A much-anticipated meeting of the Flagler County Commission to decide the fate of Captain’s BBQ at Bing’s Landing, the county park, ended in a lurch: No decision for now, but some clarity on what will not happen: the county is not willing to repair the existing restaurant at its own expense. Rather, it is favoring building a new structure, but not necessarily on Captain’s more expansive terms.
Those plans will be drawn up by early May. “We’re certainly not ready to vote today on this,” Commissioner Greg Hansen said.
Commission Chairman Don O’Brien said his instinct is to let the Captain’s lease run its course “and be done with it.” But he said that would not be realistic. Rather, “some derivation” of a plan for a new Captain’s building closer to the Intracoastal would be possible, but it would have to be the “exact same size and scope that it is today, but new, if we can get to that.” That might mean no liquor license, and no expansion to 150 seats. What that plan will look like is now in the hands of Interim County Administrator Jerry Cameron and his staff.
What is certain is that any further possibility of the county itself assuming the costs of repairing Captain’s at the existing location is “off the table,” in Hansen’s words.
“I’m not willing to spend $733,000 on the park and Bing’s Landing, so Option 1 as it’s presented is not a possibility for me,” Commissioner Dave Sullivan said, referring to other costly problems the county has to resolve ahead.
It was not the sort of resolution opponents of the restaurant’s expansion had in mind. But nor was it the sort of resolution Captain’s itself was looking for. If compromises are made up of resolutions that leave no one happy, this one may be the compromise that finally wins commissioners’ approval.
Today’s 140-minute meeting was well-tempered, with smatterings of applause the only expressions of emotion.
Heidi Petito, the county’s facilities manager, briefed the commission on two options. The first would be to stay in the existing structure. But she presented it clearly as the lesser option. The building dates back to the 1950s. It pre-dates building codes. It’s been in pieces, requiring many repairs, including floor and kitchen repairs the county conducted since January. Repairing the whole structure would cost, by the county’s estimate, $480,000, with total costs (including the extension of a sewer line) at $733,000. Costs would exceed 50 percent of the value of the property, making reconstruction less than desirable. The whole cost would be borne by taxpayers. The business would have to stop operating for nine to 12 months, exposing the county to liability.
If the restaurant was moved closer to the water in place of an existing pavillion there, Petito said, Captain’s would assume all construction costs, which she placed at $1 million. Captain’s would assume the cost of a sewer line extension, placed at $147,000. Only two palm trees would be removed. The business could continue to operate without interruption during construction. “It is perceived as a larger impact,” Petito said of moving the restaurant closer to the Intracoastal, “when in fact when you look at the footprint of the existing facility, the new option is actually a smaller footprint but it’s better organized,” Petito said.
Opponents seized on the numbers being presented, including Commission Chairman Don O’Brien, who did not like the series of question marks the county’s slide had placed next to “Cost of Business Interruption.”“I’d like to have an idea of the magnitude we’re talking about here,” O’Brien said, referring specifically to profit and loss. “This is a big hangup for me.” He asked Interim County Administrator Jerry Cameron and County Attorney Al Hadeed if the county had requested the business’ profit-and-loss statement. It had not. It had merely requested some figures to help the county make its determination. The figures were not provided. “We don’t know,” Cameron said.
O’Brien wasn’t comfortable with the uncertainty. “It’s hard to make a good decision when we can’t quantify what we really have at risk.”
Hadeed said that the amount of damages “would not be ascertainable” even if a profit and loss statement were provided, and noted that profit and loss statements are confidential for private businesses. That’s true on private property. It’s not necessarily the case on public property. In Flagler Beach, the private company running the golf course on city-owned property is routinely required to provide monthly profit and loss statements, and the Funky Pelican, the restaurant at the pier, is required to provide the city similar accounts so the city can collect its share of profits, based on agreed-upon percentages. Both business’ requirements were written into the leases. Captain’s does not have to provide its statements because that requirement was not included in the lease, nor did the county require a profit-sharing arrangement, though it could very well have, just as Flagler Beach does.
Jay Livingston, the lawyer representing Captain’s, defended the original lease and subsequent amendments, all of which were approved by the commission, “so it did not happen in the shadows.” He said rebuilding in place would stress the trees and risk more die-off than moving to the location closer to the water.
Others in support of Captain’s spoke of the difference in costs to the county: the business willing to assume most costs of construction in one option (if the restaurant were moved) as opposed to the county having to assume most costs if it were rebuilt in place. One Captain’s advocate implied opponents of the deal are “selfish” for not wanting to share the benefits of the park and the restaurant.
Opponents united around a common theme: there’s no opposition to the restaurant per se, but only to its move to a different location, its expansion or the parking lot’s expansion, and its addition of a liquor license. Some questioned why the restaurant would not release a profit-and-loss statement. Some spoke about the “gifts” the county showered on the restaurant to subsidize its operations. Some questioned the county’s own cost estimates of repairing the current structure. A business owner described the arrangement with Captain’s as “preferential treatment” for a particular business. “Captain’s is taking advantage of the county at every step of the way,” the business owner said. Randy Odum, another business owner, called the arrangement with Captain’s “a Trojan horse” that circumvents numerous requirements imposed on all other private businesses. Some proposed just letting the lease expire, ostensibly in 2021.
“You have so generously gifted Captain’s owners that it is truly stunning. Low rent, no taxes, free parking and all sorts of things. Santa Claus has come to Bing’s,” Carol Scott, who’s been active in the opposition, told commissioners. “And Mr. Hadeed fears the restaurant owners will bring suit if they don;t get their way. It’s like suing Santa Claus for heaven’s sake.”
Dennis Bayer, the Flagler Beach lawyer who represents the Hammock Community Association, gave commissioners a brief history of Bing’s Landing, its acquisition with taxpayers’ Environmentally Sensitive Lands dollars, and the original lease for Captain’s BBQ, which saw the restaurant as an “ancillary” amenity in the park, not its centerpiece. Bayer recalled the words of Barbara Revels, one of the county commissioners when the commission approved the 2011 lease, who said that “not one tree should be removed” as a consequence of that lease. Yet the county and the restaurant have gone “well beyond the scope of what the commission envisioned in 2011,” Bayer said. He called a proposed liquor license for the restaurant, which would enable seat expansion to 150, a “dangerous precedent” in a facility on public land, intimating that Princess Place would be next. He told commissioners that “fear of liability” is overriding public benefit at the park. And he ridiculed the county’s assumption that Captain’s should face no risk, or that the operation could not sustain some interruption if the county were to conduct repairs on the building.
Some 70 minutes into the meeting, and after eight people from the audience had addressed commissioners, Captain’s pulled a surprise: give us 20 minutes to re-negotiate some terms. The audience jeered. O’Brien gaveled. His colleagues agreed to a 20-minute recess. When the meeting resumed, Cameron explained that Captain’s owners may be willing to work with the county on a work-around to the business interruption. Cameron didn’t give further details. “There are a couple of ways that might happen,” Cameron said, “but should you choose to go with the rebuild option, we would negotiate between now and the first meeting in May, but it doesn’t really change your fundamental decision here.”
But in the end, and yet again, there was no final decision.