A New York administrative law judge ruled that N.Y. sales tax does not apply to cover charges at an Albany
strip club First Amendment protected erotic expression venue known as “Nite Moves.”
The cover charges are taxed under New York State Tax Law §1105(f)(1), unless the performances taking place at the adult entertainment establishment qualify as “musical arts performances.”
To support its theory that these performances qualified for the tax exemption, Nite Moves introduced the expert testimony of Dr. Judith Hanna. Dr. Hanna probably knows more about exotic dance than any other person on Earth — even more than Glenn Quagmire.
Dr. Hanna earned a master’s degree in anthropology from Columbia University in 1975 and a doctoral degree in anthropology from Columbia University in 1976, specializing in nonverbal communication and the arts and society. Her doctoral dissertation was on a group’s choreography and its meaning and style. She is a senior research scholar in the Department of Dance and an affiliate in the Department of Anthropology at the University of Maryland, College Park, Maryland. Dr. Hanna has training in a multitude of dance genres, has taught dance as well as courses on dance theory at the college level, and has continually conducted teacher and youth dance workshops. She has served as a dance consultant and critic, and has written 6 books on dance, published more than 150 articles in dance periodicals, and done many reviews and commentaries on dance. Since 1995, Dr. Hanna has been conducting on-site research on exotic dance and adult entertainment. Along with the research approach she has taken with other forms of dance, she has examined the characteristics and choreography of exotic dance. Dr. Hanna has been retained on 43 occasions as an expert in court matters relating specifically to exotic dance and was accepted as an expert in this field for this matter. (Source)
Nite Moves produced dance videos along with Hanna’s testimony that showed that pole dancing routines are not merely random grinds and slides. The judge was obviously impressed:
The videos depicted dance routines that incorporated acrobatic pole maneuvers, splits, and other patterned repetitions. The pole maneuvers in particular are no small feat to accomplish, and attempting such a performance without the skill and a planned routine of steps could prove dangerous. (Source)
Dr. Hanna testified that erotic dance is, indeed, expressive conduct. She described the “symbolism, fantasy experience and other characteristics of exotic dance” as entertainment as a combination of erotic expression and professional training. She described the particular routines as follows:
somewhat ‘risque’ or ‘naughty’ adult play, a fanciful teasing that transgresses social decorum and dress codes in an ambiance ranging from sedate to carnival-like. Exotic dance is erotic fantasy and communication with a display of nudity, disclosure of more skin and different movements than are seen in public, the use of high heels. . . and incorporation of jazz-like, improvisatory movements in routines.(Source)
However, the best part comes from the judge herself as she refuses to be an agent in the culture wars:
The fact someone may believe that this entertainment is not appropriate for any audience is not the issue. The fact that the dancers remove all or part of their costume during the performances, that the dance routines are seductive in nature and titillation of a patron is the outcome, simply does not render such dance routines as something less than choreographed performances, or remove them from the exception to the general rule of Tax Law § 1105(f)(1). Accordingly, petitioner has met its burden of proof pursuant to Tax Law § 1132 on this issue and the admission charges it collects from its patrons at the door and for the private dances meet the exception to taxation under Tax Law § 1105(f)(1), and are therefore not taxable under this section. (source)
Nite Moves was represented by Andrew McCullough, one of my First Amendment Lawyers’ Association brothers. Congratulations Andy!
I fail to understand why dancing with a Pole would be any different than dancing with a Czech.
Yes, the decision does seem to be a bit racist.
Great case – the right result plus a reason to forgive my Terps for losing to Memphis!