Tanque Verde Enterprises v. City of Tucson , 142 Ariz. 544 ( 1983 )

HATHAWAY, Judge,

dissenting in part and concurring in part.

The majority concludes that the trial court’s invalidation of the original tax ordinance was erroneous because they find it based on speculation. I respectfully disagree. I concur in their affirmance of the trial court’s holding the amended ordinance constitutional.

Mr. Weaver, vice-president of the Tanque Verde Swap Meet, testified to his extensive background in the swap meet business and disclosed that the net income for the business at a point of maximized profits was 3% after income taxes. When imposition of the tax (in effect approximately 18.2% of the charges for the sites) was publicized, the vendors “were leaving.” He surveyed them and they refused to assume the tax. The business attempted to absorb it and sustained heavy losses. The trial court’s conclusions are also supported by testimony from the CPA and Dr. Buehler, the economist. I suggest that the majority has undertaken to weigh the evidence rather than view it in the light most favorable to sustaining the judgment. I would affirm.