The Flagler County Commission this evening unanimously approved the county’s settlement with Captain’s BBQ, ending the restaurant’s breach-of-contract lawsuit against the county. The settlement would, in Commissioner Leann Pennington’s words, “stop the insanity.”
The county administration’s attempts to happy-face the settlement notwithstanding, it is now clear, by the commissioners’ own assessments, that the county would have lost had the case gone to trial, and that accepting a costly, and in some ways humiliating, settlement, was the county’s only choice. (See the settlement details here.)
“Knowing the information that was granted to us during disclosure, having gone through with all that,” Commissioner Andy Dance, who had not been part of the controversies of 2018 and 2019 that led to the lawsuit, said, “it is in the best interest of the taxpayer to continue with the settlement. I think there’s way too many issues that face us, and in a jury trial I think the potential is for a much larger impact.”
The settlement grants Captain’s the right to build a 5,000 square foot restaurant on a “peninsula”-like portion of Bing’s Landing, on the Intracoastal. The county will have to pay $400,000 for construction of the new building and $400,000 toward costs Captain’s sunk into the existing building, in addition to the nearly $200,000 the county sunk into legal fees, and not counting the sewer line the county will have to extend to the new restaurant, the boat slips and new pavilion it will build there, though those costs will more directly benefit park users.
This evening’s motion, by Dance, includes a requirement for the county to complete a management plan for the park as well as a master plan before the certificate of occupancy is issued to Captain’s, when it opens its larger facility.
The settlement is crushing disappointment to the Hammock community, as represented by members of the Hammock Community Association and others.
“I’m not so sure that we are so against a restaurant in the park,” Janet Sullivan, a member of the HCA, told the commission this evening. “I think we were just gobsmacked by how it occurred in 2018.” She was referring to the way then-County Administrator Craig Coffey negotiated a proposed lease amendment with Captain’s owners out of public view until the amendment was presented to the commission for approval. Even then, Coffey placed the item on the commission’s “consent” portion of its agenda, hoping it would draw no discussion.
It drew a firestorm.
That 2018 amendment called for a new restaurant Captain’s would build nearer the center of the park, at its expense, and have a lease extended for over two decades. The commission approved the amendment in a 3-2 vote. Two of the three commissioners in the majority are still on the dais: Greg Hansen and Dave Sullivan. (Nate McLaughlin was the third vote). The late Charlie Ericksen and Don O’Brien, who is still on the commission, voted against.
Weeks later, in the face of outraged opposition, Sullivan urged the commission to backtrack by setting its decision aside, but not rescinding it, later to argue that the amendment never went into effect–ultimately, a legally untenable argument. Captain’s lawyers knew it, and pressed their advantage.
“We are angry and truly saddened at what has transpired starting in 2018,” Janet Sullivan said. “We did everything we could to stop this issue.” Not too many people spoke–the chamber was two-thirds empty–but most of those who did echoed Sullivan (the HCA representative, not the commissioner), though a few also spoke resignedly for the settlement.
The case was heading to trial early next year, until Circuit Judge Chris France pushed the two sides to try mediation again, as they had previously, with less success. The county had become hesitant to go to trial with France in the judge’s seat, since France had himself, in the footnote to an order, gobsmacked one of the county’s legal arguments. It was not a good sign for the county’s prospects. So came the settlement, negotiated for the county mostly by Petito.
“I know that maybe not everybody can wrap their head around this project but there are some significant advantages and disadvantages of the settlement when we’re looking at this,” Petito said today toward the end of a presentation that made the settlement sound more like a victory than a loss. She cited minimal to no tree loss. The new restaurant will be “less obstructing,” at least from A1A (it will, in fact, block out the view of the Intracoastal from a few portions in the park). There would be no archaeological issues. Captain’s will still pay the majority of the new building’s costs, which will be owned by the county from day one. “There will be no building closure so there will be no loss of revenue, no disruption to employees or customers at Captain’s BBQ. There will be increased rent,” Petito said: $3,000 a month–still nowhere near market rate for a restaurant in that context–as opposed to just under $1,000 currently. Petito said restaurants in parks are nothing new.
“We have had a lot of comments from the public,” the administrator said. “Some folks may or may not think that the resolution here is what they would like to see. I say all that but the county’s position is that Captain’s does retain some current entitlements and rights, which would allow it to continue to 2026. There is a certain level of risk and uncertainty if we were to go to trial and not enter into a settlement agreement. But I think through thoughtful negotiations and commitment to finding that common ground, that both sides walk away with something that they can be proud of. There is no clear winner that would emerge either through protracted litigation, but instead we’ve put more of an emphasis on achieving an amicable resolution. that serves the best interest of all stakeholders, including our public.”
Commissioner Sullivan said odds were against the county to prevail at trial. Had the county lost, the restaurant would be built anyway, he said–and be built at its originally desired location, closer to the center of the park. The cost of litigating a trial would also be very steep, County Attorney Al Hadeed said.
“It’s going to cost money either way we go,” Sullivan said.
John Baker, the general manager at Captain’s, said the business employs 35 people and works with 18 vendors, plus charities, for which, he said, the business doesn’t get credit. “I take a lot of pride in everything that we do–the food, the way that we pressure wash, the way that we keep just the curb appeal, because we want everyone to feel welcome when they come to us,” he said.
Kim Carney, a former Flagler Beach city commissioner now running for a county commission seat, told commissioners that “the one thing you missed” in the lease is percentage of gross profits. “You missed a whole bunch of money because Flagler Beach gets one and a half percent every month reported to the city, of the Funky Pelican proceeds, gross proceeds.” The Funky Pelican is the restaurant at the Flagler Beach pier.
Shortly after the 5-0 vote, commissioners elected Dance the new chairman of the commission.
Flying dird says
WE knew this was coming …. i feel like i was just rolled over in the grass and Screwed . Thanks CRaig Koffey and Al Hadeed and outback county Commissioners….
The Sour Kraut says
I know there is going to be a huge outcry from the community, but I think in the long run this will be good for the community. The new building will only be slightly larger than the current building and if the current building is demolished, the space can be used for additional parking.
BOCC Clown Car says
Wikipedia just revised its definition of “Putting Lipstick on a Pig” to include a reference to Flagler County’s settlement with Captain’s BBQ.
Skibum says
The county was in an untenable situation, and they clearly saw the writing on the wall. The county put itself in this predicament by pretending that the legally binding contract they signed was somehow just a proposal, or suggestion that could be fritted away merely by snapping their fingers and going “poof”! Had the commission not signed off on the mediation agreement and dared to proceed with a court trial after already costing county taxpayers hundreds of thousands of dollars, even Las Vegas would not have given county administrators favorable odds of prevailing when Captain’s BBQ’s attorneys had the documented evidence showing that the county violated the contract and then negotiated in bad faith afterward trying to void the deal and somehow use an invisible wand to conjure up a new one that would be more to their advantage. After all is said and done, I hope the county saves up some money to send their attorneys to remedial law school because somebody surely failed the most basic elements of Civil Law 101.
Concerned Citizen says
There’s one way the county can avoid all of this. Listen closely.
STOP GIVING SPECIAL FAVORS TO BUSINESSES.
Every business in this county should have equal standing. Once you start playing favorites and accepting bribe money. Ooops I mean campaign contributions you get yourself into this mess. And at our expense. Best to avoid it all together.
A Concerned Observer says
So, the county lawyers make a boatload of money, the Captains BBQ lawyers make a boatload of money and the owners of the Captains BBQ make a boatload of money. The Flagler County taxpayers have to pay out a boatload of money and the politicians and the County lawyers have no financial responsibility whatsoever. The Petito spin on this not withstanding, have I got the basics right?
Thomas Hutson says
Captain’s BBQ Settlement
I must first admit I was not present at the final hearing at the BOCC meeting for approval of the Captain’s BBQ at Bings Landing. I was home sick with a very bad cold, I did however, watch the entire meeting on YOU-TUBE. I also sent out a copy of my personal objections to each of our County Commissioners on their email accounts. One took the time to respond to me personally on his feelings of this issue. I thank him for his response.
Since this is a closed event now, to say anything further regarding this settlement would be futile at this time. It does not, however, relieve those remaining individuals of their responsibility. They are the ones whose lack of management skills and sound judgements placed the County in a position of paying out over a $million dollars and giving away control of an 8-acre public park to a private business after 4 plus years.
I would suggest to the current County Commissioners to look within this current administration for those remaining actors responsible for putting the County in this mess to begin with. As a Flagler County resident and taxpayer, I ask you to please don’t encourage them or allow them to slither away. Now is the time to finish the job, clean up and clear out those individuals. Let’s “DRAIN the SWAMP” on 100. After nearly 5 years and over a $million dollars, this case is closed, these actors are not needed anymore, show them the door! If for no other reason than their lack of good sound decision making skills., Flagler County residents demand no less, an administration we can have confidence in.
dave says
Well, not surprised, it is what it is. Well we can ask, who’s at fault, here, the Commissioners that wrote this misguided deal up in the first place a long long time ago or the County Atty that was either falling in line with his boss, or just didn’t see the big picture and the loop holes in the original deal. And yet, in this new deal, Captn’s only pays $3,000 a month rent, a lot less than some of the avg restaurant rental rates per sqft in this county, which seem to go for an avg monthly $27.29 per square foot. Factors such as location, age of building, ( in this case NEW !) amenities, lease options. Captn’s stole this. Well played I say. So if people want to complain, well you elected these Commissioner’s that seem to suck up at the time of a “deal”, so voters you get what you got. And when the intercoastal raises during a big storm, makes you wonder about this new location, the flooding but the tourist don’t care, they don’t live here or give a crap about little town politics, they are here to spend money.
Ron says
The Hammock needs to find a candidate to run against Hansen. We need representation.
Ben Hogarth says
I’d like to say simply for the record that the County’s decision to “settle the matter” is the right one. I’ve been on here (FlaglerLive) commenting on this particular issue since it first popped up in 2018. I’ve long been a critic of the County’s decision to ram the original lease renewal through the public (due) process without real transparency or thought given for the public purpose (rational nexus test). I STILL believe that the existence of the restaurant (business) within the public park, particularly at a less-than fair market value (FMV) is abhorrent and against FL Constitutional Law. However, the failure of the County in years past has (in effect) conveyed certain rights to Captain’s BBQ that it would not otherwise enjoy – not even as privilege. So the only resolution is one where Captain’s is granted some of what the County initially promised in that lease renewal.
If Flagler residents wish to protect their parks in the future, all they need to do is offer up (county) charter amendments to enshrine such protection and conservation. Take future foolish decisions completely off the table by preempting your elected officials before they even make one.
Fernando Melendez says
I get the fact that they’re trying to avoid losing bigger if this went to trial, But we never would’ve been here to begin with if it weren’t for their bureaucratic boondoggling. You can’t make this stuff up with these Commissioners. And it’s why I’ve decided to run for County Commission District 1. County residents are tired of having these Commissioners think they know what’s best for our communities even after citizens imput. Let’s bring back our voice into government.
Please check out link to my website
vote4fernando.com
watchdog says
Ben, you comment on Flagler Live frequently. However, you don’t live in Flagler County do you?
BLINDSPOTTING says
WE NEED TO MOVE FORWARD:I understand the reason they had to
vote yes BUT let’s not forget the original players who initially signed off:
Sullivan -ADIOS -I hope that this is your last BIG DUMP on Flagler, you
triedto do even more damage to the residents of Flagler County with your
false information about your half penny sales tax increase along with your
golden review administrator Petito who also spewed the false information
and you are on the tourist board, now how did that happen? Hansen: must
be voted out that is if he still intends to run, time for him to go, he wears
several masksand is already up there much too long and has become
insensitized to the publics issues. Hadeed couldn’t write a brief if his life
depended on it, he is known for hiring outside attorney’s while he makes a
giant salary which we pay , don’t know why he was ever hired back.
Pennington from what we understand accepted donation, the most one
donate,from Captain’s BBQ, while spewing “STOP THE INSANITY”,
while the insanity comes from her, hope she does not intend to run agaim
asshe fell in with the good old boys club to go along to get along.
Land of no turn signals says says
What a deal.
DoubleGator says
Though this is a costly mess, the deal which was accepted is a 1000 times better than what the County originally agreed to. The trees in the park are preserved and the restraunt is less obtrusive. I like the additional boat slips and the order to develop a long term plan for the park is LONG overdue.
Poor county management is is blame for this debacle.
Laurel says
Captain’s could have bought Hidden Treasures in Flagler Beach. Then they would have had a larger property, a restaurant, outdoor bars, and a large outdoor seating and dancing area. They could have a liquor license, plenty of parking and their own docks with more slips in a town with more stuff to do within walking distance.
I believe the owners have throughly enjoyed what they have done to us. Personally, I think they are scum.
If one of the owners has more than one business, that’s how many donations to Flagler commissioners? Time to go, Hansen, who pretends to look out for us.
Cold day in hell before we go there again.
BILL says
SO, where was the county attorney “hiding” in all the negotiations? and is he still on the payroll?? Nice job, and how much did you make?
Hammock Huck says
100% agreed. This moron doesn’t know how to make a right decision, and passes the buck each and every time.
Hammock Huck says
Heidi has been an employee of the county quite some time. But I also believe, she’s become too comfortable. It’s time for Flagler County to hire a quality seasoned County Administrator and make it a nationwide search.
FlaglerLive says
It is irrelevant whether a commenter lives in Flagler or in a shack at the southern tip of New Zealand: both have as equal right to comment here if they so choose: you wouldn’t ask a commenter if he/she/they were of this or that race, religion, gender etc. here, Geography is no different.
BLINDSPOTTING says
This is what happens when you have poor representation of
your district but it should not only be the district board
member who represents each district, we need reps
who are concerned about the welfare, safety, health,
infrastructure, etc for all of Flagler county and this is
also is what is lacking, one cannot only care about one end
of Flagler county when another part is going under due to
whatever, because when voting time comes for them they
all vote on the same issues. Craig Coffey and Sally Sherman
were a disaster for Flagler county and made disaster decisions,
the others came and held the baton but are no different,
Hadeed, Petito, also need to go, don’t know why she was hired
at the 12 o’clock hour by Cameron intially he was training Salinas.
for that position. Let’s see how well Dance does now that he holds
the gavel with his acceptance speech of safety, infrastructure and
changing the dynamics of the system. I do believe that Jane
Gentile Youd would have done a much better job than Pennington,
Jane would have represented the citizens much better which is
why they did not want her or rally for her. Be careful who these
current commissioners align themselves with in the next
voting cycle as we do not want the same old BS repeat itself.
Laurel says
Please, someone who knows, explain to me how a public park accepts a hard liquor license? I’ve thought about it, and state and federal parks do not allow liquor. Are there any other Flagler County parks that allow hard liquor? I really don’t know, but cannot think of any other public parks that allow hard liquor. Please advise.
Laurel says
…or even wine or beer for that matter.
Adam Frank says
I wonder if that kook Palm Coast City Councilwoman knew about any of this before her crazy annexation proposition?
palmcoaster says
Blindspotting right on the spot! I agree!
Jace says
This is one of the most corrupt towns in all the country!,
BLINDSPOTTING says
Adam Frank: I don’t understand your question and how
it relates , please explain, We are sure Pennington knew
when she accepted the 1000.00 contribution from one
of the owners towards her campaign as this was in the
making 4-5 years. Greed took priority over doing the
right thing!
Jane Gentile-Youd says
Facts not discussed nor disclosed:
All accidents, whether inside Captains, or on the intercoastal, which are alcohol related will be the 100% liability of the county taxpayers : we own the land, the building and allow Captains to get a SfX hard liquor license . For lousy $1,800 they will be able to give any boater who docks at our taxpayer funded floating docks, any hard liquor of their choice. What happens when inebriated boater takes off from our docks in his go fast boat? Who cares?
$3,000 month rent and not a dime of liquor profits or even gross profits as Kim Carney reminded the sleeping commissioners that funky Pelican Pelican pays to Flagler Beach. Nope! All 5 just want to make sure that nobody else can sell food or drinks in our public park. Imagine that! They gave our entire park away without a peep.
Their outrageous lawsuit filed June 7, 2019 stated that the county ‘aimed to harm an otherwise viable and flourishing business.” Well folks, as if all their advertising about how they are number 1 BBQ in the area with the best views of Palm Coast and , as their manager said in person to the commissioners on November 20 ” everybody loves us – we give away to so many causes. His little bragging speeah should be enough to win our case at trial! Captains has been thriving in the same building the jackass negotiator Heidi Petito told the commission on November 19, 2018 ( after agreeing with the owners of Captains on February 22 and again on September 16, 2023 that ” the building should have been torn down ‘years ago'”…
Yet, the same Heidi Petito who got us into this mess was chosen by the commissioners to negotiate the lies she created which caused thi lawsuit in the fist place.
Not one commissioner asked how much $$ we spent on (unnecessary) outside counsel..( $160,000)
Not one commissioner asked if the county could be held liable for an accident anywhere i the park, involving anyone who got drunk at Captains.
Not one commissioner asked why 5,000 sq feet when 2,000 sq feet, with seating for 120 is all the State of Florida now requires a restaurant to have for a hard liquor license.
Not one commissioner asked how much more legal fees would it cost us to go to trial, nor if there were any more legal costly steps to get to trial.
Not one commissioner said they the ‘moot’ lawsuit i.e ” It is inevitable that Captain’s will be forced to cease all business operation and ( get this) incur significant damages if the new building is not ‘timely’ constructed” They want costs for ” any interruption and decline in business” . The entire original complaint is 100% MOOT with the one exception of a breach which cost the Plsintiffs zero dollars as it was remedied in one month prior to any significant expenses by the Plaintiff.
Our free bee give away leases since 2011 never promised Captains one ………..g dine of profit.
Not one single commissioner deserves my respect any longer. We are doomed to a commission in my opinion who appoints the real troublemakers as the negotiators. The very troublemakers who got us into trouble who without qualification told the Plaitiffs TWICE in private tete-a-tetes – that a new building was needed. For who Heidi? On what basis Heidi? Heidi never read the lease herself ; the same Heidi who lets a charter business take up a public space full operate full time with his Charter boat which is a business for profit without paying a dime from our taxpayer paid floating docks.
Thank you Flaglerlive, thank you reader and thank you all once again who put your faith in me both in 2018 and again in 2022. Unless the caring citizens of Flagler County unite such malfeasance ( my opinion) and misfeasance ( my opinion) will get worse and worse. “Apathy” remember that word because it is the key to the destruction of a democratic form of government. Out of more than 60 people who commented against the Captains deal only TWO – 2 little ladies, by themselves, independent of each other, told the commissioners what a huge istake a settlement would be and how we, the people would prevail at trial. Their own lawsuit and bragging about how successful they are is all a jury needs to hear!
Two little ladies out of 120,000 Flagler County residents stood up and spoke the truth. That folks is your fault; every one of you who could have as a group, stopped this real ‘insanity’ from happening.. but nobody but 2 little ladies….After over 21.5 years I feel I have wasted these precious years ,caring about our tax dollars and our quality of life. From hereon in now its just getting the Old Dixie Hotel gutted or rebuilt this year. and with that exception and that of my surrounding community I am done caring about all that ‘stuff’ anymore; I am planning to enjoy my golden years on issues that give me happiness and joy. Incompetence, laziness, stupidity, dependency on others, not caring, ‘mind made up anyway’…I am done. Mark and I will pay our property taxes and write on our check ‘ paid under protest’. How do you see it? Thanks again to Flaglerlive and thanks to all you caring readers.
Laurel says
The Hammock is not a town.
Other than that, if no Flagler County park currently has a business with a liquor license, one in Bing’s would set a precedent for all Flagler County parks. I cannot believe they are allowed to serve beer and wine now. Alcohol is a major liability for a public park.
Erod says
Great point, what’s to say a patron of the new Captain’s BBQ has one to many then gets into his car and plows into a pedestrian or a child riding his bike from Malacompra park. Will the county share LIABILITY and possibly be a CODEFENDANT in the massive lawsuit brought by families of the victims ?
When the county negotiated this “SURRENDER” deal to mask INCOMPETENCE, NEGLIGENCE & POSSIBLE BLATANT CORRUPTION deal, dis they ever take this into account ?
I’ll bet MORGAN AND MORGAN have been thinking about it.
BLINDSPOTTING says
Erod: They just don’t care about the safety impact, well being and health
of ANY of our communities, just look at our overcrowed roads and
poor infrastructure, that’s all we need is more drunks on the road and
they don’t have to be from just here, could be tourist, they opened
another can of worms because they are stupid, I have heard people on here
who would have made better commisioners, administrstors and county
attorney’s, stupid, uncaring people in power equals danger. They all need
to be voted out and some fired. Remember this at election time.
BLINDSPOTTING says
Also, I read somewhere that A1A is one of the most dangerous
roads in Florida due only having 2 lanes and no lights, did any
of them even consider this before issuing a hard liquor license????
Skibum says
Erod, there is not an alcohol related business anywhere in the state that bears either civil or criminal liability for the actions of an individual who consumed alcohol served to them at that business UNLESS the business continued to serve an obviously intoxicated patron. It matters not one iota whether that business is located within a public space or on private land. Those businesses still have rules prohibiting allowing an intoxicated individual to obtain more alcohol, or the license to sell alcohol would be in jeopardy. Yes, some business owners and/or employees conveniently look the other way or are slow to recognize when it is time to cut someone off, but the majority adhere to the rules because they understand their livelihood would be at stake, not to mention taking on the potential of extremely high legal liability, if they overserved or failed to refuse service to an intoxicated customer. As long as they follow the rules, it is the individual who consumes the alcohol that will be held responsible for the actions he or she takes after consuming the alcohol, NOT the business. It sounds to me like you are putting all of the alcohol related consequences only on the business, whether or not they did anything wrong, and completely losing sight of the responsibility of the drinker to recognize when they have had enough alcohol and to not drive or operate a boat if intoxicated.
CELIA PUGLIESE says
The biggest taxpayers fleecing voted yes by the FCBOCC now, after taxpayers forced to pay for the oversized hangar/offices to Bobby Ginn, that I believe we are still paying for: https://flaglerlive.com/ginn-corp-default-flagler-airport/#gsc.tab=0
Lets remember 2024 we need a new FCBOCC.
Erod says
Yes, you make a great counter to my concern, however in todays world of “LITIGATION LOTTERY” where one attorney after another advertises “PAYDAY PAYOUTS” your argument doesn’t shield the COUNTY OR THE TAXPAYERS from having to payout the prizes.
The fact of the matter still remains the COUNTY in a agreement with owners entered into a reluctant partnership as a result of one litigation, the county will also bear the shared burden of other litigations if the factors mentioned in the core post ever happen.
And we all know that incidents like the one describe usually always happen sooner or later.