Appeal of P.S. Docket No. 19/48 -- SAM MCVICKER d/b/a REV. SAM MCVICKER


 In the Matter of the Complaint Against

 SAM MCVICKER
 d/b/a REV. SAM MCVICKER
 203 Pine Street at
 Johnstown, PA 15902-1933 

 P.S. Docket No. 19/48;  

 02/14/85

 Cohen, James A.  

 APPEARANCE FOR COMPLAINANT:
 AnneGallant, Esq.
 Roderick P. Sullivan, Esq.
 Law Department
 U. S. Postal Service
 Washington, DC 20260-1112

 APPEARANCE FOR RESPONDENT:
 Rev. Sam McVicker
 230 Pine Street
 Johnstown, PA 15902-1933

POSTAL SERVICE DECISION

Complainant has appealed from an Initial Decision of an Administrative Law Judge which held that Complainant failed to prove that Respondent was in violation of 39 U.S.C. § 3005 with respect to the sale of photographic reproductions of the painting "The Last Supper."

Background

The Consumer Protection Division, Law Department, United States Postal Service (Complainant) initiated this proceeding by filing a Complaint alleging that Respondent, by means of advertisements appearing in a publication of general circulation, was engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations. Specifically, in paragraph3 of the Complaint is was alleged that Respondent made the following materially false representations:

"3. . .

(a) Reproductions of the painting 'The Last Supper' are available for sale from Respondent; and

(b) Upon receipt of the appropriate monetary amount, Respondent provides a reproduction of the painting 'The Last Supper.'"

In a timely filed Answer, Respondent generally denied the allegations of the Compliant. A hearing was held before an Administrative Law Judge at which both parties presented documentary and testimonial evidence. Thereafter, the Administrative Law Judge issued an Initial Decision in which he found that Respondent made the representations alleged in the Complaint, but that Complainant failed to sustain its burden of proving that the representations made by Respondent were materially false. He therefore recommended that the Complaint be dismissed.

Complainant's Exceptions

In its exceptions to the Initial Decision, Complainant contends that the evidence presented establishes the falsity of the representations alleged in the Complaint and that the Administrative Law Judge improperly required it to meet a higher standard of proof than the preponderance of evidence standard. Complainant's arguments are not persuasive that the Administrative Law Judge erred in concluding that the Complaint should be dismissed.

The record establishes that Respondent placed an advertisement in the March 5, 1984, issue of The Catholic Register seeking remittances for photographic reproductions of the painting "The Last Supper." It is unrebutted that the advertisement makes the representations alleged in the Complaint. A Postal Inspector visited Respondent on March 8, 1984 (Tr. 6; Comp. Exh. 1). At that time Respondent had already received nine orders to be filled (Comp.Exh. 1). While there is some disagreement about what was said during the March 8 visit, uncontradicted testimony establishes that the Postal Inspector led Respondent to believe that his promotion was in violation of Postal laws and that it was in Respondent's best interest to return the orders with refunds (Tr. 9, 22-23). As the result of the visit by the Postal Inspector, Respondent made no effort to fill the orders, but rather returned the orders with refunds (Tr. 22-24).

In order to show the falsity of the representations alleged in the Complaint, Complainant must establish by a preponderance of the evidence that absent intervention by the Postal Inspector, Respondent would not have furnished the photographic reproductions advertised. The facts presented do not make such a showing. The intercession of the Postal Service through its Inspector led Respondent to believe that he should not fill the orders and that he should provide refunds. The absence of an inventory of the reproductions or an agreement to obtain inventory does not satisfy Complainant's burden where there is evidence Respondent has previously obtained such reproductions from a supplier (Tr. 21). Thus, Complainant has not established

by a preponderance of the evidence that Respondent is engaged in a scheme or device to obtain money through the mail by means of materially false representations. Accordingly, Complainant's exceptions on appeal are denied and the Complaint is dismissed.