- April 19, 2024
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A circuit judge ruled against the Flagler County government Nov. 18 after its legal team made an unusual request — that the judge toss out a restaurant's breach-of-contract lawsuit against the county on the grounds that the county had entered into the contract illegally.
Judge Terence Perkins found that argument unconvincing, deciding not to grant the county's request for summary judgment. Perkins denied the county's request without prejudice, so the county could raise the issue again in the future.
"The county maintains that they should be excused from performing the obligations they voluntarily agreed to with Captain's BBQ because they were so incompetent that they did not comply with statutory bidding requirements."
— GREGORY SNELL, attorney for Captain's BBQ, in a court filing
Captain's BBQ, a restaurant on county-owned land at Bings Landing park, had alleged that the county violated a lease agreement with the restaurant after the County Commission voted to approve the lease in November 2018 but then reversed itself two weeks later, deciding after a new board member was seated to reconsider the matter.
The restaurant had by then inspired activism from area residents who opposed its expansion plans or its presence as a commercial entity in the park.
The county has argued that the 2018 lease — which would have allowed an expanded restaurant site in a different part of the park — was "an illegal and void contract" that was not enforceable because the county hadn't gone through the proper bidding process under Florida law, according to the text of the county's request for summary judgement.
The illegality of the contract, the county argued, was grounds for the restaurant's lawsuit to be dismissed.
Even if the lease had been valid, the county government has not breached it, the county argued.
The restaurant is currently operating in the park under a 2011 lease, and, in the meantime, "The county does not have any affirmative obligations under the amended/restated lease which apply before Captain's BBQ constructs the new location," the county document states. "That is, the county's obligations concern actions to be taken only after the new location is constructed."
Those obligations would involve expanding visitor parking and upgrading the site's septic system, among others.
In a written response to the county's request that the case be thrown out, attorney Gregory Snell, representing Captain's BBQ, contested the county's assertion that the county was required to follow the state's "best and highest bidder" law regarding the restaurant.
And, he added, "The county maintains that they should be excused from performing the obligations they voluntarily agreed to with Captain's BBQ because they were so incompetent that they did not comply with statutory bidding requirements."
The restaurant's filing notes that the 2018 lease itself stated that the restaurant's original and current location "suffers from signifiant structural deficiencies, defects, and deterioration, which is well beyond normal wear and tear and not cause by lack of maintenance or repair, that renders the original location unsuitable for the lessee's intended use and occupancy for the remainder of the present term of the lease agreement."
Captain's BBQ's attorney has asked the judge to compel depositions of Flagler County Attorney Al Hadeed and County Administrator Jerry Cameron. Perkins has not yet issued a ruling on that request.
