In the Matter of the Complaint                                 )
Against                                                                   )
                                                                               )
ALLEN GLAZER d/b/a                                            )
POSTER DISTRIBUTION CENTER                            )
5800 Madison Ave., Room #A2                             )
            at                                                                )
Sacramento, CA 95841-4816                                )
                                                                               )
            and                                                             )
                                                                               )
POSTER DISTRIBUTION CENTER                            )
3323 Watt Ave.                                                      )
            at                                                                )
Sacramento, CA 95821-3609                                )  P. S. Docket No. 40/59

APPEARANCE FOR COMPLAINANT :                    Rodney Gould, Esq.
                                                                               K. F. Innes, Esq.
                                                                               Consumer Protection Law
                                                                               Law Department
                                                                               United States Postal Service
                                                                               Washington, DC 20260-1144

APPEARANCE FOR RESPONDENT:                        Michael Broad, Esq.
                                                                               405 14th Street, Suite #1500
                                                                               Oakland, CA 94612-2707

POSTAL SERVICE DECISION

Respondent has filed an appeal from an Initial Decision of an Administrative Law Judge which holds that Respondent is engaged in conducting a scheme for obtaining money through the mail by means of materially false representations in violation of 39 U.S.C. §3005. Complainant opposes Respondent's appeal.

Background

The General Counsel of the United States Postal Service initiated this proceeding by filing a Complaint alleging that Respondent distributes solicitations for posters which falsely represent that:

(a) Respondent's solicitation is an official government notice;

(b) Respondent is an agency of the state of California;

(c) The posters listed in Respondent's solicitation must be purchased and cannot be obtained free from any government agency.

Respondent filed a timely Answer in which he admitted distributing the solicitations attached to the Complaint, but denied that he makes the materially false representations alleged in the Complaint. Thereafter, the parties filed a stipulation of facts and requested that this matter be decided on the record as supplemented by their stipulation and attached exhibits. Following the submission of Proposed Findings of Fact and Conclusions of Law, the Administrative Law Judge issued an Initial Decision in which he concluded that Respondent makes the representations alleged in the Complaint and that those representations are materially false.

Exceptions and Discussion

Respondent filed a timely appeal in which he contends that the Administrative Law Judge's decision is not supported by "probable cause" or substantial evidence, and that the Administrative Law Judge erred in determining that the representations alleged in the Complaint are materially false. Respondent, in addition, contends that the cease and desist order sought by Complainant and recommended for issuance by the Administrative Law Judge is too vague and broad to be issued as the result of this proceeding. Complainant asserts that the Initial Decision is supported by the evidence presented and requests that the orders sought in the Complaint be issued against Respondent.

Respondent has not shown that the Initial Decision is in error or that any other grounds exist for granting his appeal. Although Respondent contends that the evidence does not support the Administrative Law Judge's findings and conclusions, the solicitations themselves constitute a preponderance of the evidence⁽¹⁾ establishing that Respondent makes the representations alleged in the Complaint. As stated by the Administrative Law Judge, the overall impression⁽²⁾

created by Respondent's solicitations is that they are official government notices, Respondent is an agency of the state of California, and the posters listed in the solicitations must be purchased and cannot be obtained free from any government agency. This impression is created by the language quoted in the Initial Decision as well as the format and appearance of the solicitations. Respondent's analysis of the language of his solicitations, which he argues leads to a contrary conclusion is not persuasive. Even if every statement in Respondent's solicitation is literally true,⁽³⁾ the overall impression conveyed to the ordinary reader is that the solicitations make the representations alleged in the Complaint. Thus, the Administrative Law Judge did not err in finding that Respondent's solicitations make these representations.

Respondent's assertion that witness testimony or consumer complaints is required in order to show that a false representation has been made is equally unpersuasive. The solicitations themselves are the best evidence of their contents⁽⁴⁾ and the Administrative Law Judge, as the initial finder of fact in a §3005 proceeding, is entitled to rely on the solicitations without the aid of lay or expert testimony.⁽⁵⁾ Thus, the Administrative Law Judge did not err in relying on Respondent's solicitations in determining that the representations alleged in the Complaint are, in fact, made.

The falsity of the representations alleged in the Complaint is established by the parties' stipulation (Stip.  7 & 8). Respondent, however, contends that the misrepresentations are not material since they would not be the motivating factor inducing recipients to purchase the posters. According to Respondent, recipients of the solicitations were required by federal or state law to display the information contained on his posters and therefore this requirement, not the representations included in his solicitations, would serve as the basis for purchasing the posters.

While it may be true that recipients of Respondent's solicitations are required to display the information included on the posters, the inducement to purchase the posters from Respondent is the representation that the recipient is receiving an official government notice from a California state agency from whom the posters must be purchased. These representations, together with the prominent warning of possible penalties for failing to display the information included on the posters, would most likely induce the ordinary recipient to purchase the posters from Respondent. Thus, contrary to Respondent's contention, the false representations contained in Respondent's solicitations are material.

Respondent's final contention is that the cease and desist order sought by Complainant and recommended by the Administrative Law Judge, is overly broad and vague and therefore, should not be issued against Respondent. The cease and desist order prohibits Respondent from making the three materially false representations alleged in the Complaint. The prohibitions of the cease and desist order do not extend beyond the representations alleged in the Complaint nor do they attempt to cover related representations or promotions as is the case with broader fencing-in provisions.⁽⁶⁾ Although the terms of the cease and desist order prohibit Respondent from continuing to make the representations alleged in the Complaint, he may continue to sell his posters through the mail so long as he does not make these false representations. Under such circumstances, the cease and desist order is reasonably calculated to prevent the resumption of the prohibited representations and therefore is as specific as circumstances require.⁽⁷⁾ Accordingly, the cease and desist order is a reasonable and proper implementation of 39 U.S.C. §3005.

Conclusion

Respondent's exceptions have been considered and found to be without merit. Accordingly, Respondent's appeal is denied, the Initial Decision is affirmed and the orders sought in the Complaint and authorized by 39 U.S.C. §3005 are issued herewith.

James A. Cohen
Judicial Officer

1. Neither the probable cause nor substantial evidence standard applies in a proceeding under 39 U.S.C. §3005. The Postal false representation statute specifically requires "evidence satisfactory to the Postal Service" which on numerous occasions has been interpreted to mean a preponderance of the evidence. See e.g., A.C.L., P.S. Docket No. 36/90 at 12 (P.S.D. Dec. 28, 1990), aff'd, (May 15, 1991); Associated Telephone Directory Publishing, Inc., P.S. Docket No. 13/191 at 5 (P.S.D. Jan. 25, 1984), aff'd, (March 23, 1984); Athena Products, Ltd. , P.S. Docket No. 12/136 at 10-11 (P.S.D. May 6, 1983); Telex twx Directory, P.S. Docket No. 13/6 at 5-7 (P.S.D. April 1, 1983).

2. It is the overall impression created in the mind of the ordinary reader that determines what representations are made in the solicitations. See Donaldson v. Read Magazine, Inc., 333 U.S. 178, 185-89 (1948); Aronberg v. FTC, 132 F.2d 165, 167 (7th Cir. 1942); G.J. Howard Co. v. Cassidy, 162 F. Supp. 568, 572 (E.D.N.Y. 1958); Charles Smith, P.S. Docket No. 36/129 at 10 (P.S.D. Dec. 9, 1993); Mid-American Marketing, Inc., P.S. Docket No. 24/12 at 7 (P.S.D. Jan. 5, 1987), aff'd, (May 7, 1987).

3. See Aronberg v. FTC, 132 F.2d 165, 167 (7th Cir. 1942); G.J. Howard Co. v. Cassidy, 162 F. Supp. 568, 572 (E.D.N.Y. 1958); The National Gold Mint, P.S. Docket No. 22/165 at 17 (P.S.D. May 1, 1987); IHS, P.S. Docket No. 22/155 at 26 (P.S.D. Sept. 22, 1986).

4. See Charles Smith, P.S. Docket No. 36/129 at 7 (P.S.D. Dec. 9, 1993); The Washington Mint, Inc., P.S. Docket No. 30/42 at 7 (P.S.D. Nov. 7, 1992); Scott David Wilcox, P.S. Docket No. 18/147 at 6-7 (P.S.D. April 20, 1988); United States Testing Authority, P.S. Docket No. 14/114 at 15-16 (P.S.D. Oct. 2, 1985).

5. See Charles Smith, P.S. Docket No. 36/129 at 7 (P.S.D. Dec. 9, 1993); A.C.L., P.S. Docket No. 36/90 at 12 (P.S.D. Dec. 28, 1990), aff'd, (May 15, 1991); National Scholastic Resources Admin., Inc., P.S. Docket No. 35/140 at 16 (P.S.D. Nov. 23, 1990); Health Care Products, Inc., P.S. Docket No. 28/90 at 4-5 (P.S.D. June 27, 1990).

6. See Renovatron International Corp. v. FTC, 884 F.2d 1489, 1499 (1st Cir. 1989); American Home Products Corp. v. FTC, 695 F.2d 681, 704-06 (3rd Cir. 1983); American Genealogies, Inc. v. USPS, 717 F. Supp. 895, 898-99 (D.D.C. 1989); Paul W. Schuette, et al., P.S. Docket No. 29/117 at 5-6 (P.S.D. March 16, 1989); Leo Daboub, P.S. Docket No. 19/185 at 25-26 (P.S.D. July 10, 1986).

7. See FTC v. Colgate-Palmolive Co., 380 U.S. 374, 392-93 (1965); American Home Products Corp. v. FTC, 695 F.2d 681, 704-05 (3rd Cir. 1982); Finderhood, Inc., P.S. Docket No. 34/102 at 8 (P.S.D. July 24, 1992); Leo Daboub, P.S. Docket No. 19/185 at 25-26 (P.S.D. July 10, 1986).