Rapid City will not file criminal charges against the owners of the Spencer's store at Rushmore Mall for at least another week, city officials said this week.
But Mayor Alan Hanks said the delay does not mean the city is backing down from its position that the novelty store must register as an adult-oriented business. A letter sent to Spencer Gifts LLC this week sets a "firm deadline" for resolution.
"It should have been very clear that we're not going to play a game back and forth and have this drag out for any length of time. We're going to move forward," Hanks said. "Really, it's up to them on whether they're willing to comply. We're ready to move forward with criminal charges at any time."
The Rapid City Police Department seized more than 2,000 items, including sex toys and other merchandise, from the store Nov. 8 as possible evidence of its failure to register as an adult-oriented business. The city attorney's office met with store officials Nov. 19 to discuss coming into compliance with the city's regulations.
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Under the 2003 city ordinance, operating an unlicensed adult-oriented business 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 city license as long as it does not make up a "substantial or significant portion of its stock." Spencer's has been in Rushmore Mall since 1979.
Licensed adult book, novelty and video stores 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.
Kevin Mahoney, general counsel for the New Jersey-based Spencer Gifts, said earlier this week he felt the meeting with the city attorney was a productive one. But he said they are still unwilling to register as an adult-oriented business or partition off the store's racier merchandise.
"The store is not configured for it," Mahoney said. "It causes a problem to allow us to monitor and oversee the merchandise."
Spencer's already has a number of internal policies for its adult merchandise, Mahoney said. Items are displayed at the rear of the store so they cannot be seen from the common areas of the mall, and a warning sign is posted at the store's entrance. Product displays are limited, and associates are instructed not to sell the merchandise to "young teenagers."
"We're happy to work with them as far as what their issues are," Mahoney said. "I feel confident that we'll be able to put this to rest."
Rapid City is not the first community to question Spencer's merchandise selection.
In early 2008, police in Layton, Utah, raided the Spencer's store at Layton Hills Mall, taking more than a dozen boxes of merchandise, according to news reports. Layton is roughly the same size as Rapid City, with a population of 66,700.
At question was whether the store was violating Utah state law dealing with materials harmful to minors, Layton City Attorney Gary Crane said.
Under state law, it is a third-degree felony in Utah to exhibit or distribute overtly sex-related material to anyone younger than 18. Such materials include representations of sexual conduct and male and female genitalia and breasts.
Crane said the settlement they negotiated with Spencer's required the store to put its adult products behind a bead curtain barrier and package them in containers that would obscure their content. Spencer's also agreed to only employ adults as managers unless the store could show the written consent of the employee's parents.
But two years later, Crane said, they are investigating the novelty mall shop again after receiving new complaints. This time, it is possible they will go after the business license and file felony charges.
"It's a perpetual problem that you have to continually keep tabs on," Crane said.
In South Dakota, the Empire Mall in Sioux Falls has the state's only other Spencer's store.
There, the city only limits where adult-oriented businesses can be located, not how they operate, said Shawna Goldammer, the city's zoning enforcement manager.
Under city ordinance, adult bookstores, theaters, photo studios and entertainment establishments are not permitted within 500 feet of a residential neighborhood, church, school or public park.
A 2008 state law lays out other requirements for adult-oriented businesses in cities and counties without their own restrictions.
New adult businesses are not allowed within a quarter-mile of a child welfare agency, private or public school, public playground, public recreational facility, residence or place of worship. Adult arcades, bookstores, video stores, theaters, cabarets or model studios also cannot be open between the hours of 2 a.m. and 8 a.m. Monday through Saturday and 2 a.m. and noon Sunday. Violations are a Class 1 misdemeanor for every day they occur.
That state law could get tested by another store in Sioux Falls with some merchandise similar to Spencer's.
The Minnehaha County State's Attorney Office has filed a suit against The Love Shack, which opened on one of Sioux Falls' main streets in January, claiming it is an adult-oriented business and therefore too close to surrounding residential areas and a public park.
"What we're arguing here is there are numerous items of a sexually related nature that would violate that chapter of the statute," said Dustin DeBoer, senior deputy state's attorney.
The store's owner maintains that The Love Shack complies with all state law and filings in the case point toward their intention to test the constitutionality of the 2008 adult-oriented business law. The case could go before a judge sometime in spring 2011, DeBoer said.
Contact Emilie Rusch at 394-8453 or emilie.rusch@rapidcityjournal.com.