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BP Business Economic Loss Claim Appeal 2016-787: Location in popular shopping district suggests tourism


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 Multi-Facility Business. This Claim is for its Fort Meyers, Florida store. This particular store is located in an outlet mall, which was formerly called [XXXXX]. Claimant has filed this appeal, arguing that the Settlement Program should have given its Fort Meyer’s Facility a Tourism designation.

The Program “determined that . . . the Claimant did not submit objective documentation to establish the business earned a significant amount of revenue from non-local customers.” Thus, Claimant was designated as Non Tourism.

Exhibit 2 of the Settlement Agreement defines “Tourism” businesses to include those “which provide services [to] persons traveling to, or staying in, places outside their home community.”

Additionally, Exhibit 2 provides a list of NAICS codes for businesses that meet the tourism definition. The Program gave the Claimant a code that does not appear on this list. Neither party disputes Claimant’s assigned NAICS code.

However, Policy 289 v.2 states that even “[i]f the most appropriate NAICS code for a claimant is not one of the codes listed on Exhibit 2, that claimant may still be considered to fall within the Tourism definition.” The Policy goes on to state that the “[c]haracterization of a claimant’s business as Tourism v. Non-Tourism shall be based on the totality of circumstances.”

Thus, the issue is this matter is whether or not the “totality of circumstances” support designating Claimant’s Fort Meyers location as Tourism.

Claimant cited a number of Appeal Decisions involving shoe stores in support of its position. However, a careful reading of these decisions reveal critical differences between those claimants and the instant Claimant. For instance, a shoe store in Ellenton, Florida produced documentation to show that the majority of its customers were not local. Likewise, a St. Petersburg, Florida [store] produced sales data that showed that a majority of its sales were to non-locals.

In the instant appeal, this Panel requested similar local versus non-local customer data. Claimant responded that data breaking down the zip codes and/or addresses of customers was not available.

Claimant correctly notes that nothing in the Settlement Agreement requires that a certain % of Claimant’s customers be non-locals in order for Claimant to qualify as Tourism. However, as other Panels have pointed out, the allocation between local and non-local is a relevant factor when looking at the “totality of circumstances.” After all, the definition of Tourism refers to providing services to persons who are “traveling to, or staying in, places outside their home community” – in other words, non-locals. It is doubtful that any Panel would accord Tourism status to a business with only 1% non-local customers. Likewise, upon information and belief, all appeals involving businesses with greater than 50% non-local customers have resulted in a Tourism designation.

In the absence of sales data, Claimant’s argument can best be summarized as follows: Fort Meyers is a popular tourism destination and tourists like to shop. Claimant makes reference to [XXXXX], a popular Florida tourism travel site (according to Claimant), which Claimant contends highlights Fort Meyers for popular tourist activities such as going to beaches, fishing, and shopping.

The problem with Claimant’s argument is that these are generalizations about tourists who visit Fort Meyers. These generalizations do not necessarily lead to the conclusion that tourists find their way from the beaches and the fishing piers inland to Claimant’s store.

Claimant concludes its brief with the following:

“If this claim (for a retail store in an outlet mall in a popular tourist destination in the Gulf Coast) is not entitled to the tourism designation when considering the totality of the circumstances, then counsel is unsure what type of claim could ever receive the tourism designation under the Settlement Agreement.”

Notwithstanding Claimant’s counsel’s perspective, this appeal is a difficult one to resolve in the absence of sales data or other documentation (e.g., affidavits from sales persons attesting that many of the customers they sold shoes to appeared to be non-locals.)

Fortunately for Claimant, the Lee County Visitor and Convention Bureau (Fort Meyers is located in Lee County) compiles annual statistics on tourism in Lee County. Of particular interest is the 2009 annual report. See https://www.leevcb.com/media/1137/2009-annual-summary.pdf.

The following statistics from this report are relevant to this Claim.

1. Approximately 4.7 million visitors came to Lee County in 2009.

2. 58% of respondents (visitors) listed “shopping” as one of the activities they engaged in while visiting Lee County.

3. When asked which attractions they visited while in Lee County, 28% of respondents (visitors) listed [XXXXX], the location of Claimant’s store in 2009.

Based on the above survey, one could reasonably argue that approximately 1.3 million visitors shopped at [XXXXX] (4.7 million x 28%) in 2009.

In light of this 2009 report, the “totality of circumstances” suggests that Claimant’s Fort Myers store serviced a significant number of tourists during the relevant time periods. As such, Claimant should be designated Tourism.

Claimant’s Final Proposal is adopted.

[Editor’s Note: But see BP Business Economic Loss Claim Appeal 2016-804: Something more than location needed for tourism designation]

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