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Rapid City Journal

Spencer's could face criminal charges; more than 2,000 products confiscated
By Emilie Rusch Journal staff | Posted: Wednesday, November 10, 2010 5:30 am

Spencer Gifts LLC could face criminal charges in the coming days because the city says the national retailer is operating an unlicensed adult-oriented business at Rushmore Mall.

On Monday, the Rapid City Police Department seized more than 2,000 sex-related products from Spencer’s as possible evidence that the store meets the definition of an adult-oriented business.

City Attorney Jason Green said Tuesday he anticipated filing charges within a week based on the information gathered from Monday’s search warrant.

“We’ll get the reports from the police department and determine what charges to file,” Green said.

Under city ordinance, operating an adult-oriented business without a license is punishable by a $200 fine and 30 days in jail for every day a business fails to register. Businesses can sell adult merchandise without a license as long as it does not make up a “substantial or significant portion of its stock.”

Kevin Mahoney, general counsel for the New Jersey-based Spencer Gifts, said he was still hopeful they will be able to resolve the issue with the city attorney’s office -- without having to register as an adult-oriented business.

“It’s our goal and intention to operate the store in compliance of the ordinance,” Mahoney said. “We think we are operating within compliance.”

Spencer’s has been in Rushmore Mall since 1979, and Mahoney said adult merchandise makes up less than five percent of the items for sale. In other jurisdictions, courts have defined “substantial” as between 20 percent and 50 percent of available merchandise, he said.

“We can sell a small percentage of that merchandise in our store without being deemed an adult-oriented business,” Mahoney said.

On Tuesday, Spencer’s was open, but there were far more empty hooks than full ones in the store’s back corner, where the adult merchandise is usually displayed.

Bachelorette party favors, including sashes, buttons and necklaces, made up most of the remaining merchandise, along with a few body paint kits, blow-up dolls and anatomically shaped candy. All of the store’s “personal massagers” were off the shelves.

The rest of the store was untouched, the shelves packed with t-shirts, band merchandise, drinking games, lingerie, adult birthday cards and accessories such as hats and belts.

A manager at the store Tuesday afternoon said she was not authorized to talk to the media.

Mahoney said the store has received “great support” from the community.

“The store will be open,” he said. “We’ll continue operations, and we expect to be at Rushmore Mall for many, many years.”

Mall officials said they were working closely with local law enforcement and Spencer’s to resolve the issue as quickly as possible for customers.

“We always require our retailers to comply with local laws and regulations,” said Karen Waltman, senior manager of Rushmore Mall. “If there is non-compliance for any reason, the tenant’s position at the center will be compromised.”

According to city officials, the city first received complaints from residents about the store’s merchandise more than a year ago. The city attorney’s office sent a letter to Spencer’s in January and again in September, asking it to comply with the city’s regulations.

Under those regulations, adult book, novelty and video stores must be licensed by the city and cannot allow anyone younger than 18 to enter. Businesses can also comply by displaying all adult merchandise in a separate room or behind a partition and posting a sign banning minors from that area.

Adult stores are defined as any commercial establishment that sells as “one of its principal purposes” books, films or other representations that depict sexual activities or anatomical areas and/or devices designed for use during sex.

During Monday’s raid, police officers entered Spencer’s about 9 p.m. and did not start loading the boxed merchandise into police vehicles until after midnight.

On multiple occasions, officers brought in more cardboard boxes, and police Lt. Tom Vlieger, who oversaw the search warrant’s execution, confirmed there was more merchandise affected than they had anticipated.

The search warrant, which was signed by Magistrate Judge Scott Bogue, allowed officers to seize all merchandise designed for use during sexual activity, books, films or other visual representations of sexual activity or anatomical areas, novelty items depicting genitals or exposed female breasts and packaging of items depicting sexual activity or anatomical areas, according to court documents.

An inventory of all of the seized merchandise included in the court documents listed more than 2,000 items.

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