written into the amended lease without documentation. Coffey repeated them in one shape or another to the county commission, claiming that the building was beyond repair, and relying on his staff to echo what he submitted as certainties. But there’d never been an independent analysis of the building to support the claim.
Yet months later, with Coffey gone and Cameron in charge, lo and behold, the building was not in such disrepair after all, and could be fixed for a mere $60,000, Cameron claimed. The building inspection was conducted by the same county staff that had conducted the prior inspections. (“It’s a dramatic turnaround,” Cameron said at the time. “The fix will be much easier than we anticipated before.”)
It is likely at least in part to probe the makings of that miracle that Snell is seeking to depose Cameron and Hadeed. It’s not clear why he is not seeking to depose Heidi Petito, who was Coffey’s director of general services–and facilities–and was the point person on the Captain’s project then and now, to the point of herself continuing what Cameron called “informal” conversations with Goodman recently in hopes of settling the lawsuit.
In a weaker portion of his answers, Snell argued that while the county contends it had not breached the amended lease–its terms had not kicked in–the county expressed in numerous ways “that they had no intention whatsoever of fulfilling their legal obligations under the amended/restated lease.” That “anticipatory repudiation” creates a cause of action for breach of contract, he argues, though he does not provide evidence of those “numerous ways.” What evidence he did produce was not flattering to his clients. Snell included the minutes of the August 1, 2011 county commission meeting, when commissioners approved the original lease with Captain’s, after plenty of discussion and concerns. At the time, according to the minutes, Goodman addressed commissioners and and told them that he and his partner, Chris Herrera, were fisherman, were interested in holding seminars for people to learn to fish, and rent kayaks, and that the “food aspect was being overblown because their main concern was to bring people into their bait shop to sell fishing materials and bait.” That, of course, has never been the case, with Captain’s overwhelmingly focused on its restaurant–expanding it, adding booze to the menue, and so on.
In his motion to compel Hadeed and Cameron to submit to depositions, Snell argues that Hadeed was the county attorney when the original 2011 lease was approved and when the amendments were entered, “at all times in between, and was directly involved in the negotiations of these documents.” (Hadeed’s role with Coffey was not as smooth as it may have seemed. Hadeed was also instrumental in the transformation of Bing’s into a public, historic park, and he was privately not thrilled by Coffey’s torrid-paced deal-making. Coffey for his part kept Hadeed on the periphery of the negotiations, though the original lease bore Hadeed’s clear imprint, as in the following segment of the original lease, which he’s quoted often:
As for Cameron, Snell argues he became the county administrator after the lease amendment was devised, “but nonetheless, is and was soon after the time he became employed by the county, familiar with the condition of the building, and various assessments of the condition of the building made by internal, and external, parties.”
The county is objecting to Hadeed and Cameron being deposed. It’ll be up to Perkins, the judge, to decide whether they will.
Jane Gentile-Youd says
It would not surprise me if Hadeed gets a doctor’s note to avoid a deposition but I hope the Judge denies the motion because each side would have to be given the same consideration. It is kind of very late in the game to play this game. It is beyond revolting under any circumstances that our county attorney is so incompetent to have approved the original amendment in 2018 and equally, if not more revolting that just 5 days after being served as county attorney he farmed out the suit to an outside lawn firm costing us almost $100,000.
The entire commission is guilty of malfeasance in my opinion for giving this attorney an $800,000 budget for the coming year knowing he is responsible ( in my opinion) for every single asinine financial blunder from 2013 forward – Old Hospital purchase, P Bay utility purchase, Pre-fab barn in the west, Sears Building fiasco, and more recently ( to be continued November 16 5PM ) setting up the commissioners for the benefit of the applicant of The Gardens Development ( my personal opinion) by giving them a ‘lecture’ and ‘instructing’ them on what they must disregard citizen’s testimony, when they vote on approving or denying the ‘ development from the grave’- with the applicant’s ‘court reporter’ banging away at her machine paving the way for the applicant, with the help of their attorney, to sue the county once again if the commission turns down the Gardens.
My husband and I cringe at the thought of the close to $3,400 we have to cough up before the end of this month to pay our ‘property taxes’ knowing our taxes are a mere drop in the ever sinking endless bucket of Al Hadeed ‘s games which have cost and continues to cost us. Sickening, revolting, disgraceful , contemptuous, and there seems to be no end in sight… How do you all see it
WOW Hardball lol. For that give them Rent for free forever!
These commissioners and administrators “errors” to benefit the few always become costly to the tax payers of this county. People elect these Republicans in this red state that know jack about administration of law that they bend as they please to benefit the few and developers seriously undermining the services that we pay for in our taxes while using and wasting taxpayers funds on their selective goals. That Cptn BBQ should have opened the first year with not less than 5,ooo lease a month and increments yearly accordingly to their revenues.
I never thought the golden egg lease given to Cpt’s was fair to the taxpayers and nearby restaurants to start with. They were treated in a very preferential, selective way with a very low rental rate practically for a life time on a public owned park that was purchased with preservation funds and not to be commercially developed with restaurant and parking occupying 1/3 or more of the public space of the park.
The FC Commissioners spent our taxes in these selective deals benefitting the few like these businesses owners, realtors, lawyers and bankers and other buddies while taking away funds from the services we pay to them to start with in our yearly ad valorem taxes. Look at the tax bill we all receive from Suzan Johnson and look at what we pay the county is the highest amount followed close by the school. Meanwhile those residents within 6.5 or 7 miles west of the Taj Mahal in the unincorporated areas do not have cell phone reception, much less wi-fi needed to work from home or affordable cable/satellite TV. In an emergency there are residents with disabilities or elderlies living alone that have no way to call emergency services as presented in the 11/19 county commission meeting starting minute 106.06 with Mrs Gentile Youd https://www.youtube.com/watch?v=p5IAq5WGhfk.
The millions spent in unneeded oversize airport hangars, Cakes Across (our pockets) America, buying contaminated real estate, old hospital, Sears building, bank structure, buying a useless utility that is still not working properly, all those millions should have been invested instead in the utility communications to west Flagler County and would have been money left over… But these same affected residents keep electing and re-electing the same bozos, that do not have the residents taxpayers first in their goals but their own political ambitions and theirs and buddies financial benefit as well.
Depose them both. These two are used as workarounds for the Commissioners to communicate without violating the Sunshine Law. They likely know EVERYTHING and this net might implicate a few other snakes at the County.
Can't believe it says
Typical of Flagler County’s Commissioners, staff, and Al Hadeed’s arrogance toward the citizens. They think the people are uneducated and ignorant and will not notice. Al Hadeed’s incompetence was unveiled when he helped draft the lease to Captain’s advantage, when his responsibility was to protect The County Commissioner’s and County Taxpayers. Either he just doesn’t do his job, or he is unable to do it. Depose them and drain the swamp. At the same time, they should depose Goodman and ALL the Commissioners, including staff, past Commissioners and Coffey. And I am not some sniveling liberal. I am a registered republican. But wrong is wrong and needs to be righted.
Goodman is not an innocent player in all this. He wanted a bigger restaurant and liquor bar, his own boat slips and use of the pavilion all along. He came down here from New York, knowing he could “play” the bafoon Commissioners. He’s now claiming he is just a fisherman who wanted to get people into his restaurant to teach them how to fish. But the taxpayers were not as ignorant as they all thought.
Right ON, Jane and the others calling for Hadeed’s accountability. Just follow the all the “common threads” that wrapped around the many debacles in Flagler county in the past few years. The vast majority of them have Hadeed deeply involved or at least giving tacit approval. He’s paid to be the county attorney. . . you know, the one who is “supposed” to make sure agreements are reasonable and “LEGAL”.
Finally, Coffey is gone, and Landon is gone. . . NOW, Hadeed needs to be GONE!
Much ado over what is, charitably described, mediocre bar-b-que. I realize, of course, this is the “way we did things up North”!