In the Matter of the Petition by

RITCHIE HALLANAN REAL ESTATE, LTD.
1800 Filbert Street
at
San Francisco, CA 94123-3608
P.S. Docket No. P 03-393

APPEARANCE FOR PETITIONER:
Joseph G. Moore
Ritchie Hallanan Real Estate, Ltd.
1800 Filbert Street
San Francisco, CA 94123-3608

APPEARANCE FOR RESPONDENT:
Robert E. O'Connell, Esq.
San Francisco Law Department
United States Postal Service
390 Main Street, Suite 740
San Francisco, CA 94105-5001

INITIAL DECISION

             The Petition in this case was docketed on December 8, 2003. An Answer from Respondent, the United States Postal Service, was received on December 30, 2003. Action on the case was suspended for a period of time so that the parties could explore settlement, and two telephone conferences were held, during which settlement was discussed. In the telephone conference of April 8, 2004, the parties were advised that an oral hearing did not appear to be necessary, but that the parties could submit written arguments as to the application of the law to the facts of this case. At the close of the telephone conference on April 8, 2004, Petitioner’s representative asked for some additional time to determine how he wished to proceed.

             An April 9, 2004 Order and Memorandum of Telephone Conference stated that the parties would confer on or about April 19, 2004, and could then request an additional telephone conference if they wished. Otherwise, the Order gave the parties until May 10, 2004 to file any additional evidence and/or argument they wished to have considered. There has been no request for another telephone conference, and neither party has filed any additional evidence or argument. Accordingly, the case is ready for decision.

FINDINGS OF FACT

             1. On September 9, 2002, a postal customer in San Francisco, California, submitted a PS Form 1500, Application for Listing and/or Prohibitory Order, stating his belief that advertising mail that he had received from Petitioner was erotically arousing or sexually provocative.

             2. On October 4, 2002, in response to the above application, the Postal Service issued Prohibitory Order No. 001108197-AGM, directing Petitioner to refrain from any mailing to the named customer at the address provided. By its terms, the Order was effective on the 30th calendar day after receipt of the Order. Petitioner received the Order on October 9, 2002.

             3. On or about October 18, 2003, the complaining postal customer received another mailing from Petitioner. On November 21, 2003, the Postal Service issued a Complaint to Petitioner, alleging a violation of Prohibitory Order No. 001108197-AGM. Petitioner then filed a timely Petition for Hearing pursuant to 39 C.F.R. Part 963.

CONCLUSIONS OF LAW

             1. Under 39 U.S.C. §3008, titled Prohibition of Pandering Advertisements, any addressee of mail who determines, “in his sole discretion,” that material received is “erotically arousing or sexually provocative” may direct the United States Postal Service to issue a Prohibitory Order directing the sender to refrain from further mailings to the named addressee.

             2. Petitioner does not deny that it received the Prohibitory Order, or that it mailed an additional advertisement to the complaining addressee after the prescribed thirty-day period. Petitioner contends that it is a real estate company, that there is nothing whatever about its mailings that is “erotically arousing or sexually provocative,” and that this particular postal customer is abusing postal regulations. Petitioner also states that “every effort” has been made to remove this addressee from Petitioner’s mailing list.

             3. While Petitioner’s position is not unreasonable, the statute gives a postal customer unfettered discretion, and the reasonableness of his assertion as to the nature of Petitioner’s advertising is not subject to review. 39 U.S.C. §3008(a); Rowan v. United States Post Office Department, 397 U.S. 728, 737-38 (1970).

             4. There is no requirement that the Postal Service prove that a mailer intentionally violated a Prohibitory Order. The facts in this case establish that Petitioner did violate Prohibitory Order No. 001108197-AGM by mailing material to the complaining addressee after November 9, 2002, the effective date of the Order. Accordingly, the Complaint is upheld.    

                                                                                    Bruce R. Houston
                                                                                    Chief Administrative Law Judge