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BP Business Economic Loss Claim Appeal 2017-881: Tourism Designation of Each Location of Multi-Location Business Decided Independently

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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 appeals its RTP, arguing that it should have been designated Tourism.
Claimant’s NAICS code is not on the presumed-Tourism list. Hence, Claimant has to establish Tourism based on the “totality of circumstances.” Generally, location and % of non-local customers/revenue are factors that one looks to in evaluating whether or not a business ought to be considered Tourism. As to location, Claimant is located in Pensacola, which is adjacent to Pensacola Beach, a recognized tourist attraction. As to % of non-local customers/revenue, Claimant does not track its
customers by zip code. However, Claimant did provide some data regarding its customers. The data showed the following for the time period that was studied:
1. 34,330 customers at the location were members.
2. Of these members, 10,437 could arguably be considered non-local.
3. These customers made up 60% of the total customers at the location.
4. By extrapolation of the above data, the total customers at the was 57,216, and 17,394 of those customers could arguably be considered non-local.
5. Based on the above, 30.40% of the customers could arguably be considered non-local.
This Panel has consistently held in other appeals that, while a claimant doesn’t have to show that a majority of its revenue or customers are non-locals, there must be a showing that a significant % of revenue or customers are. This Panel has drawn that threshold at 30%. [There have been several instances wherein claimants presented data that purported to show that non-local customers exceeded 30%, but this Panel found the data unreliable and/or inconclusive.]
Although close, Claimant has met that threshold. That, and Claimant’s location, lead this Panel to find that Claimant qualifies as a Tourism business. This Panel is aware that most Panels, including this Panel, has rejected Claimant’s Tourism argument for other store locations. But each appeal is fact-specific. Here, Claimant has presented enough facts to qualify as Tourism.
Claimant’s Final Proposal is adopted.

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