The case may proceed to a jury trial.
Flagler County Commissioners voted 5-0 on July 13 to reject a proposed mediation settlement with Captain's BBQ, the restaurant at the county-owned Bings Landing park.
The county government and the restaurant have been in mediation since February 2020 over the details of the restaurant's use of the county facility, after the county in 2018 at first approved, then weeks later rejected, a lease which would have allowed Captain's BBQ's owners to build a larger restaurant building in another part of the park.
"I’m absolutely in favor of declaring an impasse on this mediation," County Commissioner Donald O'Brien said. "There's a number of things here that are very concerning to me, and that I could not accept. The rent is not even close to market rate. ... I can't accept the rent as it would be delineated going out to 2040 ... I can't accept assignability of the lease; I can't accept any control whatsoever of the pavilion, for not even for one day — it should be for first-come, first-served for the public; and I'm real uncomfortable with renewal options that take us out to 2041."
The lease would have required the county government to renovate the county-owned building in which the restaurant operates, would have given Captain's preferential access to a nearby park pavilion on holidays, and would have extended below-market rate rent into the future.
"I’m absolutely in favor of declaring an impasse on this mediation. There's a number of things here that are very concerning to me, and that I could not accept."
— DONALD O'BRIEN, Flagler County commissioner
Commissioner Joe Mullins warned about the possible legal consequences of rejecting the mediation settlement, and noted that the county has spent more than a year and a half on the dispute with the restaurant.
But Commission Chairman David Sullivan was also uncomfortable with the proposed mediation agreement.
"I tend to agree with Mr. O’Brien on this, that an option three impasse is the only way we can go," Sullivan said. "Doesn't mean it's over or anything else, but I don't see any way else to go at this point, based on the information that is provided."
Commissioner Greg Hansen agreed.
A few residents spoke about the agreement during the meeting's public comment period. All opposed the proposed mediation agreement, finding it overly generous to the barbecue restaurant.
"Thank you Mr. O'Brien, thank you Mr. Hansen, thank you Mr. Sullivan," resident Jane Gentile-Youd said. "... Thank you three men so much for turning down the biggest piece of garbage I have ever seen. ... This park belongs to every single one of us."
Palm Coast resident Peter Johnson thought the restaurant's rent was too low.
"I think that in the future, the commission should be extremely careful on selling out our parks, basically, to private enterprises," he said. "As far as use of the pavilion goes, I agree with Mr. O'Brien: There shouldn't be a single day that they basically don't have to play by the rules."
Rick Belheumer, a Flagler Beach city commissioner, noted that the Flagler Beach government has an agreement with a restaurant — the Funky Pelican, on the Flagler Beach pier — but it requires the restaurant to share its profits with the city government. The proposed lease mediation with Captain's BBQ doesn't require that.
Especially if Captain's were to obtain a liquor license, Belheumer said, "We're just giving them everything they need to just make piles of money, and it should be shared with the landlord if it gets to that point."
Mullins asked County Attorney Al Hadeed about the possibility that the case would go to a trial, which could result in an outcome the county would have no control over and would be forced to follow.
"The route of this case will be likely to a jury trial," Hadeed replied. "And then the jury will render its verdict, and then the court will act in accordance with the law and then that judgment will come down. Either party can appeal, but ultimately the court system is going to decide who has what, who owes what, what the attorneys' fees are, etc."
O'Brien said he understood the potential consequences.
"I’m making my comments and my recommendation with the full understanding that we’re going ahead to a possible jury trial, and if that’s the way it is and we can’t get a better draft mediation settlement than what we have now, then that’s what needs to happen, in my mind," O'Brien said.