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.
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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.
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