United States Postal Service(TM) 


 In the Matter of the Complaint Against: 

 JUDY ANN WALDEN,
 3463 Kindred Avenue, #5,
 Reno, NV  89502-6834
 d/b/a/ NEVADA CERTIFIED SERVICES,
 Department 158,
 316 California Avenue, 
 Reno, NV 89509-1669
 and at
 Attention: 960, 316 Bridger Avenue,
 Los Vegas, Nevada 89101
 and at P.O. Box 2450, Reno, NV 89505

 P.S. Docket No. 38/102

 04/27/92

 Mason, Randolph D.

 APPEARANCE FOR COMPLAINANT: Stacy M. Ludwig, Esq., Consumer Protection
 Division, Law Department, United States Postal Service, 475 L'Enfant
 Plaza West, SW, Washington, DC 20260-1144

 APPEARANCE FOR RESPONDENT: Judy Ann Walden, pro se, 1255 Virbel Lane,
 Reno, NV  89502-4854

INITIAL DECISION

This proceeding was initiated on September 23, 1991, when the Postal Service filed a Complaint alleging that Respondent Judy Ann Walden d/b/a Nevada Certified Services is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations in violation of 39 U.S.C. § 3005. Specifically, the Complaint, as amended, alleges in paragraph five that Respondent falsely represents, directly or indirectly, in substance and effect, whether by affirmative statement, implication or omission, that:

In a timely filed Answer, Respondent denies that she makes the false representations alleged in the Complaint or that she has otherwise violated the statute.

At the hearing the Complaint was amended to add Respondent's Los Vegas, NV, address and P.O. Box 2450 in Reno, NV, and these addresses have been added to the caption.

A hearing was held by the Administrative Law Judge on February 11, 1992, in Washington, DC. All parties were represented by counsel and afforded full opportunity to be heard, adduce relevant evidence, and examine and cross-examine witnesses. Complainant presented the testimony of Postal Inspector Ed Lawee, consumer witnesses Douglas J. Curry and Tamra Ann Loranger-Kreger, and county employees Marietta Draeger and Jan Callahan. Respondent testified for herself. Both parties presented documentary evidence.

On March 5, 1992, the parties filed proposed findings of fact and conclusions of law which have been duly considered. To the extent indicated below, proposed findings and conclusions have been adopted; otherwise, they have been rejected as irrelevant or contrary to the evidence. The findings of fact and conclusions of law set forth below are based on the entire record herein, including observation by the Administrative Law Judge of the witnesses and their demeanor, the briefs, stipulations, exhibits, and other relevant evidence adduced at the hearing:

FINDINGS OF FACT

1. Respondent Judy Ann Walden d/b/a Nevada Certified Services solicited $15 and $25 remittances through the mail for certified copies of marriage licenses to the business addresses set forth in the caption. The following addresses are mail receiving agencies (Tr. 11): 316 California Avenue, Reno, NV 89509-1669 and 316 Bridger Avenue, Los Vegas, Nevada 89101. She also receives business mail at P.O. Box 2450, Reno, NV 89505 (Tr. 167-168).

2. Persons who wish to get married in Nevada obtain an original and duplicate copy of a marriage certificate from the state Marriage License Bureau, which they present to the minister at the time of the marriage. After the ceremony, the minister signs the certificate, gives the married couple the original, and sends the duplicate to the county recorder's office for recording (Tr. 83).

3. Respondent obtains the names of persons recently married from the state and within about two weeks of the marriage sends them a drab-looking card from "Nevada Certified Services" entitled either "Memo: Marriage Certificates" (CX-2) or "Marriage Certificate Memorandum" (CX-3). The card gives the impression that it is a form issued by the county government which provides an opportunity to obtain an "official certified legal" copy of the couple's marriage certificate for $15 or $25.

4. Respondent makes the representations set forth in subparagraphs (a)-(d) of paragraph 5 of the Complaint. The language which makes each representation, viewed in the context of the entire solicitation, is set forth under each of the quoted representations. All of the representations are materially false.

(a) A marriage certificate obtained at a wedding conducted in the state of Nevada is a souvenir or otherwise invalid.

5. This representation is made by the language in CX-2:

6. Respondent's revised solicitation, CX-3, omits the language that the original certificate is "only a souvenir," and clearly does not make representation (a) to that extent. However, CX-3 represents that the certificate is "otherwise invalid," as alleged by Complainant. The reference to "proper certified legal certificates" which can "now be issued to you" gives the impression to some ordinary readers that the uncertified copy they already have is in some way neither "proper" nor "legal," and therefore invalid (Tr. 61).

7. The marriage certificate which is received by the married couple at the ceremony is not a mere souvenir and is not invalid, and is a legal document even though not the recorded copy (Tr. 87-88). Accordingly, this representation is materially false.

(b) The $25 fee that Respondent charges for a certified legal copy of a marriage certificate is primarily the cost for such a certificate rather than the cost for the service of obtaining a certified legal copy of a marriage certificate.

8. The solicitations also give the impression that the $25 (previously $15) is for a certified legal copy of a marriage certificate rather than for the service of obtaining such a copy (Tr. 61). CX-2 states "PRICE: $15 EACH" and CX-3 states "TOTAL CHARGES: $25 FOR EACH COPY." There is no indication that the certificate can be obtained directly from the state for only $5 and that consumers are paying $20 for the service of obtaining the certified copy. This interpretation is corroborated by testimony (Tr. 61).

9. Many customers were not aware of the fact that they could have obtained a certified copy from the county Recorder for $5. They obviously would not have ordered the copy from Respondent had they known this (Tr. 65, 73). There was a statement to that effect on the back of the original copy of their marriage license, but many would not have noticed it (Tr. 36; RX-1, 5). On the certificate from Washoe County the notice appears in very small, light print on the original. Moreover, the statement in both counties would have been hidden from view by a piece of carbon paper and the duplicate until after the ceremony (CX-4; RX-1).

10. Also, after Respondent began the promotion, one of the two counties in which Respondent did business gave applicants for a marriage license a handout, which was inserted into their envelope of materials, stating that the original was legal proof of marriage, that a certified copy was not usually necessary, and that a certified copy could be obtained from the Recorder for $5 (CX-5). However, some people did not receive this or never noticed it; others may not have remembered it at the time they received the solicitation from Respondent (Tr. 92, 129).

11. Since the fee charged is primarily for the service of obtaining the certificate, the representation is materially false (Tr. 157).

(c) Nevada Certified Services is, or is a part of, or is affiliated with the official organization which directly provides consumers with certified legal marriage certificates.

(d) Nevada Certified Services is a part of or affiliated with the government.

12. The Respondent's solicitation gives the impression that it is an official document issued by the county government where the addressee was married (Tr. 16, 52, 60, 63, 72). In addition to the drab, official form-like appearance which lacks the "sell" element of a typical advertisement, the name "Nevada Certified Services" implies an affiliation with the state of Nevada (Tr. 60-61, 72). Also, the "Please be advised" language on both solicitations, which provides information which many would think was available only to the government, indicates an official notice rather than an ad from a company selling a service (Tr. 71). Similarly, the headings "Memo: Marriage Certificates" (CX-2) and "Marriage Certificate Memorandum" (CX-3) are governmental in nature. In addition, on the back appears a bold print "CERTIFICATE REGISTRATION NUMBER" on CX-3 or "Ref.#" on CX-2 which has no significance at the marriage license bureau (Tr. 86).

13. Finally, Respondent states that its fee was not included in the fees already charged for the marriage license. This gives the impression that Respondent is a government entity or affiliated with the government. A private company would not make such an obvious statement.

14. The disclaimer "a non-governmental service agency" appearing in smaller print under NEVADA CERTIFIED SERVICES on CX-3 would not be noticed by many readers. Further, this disclaimer would not dispel the impression given by the entire solicitation that Respondent is affiliated with the government (Tr. 62-63).

15. Hundreds of people have called the Nevada Recorder's office stating that they thought the Respondent's solicitation was from the government (Tr. 87, 114).

16. Since Respondent is not affiliated with, or part of, the Recorder's office or government, these representations are materially false (Tr. 88-89, 160).

CONCLUSIONS OF LAW

1. (a) Each of Respondent's advertisements must be considered as a whole and the meaning is to be determined in light of the probable impact of this material on a person of ordinary mind. Donaldson v. Read Magazine, 333 U.S. 178, 189 (1948); Peak Laboratories, Inc. v. U.S. Postal Serv., 556 F.2d 1387, 1389 (5th Cir. 1977). The statute is intended to protect the gullible, naive, and less critical reader, as well as the more sophisticated, wary reader. Fields v. Hannegan, 162 F.2d 17 (D.C. Cir. 1947), cert. denied, 332 U.S. 773 (1947); M.K.S. Enterprises, Inc. v. United States Postal Service, 459 F. Supp. 1180, 1184 (E.D.N.Y. 1978); Gottlieb v. Schaffer, 141 F. Supp. 7 (S.D.N.Y. 1956); Leo Daboub, P.S. Docket No. 19/185 (P.S.D. July 10, 1986). Express misrepresentations are not required. It is the net impression which the advertisement is likely to make upon individuals to whom it is directed which is important, and even if an advertisement is so worded as not to make an express representation, if it is artfully designed to mislead those responding to it, the false representation statute is applicable.

G.J. Howard Co. v. Cassidy, 162 F. Supp. 568 (E.D.N.Y. 1958); See also, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).

(b) Where an advertisement is ambiguous or capable of more than one meaning, if one of those meanings is false, the advertisement will be held to be misleading. Rhodes Pharmacal Co. v. F.T.C., 208 F.2d 382, 387 (7th Cir. 1953); Ralph J. Galliano, P.S. Docket No. 19/15 (P.S.D. May 2, 1985 at p. 9). It is not difficult to select words that will not deceive. See, United States v. 95 Barrels of Vinegar, 265 U.S. 438 (1924).

(c) An inconspicuous disclaimer is not sufficient to dispel the effect of false representations. Leo Daboub, supra; Gottlieb v. Schaffer, supra.

(d) The Administrative Law Judge can determine whether the representations are made, their effect on the ordinary mind, and materiality without the assistance of lay or expert testimony. Standard Research Labs, P.S. Docket No. 7/78 (P.S.D. Oct. 27, 1980); The Robertson-Taylor Company, P.S. Docket Nos. 16/98-102, 16/120-121, (P.S.D. March 31, 1986 at page 29); Vibra-Brush v. Schaffer, 152 F. Supp. 461 (S.D.N.Y. 1957), rev'd on other grounds, 256 F.2d 681 (2nd Cir. 1958).

(e) Whether anyone actually complains or has been deceived by Respondents' advertisements is irrelevant on the issue of false representation. Farley v. Heininger, 105 F.2d 79 (D.C. Cir. 1939). It is the likelihood of deception or the advertisement's capacity to deceive which must be judged. Montgomery Ward & Co. v. FTC, 379 F2d 666 (7th Cir. 1967); Mid-Am Marketing, Inc., P.S. Docket No. 24/12 (P.S.D. on Recon., May 7, 1987). Also, many of Respondent's customers did not complain because were not aware that they had been deceived.

2. Applying the foregoing standards, I find that Respondent's advertisements make the representations alleged in ¶ 5(a)-(d) of the Complaint as amended. The language contained in the advertisements, when read in context, which directly or impliedly makes these representations is set forth in the findings of fact.

3. As set forth in the findings of fact, the representations set forth in paragraph 5 of the Complaint as amended are materially false.

4. The representations made by Respondent are material because they have a tendency to persuade readers to order and pay for Respondent's product.

5. A promise to refund if a customer is dissatisfied will not dispel the effect of false advertisements. Farley v. Heininger, supra.

6. With respect to the discontinued use of CX-2, voluntary cessation of illegal conduct does not deprive the tribunal of power to hear and determine the case. United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953). Otherwise, the Respondent would be "free to return to his old ways."

7. Complainant has established its case by a preponderance of the reliable and probative evidence of record. S.E.C. v. Savoy Industries, Inc., 587 F.2d 1149, 1168 (D.C. Cir. 1978).

8. Respondent is engaged in the conduct of a scheme for obtaining remittances of money through the mail by means of materially false representations in violation of 39 U.S.C. § 3005.

9. The attached False Representation Order and Cease and Desist Order should be issued. 

                                        Mason, Randolph D., 
                                        Administrative Law Judge