In the Matter of the Complaint Against LIBERTY AMENDMENT COMM. OF MISSOURI P. O. Box 10291 at Springfield, Missouri 65808-0291 P.S. Docket No. 13/39 04/14/82 Mason, Randolph D. APPEARANCE FOR COMPLAINANT: H. Richard Hefner, Esq. Steven B. Caver, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260 APPEARANCE FOR RESPONDENT: Laurence C. Smith Squires, MO 65755
This proceeding was initiated on February 8, l982, when the General Counsel filed a complaint alleging that Respondent is engaged in conducting a lottery, gift enterprise, or scheme for the distribution of property by lottery, chance, or drawing in violation of 39 U.S.C. § 3005 (1980). Respondent filed a "Special Plea" and a letter (ALJ Exh. 1) to Attorney Steven B. Caver, Esq., which have been received and construed as denying the allegations of the complaint.
Respondent's chairman indicated that he did not intend to appear at the hearing (ALJ Exh. 1). On March 11, 1982, a hearing was held by the undersigned in Washington, D.C. Respondent failed to appear and Complainant was permitted to introduce evidence and make oral proposed findings of fact and conclusions of law. Both parties were given an opportunity to file written briefs, and Respondent was notified of this opportunity by order dated March 12, l982. Respon dent filed a brief which has been duly considered. Based on the entire record herein, including my observation of the witness and his demeanor, the exhibits and other relevant evidence adduced at the hearing, I make the following findings of fact and conclusions of law:
1. Prior to the initiation of this proceeding, the address of the Liberty Amendment Committee of Missouri ("Respondent") was Box 10291, Springfield, MO 65808-0291. (e.g. Exh. C-1). This post office box was first rented on November 19, l981, pursuant to an application by Respondent's treasurer. (Exh. C-2; Exh. C5C). At all times material hereto, Respondent's chairman has been Laurence C. Smith. Respondent now also receives mail at Smith's address (Squires, Mo 65755). (Exh. C-5B)
2. Respondent placed an advertisement in a publication of general circulation on January 21, l982, which read, in pertinent part, as follows:
Buy our Liberty Amendment kit for $10.00 and receive free a numbered receipt which enables you to participate in a drawing July 4, l982, for a new $70,000.00 4-bedroom energy-efficient house and 5-acres in the Missouri Ozarks. Exh. C-1 .
3. The above advertisement directed interested persons to send checks or money orders to Respondent at the address set forth in the caption herein. (Exh. C-1).
4. Individuals who responded to the advertisement by remitting $10 to Respondent received (1) a numbered receipt representing a chance to win valuable real property, and (2) information about the constitutional amendment. (Exh. C-1; C-3; C-4; C-51 to C-5G). The latter information consisted of six printed pages plus a small eight-page pamphlet entitled "How to Get Rid of the Income Tax & Win 45 Battles at Once." (Exh. C-51 to C-5G).
5. Although the advertisement offered information regarding the "Liberty Amendment," Respondent recognized that some people respond ing to the advertisement may have been "only interested in taking a chance on the house." (Exh. C-5B).
6. Respondent is engaged in conducting a lottery, gift, enter prise, or scheme for the distribution of real property by lottery, chance, or drawing.
The primary issue for consideration is whether Respondent violated 39 U.S.C. § 3005 (1980), which provides for an appropriate order when it is found that
a ny person ... is engaged in conducting a lottery, gift enterprise, or scheme for the distribution of ... real ... property by lottery, chance, or drawing or any kind....
Respondent argues that the complaint should be dismissed because the Liberty Amendment Committee of Missouri is not a "juristic entity" because it is an association of individuals rather than a corporation. This argument is rejected since the term "person" as used in 5 U.S.C. § 3005 (1980) includes any name, address, number or other designation under or by use of which the Respondent seeks remittances of money through the mail. 39 C.F.R. § 952.5 (1981).
The necessary elements of a "lottery" are the furnishings of a consideration, the offering of a prize, and the distribution of the prize by change. Brooklyn Daily Eagle v. Voorhies, 181 F.2d 579, 581 (1910); Tenpen Sales Corporation, P.O.D. No. 2/35 (May 10, l961) All three elements exist in the instant case. A person who mailed $10 to Respondent received a numbered receipt representing a chance to win valuable real property. The fact that such persons received several pages of information concerning the Liberty Amend ment in addition to the numbered receipt does not detract from the above conclusion. The element of consideration is present even when the purchaser receives merchandise or other property in addition to his chance to win a prize. Horner v. United States, 147 U. S. 449 (1892); Tenpen Sales Corporation, supra.
Respondent also argues that the Complainant lacks jurisdiction to bring the instant complaint because the Postal Reorganization Act, 84 Stat. 719 (1970), 39 U.S.C. § 101, et seq., (1980) represents an unconstitutional delegation of power by Congress to the Postal Service. As an Administrative Law Judge, the undersigned has no authority to determine the constitutionality of statutes or the validity of Postal Service regulations. 39 C.F.R. § 224.1 (c)(4)(iv)(B) (1981). Likewise, the undersigned lacks authority to consider Respondent's counterclaim for damages since the regulations do not provide for hearings on such matters. 39 C.F.R. § 224.1 (c)(4)(iv)(A) (1981).
In conclusion, since Respondent is engaged in conducting a lottery in violation of 39 U.S.C. § 3005, the attached remedial order should be issued.