In the Matter of the Complaint Against GRAPEFRUIT DIET DIVISION 2421 Colee Station at Ft. Lauderdale, FL 33303 P.S. Docket No. 1/29; APPEARANCES: Thomas A. Ziebarth, Esq.; Law Department, Consumer Protection Office, United States Postal Service, Washington, D.C. 20260 for the Complainant Charles B. Chernofsky, Esq.; 73 Ketewemoke Drive, Halesite, New York 11743 for the Respondent
The above-captioned proceeding is before the Judicial Officer on Respondent's exceptions to the Initial Decision of the Director, Office of Hearing Examiners, dated January 24, 1972.
On appeal Respondent presses his contention that the complaint should be dismissed because 39 U.S. Code 3005 violates the First Amendment to the Constitution, citing a number of court decisions as support for his contention. However, not only is the Judicial Officer not invested with authority to declare a statute unconstitutional, 1/ but the Supreme Court overtook Respondent's argument on January 10, 1972 (40 LW 3314) by affirming the three-judge court decision in Lynch, d/b/a Brewster Products v. Blount, (S.D.N.Y. 1971) 330 F.Supp. 689, upholding the constitutionality of the statute.
The other exceptions of Respondent going to the nature of the representations made and to the proof of their falsity have been considered. However, after reviewing the record in the light of these exceptions, I find no error in the Initial Decision and adopt it as the basis of this Postal Service Decision.
A remedial order pursuant to 39 U.S. Code 3005 will issue forthwith.
Adam G. Wenchel Judicial Officer
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