August 20, 2001 In the Matter of the Complaint Against JOHN G. WACK d/b/a JOHN GORDON and DIRECT SUCCESS P. O. Box 329 Rancocas, NJ 08073-0329 JOHN G. WACK 23 Beechnut Lane Willingboro, NJ 08046-3806 P. S. Docket No. 40/62 APPEARANCES FOR COMPLAINANT:Catherine A. Green, Esq. Thomas V. Sottile, Esq. Civil Practice Section United States Postal Service 475 L’Enfant Plaza, SW, Room 6112 Washington, DC 20260-1147 APPEARANCE FOR RESPONDENT:John G. Wack 23 Beechnut Lane Willingboro, NJ 08046-3806
POSTAL SERVICE DECISION ON
BREACH OF AN AGREEMENT CONTAINING CONSENT
ORDER TO CEASE AND DESIST AND
FALSE REPRESENTATION ORDER
On June 14, 2001, Complainant, United States Postal Service, filed a Petition alleging that Respondent John G. Wack has breached the terms of an Agreement Containing Consent Order to Cease and Desist and False Representation Order (Agreement) executed on January 21, 1993, by engaging in a false representation scheme pertaining to the sale of a money-making system through the mail. The names and address to which Respondent currently seeks remittances and against which a false representation order is requested to be issued are Home Profits; J. Gordon Co.; J. Gordon; and Wealth Systems1 at P.O. Box 329, Rancocas, NJ 08073-0329. Complainant has also requested the issuance of an order for civil penalties in the amount of $40,000.
On June 18, 2001, an Interim Detention Order as authorized by Paragraph 6 of the Agreement was issued directing the detention of mail to the above names and address. The Interim Detention Order granted Respondent a period of ten days in which to file a reply to the Petition. Respondent did not file a reply to the Petition with the Judicial Officer, but in a letter to an Inspector Attorney dated July 18, 2001, he took issue with the allegations of the Petition and the supporting declaration, and sought additional information for his "further review."
Although Respondent states his disagreement with the allegations of the Petition, he has not presented any supporting evidence to show that he has not breached the terms of the Agreement. The allegations of the Petition, supported by the attachments thereto, make a prima facie showing that Respondent has breached the terms of the Agreement in the manner alleged in the Petition.
Furthermore, although Respondent questions Complainant’s allegation he has the capacity to pay a civil penalty in the amount of $40,000, he has not shown that he is unable to pay the penalty or that it would have an adverse effect on his ability to conduct a lawful business. Respondent’s prior history of violating §3005(a), his high culpability and the severity of the breach of the Agreement2 support the issuance of the requested civil penalties order.
Accordingly, pursuant to the terms of Paragraphs 6 and 10 of the Agreement, a false representation order as described in 39 U.S.C. §3005(a) and a civil penalties order as authorized under 39 U.S.C. §3012(c)(1) are issued with this Decision.
James A. Cohen Judicial Officer
2 Section §3012(c)(1) of 39 U.S.C., permits the Postal Service to seek an order assessing civil penalties in an amount "not to exceed $25,000 for each mailing of less than 50,000 pieces" in any proceeding in which an order under §3005 is permitted. In this matter, Complainant is only seeking $40,000 even though Respondent could be liable for a much higher maximum penalty for making multiple mailings of less than 50,000 pieces in promoting his current scheme. See Declaration of Inspector F.O. Giuliani at ¶¶10-13, and attachments thereto.