BOCC Unanimously Votes to Accept Settlement with Captains BBQ

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During the November 20, 2023 Board of County Commissioners meeting, part of the agenda included consideration of the proposed settlement of the Captain’s BBQ Lawsuit which included approval and authorization from the chair to execute the proposed settlement agreement on the 2023 Captain’s BBQ Lease at the request of Heidi Petito, County Administrator and Al Hadeed, County Attorney.

A powerpoint presentation was presented by County Administrator Heidi Petito. The key terms of the settlement regarding the financial aspect include the following: Flagler County will reimburse Captain’s BBQ up to $400,000 toward the construction of a ‘new’ restaurant facility. Captain’s BBQ agrees to construct a ‘new’ 5,000 sq. ft. restaurant facility on the southern peninsula, including the costs of any necessary site improvements related to this project. Rent for the ‘new’ lease will be $3,000 per month initially, with an annual escalation on CPI. Both parties to share (50/50) the cost for insurance coverage sufficient to cover rebuilding of the restaurant in the event of catastrophic event. Both parties acknowledge that the full terms of the current lease are in effect until Captain’s BBQ can occupy the ‘new’ facility, with rent commencing on the ‘new’ facility one month after certificate of occupancy issuance.

The key terms of the settlement regarding the non-financial aspect include the following: The term of the lease is 20 years, with no renewal clause. Flagler County will own the ‘new’ facility upon Certificate of Occupancy issuance. The footprint of the ‘new’ building will be approximately 5,000 sq. ft., allowing for 150 seats. The lease prohibits operations or alcohol sales after 11 pm. Captain’s BBQ has the exclusive right to sell bait and all food and beverage sales within the park, except for any county sponsored events. Captain’s BBQ has the right to secure liquor license, at their sole cost and expense. Captain’s BBQ will be responsible for the upkeep and maintenance of the interior of the ‘new’ facility including all mechanical equipment. Flagler County will be responsible for the upkeep and maintenance of the exterior of the ‘new’ facility including the grounds. Flagler County will tie in sewer for Bings Landing upon availability (anticipated by 12/24). Flagler County will master plan additional recreational opportunities and park enhancements to improve the overall public experience at Bings Landing. Flagler County will seek to establish a dedicated revenue source for Bings Landing with all revenue proceeds derived from the park, being utilized within the park. Flagler County will seek to develop a Comprehensive Management Plan for Bings Landing.

Petito added, “Captains BBQ will be responsible for the upkeep and maintenance of the interior of the new facility, as well as any mechanical or HVAC equipment. Continuing with the non-financial terms, Flagler County would be responsible for the upkeep and maintenance of the exterior of the new facility, including the grounds. The reason behind that is because it is located in a county park, and we are concerned with the aesthetics and upkeep and we want to make sure that it is maintained in accordance to the way we would like it to be done. Flagler County is already running a sewer line up A1A headed towards Marineland. It will be in this general vicinity by the end of December 2024. That is a project that had been partially funded out of American Rescue Plan Act funding, as well as a legislative appropriation that we had gotten. So this isn’t county tax dollars per se, but this is money that we had gotten to really get the entire barrier island off of septic. So it’s not some extra added bonus. It just happens to be what it is. And it’s going to be available December of next year. Flagler County will use this opportunity to master plan Bing’s landing for some additional recreational opportunities and park enhancements. And that’s really to do that for the overall public experience at Bing’s. This is a beautiful park, but there are some things that we’d like to see improved. One of the areas that we’ll talk about when I show you an aerial picture, but we had removed the old caretaker residence from the property. We’d like to restore that area to some additional parking. We are looking at installing some additional floating docks to the south part of the basin. That is really for the boaters that frequent the park. If you go there now, it is heavily used. There probably isn’t adequate space to accommodate the increased boat traffic that you see in a lot of our waterfront parks. So those are improvements that we are looking at putting in, in addition to replacing the existing pavilion that is on the South Peninsula right now as it’s not really to code. It needs to be rebuilt. So we’re using it as an opportunity to relocate it. We are going to be working with the folks at the Scenic Pride and HCA to get some input from them as well, moving forward with what that master plan looks like, as well as other stakeholders in our community. Flagler County will be covering the permit cost or impact fees associated with the improvements that I’ve talked about today, including the cost of demolition of our existing building, which is the building that they currently occupy. That area would be restored to additional green space or parking, as I mentioned previously, by removing the restaurant out of the view shed of the immediate A1A, it actually improves the appearance of the park from the from the road by moving it out onto the peninsula. Flagler County is also looking to seek and establish a dedicated revenue source so that the money generated within Bings Landing would stay within Bings Landing. Uh, this is very consistent with what we do in other parks, such as Princess Place, HawCreek Preserve, other ones where we do have a comprehensive management plan. So we are looking to seek to develop that sort of plan here for this park as well, and look to get some input from the community.”


Flagler County stated that the advantages to the settlement include minimal to no tree loss, less obstructing of view, no archeological issues (spoil area), less construction disruption, majority of costs not at taxpayer expense, no building closure (loss of revenue, employees, customers), increased rent, no legal liability, less legal responsibility, tenant responsible for ongoing interior maintenance and capital, new structure up to code, facility would be on municipal sewer. Disadvantages include perceived as larger impact, impact to park usage of current pavilion space (temporary until replacement is built), some costs at county’s expense, perceived as incompatible use of environmentally sensitive lands (restaurant in park.)

Petito ended the presentation, “And so, in closing, the only thing I would say is that we have had a lot of comments from the public and some folks may or may not think that the resolution here is what they would like to see. The county’s position is that Captain’s BBQ does retain some current entitlements or 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 by not entering into a settlement agreement. 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 interests of all stakeholders, including our public. And by embracing a collaborative spirit, I think that not only do we save valuable time and resources, but I think moving forward, we also foster a foundation for future cooperation  And so with that, I think we’re able to bring a chapter to a close. I think I’m very optimistic that, you know, we acknowledge that the party’s commitment to a harmonious resolution sets a precedent for pragmatic dispute resolution in the face of uncertainty, because, you know, when you go to trial, there’s high level of uncertainty and cost that I think can be avoided with this solution.”

Once Heidi Petito concluded the presentation, the county commissioners took turns speaking about the settlement.

Commissioner David Sullivan stated, “Just to maybe clarify this and maybe our legal department can can answer this. You’ve already mentioned it, but the choice we really have now is to if we deny this mitigated settlement, we’ll go to trial. So I think that’s what the judge has said is going to happen. And if we go to trial and lose, for instance. And that’s kind of the feeling that I got from our talk we’ve been doing on this for a while. It’s not necessarily true, but it could be true. And the odds were more that we would lose the settlement, lose the legal case, and if that were to happen. I think, and that’s maybe Al or Heidi can talk to this. The restaurant will be built anyway, and probably our costs would be more than what they are right now with this settlement. I’m not sure that, but that’s the impression I have gotten from what we’ve gone so far. So I’d like to address that, because that, to me is the key issue here. Whether we agree to this settlement or whether we go to trial.

County Attorney Al Hadeed responded, “Well, obviously there is an added expense if we go to trial and that means you have to gear up not only with the legal effort, but also with the need to retain outside experts to evaluate essentially what our business damage claims, economic losses. Plus, they have other, you know, damage to goodwill and things of that sort are among the claims. So the the expense of litigating those, especially before a jury, is very significant. Now, the other side would have to bear those kind of costs as well. But if if they did prevail, the result is that the they would be allowed, they would have a right to build the new restaurant. According to the 2018 lease immediately adjoining the archaeological pavilion. That would be their right. Is that what you wanted to know?”

“Right. And in other words, we’re at a point we’ve been involved with this for four and a half, over four and a half years now. And, um, I guess we could push on and hope that we would prevail. But the everything I’ve found out so far in research is that there’s a good chance we’d lose the court case. So it’s a difficult situation to be in. It’s going to cost money either way we go,” Sullivan continued.

Commissioner Andy Dance stated, “We’ve heard from a lot of Hammock residents that some preservationists want to see things remain as they were with Bings and not the added impacts in there. But at this time, our decision isn’t really whether or not, but how it goes in, has been pretty much decided. It’s now how do we best incorporate things. And that’s where the settlement has helped us. It’s allowed us to move the building to the peninsula, which is not an archaeological site. Knowing the information that was granted to us during disclosure, having gone through it all, that is, 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 in a jury trial. I think the potential is for a much larger impact to jury trial. Not everything is 100% on either side. There’s been some give and takes. I think I want to add what was brought to my attention that when the current building is removed, we take time to do an archaeological investigation before we pave over the site just to make sure there’s nothing underground, due to the proximity of the dig site. Captains is a known entity. Is is very popular and puts out a good product. Having come into this late in the process, not part of the original vote, I’m not clouded by the proceedings that went in before. So being able to look at everything objectively, the settlement is the proper course. In some instances that’s not popular. But to protect the taxpayers, I think that’s the the proper way to go.”

Commissioner Leann Pennington added, “I’ve spent the last year getting to know the Captain’s issues quite well because I was not here for it. It is not lost on me how people feel about that park in the Hammock. And my husband and I, we boat out of it every other week. So we can tell you that I understand the concerns. First, one of the issues I’ve heard brought up over and over again is nobody wants a restaurant in a park. That’s perfectly normal. I’m sure many of you, being local, have gone to the pancake House in DeLeon Springs. It is an amenity to a park, so I don’t have an issue with that at all. I’ve read through this. I’ve read through the lease, the amended lease. I’ve watched the videos, I have read the trial, what the judges said. It’s important to look at the footnotes in that trial. I’ve heard what we’ve said in our meeting and I wouldn’t not be here agreeing to this if I didn’t think that if we were to go through a trial, we would be in a far greater losses. I think it’s been very clear to us what we’ve been told. And you didn’t put me in this chair to vote and give you more losses. You put me here to stop losses. And I do believe that it is in the best interest of the taxpayers to stop the insanity and mediate.

Commissioner Donald O’Brien Jr. stated, “My first position would be to scrap this thing completely and redraft it with just a financial settlement. But again, echoing some of the things that Commissioner Sullivan said and Commissioner Pennington and Commissioner Dance. There’s no getting around the fact that we would be at great risk if we go to trial. And I just keep thinking about our responsibilities to the taxpayers in terms of dollars expended and what kind of additional tax dollars we would be putting at risk for an extended trial and or a loss. I just keep coming back around to that. I do want to hear what everybody has to say, but this is one of those things where there is no good solution. And sometimes you have to make a choice out of some of the worst options. We had to do that with the old Sheriff’s operations building. And sometimes that’s what we get elected to do, is to make those tough decisions and own up to them and defend them.

Commissioner Greg Hansen said, “I just think some of the parking issues we need to fine tune, employee parking. Parking for people coming in to pick up, take out. The 150 would be the limit to include outside seating. I think there’s just some fine tuning things we have to do on this, but I think over all, I think you’ve done a great job. It’s the best we’re going to get, I think. So I’ll entertain a motion to approve.”

Commissioner Sullivan added, “I just had one more comment. What we’re doing is agreeing to a mediated settlement here. But the building itself, when it’s to be built and all that, is still going to have to go through all the permitting process. Land development codes, all that kind of thing. The community association, all of those kind of make that point and we will own the building.”

Commissioner Dance stated, “I’d like to make a motion to consider the proposed settlement of the Captain’s BBQ lawsuit. Approving that and authorizing the chair to execute the proposed settlement agreement in the 2023 Captain’s BBQ lease.” Commissioner Pennington seconded the motion. Commissioner Hansen said, “It’s been moved and seconded to approve and authorize the chair to execute the proposed settlement agreement in the 2023 Captain’s Barbecue lease.”

Public comment was opened up with a vast amount of community members in opposition to the settlement. Most commenters echoed the sentiment of Janet Sullivan. She explained, “I am on the boards of both Hammock Community Association and A1A Scenic Pride. I do want to mention that I’m not so sure that we are so against a restaurant in the park. I think we were just gobsmacked by how it occurred in 2018. If we had been prepared or been a part of the process or had known. But to find out that things happened behind closed doors and not in the sunshine, I think turned us against something that perhaps we could have gotten on board with. The Hammock Community Association communicates and assists residents of the Hammock with many Hammock only issues, but we are also attentive to development issues that occur in our neighborhood that impact all county residents. Bings Landing Park is one of those. On behalf of the citizens of Flagler County, we are angry and truly saddened at what has transpired. Starting in 2018, we did everything we could to stop this issue. Dennis Clark of the Hammock Community Association and A1A Scenic Pride sent all of you a letter. And I know that because I’ve heard some comments from that letter tonight already. We would like these issues to be codified, whether in another motion or an addendum to the agreement or wherever, in order to avoid additional harm being done. I’m going to read these concerns for the benefits of the citizens of Flagler County and the public record. Several things that are not in the agreement that should be considered. The number and location of dedicated employee parking spaces should be identified and signage should be used. Short term take-out parking should be identified with signage. Outdoor entertainment by the restaurant should be prohibited. The maximum 150 seats must include inside and outside seating with no seating outside of the building footprint. Scenic A1A pride should review the site plan, including the architecture and elevation plans. Heidi mentioned this tonight that she wants us to be involved in the master plan and Cathy mentioned how important this is. These are some issues that we’re hoping can be in the master plan, the pavilion relocation plan with a timeline, pavilion use by the restaurant owner limited to no more than twice per year. Additional parking spaces should be shielded from visibility to A1A the number and location of dedicated boats. How fast can I talk for the restaurant? The location and plans for kayak and paddle board launch should be made known. The south parcel will not be disturbed. And my big concern, because we’ve already been dealing with this for 3 or 4 years with A1A, is that particular intersection. The safety of that intersection even before this restaurant was approved is dangerous. Thank you for addressing that.”

John Baker, General Manager at Captain’s BBQ, also took the podium to speak. “I had the privilege two years ago to join the team and the family of Captain’s BBQ as the general manager. I take a lot of pride in everything that we do. The food, the way that we keep up the curb appeal because we want everyone to feel welcome when they come to us. Currently today, on the payroll, we were able to take care of 35 homes, not just our staff, but their families. That takes us up to almost 45 people benefiting from what we do and what we love with our passion. With the new building that’s going to give us a chance to go even further and extend that, and it goes bigger than just our family. It’s our vendors. We have our 18 vendors that we currently utilize. On top of that, we have charities in this area that we take care of. Seawolf privateers. We take care of foster and displaced children. Flagler Sports Fishing, Pastor Solano’s food bank. Every month we make a donation and a lot of the things we don’t talk about because we are really humble. I know we don’t get a lot of credit for that, but we like to do things behind the scenes because we want to take care of others, but we don’t always need that pat on the back for what we do. Today, we are once again in the Top 10% in the world as far as their classification of restaurants and I feel like that brings a lot to Flagler County. We take care of a lot of teams, local sports groups. We do a lot of catering and we do catering like Parkview Church. Last year we took care of their anniversary party, well over 1400 people. We don’t go full bore. We do as much as we can with their budget to make sure that we benefit them as much as they benefit us. I want to thank you all for your time and your commitment to us, and helping us commit ourselves to Flagler. The residents of Flagler and just doing what we can to continue to help Palm Coast.”

Commissioner Hansen asked, “Mr. Dance, you said you wanted to amend your motion?” To which he replied, “Yeah, based on some of the comments and I know one of them talked about precedent and said one of the ways you get around precedent is by having a management plan for the park. So knowing that and knowing that there’s already been discussions on a management plan that will allow us to reinvest the profits or the monies the county gets back through the agreement and put that back into maintenance and upgrade of Bings Landing Park. So I’d like to amend the motion that the county will also complete a master plan of Bings Landing and complete a Management Plan for prior to the Captain’s BBQ building.”

Commissioner Hansen concluded, “Okay. He moved and seconded to execute the proposed settlement agreement in the 2023 Captain’s BBQ lease and added that the Master Plan for the park and the Management Plan for the park be completed by the issuance of the Certificate of Occupancy.  All in favor, say Aye. Any opposed? Say nay. Hearing none. The motion passes.”

By Kim Hunt

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