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.