In the Matter of the Complaint Against: MISS LINDA, Suite 307, 6355 Topanga Blvd. at Woodland Hills, California 91364 P.S. Docket No. 4/199 07/22/76 Duvall, William A., Chief Administrative Law Judge Daniel S. Greenberg, Esq. Law Department United States Postal Service Washington, D.C., for Complainant Joseph Taback, Esq. 8500 Wilshire Boulevard, Beverly Hills, California, for Respondent Before: William A. Duvall, Chief Administrative Law Judge
This proceeding was initiated by the filing by the Consumer Protection Office of the Law Department of the United States Postal Service, the Complainant, of a Complaint in which it is alleged that Miss Linda of Woodland Hills, California, the Respondent, is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations contrary to the provisions of Section 3005, Title 39, United States Code.
In due course an answer to the Complaint was filed in which the Respondent denied all of the charges of the Complaint and stated as an affirmative defense that 39 U.S. Code 3005 is unconstitutional on its face and in its application to Respondent in that it violates, and is in derogation of, rights guaranteed to Respondent pursuant to the First and Fifth Amendments to the Constitution of the United States.
The constitutional objections raised by the Respondent have been disposed of in the cases of Lynch v. Blount, decided by the United States District Court for the Southern District of New York, reported in 330 F. Supp. 689, affirmed 404 U.S. 1007, and United States Postal Service v. Beamish, decided by the United States Court of Appeals for the Third Circuit, reported at 466 F.2d 804.
At the outset of the hearing, there were received in evidence without objection Exhibits, the first of which was an advertisement used by the Respondent in the conduct of this business. This advertisement is the original of the copy of the advertisement which is attached to the Complaint as Exhibit A thereto, and a copy of which is attached to this decision as Appendix A.
There were also received in evidence Exhibits which established that the Respondent in the conduct of its business employs the United States mails for obtaining remittances of monies and for mailing the product involved in response to the remittances received. Also attached to this decision is a copy of the charges which are set forth in the Complaint. It will not be necessary to repeat those charges at this time. The copy of the charges is Appendix B to this decision.
There must be determined whether the Respondent makes the representations which are set forth in the Complaint. In making this determination, reliance is had upon, among others, the case of Donaldson v. Read Magazine, 333 U.S. 178, wherein the Court held that advertisements are to be interpreted in the light of the effect they most probably produce on ordinary minds. A comparison of the language of the charges with the language of the advertisement is all that is necessary to enable one to see that the charges embody, verbatim, much of the language which is set forth in the advertisement. Therefore, no great deal of interpretation is necessary to reach the finding that the Respondent does, in fact, make the charges which are alleged in the Complaint.
There remains the question as to whether these representations are true or false as to material matters of fact. Appearing as an expert witness in this regard was Dr. Ronald Okun, a clinical pharmacologist, physician and research physician, whose expertise is conceded by all parties.
Without belaboring the point unnecessarily, it is Dr. Okun's testimony that there is no medicinal product recognized by the medical profession which would have the effect, or produce the results, of artificially stimulating the sexual desires or capability of an individual. There are factors in the environment, or objects, which, when encountered, may have the effect of stimulating sexual desires, but there is nothing which may be taken internally which is recognized by the medical profession as an effective aphrodisiac.
In the light of this testimony, it necessarily follows that the representations which have been found to be made by this Respondent are false and are materially false as to the matters of fact represented. It follows, therefore, that the Respondent is, in fact, engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations as proscribed by Section 3005 of Title 39, United States Code.
Accordingly, an order of the type provided for in 39 U.S. Code 3005 should be issued against this Respondent.
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