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BP Business Economic Loss Claim Appeal 2017-770: Multi-facility Footwear Store Can’t Meet Tourism Requirements

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 appeals the denial of its BEL claim for want of proof of causation. Claimant is a Multi-Facility business specializing in athletic footwear and apparel. This appeal involves its store located in the Eastern Store Centre mall in Spanish Fort, Alabama. Claimant acknowledges in its Opening Memorandum that it does not meet the causation requirements of Exhibit 4B to the Settlement Agreement unless it is designated as a Tourism business. The Settlement Program assigned NAICS code 448210, “Shoe Stores,” to Claimant, and that is the NAICS code Claimant uses on its tax returns. Claimant argues that its business is “akin” to several businesses whose NAICS codes are entitled to automatic Tourism classification under Exhibit 2.
The fact is, however, the architects of Exhibit 2 left Code 448210 out of its list of Tourism codes. Claimant may still qualify for Tourism status if it can satisfy the by now well-expounded criteria of Exhibit 2 and Policy 289 v.2, based on“the totality of circumstances.” In filling out its BEL Claim Form, Claimant answered the question, “Does your business fall within the Tourism Definition,” by checking “No.” Claimant now attempts to dismiss that choice asmerely the action of an “uninformed individual.”
The record containing this appeal is a consolidated one, containing Claimant’s nine appeals relating to separate store locations. The same person Claimant entrusted with the responsibility of filling out each claim form, as Claimant’s designated business representative, answered the Tourism question in the negative each time. Claimant further argues that its location in a mall near the intersection of supports a Tourism designation. Numerous appeal panel decisions have rejected the notion that a business can be deemed one which caters to tourists solely because of its location in a tourist area. Finally, Claimant argues that its location is due recognition as a
member of the Tourism Industry by virtue of the statistics Claimant has submitted about patronage at that store by members of its loyalty rewards program.
Claimant’s argument in this regard in its Initial Proposal, based on an affidavit by one of its officers, is as follows:
Claimant’s members constitute approximately 60% of total customers per year. During the period under review by the CSSP
(2009-2011), the following data represents the percentage of sales attributable to members shopping outside of their “home” or registered store, at
. “Market Customers” are the total number of customers that shopped at during the period under review. Customers noted as “didn’t sign up there/not home store” are
customers that shopped at but joined the program at a different location and did not designate Eastern Shore as their home store. Customers noted as “not home store” are customers that joined the program at but live closer to another location (i.e. do not live nearest to XXXX).
Market Customers 10,732, Didn’t sign up there/not home store 2,269 21%, not home store 8,381 78%
The data above illustrates that 21% of the members that shopped at during the period under review were customers that joined the program at a different location and did not designate as their home store. Further, 78% of the members that shopped at during the period under review and joined the program while shopping at live closer to another location.
BP counters to point out that there is another  location only 17 miles from the Eastern Shore Centre mall by way of I-10, in the shopping center in Mobile, and suggests it would be illogical to call persons who happened to live closer to that store than the one in, non-local tourists. The panelist notes, by way of analogy, that Exhibit 4B, footnote 5, defines a “non-local customer” as one who resides more than 60 miles from a claimant’s business location. In the final analysis, the data for doesn’t translate to a showing that a majority of customers patronizing the location during the relevant time frame were tourists. Appeal denied.

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