- 28 -
Stacey's testimony regarding the price charged for six-packs does
not support that of petitioner. We disagree. Ms. Stacey
testified that canned beer was sold to go at the Bullfrog at a
price of $3 to $3.50 depending on the brand of beer sold.
Petitioner's statement that six-packs sold for $3.25 is not
inconsistent with the range indicated by Ms. Stacey.
Next, respondent argues that a stipulated sampling of 34
cash register tapes from 1987 and 1988 fails to corroborate
petitioner's contention that six-packs were sold only to go
during the period prior to April 1990. Respondent argues that
the sampling should show 238 entries of $3.25 under category I
(for beer sales) if petitioner in fact sold all canned beer to go
during the 2-year period including 1987 and 1988.25 Respondent
contends that the stipulated sampling contains only four such
entries. Such a large disparity, respondent argues, casts doubt
on petitioner's claim that he sold canned beer to go.
We do not find the lack of entries on the stipulated
sampling of cash register tapes fatal to petitioner's contention
25 Respondent notes that petitioner purchased 5,600 six-packs
of beer during 1987 and 1988 (i.e., 732 cases in 1987 + 668 cases
in 1988 = 1,400 cases x 4 six-packs per case = 5,600 six-packs).
On the basis of the fact that the Bullfrog is open 7 days a week,
365 days a year, respondent contends that petitioner would have
sold over seven six-packs a day, if petitioner in fact sold all
canned beer to go during the 2-year period (i.e., 5,600 six-packs
� 730 days = 7.7 six-packs per day). Accordingly, respondent
contends that the 34-day stipulated sample should contain 238
entries of $3.25 under category I (i.e., 34 days x 7 six-packs
per day = 238 entries).
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