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BP Business Economic Loss Claim Appeal 2016-1335:Member Only Yacht Club Awarded Tourist Designation

The following is an Appeal Panel Decision issued pursuant to Section 6 of the BP Deepwater Horizon Economic & Property Damages Settlement Agreement and the Rules Governing the BP Appeals Process. Links may have been added to assist the reader. The original decision may be found here, as well as a glossary of BP Settlement terms.

Claimant is a member only Yacht Club in XXX Florida. The Settlement Program (SP) awarded this BEL Claimant the sum of $120,017.47 (pre-2.00 RTP). BP appeals on one ground; namely the SP’s decision to award a 2.00 Tourism RTP.
Claimant’s tax returns (Form 990) do not list a NAICS Code. Under “Claim Information” in the Current/Last Review, the SP states:
“The Claims Administrator assigned a NAICS Code that differs from the code listed on the Business Entity’s tax return because the Entity provided a From 990 that does not list a NAICS Code; however, it indicates that to promote and stimulate interest in yachting on the and adjoining waters, assist owners of water craft to enjoy boating, assist in preserving the beauty of the waters, establish high standards for operating vessels on our waters and aid and support.
The 2010 Profit and Loss Statement for the Yacht Club indicates that it derived $785,873.00 of its $2,455,380.00 annual revenues from“dues income.” Claimant   maintains a website at XXX but it does not provide significant insight into the Entity’s primary business activity.
NAICS Code 713990 – All Other Amusement and Recreation Industries is the most appropriate NAICS Code for the Business Entity because the website indicates it is a “yacht club.” BP argues that the assignment of NAICS Code 713990 – “All Other Amusement and Recreation Industries” by the SP was in error. That NAICS Code includes “Yacht Clubs withoutMarinas”. BP argues and the record reflects that Claimant has a 52 – slip basin with fuel and pump-out facilities. BP argues that the appropriate NAICS Code for Claimant would be 713930:“Marinas” Among the businesses under that NAICS Code, “Yacht Clubs with Marinas” is listed. NAICS Code 713990 is listed in Exhibit 2 of the Settlement Agreement while NAICS Code 713930 is not listed.
The inquiry then becomes whether or not Policy 289 v.2 analysis supports a Tourism designation (and larger RTP) for Claimant. Under the totality of the circumstances, does Claimant’s business “provide services such as attracting, transporting, accommodating or catering to the needs and wants of persons traveling to, or staying in, places outside of their community?
BP asserts that Claimant does not cater to tourists because it is a private membership club which is not open or available to the general public. BP cites two prior Appeal Panel Decisions where the Appeal Panel found that the involved Yacht Club Claimant (with Marinas) did not merit a Tourism designation. In one decision, the Appeal Panel confirmed the SP’s denial of a Tourism designation. In the other, the Appeal Panel overruled the SP’s award of a Tourism designation under Policy 289 v.2. Those decisions stand on the facts involved in Claimant’s business activities just as this Claim must.
In this Claim, Claimant derives 32% of its annual revenue from membership dues. Claimant members include full-time area residents, second-home members, temporary members, seasonal members and members who take advantage of a 60-day membership.Claimant has reciprocity agreements with the members of the
and the which allows tourists and visitors to utilize the club facilities. Claimant also sponsors allow non-member access to the club facilities and three annual fishing tournaments which attract sport fishing vessels from throughout Gulf region. Claimant also offers sailing courses and sailing regattas which are open to the general public.
After reviewing the record in this matter, and based upon the evidence and facts specific to this claim, this panelist finds that Claimant meets the requirements of Policy 289 v.2 Sections (a) (b) (d) (e) and (f). Therefore, the SP’s award of a Tourism RTP is upheld.

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