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BP Business Economic Loss Claim Appeal 2017-246:Claimant’s Location Near Interstate, Without Empirical Evidence of Tourism Sales, Fails Tourism Test

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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,the owner of a fruit and vegetable market in Theodore,Alabama,appeals the denial of her BEL claim on the basis she failed to satisfy the causation requirements of Exhibit 4B of the Settlement Agreement. Claimant asserts the Settlement Program wrongfully denied her business a Tourism designation which caused denial of her claim because as a zone B business causation is obviated if a claimant is designated a tourism business.
BP posits there is no record support for claimant’s contention she qualified for a Tourism business designation. A review of the record discloses that claimant does not dispute she could not satisfy any of the Revenue Pattern Tests of Exhibit 4B. Claimant’s argument is encapsulated in its entirety on the statement “Claimant is located
within 500 meters of Interstate 10 and has a customer base that consists primarily of people traveling along the interstate.” At the outset it is noted that the NAICS code 445238 used by claimant is not listed under Exhibit 2 of the Settlement Agreement as a presumptive tourism business.More importantly, claimant offers no
forensic, empirical data to support her contention that her customer base “consists primarily of people traveling along the interstate.”
Claimant is a fruit and vegetable market and it is hard to equate how claimant’s business activity “cater[s] to the needs or wants of persons traveling to,or staying in places outside their home community” as contemplated by Exhibit 2 at 1 of the Settlement Agreement.Common sense notions lead to the conclusion that claimant relies principally on the support of local customers to sustain her day-to-day operations over strangers diverting 500 meters off the interstate highway to visit her premises. Her location on a tourist corridor, without more, provides only an incidental nexus to tourism, which showing is not sufficient to warrant a tourism designation under the Settlement Agreement and numerous panel decisions.
There is no error. Accordingly,the award of the Claims Administrator is affirmed and the appeal of claimant is denied.

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