If you were arrested for theft, petty theft, retail theft, or shoplifting in the Walworth County Area, including Elkhorn, Lake Geneva, Delavan, or Whitewater, contact an experienced Theft Attorney to discuss your case. The criminal offense of Retail Theft (aka shoplifting) is a common theft crime in Wisconsin that involves the theft of merchandise offered for sale from a retail establishment, but altering price tags, or concealment of items within the store can also qualify as Retail Theft.
A conviction for even an ordinance offense under Wisconsin law can mean that for the rest of your life every time you fill out a job application you will have to disclose that you were convicted of a "crime of dishonesty." The arrest and conviction for the charge can have serious consequences to your reputation, employment opportunities, and professional licenses. We have had clients lose job opportunities and be denied professional licenses for these violations.
In Wisconsin, Retail Theft is considered a "crime of dishonesty." It is a could be considered a criminal offense that comes with criminal penalty, and required to be disclosed on a job application.
The legal term for Retail Theft differs from as simple Theft, in that concealment of an item with the store could qualify as retail theft, but simple theft would require you to leave the store with the product. In order to prove the offense of shoplifting or petty theft, the prosecutor must prove that you intended to take something that didn't belong to you from a store without paying or it, and that you did take the item or attempted to take the item out of the store. Retail Theft can include concealing merchandise, switching labels, or returning merchandise that was stolen.
Evidence Used to Prove Shoplifting or Retail Theft Cases
If you are charged with Shoplifting, the prosecutor will typically look for the following types of evidence to prosecute the case:
•1. Testimony from Loss Prevention Employees (Store Security) of the Retail Establishment;
•2. Testimony of Other Customers of the Retail Establishment;
•3. Store Video Camera; and
•4. Statements or Admissions Made by the Accused.
Evidence of any of the following without the consent of the Store :
•1. Intentionally alters a price tag/scan code;
•2. Intentional carrying away of the property (take away without paying for;
•3. Transfer of the property (item) held for resale (the hand off to another to walk out of the store)
•4. The person accused of shoplifting concealed the items or attempted to conceal the items;
•5. Intentionally retains possession of the items (i.e. leaves the store with the items)
•6. While anywhere within the store removes a theft detection device.
•7. Use/possess a theft detection shielding device
•8. Use or possession of a tool to remove theft detection device.
The Shoplifting or Retail Theft Ring or Flash Mob Cases
Retail establishments report that the number of shoplifting or retail theft cases as a percentage of all retail sales has remained the same over the past ten years, although there has been a steady increase in organized retail theft, which includes shoplifting (estimated to be more than 32% of the total loss in 2006) and employee theft (estimated to be 47% of the total loss in 2006).
Organized theft from retail establishments commonly includes the following:
•1. Store employees working with friends posing as customers to receive refunds on stolen items;
•2. Thieves obtaining items that are similar to items sold in the store, but returning them (i.e. buying a $5 flash drive, remarking it as a $30 flash drive and returning it at a higher rate, while selling the more expensive one over the internet)
•3. Store employees working with friends to steal items from delivery trucks;
•4. Duplicating gift cards using electronic devices to defraud the store; and
•5. Stealing items in the store and then selling them on the internet.
Although the vast majority of retail losses come from organized theft cases, most people arrested for shoplifting are not part of some organized fraud conspiracy. Most people arrested for shoplifting are not working with anyone else to commit the crime and have no criminal history at all. Yet the Store will often believe the worst of the defendant.
Zero-Tolerance Policy of Large Retail Establishments
In many large retail establishments where theft, retail theft or shoplifting arrests occur (such as Wal-Mart, Target, K-Mart, Staples, Best Buy, Home Depot, Lowe's, JC Penneys, Kohl's, Marshall's, Sears, Macy's, or Nordstroms) the retail establishment may have a zero-tolerance policy that demands that any person caught shoplifting will be prosecuted to the fullest extent of the law.
Hiring an attorney to fight for the best disposition in your case is important. If the retail establishment objects to a diversion program (available in some courts) for any reason, your attorney can contact the retail establishment involved in your case, and often convince the retail establishment not to oppose a more favorable disposition such as a diversion program. Also, your attorney can help negotiate some of the terms of diversion and make sure that you are entered into the program as quickly as possible.
Civil Penalty Demand Letter- The "Shakedown"
Many large retail chains in Wisconsin will accuse a customer of theft or shoplifting. After the accusation is made, the stores will collect the customer's contact information and turn it over to a law firm that acts much like a collection agency even if the merchandise is recovered and no actual damages are incurred by the store. The law firm will then send a letter to the customer demanding that the customer pay a "civil penalty" authorized under Wisconsin law, Wis. Stat. 943.51.
In a typical case involving an alleged shoplifting incident, the law firm will send a demand letter which states that if a fee, usually $200.00 is not paid within a thirty days, then the retail establishment will begin civil proceeds to collect money damages. The first letter often vaguely implies that paying the requested amount will prevent any further litigation which does not mean that no further criminal or municipal prosecution will take place if they pay the requested amount.
If the initial amount requested is not paid after the first letter, the law firm will send a second letter about a month or so later demanding even more money for unspecified damages from the shoplifting incident. The second letter demands that the higher amount of damages is paid within 10 days. The second letter rarely states how they came up with this amount. This second letter has a more threatening tone and may imply that the sheriff will be notified if you do not pay the requested amount.
Misleading Settlement Letters
The wording of these letters is extremely misleading. If the law firm actually initiated a civil law suit (which is an extremely remote possibility depending on the amount of loss, $10,000 or more makes the matter far more likely), then the law firm could contact the sheriff to have you served with the civil summons and complaint the same way the sheriff's office can be used to serve paperwork in any kind of civil law suit. The wording of the letter (if it makes any mention of the sheriff or law enforcement) is very misleading. Many clients describe the letters as scary and humiliating. That is their intent, to scare you into submission. In some cases, the law firm will contact the individual over the phone demanding payment. A letter from your attorney will put a stop to additional letters or phone calls from the law firm. Note in Wisconsin, they are limited to the value of the stolen item and an additional $300 if the violator was a minor, $500 if the violator was an adult.
They Rarely File a Civil Claim
In Wisconsin merchants rarely, if ever, follows through with this threat in Retail Theft cases. The statute, Wis. Stat. 943.51 allow for actual damages (cost of investigation plus actual cost of the items stolen plus $300 to $500 of exemplary damages, including attorney fees). However, in the typical shoplifting case when the merchandise is recovered at the scene no actual damages occur.
The "Civil Liability" Shakedown
The Wall Street Journal published an article on this phenomenon in February, 2008. The article found that the civil penalty letters sent out in shoplifting, retail theft, or theft cases by a Florida law firm called Palmer, Reifler and Associates, P.A., which mails such letters for various retail chains, keeps between 13% to 30% of the money it collects. The article reports that a partner at the law firm has said that it sends out about 1.2 million such letters a year but follow up by suing fewer than 10 times a year. The Law Office of Michael Ira Asen, P.C. is another such law firm that acts much like a collection company is the Law Offices of Michael Ira Asen, P.C. who is associated with the Zellman Group, LLC, which runs a retail loss "shake down" for numerous retail companies, including some of the largest retailers in the United States, including Kohl's department store (Kohl's Illinois, Inc.). Although the Law Offices of Michael Ira Asen, P.C., send out numerous letters to individuals in Wisconsin demanding payment under Wis. Stat. 943.51, this New York law firm does not appear to have an attorney licensed in the State of Wisconsin to file a lawsuit, or even legally offer to settle such claims. In Wisconsin, Shopko uses Clifford & Raihala, S.C. as local collection counsel. They are a Wisconsin law firm located in Madison. They advertise primarily as a personal injury firm. While they have the legal ability to practice law in Wisconsin, there has not been a lawsuit filed in the State of Wisconsin with Shopko as a plaintiff since 2007, and the one before that was 2001.
Civil Demand Letters Create a Motive for False or Exaggerated Accusations
The huge fees collected by retail establishments can often create an incentive for a loss prevention person at the store to report even questionable shoplifting cases. The fact that civil damages are demanded when the store has suffered no actual damages is often a fact that can be raised at trial and argued to the jury to show the bias or motive on the part of the loss prevention person to exaggerate or spin the facts regarding an incident of theft, shoplifting or retail theft. Some loss prevention officers will tell the person arrested at the time of the arrest that when they receive the letter for payment of the $200.00, they should pay the amount to avoid further liability.
In those cases in which the individual does in fact steal the merchandise, and the merchandise is damaged or no longer saleable, and the retail store has suffered actual damages, which is usually measured by the full purchase price of the merchandise. In the criminal case the prosecutor can ask the court to order restitution, and the Court routinely orders that as restitution.
Contact a Lake Geneva Retail Theft Lawyer About the Legal Matters That Affect You
Please contact our Elkhorn law firm with questions about the legal matters that affect you. We are available by calling 262-723-4110 or by completing our online contact form. Our Elkhorn criminal and family law attorneys are available five days a week, as well as evenings and weekends by appointment. Home and hospital visits are available.