dissenting.
I respectfully dissent from the portion of the opinion reversing the penalty imposed. The Judicial Officer adequately considered the effect of the penalty. Holiday Food was out of business; thus, the penalty could have no impact on it. The Officer deemed the effect on Nat Rocker’s ability to continue in a totally separate business irrelevant. I agree and would affirm on that basis alone.
Moreover, the Judicial Officer did determine that the penalty would not preclude Nat Rocker from continuing in business as a packer. His decision contains an explicit finding that Rocker’s other business, Holiday Meat, “is a successful enterprise, with a current annual volume of business of 18 million dollars.” J.O. Decision at 19. The Judicial Officer concluded from this evidence that the penalty “will not adversely affect respondent Rocker’s ability to remain in business.” Id. To further ameliorate any adverse impact, his order allows Rocker to spread payment of the penalty out over a four year period. The Judicial Officer’s determination that a $12,500 annual payment will not bankrupt an $18 million a year business seems perfectly reasonable to me. I certainly cannot hold, as the majority apparently does in overturning the penalty, that this finding is “without justification in fact.” American Power & Light Co. v. SEC, 329 U.S. 90, 113, 67 S.Ct. 133, 146, 91 L.Ed. 103 (1946).