In the Matter of the Complaints Against: ERWIN KOLTAY d/b/a TELEMATIC & EPSON PRECISION WORKS, 4880 49th Street, No., St. Petersburg, FL 33709-3860; and ERWIN KOLTAY d/b/a E. KOLTAY, HERBERT BUTLER, LEE D. KING, E-Z RENT & MARK WALKER, 5085 49th Avenue, North, St. Petersburg, FL 33709-5913 and 4010 49th Avenue, North, St. Petersburg, FL 33709-5912 and 323 South Franklin Bldg., Suite E-138, Chicago, IL 60606-7007 and 369 East 900 South, Salt Lake City, UT 84111-4331 and P. O. Box 990, Calexico, CA 92231-0990 P.S. Docket Nos. 26/101 and 30/82 09/29/89 Cohen, James A., Judicial Officer APPEARANCES FOR COMPLAINANT: H. Richard Hefner, Esq., Alan B. Ostroff, Esq., Consumer Protection Division, Law Department, United States Postal Service, Washington, DC 20260-1144APPEARANCE FOR RESPONDENT: Erwin Koltay, 5085 49th Avenue, North, Kenneth City, FL 33709-5913
Respondent has filed a Motion for Modification in which he requests that the portion of a False Representation Order directing detention of mail addressed to his home be revoked and that normal delivery of mail be resumed. 1/ Complainant filed a timely reply in which it requests that the motion be denied.
In support of his request for modification, Respondent argues that he has been driving a distance of 150 blocks to pick up his personal mail at the post office and that such a drive is a severe hardship due to his failing eyesight. He also argues that he has discontinued marketing the product which was the subject of the prior proceedings.
Complainant argues that Respondent's history of attempting to circumvent the effect of prior Orders raises questions about his credibility. Complainant further contends that, under the terms of the False Representation Order, Respondent is entitled to receive mail which is unrelated to the schemes involved in these proceedings. Complainant also notes that since February 26, 1988, Respondent has not taken advantage of the opportunity to examine detained mail. Finally, Complainant contends that Respondent's claim of failing eyesight is rebutted by his possession of a current unrestricted Florida driver's license.
Respondent has not established that the False Representation Orders issued in these proceedings should be modified. There has been no prima facie showing by Respondent that he has discontinued the distribution of solicitations which make the representations previously found to be false, that there is no possibility of recurrent false representations, n2 and that there is no risk of future harm to the public. E.g., Scott David Wilcox, P.S. Docket No. 23/70 at 5 (P.S.D. Aug. 24, 1988); Associated Telephone Directory Publishers, Inc., P.S. Docket No. 13/191 at 2 (P.S.D. Jan. 3, 1985); New Generation, P.S. Docket No. 11/152 at 2 (P.S.D. Sept. 25, 1984); Dolen Labs, P.S. Docket No. 12/88 at 5 (P.S.D. Nov. 24, 1981); Rejuvnir, Inc., P.S. Docket No. 3/105 at 7 (P.S.D. Jan. 30, 1975). Moreover, as Complainant points out, the False Representation Orders issued in these proceedings already provide for normal delivery of mail which is unrelated to Respondent's prior promotions.
n2 Respondent's prior conduct leading to the issuance of the False Representation Orders, particularly his breach of a consent agreement in P.S. Docket No. 26/101 and his subsequent violation of 39 U.S.C. § 3005 in P.S. Docket No. 30/82, creates serious concerns about the possibility of recurrent false representations. Cf. Scott David Wilcox, P.S. Docket Nos. 18/147, 22/111 at 7 (P.S.D. Aug. 31, 1989).
Finally, Respondent has not provided reliable support for his allegation of hardship. In any event, the hardship or inconvenience experienced by Respondent is the result of his own actions in conducting a scheme in violation of 39 U.S.C. § 3005 and should not serve as a basis for modifying the protection to the public afforded by the statute. M.K.S. Enter., Inc., P.S. Docket No. 5/121 at 4 (P.S.D. June 21, 1977).
Accordingly, pursuant to 39 C.F.R. § 952.29, Respondent's motion is denied.
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