I’m often asked whether I want my kids to grow up to become lawyers. The assumption most people have, since I’m a lawyer married to a lawyer, is that I do. In fact, my routine response is that we tell the kids that they can be anything that they want to be with the exception of lawyers and exotic dancers – and we’re willing to bend on exotic dancers.
Exotic dancers have always been controversial. The nature and location of the performances can elicit any number of responses ranging from those who find it to be glamourous (think burlesque and strip tease) to those who find it to be offensive (think full body nude dancing). Almost everyone has an opinion about how far is too far when it comes to provocative dancing, invoking the famous phrase used by U.S. Supreme Court Justice Potter Stewart in Jacobellis v. Ohio (1964) to describe his definition of obscenity:
I know it when I see it.
Now, an Albany club is getting into the, er, act.
It turns out that in the state of New York, since 1965, sales taxes are imposed on the fees paid by patrons at strip clubs. However, Nite Moves, an adult club in Latham, New York, begs to differ with the state’s interpretation of adult and exotic dances. The club was audited in 2005 by the New York Division of Taxation and told to remit nearly $125,000 in unpaid sales tax – plus interest – for fees paid for door charges and private dances (if you have Tina Turner’s “Private Dancer” song in your head now, you’re not the only one). But Nite Moves claims that the assessment was in error. They believe that the fees paid should be exempt from sales tax and appealed.
In its argument, Nite Moves cited Tax Law § 1105 (f)(1) which exempts:
Any admission charge … except charges for admission to race tracks, boxing, sparring or wrestling matches or exhibitions which charges are taxed under any other law of this state, or dramatic or musical arts performances, or live circus performances, or motion picture theaters, and except charges to a patron for admission to, or use of, facilities for sporting activities in which such patron is to be a participant, such as bowling alleys and swimming pools.
(Emphasis added)
In other words, they believe that fees for lap dances should be exempt just as fees for the ballet.
At an administrative hearing, the hearing officer agreed with the club that the exemption applied, prompting an appeal by the Division of Taxation. At the appeals level, the decision was reversed, finding that the fees should, in fact, be taxed.
At court, the decision seemed to focus on the nature of the dance. Specifically, the court seemed interested in whether the dances could be considered choreographed – as a ballet, jazz or contemporary dance routine might be. Experts for the club testified that the dances did constitute “choreographed performances” and were, therefore, comparable to other dance performances which were exempt.
The court, however, disagreed. The five judges issued a unanimous opinion suggesting that the dances were, in fact, simply adult entertainment for the purpose of amusement (!) and therefore not exempt. The court went on to note that the dancers were not required to have any formal training and otherwise relied on personal experience for purposes of developing a performance.
Justice John Egan Jr. wrote about the court’s findings:
In our view there can be no serious question that — at a bare minimum — petitioner failed to meet its burden of establishing that private dances offered at its club were choreographed performances.
(Tell me that you didn’t giggle just now, even a little.)
From a legal perspective, my radar went up at this finding. Even though the court seemed to feel strongly that the dancing wasn’t all that artistic, their final decision appears to focus on the idea that Nite Moves simply didn’t meet its burden. That’s a little different from a finding of “you’re completely wrong.” In fact, the court refers to the expert’s lack of firsthand knowledge about the club and lack of detail about the dance performances on the DVDs entered into evidence (again, chuckles). The whole thing makes me wonder: would a better set of facts have produced a better result?
The club, of course, plans to appeal. I have to think that counsel’s firm is planning a few field trips to the club to further their investigation. I also have to wonder if applications to the firm just went up…
