In the Matter of the Complaint Against

EVERYWOMAN'S WATER PILL
P.O. Box 1344 and
P. O. Box 1347 at
Hallandale, Florida 33009

P.S. Docket No. 6/113;

05/31/79

Cohen, James A.

APPEARANCE FOR COMPLAINANT:
H. Richard Hefner, Esq.
Sandra C. McFeeley, Esq.
Consumer Protection Office
U.S. Postal Service
Washington, D. C. 20260

APPEARANCE FOR RESPONDENT:
Joel Heim
1420 Diplomat Parkway
Hollywood, FL 33019

POSTAL SERVICE DECISION

Respondent has appealed from the Initial Decision of Administrative Law Judge Quentin E. Grant holding that Respondent is engaged in the conduct of a scheme for obtaining money through the mail in violation of 39 U.S.C. § 3005. Respondent raises several issues each of which is addressed in this decision.

Respondent claims it was not allowed to file proposed findings of fact and the failure to allow the filing of such findings shows "the high degree of prejudice against the defense for the third time." Following the conclusion of the hearing and the receipt of the transcript, the date for submission of proposed findings of fact and conclusions of law was established as September 29, 1978.

Respondent sought a 60 day extension for filing the proposed findings and conclusions but good cause was found to justify an extension only to October 20, 1978. Respondent thereafter sought two extensions of the October 20, 1978 date. Both extensions were denied. Respondent did not file its proposed findings of fact and conclusions of law within the time allowed and in due course the Initial Decision was denied.

Good cause was not shown for an extension beyond that granted and the presiding Administrative Law Judge properly denied the additional extensions requested by Respondent. The denial of the time extensions requested by Respondent does not show a prejudice on the part of the presiding Administrative Law Judge. Respondent's failure to file the proposed findings of fact and conclusions of law within the time allowed was a matter of its own making. Accordingly Respondent was not deprived of an opportunity to file proposed findings of fact and conclusions of law, and the fact that it chose not to make such filings within the time allowed does not serve as a basis for relief on appeal.

Respondent alleges that the allowance of the Complainant's Motion to Withdraw Complainant's Exhibit 2(d) from the record without first seeking a response to the motion from Respondent points out "Judge Grant's obvious bias" against Respondent. Complainant's motion to remove the original of Complainant's Exhibit 2(d) from the file, and to substitute a photocopy thereof, was properly granted without seeking an answer from Respondent. The exhibit was not admitted into evidence as it was found to be unrelated to the product involved in this proceeding (Tr. 39-40). Thus the substitution of the photocopy for the original could not possibly have an effect on the issues in dispute, and a response from Respondent to Complainant's motion was unnecessary. Accordingly the presiding Administrative Law Judge acted properly and his actions do not show a bias against Respondent.

Respondent next argues that it was deprived of an opportunity to examine the exhibits while preparing its appeal. The exhibits were at all times available for review by Respondent. Respondent had ample opportunity to review the exhibits at the hearing (Tr. 42-43) and could have thereafter reviewed the exhibits at the office of the Docket Clerk. Copies of the exhibits could have been made available to Respondent had they been timely requested. Respondent did not seek a viewing of the exhibits until the appeal period was about to expire. Such an untimely request for the exhibits is not a proper basis for granting a time extension or modifying the result reached in the Initial Decision. See The Doctor's Diet Plan, P.S. Docket No. 6/77, (Recon. den., April 18, 1979) and Vitahair, P.S. Docket No. 6/76, (Recon. den., January 26, 1979).

Respondent asserts the heading of this case is improper and serves as a basis to dismiss the complaint. This contention has previously been addressed and found to be without merit in The Doctor's Diet Plan, supra, and Vitahair, supra. The administrative decisions were upheld by the United States District Court for the Southern District of Florida in Diet Lake, Inc., d/b/a Doctor's Diet Plan v. U.S. Postal Service, Case No. 78-6417-Civ.-JE (May 3, 1979), and Diet Lake, Inc., d/b/a Vitahair v. U.S. Postal Service, Case No. 78-6436-Civ.-JE (May 3, 1979). In the former, the Court stated: the facts of this case are essentially the same as those in the two cited cases. Accordingly there has been no denial of due process and Respondent's contention on this basis is denied.

Plaintiff contends that it was denied due process of law because it was not named as the respondent to the administrative complaint. The administrative complaint named "The Doctor's Diet Plan" as the respondent. The advertisements that are the subject of this action reflected the name "The Doctor's Diet Plan." Plaintiff argues that the proceeding is void because "The Doctor's Diet Plan" is not a "person" within the meaning of 39 U.S.C. § 3005. Although the statute speaks of a "person", it goes to form, not substance.^1/ Diet Lake, Inc., doing business as Doctor's Diet Plan, appeared throughout the administrative proceedings in the person of Joel Heim. The administrative proceeding would have been the same if the corporate entity, Diet Lake, Inc., had been named as a respondent rather than the fictitious entity or product sold by Doctor's Diet Plan. Judicial review of the administrative proceeding being had in the name of the corporation, and not the fictitious entity or product, there is not denial of due process.

Respondent claims it was given only two days to prepare for trial. Pursuant to proper notice the hearing was originally scheduled to be held on July 28, 1979, in Room 10811, 475 L'Enfant Plaza West S.W., Washington, D.C. 20260. On motion of Respondent the location of the hearing was changed from Washington, D.C. to Miami, Florida. In a letter dated July 27, 1978, Respondent's representative advised the presiding officer that he would be out of town on a business trip for 10 days commencing July 28, 1978 and sought an indefinite postponement of the trial for various other reasons. By telegram dated August 4, 1978, confirmed in an order of the same date, the date of the hearing was changed to August 17, 1978. The telegram was delivered to Respondent's address on August 4, 1978, but acceptance of the telegram was refused by Respondent's maid. The order of the same date was received at Respondent's address on August 7, 1978.

From these facts it is clear Respondent was given proper notice of the hearing and allowed sufficient time to prepare for hearing. That Respondent chose not to use the time allowed to prepare for the hearing is not a matter which would justify the relief requested. Moreover it should be pointed out that in support of its request for a change in the place of hearing Respondent listed 33 witnesses and organizations in the Florida area which it claimed would appear and give testimony at the hearing. No showing has been made that any of the listed persons or organizations were contacted and were unavailable to appear at the hearing.

Respondent alleges its constitutional rights have been violated in this proceeding. At various places in the record it has cited the 4th, 5th, 6th, 7th, 8th, and 9th Amendments of the Constitution as supporting its position. The constitutionality of 39 U.S.C. § 3005, which is the statute under which this proceeding was instituted has been upheld by the courts. Hollywood House International, Inc. v. Klassen, 508 F.2d 1276 (9th Cir. 1974) and cases cited therein. A review of the record reveals no unconstitutional application of this statute in this proceeding.

Respondent sought the names of complaining witnesses from the Postal Service under the Freedom of Information Act and alleges that because these names were not provided prior to trial it was denied its constitutional rights. The complaining party in this proceeding is the Postal Service and its evidence was presented at the hearing before Administrative Law Judge Grant. Respondent was given full opportunity to cross examine the Postal Service witnesses and to present its own evidence. The testimony of other complaining persons was not presented at the hearing and Respondent has not been prejudiced by the failure of the Postal Service to release their names. Further the propriety of releasing the names of complaining persons in response to a Freedom of Information Act request is not a matter for determination by the Judicial Officer. Neither does it serve as a basis for granting relief in this proceeding.

Respondent's final argument is that the presiding Administrative Law Judge never ruled on its motion to correct the transcript. Respondent did not file a motion even though it was advised by order of September 19, 1978, of the procedure to be followed if transcript corrections were to be made. Respondent's motion seeking additional time to file findings of fact based on its request to the reporter to make corrections to the transcript was denied. Such denial was proper under the circumstances.

On appeal the entire record has been reviewed. The findings and conclusions of the Initial Decision are supported by the record and are correct. Accordingly Respondent's appeal is denied. A remedial order under 39 U.S.C. § 3005 is being issued contemporaneously with this order.

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1/ Doctor's Diet Plan is apparently a fictitious entity through which Diet Lake, Inc. is doing business.