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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 is a manufacturer of athletic footwear. Claimant submitted claims on behalf of three of its outlet stores located in the Gulf Coast Areas, including this claim for a store located in Foley, Alabama, in the [XXXXX]. The Settlement Program applied an RTP of 1.5 for a non-Tourism business located in Zone A. On appeal, Claimant argues that it should have been afforded a Tourism Designation with an RTP of 2.5.

Claimant suggests that its outlet locations are retail stores and thus should have been afforded a retail store NAICS code; specifically, Claimant argues that the appropriate NAICS code designation is 451100, which includes “Shoe stores, specialty sports footwear (e.g., bowling, golf, spiked).” BP argues that Claimant sells regular athletic shoes, not specialty sports footwear, and thus is properly afforded a non-Tourism NAICS code of 448210.

This Panelist is aware of 2 other appeals where the same issue is raised as to the tourism designation and he has reviewed the facts and circumstances of each of those appeals. What is of critical importance to the understanding of each appeal is that they are based on the “totality of circumstances” of that individual facility. The Settlement Program in this appeal 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.

A review of that documentation will serve as a basis for this decision. Claimant cited a number of appeal decisions involving shoe stores in support of its position. However, a careful reading of those 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 produced sales data that showed that a majority of its sales were to non-locals. In the instant appeal this Panelist on Summary of Review 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 then cited interviews with former store managers in stores in the Gulf Coast including the subject store. These “explanations” and “feelings” of cause and effect are not in this Panelist opinion sufficient to meet the standard of “objective documentation”.

Claimant also directed this Panelist to do a “google” search of Foley, Alabama, for evidence of fulfilment of sufficient “tourism” classification.. That search revealed that “Foley is a coastal community where genuine Southern charm unites with an array of attractions, events, accommodations, and restaurants….” While the is mentioned there was nothing that demographically supports the needs of the standard herein either for the mall, generally, or Claimant, specifically.

While it is correct that nothing in the Settlement Agreement requires that a certain percentage of Claimant’s customers be non-locals in order for Claimant to qualify as “tourism”, the allocation between local and non-local is a “relevant factor” when looking at the “totality of circumstances.”

In this appeal using the above criteria there is an absence of such sufficient allocation other than relating to the area, generally.

Accordingly, the decision of the Settlement Program is affirmed and the appeal of the Claimant is denied.

[Editor’s Note: But see BP Business Economic Loss Claim Appeal 2016-787: Location in popular shopping district suggests tourism]

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