In the Matter of the Complaint Against

TEMPLE OF RITES,
P. O. Box 1522 at
Riverside, California 92502, and
P. O. Box 1423 at
Fallbrook, California 92028, and
P. O. Box 164 and
P. O. Box 4415 at
Palm Springs, California 92262

P.O.D. Docket No. 3/67

March 9, 1971

H. Richard Hefner and Thomas A. Ziebarth, Esqs.,
Office of the General Counsel,
Post Office Department, for the complainant.

Respondent, no appearance.

Before: John Lewis, Hearing Examiner.

INITIAL DECISION OF HEARING EXAMINER^*/

STATEMENT OF PROCEEDINGS

This proceeding was initiated by the filing of a Complaint by the General Counsel of the Post Office on January 18, 1971, charging the Respondent, Temple of Rites, with conducting a scheme or device for obtaining money or property through the mail by means of false representations, in violation of 39 U.S. Code 4005. In essence, the Complaint charges Respondent with having made false representations in advertising matter concerning the power of what the Respondent designates as "AUTHENTIC CHANT" to fulfill any desire and grant any wish that is not evil, made by persons who will buy or use the authentic chant.

The Respondent did not appear by counsel and did not file a formal Answer. However, the Respondent did submit a letter which bears the date January 22, 1971, enclosed in an envelope which bears the postmark stamped date February 6, 1971, in which it stated that it did not intend to appear at the hearing in Washington because of the fact that the Respondent lives in California. The letter does state that it wishes the matters therein contained to be treated as an answer. The letter is somewhat ambiguous. As I interpret it, it does not deny the use of the advertising matter alleged in the Complaint, but does indicate that the Respondent does not consider the advertisement to be false advertising, the reasoning behind this apparently being, (1) that Respondent consulted an attorney, and (2) that it is using the item as a "collector's item." There is the further statement that "everything I have printed has been approved."

In view of Respondent's statement that indicated the possibility that her decision not to appear was based on the fact that she resided in California or that the Respondent company was located in California, the Examiner decided to address a letter to the Respondent to apprise it of its right under the Rules of Practice to request a change in the place of hearing. This was done particularly because of the fact the Respondent was not represented by counsel. Such a letter was sent on February 10, 1971, advising the Respondent that its letter would be treated as an Answer to the Complaint and, further, that if it wished to request a hearing at a more convenient location, it could do so by following the procedure outlined in the Rules of Practice.

In order to give Respondent an opportunity to prepare such a request, the original hearing date of February 17 was postponed to February 25. Respondent was so advised in the letter addressed to it by the Examiner and in a separate Order postponing the hearing. Respondent was further advised in the letter that if it did not make a request for a change of hearing or place of hearing on or before February 19, the Examiner would assume it did not intend to make such a request or to appear at the place of hearing as scheduled and, in that event, the presiding officer could receive Complainant's evidence and render an initial decision based thereon, in accordance with the provisions of the Rules of Practice.

No response was received to that letter and the hearing, accordingly, proceeded in the absence of the Respondent as provided in Rule 952.11 of the Rules of Practice, which states that where the Respondent files and Answer but fails to appear at the hearing, the presiding officer shall receive Complainant's evidence and render an initial decision.

Accordingly, the hearing proceeded and evidence was received in support of the Complaint. A motion by counsel for Complainant, to amend the caption and the "Wherefore" clause by adding the words "P.O. Box 4415," was granted. The evidence offered at the hearing consists of the testimony of the Postal Inspector, who testified to the observation of advertisements placed in publications by the Respondent and the procedure that he followed in obtaining copies of such advertisements.

Based on the testimony of the Postal Inspector and the documents which have been received in evidence, I conclude that a prima-facie case has been established in support of the Complaint, and I make the following:

FINDINGS OF FACT

1. Respondent is engaged in the business of selling what it designates as an "AUTHENTIC CHANT" in a number of the ads that have been received in evidence, and in the latest ad merely as "three different chants."

2. Public attention is attracted to Respondent's sale of the "AUTHENTIC CHANT" or chants through advertisements which it places in magazines and other publications of general circulation. In these advertisements it requests the customer to send $1, with a self-addressed envelope, to the Temple of Rites at a post office box indicated in the advertisement.

3. The testimony of the Postal Inspector establishes that Respondent does, in fact, obtain money through the mails from customers who have sent in money and a self-addressed envelope in payment of the "AUTHENTIC CHANT." It may be inferred, and is so found, that customers who have seen Respondent's latest advertise- ment, which is Complainant's Exhibit No. 12, and who sent in $10, would likewise receive a copy of some type of chant similar to those that are in evidence, and particularly Complainant's Exhibits No. 5 and No. 11.

It is not clear from Respondent's Answer whether it is contending that it is not in the business of selling these so-called authentic chants. It does allege or state that it is "sending a collector's item." I believe this is a distinction without a difference. I am not going to quote from the poet but I believe a rose by any other name is still a rose. It appears to me, and I so find, that Respondent is in the business of selling these chants and that it is soliciting money through the mail in payment of the chant. Accordingly, I find the jurisdictional facts to be established.

4.The next issue for determination is what is it that is being represented by Respondent? The Complaint alleges that by means of the advertising matter which is attached to the Complaint as Exhibit A, Respondent has made certain representations to the public. The advertisements have been received in evidence as Complainant's Exhibits No. 1 and No. 6. The particular advertisement which is attached to the Complaint, Complainant's Exhibit A, is a copy of Complainant's Exhibit No. 6 and, for convenience, it will be considered a part of this decision and will be designated as Appendix A.

5. The Complaint alleges that the "AUTHENTIC CHANT," as advertised in Appendix A, is represented to the public as possessing supernatural or mystic power to "fulfill any desire and grant any wish that is not evil." I find that members of the public observing this advertisement or one of like content would interpret it as making the representation alleged in the Complaint, namely, that the so-called authentic chant possesses supernatural or mystic power to fulfill any desire and grant any wish that is not evil.

With respect to the matter of any possible constitutional protection afforded Respondent, which subject has been alluded to by counsel for Complainant, it does not appear to me that the Respondent makes any such contention, although conceivably that is what is being referred to by the statement in the letter that Respondent consulted an attorney. In any event, it appears to me that Respondent makes no claim in its advertisement that it is conducting any type of religious operation but, on the contrary, it appears to be making an offer to the general public to purchase this product, which it designates as the authentic chant.

6. The final issue to be determined is whether the representation made in the advertisement with respect to the powers possessed by the authentic chant are materially false. The Complaint alleges that such representations are materially false as a matter of fact and I so find.

7. While no evidence was offered to establish the falsity of the representation that was made, in the light of the cases cited by counsel for Complainant, I conclude that it is not necessary to offer testimony or any other evidence to establish the falsity of the representations. To paraphrase the Court in Gottlieb v. Schaffer, 141 F. Supp. 7 (1956), the claim herein made with respect to the supernatural or mystic power possessed by the authentic chant is so completely opposed to common knowledge that its falsity may be inferred from its preposterous character.

8. It would appear to me that even the Respondent itself makes no claim that the authentic chant possesses the efficacy which is attributed to it in the advertisements. In the letter which has been treated as an Answer, Respondent refers to the chant as a "collector's item." While this is what Respondent may consider to be the nature of the document, the fact is that it is not offered to the public or sold as a collector's item. On the contrary, it is sold as something which possesses affirmative value as enabling users thereof to fulfill any desire and grant any wish that they make which is not evil.

9. It is true that the reference to the authentic chant is prefaced by the statement that it has been "long used by mystics" to fulfill desires and grant wishes, but I find that members of the general public reading the advertisement would not be able to make the fine distinction which may or may not be intended. On the contrary, I find that members of the general public would interpret the advertisement as representing that they too may fulfill any desire and obtain any wish that is not evil by the use of the authentic chant. It is, accordingly, found that the representations made by Respondent with respect to the efficacy of the authentic chant, as above found, are materially false as a matter of fact.

CONCLUSION OF LAW

It is my conclusion of law that Respondent 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. Code 4005, as amended. I accordingly, recommend that an Order in the customary form as provided in 39 U.S. Code 4005, should issue.

__________________

*/Transcribed from oral decision as rendered at close of hearing held February 25, 1971, except for correction of typographical or grammatical errors and elimination of nonessential colloguy.