Two years after the Flagler County Commission agreed to let Captain’s BBQ at Bing’s Landing build a bigger restaurant in the center of the 7.5-acre public and historic park then reversed course amid a torrent of protest, and almost a year and a half after Captain’s sued the county for breach of contract, Circuit Judge Terence Perkins Thursday will hear and possibly rule on the county’s motion to throw the case out.
Captain’s owners argue that the breach of contract is in black and white. The county’s argument is a curious one: the county is arguing that it did not follow its own rules, so the lease amendment is invalid. That, of course, is one of the argument Hammock opponents to the lease amendment had made, the argument then-County Administrator Craig Coffey and the commission rejected as invalid when they approved the lease amendment, since–or so they argued–Captain’s was the existing lease holder and the amendment was just that, an amendment. In fact, it was a new lease hiding under the guise of an amendment, since it entirely changed the complexion of the park, altered the original lease through the construction of a new building on a new location, with more seats ad new, generous subsidies.
Coffey is long gone, making him an easy scapegoat for the county’s novel legal argument: that the county–the administration and the county commissioners who voted for it–broke the law when the commission approved the amended lease, so the lase is invalid.
It’s not every day that a government calls itself lawless–in its own defense, no less.
“The county did not engage in the ‘highest and best bidder’ process required under [state law],” the county now argues in its audacious motion before Perkins. It is also arguing that the amended lease was never rescinded, as Captain’s argues, so much as “reconsidered.” That means in the county’s view there never was a reversal. The county is parsing words of course: while the word “rescinded” never appeared in the county’s move to reverse course on the amended lease, it was well understood at the time that the amendment as Captain’s had crafted it with Coffey was dead. So was the proposed new building.
But if that may be clear to those who followed the two-year ordeal, it will not appear that way to a judge–and a textual judge at that, with zero patience for legal penumbras and emanations–who is approaching the matter with a blank slate and only the documents and arguments lawyers are submitting to him.
In sum, the county’s argument is two-fold: the amended lease was “illegal and void from its inception.” (Put another way, the county is throwing Coffey under the bus, though it would have to do likewise with current commissioners if its argument is to carry any legitimacy.) So the county couldn’t have either breached it or rescinded it. And even if it were legal, the county hasn’t breached it because the timeline that would have enacted the amendment had not kicked in.
Perkins is a stickler for the letter of the law. If the county commission approved a lease illegally, that’s a problem, but Captain’s has contract law on its side. The way the amended lease was approved, without bidders, may be a problem, but it’s the commissioners’ and the administration’s problem, not that the of the business. In other words, if a government approves a contract or a lease illegally, those who approve it on the government’s side may be liable for breaking the law, but the liability doesn’t extend to the business, which would be in the role of innocent bystander in that case. The business can;t be made to pay for the government’s shoddiness (or shadiness).
The history of the case is all grays.
Captain’s has been leasing its current location at Bing’s since 2011. The terms have been very generous. But it’s also been the only business that’s made a serious go of keeping the restaurant going through the years. It’s popular, in a relatively discreet location, more a complement to the park than its centerpiece. That’s what the lease amendment was proposing to change: te restaurant was to be come a centerpiece.
The County Commission met on Nov. 19, 2018. The lease amendment that was to allow Captain’s to expand–Captain’s would have built the new structure at its own expense–and benefit from two decades of rent well below market value was on the agenda, albeit on its “consent” portion, where county administrators place items they’d rather snuck through without discussion. The item was pulled for commission and public discussion, got plenty of it from both, and the commission approved the lease amendment, 3-2. It was a huge victory for Captain’s owners Mike Goodman and Chris Herrera.
It was also short-lived. The Hammock community had already been mobilizing against the lease amendment. It started weekly protests. Much of the anger was the result of the county’s clumsy strategy: then-Administrator Craig Coffey had preferred a more secretive approach to a more communal one, springing the lease agreement on the commission at the last minute instead of working with Hammock residents toward an acceptable compromise. The strategy left Captain’s owners looking like they’d tricked residents, when in fact they’d simply sought as good a deal as they could get–and Coffey gave it to them without prior input from commissioners or the community.
As commissioners began to feel the political fallout, they realized the lease agreement was a mistake. They unanimously voted to reverse on the lease agreement in early December 2018. Weeks later Coffey was forced out. With Captain’s owners as willing partners, the county began negotiating alternate locations in the park. But even that approach failed, with Captain’s hardening its position just as the county did.
In June 2019, Captain’s sued the county. In what started as what Coffey thought was a checkers game and turned into a chess game since, the lawsuit might have been Captain’s latest tactical move, though once the county is in litigation, it reflects County Attorney Al Hadeed’s approach: it’s all in. But he’s not the county’s litigator. Dale Scott of Orlando is.
Mediation between the two sides appeared to make some headway. But just like the previous history of relations between the two sides, appearances of cooperation did not live up to the substance of the mediated agreement. The restaurant’s settlement offer seemed more like another demand. The restaurant was willing to stay in its current location, but it wanted preferential use of a popular pavilion at Bing’s on big chunks of the calendar–all major holidays plus 18 weeks. The proposal gave Captain’s even more rent subsidies than the original lease. (See the full proposal here.)
Even after Captain’s dropped its demand for 18 weeks of preferential use of the pavilion, commissioners rejected the proposal. The case was heading to court.
Then Heidi Petito, the acting deputy administrator, had an informal conversation. (Petito had also been Coffey’s point person in late 2018, when it was developed, so she’s likely the most familiar person with the history and details of the Captain’s saga, going back to 2011.)
According to County Administrator Jerry Cameron, “they just bumped into each other.” He did not say where. He did not say how. Given the county’s ongoing litigation, it’s usually standard operating procedure to ensure that no such informal bumps take place. But an “informal conversation” took place. Petito did not summarize it to the commissioners, who could not solicit her analysis directly. Cameron played go-between, saying that Goodman allegedly felt that “possibly this board would have been favorable had Captain’s done two things, and that was to not put preferential treatment with regard to the pavilion into the agreement, and secondly, that in the last lease period, that we would go to market rate. And Mr. Goodman said well, we’d be happy to entertain that if you would put it in writing.”
Cameron told commissioners of the Petito-Cameron conversation in mid-October.
The 2011 lease called for $500 a month rent, with increases of $40 a month at each annual anniversary, making today’s rent about $860 a month. (See the 2011 lease here.) The proposed agreement allows four four five-year renewals of the lease, with rent rising to $1,750 a month in 2031, $2,500 five years later, and $3,500 by 2041. The proposal makes no provisions for inflation, no 3 percent a year adjustments. Cameron wasn’t clear when that market rate would kick in. At one point he said it would be “in the last lease period.” That would mean it would kick in starting in 2041. But then he said it would be “in the third five-year extension,” and said that would be in “10 years,” when in fact the third five-year extension begins in 2036–in 16 years, not 10. (Cameron’s grasp of facts is not always commanding.) The lease periods are clearly outlined in the proposed agreement.
Either way, the market rate kicking in would be a very long time from now, when all the current principals will have long moved on (Goodman would be 84 by 2036).
Commissioners were cool to Goodman’s latest proposal. “There are other items in that mediation that I had concerns about,” Sullivan said. “But it’s a step forward, that’s movement forward, but I think it needs to be looked at.” But he also noted the court hearing ahead.
“I see no reason at this point given what Mr. Cameron has said from my position to do anything but let it proceed forward as we agreed to, to court,” Sullivan said. Cameron suggested a “shade” or closed-door meeting. Commissioners may hold such meetings for few reasons, among them discussion of pending litigation, so as not to give away their strategy.
“Perhaps if you did it in a shade and you had that approval in your pocket it might be useful in negotiating during those legal proceedings,” Cameron said, giving away the county’s strategy. That’s what commissioners agreed to, holding that meeting last week. Because litigation is pending, they’re not supposed to discuss the meeting’s substance. But that’s irrelevant as far as Thursday’s motion before Perkins is concerned: the judge is hearing just that motion–assuming Captain’s and the county don’t settle beforehand. That, too, remains a possibility, though the settlement agreement would have to go before commissioners, in a public meeting.
James M. Mejuto says
So, what’s the problem ? Months we have been going over this bullshit.
No restaurant should have been ever approved for Bing’s Landing !
Raze the building and begone with it. We’re tired of this bullshit !
Maybe the county was in fact in error for approving the restaurant to start operating at that location to begin with, but that now is ancient history. The fact is that Captain’s BBQ has been in business in it’s original location for a number of years, and has been successful. The restaurant is the prime reason why so many people go to Bing’s Landing park in the first place. I have been a loyal customer of Captain’s BBQ for a number of years, and you know how many times I’ve gone to Bing’s Landing for any other purpose? Exactly NONE! Whether or not they end up expanding or relocating to another part of the county park, the reality is that the restaurant is wildly popular with BBQ lovers, whether they are enjoying an outing at the park or just going for the food. I realize that some people who live in The Hammock would love nothing more than to permanently close the popular restaurant but I believe that train has left the station and some type of compromise between the county and the restaurant’s owners will inevitably have to be agreed to. Guess what? That is what the county’s own lease agreement was supposed to have accomplished, until it was found that the county screwed that up as well… or is the county just doing a “hail Mary” and making a ridiculous admission to please those who live in the vicinity of Bing’s Landing? Watching how the county has mishandled this legal matter is like watching a bad sitcom on Comedy Central.
What a screwing Coffey gave the residents and the commission let him off the hook . ??? He just moves to another county to do it again . What incompetence or ( corr u $&)?.
Donald O'BBQ says
Coffey worked directly for the Commissioners One in particular who just got reelected is behind this. He made Coffey the face of this and fired him anyway. Don’t be duped.
White Bronco says
Sweetheart deals always go south at some point. This one, the epitome.
Like always , this limp county will cave in and give Captains a deal that will in the end keep them in the same spot. Why, hell with any “permanent resident”, its the horde of tourist and yes also locals that eat there, which appears to outnumber the complaining residents. .. I actually thought this was over many months ago. But, like I said, a limp county always finds a way to screw themselves over and the voters.
I have yet to se ONE CHILD Playing on that playground near the restaurant. But I see many customers being served by the Captain BBQ restaurant. And they don’t seem unhappy with the product being served.
These “community activists” are entitled short-sighted individuals who will resist any change to anything unless it is one of their own closed group seeking an exemption, variance or change that benefits THEM personally…and/or expands their own ability to build something THEY want to build on local land. They could give less than a flying fig about anyone else OR what the majority of locals actually want.
FL you need to call out Hansen and his flawed governmental philosophies! He has been given a significant hall pass in this debacle. Everyone else has been in the ‘spotlight’ . You have all the details from your past articles…publish them!
Having been appointed, not elected, it’s clear he is not qualified in any way to become a representative of the Hammock.
Frankly, it’s embarrassing that he has not been called out….
Mr. Hadeed DOES NOT VOTE. We , the people, elect commissioners …their job is to understand all facts, opinions, variables, existing agreements in place….impact to stakeholders, THEN, vote to represent the citizens of their district .
I am totally confused….the County Attorney gets wrongfully accused of telling the BOCC how to vote on ‘The Gardens’ PROJECT and here in this string of comments he gets accused of not being strong enough, he should tell the Commissioners how to vote in Bings.
All I can say is….wow
Captain BBQ made enough profit so far in the backs of the county taxpayers…what is that issue that Gentile Youd mentioned that the county gave Captain’s BBQ of the stimulus CARE Funds in the county commission meeting of 10/19/2020? In minute 1.0737 hear who was documented getting CARE Funds in Flagler County :> https://video.search.yahoo.com/search/video?fr=mcafee&p=Flagler+county+commssion+meeting+of+10%2F19+you+tube#id=1&vid=9941c697939ce7143247811cd51ab680&action=click
Jane Gentile-Youd says
County Attorney is responsible for guiding the commissioners in their decisions… He approved the illegal as to ‘form’ .. never advised the commissioners prior to their approval of this madness in November 2018 that it is I L L E G A L to allow a private entity to BUILD a PRIVATE facility on TAXPAYER’S LAND!
Case 2019 CA000381 .. Five days after being ‘served’ with the never should have happened lawsuit Hadeed farms out his mistake to his buddy law firm who has to date billed the county for over $71,000. How much does Bing pay for rent? NADA – couple hundred…
The current old building was no good for them to be able to get their COP SRX State license ( sweet hard liquor license – only 15 allowed in all of Flagler County) because a restaurant must have minimum seating capacity of 159 and the current building can’t go above 90…. So the invented bullcrap about the old current building was invented to give the deal makers their dream for a 150 seat restaurant.. The Pavillion is a joke- has no bearing on the lawsuit.
Hadeed needs to be FIRED and the commissioners need to do their homework in addition to hiring an attorney who works for them not screws them time after time after time – my opinion.
Before I forget Captains was give $50,000 Federal Cares Act Grant funds in July for projected lost revenue of $50,000 for9 months from March through December. Not bad for a rental of $500 a month is it? How do you all see it?
John Stove says
Here’s the real problem….total lack of command and control in the County Government. There should have been at least 2-3 intra-departmental reviews and then a County Attorney review of the original “offer” (before it was tendered) to make sure that it was legal before it was offered.
Once it is offered, it becomes part of the official record in this case. It is not the restaurants fault that the County didn’t do its job correctly. Yes, the County can “retract and rescind” the original incompetent offer but the restaurant has a legal right to demand compensation ($$$$$) for the County incompetence.
This is basic negligence on the County and at a minimum any parties part of this negotiation (still employed by the County) should have to go thru a thorough review and disciplined accordingly so that it doesn’t happen again.
You cant lay ALL of it at the feet of an employee who is no longer employed by the County.
Close the place down, terrible food, plastic silverware, and expensive pricing. Send them down under the Flagler Beach Bridge let them pay market based rents and them watch them fold.
I beg to differ with your assessment of Captain’s BBQ. The food is, and always has been delicious. Don’t take my word for it… Captain’s BBQ has been repeatedly named one of the top 10 barbeque restaurants in the nation, and is consistently rated at or near the top on Tripadvisor.com’s website, including being awarded the Traveler’s Choice award for 2020. You can check for yourself here: https://www.tripadvisor.com/Restaurant_Review-g34534-d2536207-Reviews-Captain_s_BBQ-Palm_Coast_Florida.html
Jane Gentile-Youd says
Fire Hadeed -He sat silently when the Commissioners voted to commit malfeasance; he signed and approved the original illegal lease allowing Captains to use our land to build themselves a private Taj Mahal , complete with the 150 seats so they could get themselves their mucho money making ‘ hard’ liquor license.
His incompetence ( my opinion) has cost us over$71,000 in outside legal fees so far on top of his $200,000 salary.
Bubba's Gump says
What I find hilarious is all the people hating on Captains. Before they opened up most of you locals if you even lived here at that time didn’t even know what a Bings was. There were stray cats, vagrants and a struggling bait shop plopped in the woods. I honestly wish and hope Mike and Chris pull up stakes and go somewhere else where they’re appreciated. They get no credit for any of the positive, international traffic they bring to the area. You clowns in the hammock just keep cracking me up, you’d rather be more well known for the Dali Lama’s nephew being ran over and killed on your streets than a popular restaurant and bait shop.
I agree with you! Well, except for your comment about wishing and hoping the owners of Captain’s BBQ would pull up stakes and go somewhere else where they are appreciated. I appreciate them and the fine restaurant they built from scratch! My friends and family who I’ve taken there to eat many times do too. I’m sure there are many other locals as well as frequent visitors to this area and other travelers who appreciate Captain’s take on BBQ. Your comment may have been in jest… but for what it’s worth, I want Captain’s BBQ to remain here in Palm Coast as one of our bright spots in dining. Those who feel the need to complain about it’s location in the county park are, in my humble opinion, ignoramuses who are trying in vain to destroy a very successful local business for purely personal reasons. No wonder all of their houses in the Hammock are hidden… I’d be too embarrassed to show myself too!
It would be comical if it weren’t so pitiful that the county’s latest legal argument against the valid contract that they signed and agreed to with Captain’s BBQ is an admission that they messed up and were in violation of the law, but don’t hold the county responsible for their error, instead make the restaurant liable for the county’s screw up. Wow, what a uniquely stupid legal strategy. If that whopper ends up being a winner in court, the county commission should immediately begin offering shares of Flagler Beach sand to Chinese investors via the internet.
Can't believe it says
None of this would be going on now, if Al Hadeed had done his job in the first place. He is as much to blame as Coffey.
Greg Hansen couldn’t wait to get his signature on the lease the night of the first Commissioner’s meeting. They should all be held accountable. Joe Mullins (the mouth of the south) is the only one you cannot blame this on. He was at that meeting in November and expressed his opposition to the way this was being handled. These bafoons are still costing the taxpayers money because Hadeed is not doing his job now. He had to hire another attorney from outside The County. How many attorneys is Hadeed going to hire for the Dune job, when it’s all said and done? It’s beyond time for him to go. It all goes back to “follow the money”.