July 28, 1969
In the Matter of the Complaint Against
SPECIAL EXERCISES INSTITUTE
S.E.I.
P.O. Box 1024
at
Goleta, California 93017
P.O.D. Docket No. 3/18
APPEARANCES:
Richard Hefner, Esq.
Office of the General Counsel
Post Office Department
Washington, D. C. 20260
for the Complainant
Ernest A. Panizzon, Esq.
226 East Canon Perdido Street
Santa Barbara, California 93101
for the Respondent
INITIAL DECISION OF HEARING EXAMINER[1]
This decision is being issued in accordance with the provisions of Section 952.24(c) of the Rules of Practice.
In this case the Complainant has charged the Respondent with being engaged in conducting a scheme or device for obtaining money, or property, through the mails, by means of false representations, in violation of the provisions of Section 4005 of Title 39, United States Code.
Specifically, the Complainant has charged the Respondent with making the following representations, which the Complainant alleges are false:
1. That Respondent’s “Dynamic Manhood” exercises advertised in exhibit “A” attached hereto will develop and enlarge the penis.
2. That use of the aforesaid exercises will increased the length and diameter of the penis and will also afford the user, “greater climax control, and the excitement of new sexual drive and abilities.”
3. That the use of the set of special exercises will restore virility to men who feel inadequate for any reason.
4. That men “21 or 71” will “thrive with ultimate virility” and “never again feel inadequate” as a result of employing aforesaid exercises.
A copy of the advertisement, which is attached to the complaint as Exhibit A, will be attached as Exhibit A to this decision.
At the outset, I want to state that I do not believe that the Complainant made out a sufficient case to sustain the validity of charge number three which I have just read, and so the complaint is being dismissed as to that charge.
The Complainant’s first witness as Inspector Martin Dworkis, who testified in substance that an advertisement employed by the Respondent came to his attention, and that in response to this advertisement, the Inspector, through the use of a fictitious name, purchased the series of exercises from the Respondent, and sent in the remittance of fourteen dollars and ninety-five cents ($14.95), for which the Respondent was selling the series of exercises.
This testimony was supported by exhibits, and clearly established the use of the mails by Respondent, and the Respondent, himself, on the stand, acknowledged, in fact, that he was using the mails in connection with conducting this business.
The exercises in the program being sold by the Respondent, briefly, are performed by the male taking hold of his penis and stretching it in various directions, shifting the weight of his body while doing this exercise, and sometimes attempting to wrap the penis around the wrist in certain circumstances.
The Respondent testified that he has had two years of college in which he specialized, primarily in the fields of mathematics and electricity.
He regards it as a challenge to him to attempt to do things, which other people regard as being incapable of accomplishment, and he hit upon this idea, because he thought it would be attractive to men throughout the country, who feel inadequate because of the size of their male genital organs.
The theory, the basic theory on which the course of exercises is said to be predicated, is that when the proper kind and amount of force or tension is applied to an object, in this case the penis, it will stretch or elongate, or increase in size.
The Respondent thought that this course of exercises would be attractive to many men, because of man’s desire to achieve maximum penetration in the sex act. The Respondent described the anatomy of the penis and he mentioned four primary blood vessels in the penis, and, when his attention was called to them, he mentioned the fascia contained in the penis, but he did not know the functions or the anatomy of the fascia.
Respondent did tell of consultation with at least three physicians in connection with this matter. One, a Dr. Hirsch in Chicago, whom the Respondent says he could not afford to pay to come to Los Angeles to this hearing, and two, there were two local men, well, local to Southern California area, who, for reasons not shown on the record, did not appear to testify, and who desired to remain anonymous.
During the original testimony of the Respondent, the Hearing Examiner was under the impression that these doctors were consulted prior to the Respondent’s entry into this business, but on questioning the Respondent said that these doctors had been contacted after the Post Office Department initiated this proceeding.
Testifying for the Complainant was Dr. Lyman B. Stewart, a physician and who is Board Certified in Urology, and he is a member of the American Urological Association. His practice is devoted one hundred per cent to the field of Urology.
Dr. Stewart indicted that there are two primary causes for the existence of the condition designated infantile penis, and these causes are an endocrine malfunction, or congenital deformity.
The treatment for the condition, when it results from endocrine malfunction is the injection of the proper kind and amount of hormones, and when the condition results from congenital deformity, the method of treatment is by surgery.
The parties were in agreement that in certain cultures, attempts had been made to stretch the penis by hanging weights from it, but Dr. Stewart said that in order for this to have the desired effect, the weights would have to be employed over a period of several months, and that by the end of this period, the normal function of the penis would be impaired.
There is nothing in Respondent’s exercises, however, which would exert a force comparable to that used in these different cultures. Dr. Stewart described the anatomy of the penis, and he said that while the skin will stretch, the fascia which surrounds the corpora of the penis will not stretch, and that these exercises would have absolutely no effect in attempts to lengthen the male genital organ.
If too much tension is applied to the male sex organ, it could tear the corpora and produce what is known as Peyronie’s disease.
Dr. Stewart testified that the statements that he had made on the stand, in regard to the subject matter of this hearing, represent the body of medical opinion on the subject, and that he knows of no opinions of reputable scientists or physicians that are at variance with those that he expressed in this case.
While the Respondent may, in his mind, feel that he is offering something of value to the public in his series of exercises, that is not a material issue in this case.
In any event, it is incumbent upon any person who is considering having a mail order business, particularly in medical fields, that he consult with competent physicians before he enters into the business, and not after a proceeding, such as this, has been initiated.
The Respondent’s counsel made some mention of the so-called easy road that is open to persons hearing these cases by which they may credit the testimony of medical experts in these cases. Not only is this the easy road in this case, it is the only road.
Viewed in its entirety, the evidence in this case supports the following findings of fact:
1. That the Respondent in the conduct of his business is using the mails.
2. That the Respondent makes certain representation in his efforts to obtain money through the mails.
3. These representations are materially false.
Based upon the foregoing findings of fact, I conclude that as a matter of law, the Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations, in violation of Section 4005 of Title 39, United States Code.
Based upon the foregoing findings of fact and conclusion of law, I recommend that the appropriate departmental official issue the order prescribed under the governing statute.
That is the end of my decision, gentlemen, and I want to say that I have ordered a daily copy in this proceeding. Presumably this copy will be mailed to me tomorrow. When it is received I will have a copy of the decision transcribed and sent to you with a notice that either party may appeal this decision within the time that will be allowed in that notice.
William A. Duvall
Chief Hearing Examiner
[1] Transcribed from oral decision rendered at close of the hearing held July 22, 1969. Changes have been made to correct typographical errors and, where necessary, for the purpose of clarity, but no change has been made affecting the substance of the decision.