In the Matter of the Complaints Against ) May 31, 1979 ) AND YUNG DISTRIBUTORS ) P. O. Box RY-7 ) ) at ) ) P.S. Docket Nos. Reseda, California 91335 ) 6/54 & 6/55 APPEARANCE FOR RESPONDENT: Joseph Taback, Esq. 10880 Wilshire Boulevard Suite 1806 Los Angeles, California 90024
Respondent has filed a motion to modify Mail Stop Order No. 78-25 1/ on the grounds that the advertisement which gave rise to the complaint and, ultimately, the issuance of the Order, covers products not limited for distribution under the terms of the Order, and customers have filed orders requesting both the prohibited items as well as items which are not prohibited and have issued one check to cover both purchases. Respondent alleges that one to two full-time postal employees are required to supervise the opening of the mail and process it at the Postal Service premises. Respondent requests that the existing Mail Stop Order be modified so the following may occur:
(a) That all money orders received by Respondent be permitted to be deposited in a separated and segregated checking account;
(b) That said checks be permitted to be deposited to determine whether, in fact, they are still viable and good;
(c) A refund of those portions of funds obtained by negotiating these checks which pertain to the prohibited orders be refunded by Respondent, with appropriate designation indicating that, in fact, said orders cannot be filled because of the finding as embodied in the mail stop order;
(d) That in the event that said checks or money orders are no longer viable that they will be returned by Respondent and said consumer will be advised with regard to the reason said orders were not filled;
(e) That said mail be permitted to be removed from the United States Post Office and opened at the premises of the Respondent and that said Respondent furnish such documents or affidavits that, in fact, it is complying with the order to the extent that it will not fill any order requesting prohibited material.
Complainant has filed a response to the motion in which it states it does not oppose a modification of the subject Mail Stop Orders to permit Respondent to receive and process multiple orders, but does oppose the motion insofar as it seeks removal of the mail from the Postal Service premises. Complainant agrees to a modification of the Mail Stop Orders on the following conditions:
1. All mail would continue to be opened at the Post Office in the presence of the Postmaster or his representative;
2. Mail not related to either of the subject mail stop orders would be turned over to Respondent;
3. Mail containing orders for only the products covered by either of the subject mail stop orders would be returned to the remitter by the Postal Service, with the appropriate notation of violation of § 3005 stamped on the envelope;
4. Those letters containing multiple orders would be turned over to Respondent subject to the following conditions:
(a) Before said letters are turned over to Respondent a list shall be made which identifies the purchaser, indicates the total amount of the check, cash, or money order, and the amount applicable to the product subject to the mail stop order. Each party shall keep one copy of said list;
(b) Respondent shall deposit said check, cash or money orders in a segregated checking account in order to determine which are still viable;
(c) Those checks which are dishonored will be returned by Respondent to the Post Office in an envelope which Respondent has addressed to the remitter and upon which Respondent has placed sufficient postage, accompanied by the following statement:
"We are unable to fill your order for _________ because the U. S. Postal Service has found after a hearing held pursuant to the civil postal false representation statute (Title 39 USC § 3005) that the claims made for said product are false. Additionally, because of the delay in processing your check it has become stale and was dishonored by the bank. Accordingly, we are returning it so that you may, if you wish, order the products not covered by the mail stop order and send a new check in payment therefor."
(d) Where the purchasers' check is not dishonored the procedure outlined in paragraph (c), supra, shall be followed except that the enclosed notice shall read:
"We are unable to fill your order for __________ because the U. S. Postal Service has found after a hearing held pursuant to the civil postal false representation statute (Title 39 USC § 3005) that the claims made for said products are false. We are, therefore, enclosing a check in the amount of ________ to cover your remittance for said products."
5. The materials to be returned by Respondent in accordance with paragraph 4, supra, shall be returned to the Post Office no later than 20 business days after Respondent's removal of same from the Post Office.
6. Where the incoming letters request that the products be sent C.O.D., Respondent shall send the bill for only those products not covered by the mail stop order. The filled orders shall contain the first paragraph of the notification appearing in paragraphs 4(c) and (d).
The principal issue raised by the parties is whether the mail is to be opened at the Postal Service facility or whether, as requested by Respondent, the mail can be permitted to be removed from the United States Post Office and opened at Respondent's premises. The only justification given by Respondent for allowing the mail to be removed from the Postal Service premises is the burden imposed on Postal Service employees by the requirement for them to supervise the opening of the mail and the processing thereof on Postal premises. Since Complainant opposes the removal of the mail from Postal Service premises, it presumably has concluded that the public interest will not be served by such removal. Thus, the burden on Postal Service employees does not justify the modification requested by Respondent. Accordingly, Respondent's request for an order to allow the removal of the mail from the Postal Service premises is denied.
Respondent's additional requests concerning the handling of multiple orders is not opposed by Complainant, although Complainant's concurrence is based on the imposition of certain conditions. The conditions appear reasonable and have not been opposed by Respondent.
Accordingly, Respondent's Application for Modification of Mail Stop Order Nos. 78-25 and 78-26 is granted subject to the conditions agreed to by Complainant. A Supplement A to the Mail Stop Orders is being issued contemporaneously with this decision.
James A. Cohen
Judicial Officer