LAS VEGAS — Last summer, Spencer Gifts received notice that it could face both criminal charges and maximum daily fines of $500 if it didn’t stop selling sex toys at two of its Las Vegas stores.
Instead of giving in to Clark County code enforcement authorities and removing the numerous items identified, the Delaware-based novelty retailer decided to challenge the notice and filed a federal lawsuit last month.
Spencer Gifts’ lawsuit claims that the county’s zoning laws, which categorize the stores as illegally located “sex novelty shops,” amount to prior restraint violating the First Amendment.
Local zoning laws only allow sex novelty shops in several areas of unincorporated Clark County — inside Las Vegas Strip hotel-casinos and west of Las Vegas Boulevard running along Interstate 15.
The Spencer Gifts stores at the center of the suit are in downtown Summerlin and at the Las Vegas Outlet Center, near McCarran International Airport.
Yesterday, Clark County officials answered Spencer Gifts’ civil rights suit, stating that the subject ordinance is not vague and that the decision by the county’s Board of Commissioners was reasonable and done in the public interest.
County official also said that Spencer Gifts wasn’t denied a liberty interest under the 14th Amendment to engage in a particular vocation or trade.
Spencer Gifts, in its complaint, said that the county was violating the 14th Amendment’s Equal Protection Clause because retail giants like Walmart, Walgreens and Albertsons are allowed to sell vibrators without repercussion.
During an October appeal of the “sex novelty shop” categorization, Spencer Gifts’ general counsel Kevin Mahoney said the stores carry a small stock of sex toys and that staff ensures they stay out of the hands of children.
But Mahoney wasn’t convincing. Commissioners voted unanimously to deny the appeal.
According to a report, Clark County attorney Robert Warhola told commissioners they had the discretion to only go after Spencer’s due to the store’s wider selection of sex toys and novelties.
“If you go to Spencer’s it’s much more obtrusive. It’s very explicit,” Warhola said. “There’s no comparison to pharmacies.”
The case, Spencer Gifts v. Clark County, continues at Las Vegas federal court.