NY Court to Decide If Lap Dance Is Tax-Exempt
Art
No one
would confuse the Nite Moves strip club with the Bolshoi Ballet, but what the
lap dancers do there is art and entitled to the same tax exemption other
performances enjoy, a lawyer argued Wednesday in what was surely one of the
racier tax cases ever to go before New York's highest court.
W. Andrew
McCullough, an attorney for the suburban Albany strip joint, told the Court of
Appeals that admission fees and lap dances at the club should be freed of state
sales taxes under an exemption that applies to "dramatic or musical arts
performances."
He said
that lap dancing is an art form and that, in any case, the state is not
qualified to make such determinations, and that making such distinctions would
be a violation of the constitutional right to freedom of expression.
A lawyer
for the state rejected that analysis, and authorities are demanding about
$400,000 in back taxes from the club.
A ruling
is expected next month, with possible consequences for the estimated 150 to 200
adult nightclubs in the state.
During
Wednesday's arguments from the club's lawyer, a skeptical Judge Eugene Pigott
Jr. said the women are hired untrained and simply "do what they do."
"We
need to get past the idea that somehow this is the Bolshoi," Pigott said.
McCullough
acknowledged that, but added: "What we're saying is the state of New York
doesn't get to be a dance critic."
He
presented testimony from a cultural anthropologist who visited the club and
concluded that the exotic dancing there qualifies as an art form.
Robert
Goldfarb, an attorney for the state, said that nobody would visit the club if
the dancers didn't remove their clothes. He also argued that the exemption applies
to "choreographed" performances, and what the Nite Moves dancers do
doesn't qualify.
At least
three members of the seven-judge panel questioned the notion that a performance
must be choreographed to be considered artistic. Chief Judge Jonathan Lippman
suggested "creative artists in particular" often improvise.
Attorney
Bradley Shafer filed a brief on behalf of the Hustler club in New York City in
support of Nite Moves and said he has a similar case pending.
While
Nite Moves does not serve alcohol, Shafer said the ruling in this case could
still affect strip clubs like his client that have liquor licenses. He said
there are somewhat similar cases pending in Pennsylvania, Texas and Nevada.
Last
year, the Texas Supreme Court said the state could slap a $5 fee on strip club
customers, rejecting arguments that the so-called pole tax on nude dancing
interferes with the First Amendment right to freedom of expression.
A private
lap dance goes for $20 a minute at Nite Moves, a windowless building with a
small stage and a pole.
"It's
definitely a form of art," a dancer said Wednesday afternoon at Nite
Moves, where there was only one customer. She declined to give her name, saying
she has another, unrelated job. "Some girls are up there practicing for hours
when nobody's in here."