In the Matter of the Complaint Against D.B.C. COINS, Post Office Box 255 at Van Nuys, California 91408 P.S. Docket No. 1/85June 2, 1972
William A. Duvall Director, Office of Hearing Examiner
APPEARANCES: Thomas A. Ziebarth, Esq. Consumer Protection Office Law Department United States Postal Service Washington, D.C. 20260 for the Complainant No appearance was entered in behalf of Respondent
The complaint in this case was filed on April 27, 1972. In the complaint the Respondent is charged with conducting a lottery, gift enterprise, or scheme for the distribution of money or of real or personal property by lottery, chance or drawing, contrary to the provisions of section 3005 of Title 39, United States Code.
On May 12, 1972, there was received on behalf of Respondent a letter which was treated as the answer to the complaint. In this answer it was (1) denied that the business being operated by Respondent is a lottery; (2) denied that there is any intent on the part of the Respondent to misrepresent anything; and (3) indicated that Respondent desired to reach a compromise in this proceeding which would obviate the necessity for a hearing.
On May 15, 1972, an order was issued by which the parties were allowed to and including May 26, 1972, in which to submit for the record whatever compromise could be agreed upon. It was stated in the order that if no such compromise could be achieved, the matter would proceed to hearing on May 30, 1972.
Although a compromise agreement was said by Complainant's Counsel to have been sent to Respondent, no such agreement has been filed herein.
Pursuant to 952.11(b) of the Rules of Practice, the matter came on for hearing ex parte before the undersigned Hearing Examiner at 10:00 A.M. on May 30, 1972.
Exhibits introduced into evidence by Complainant at the hearing are as follows:
Exhibit No. Identification
C-1 Respondent's advertisement as it
appeared in the March, 1972 issue of
"COINage", a publication which appears
to be designed for numismatists. (Copy
attached hereto)
C-2 April, 1972 issue of "COINage",
containing (opp. p. 106) Respondent's
advertisement which is identical to Ex.
C-1.
C-3 A copy of a test letter addressed to
Respondent over name Stanley Kaiser,
Sheridan, Montana, ordering the
"Surprise Coin Package".
C-4 P.S. Form 688 dated March 29, 1972,
instructing postmaster at Sheridan,
Montana, to issue a money order in the
amount of $1.00 payable to Respondent,
and to forward the money order in the
test letter to Respondent. Money order
stub number 2,015,088,416 is attached
to Ex. C-4.
C-5 Mailing envelope bearing return address
"D.B.C. Box 255, Van Nuys, Calif.
91408" addressed to "Kaiser, S, Box
588, Sheridan Montana 59749". This
envelope contains a small pink envelope
in which are enclosed a 1936 nickel and
a 1925 quarter.
The pertinent part of the statute invoked in the complaint provides, among other things, that upon evidence satisfactory to the Postmaster General that any person is engaged in conducting a lottery, gift enterprise, or scheme for the distribution of money or of real or personal property by lottery, chance or drawing of any kind, the Postmaster General may (1) direct postmaster at offices where mail addressed to such a person arrives to return such mail to the senders marked "lottery mail" and (2) forbid the payment of money orders to such a person. (39 U.S. Code 3005)
A lottery has been described as an activity which embraces the element of procuring through lot or chance, by the investment of a sum of money or something of value, some greater amount of money or a thing of greater value. ( Garden City Chamber of Commerce v. Wagner, D.C.N.Y., 100 F.Supp. 769 (1951)). The elements of a lottery, therefore, are prize, consideration and chance.
As regards the Respondent in this proceeding, the enterprise in which he is engaged is that of persuading and attempting to persuade persons to purchase for $1.00 (consideration) a package of coins (prize) the content and value of which "no one knows", but which will be worth "at least $1.00" and may be worth "Up to $150.00" (chance).
In view of the foregoing facts and circumstances, it is found that the Respondent is engaged in conducting a lottery contrary to the provisions of 39 U.S. Code 3005.
An order as provided in 39 U.S. Code 3005 should be issued against this Respondent.