Calamity or Comedy: Critic/Scholar v. New York State — The Nite Moves Dance Tax Case, Part 1

Editor’s note: This is the first part of a two-part article concerning government taxation of strip or gentleman’s clubs. Some in the dance community believe that the rulings in this case could have larger ramifications for dancers and creative artists. Become part of the conversation. Let us know what you think. And read part 2 here.

By Judith Lynne Hanna

In the United States, should any government tax strip clubs where choreographed adult entertainment like exotic dancing is featured when it has a law providing a tax exemption for “live, dramatic, choreographic or musical performance,” whether it is nonprofit or for profit?

In 2007, Stephen Dick, owner of Nite Moves, a gentleman’s club in suburban Albany, N.Y., challenged New York State’s “exotic dance tax,” that, in his view, is “censorship by taxation” (discrimination on the basis of dance content). This court case went viral and generated about 600 news items, an Oct. 29. 2012, editorial in The New York Times, and a Nov. 8 segment on the Comedy Channel’s “Colbert Report.”

The question at stake is who decides whether exotic dance, or any other dance genre, is a “choreographic” performance. Choreography is the composition and arrangement of dances in terms of aesthetic principles, such as unity, variety, repetition, contrast, transition between movements, sequence, climax, proportion of magnitude, quality or degree, balance, harmony and even dissonance. Dick’s accountants had told him he didn’t have to pay a dance tax because by law “live, dramatic, choreographic or musical performance” is exempted. The New York state tax auditors disagreed. They neither observed stage or private dance nor considered the exemption.

This issue not only burdens strip clubs but also applies to the broader dance world, as do other cases nationwide in which legislatures and judges try to proscribe movements, costumes, nudity, theater design, lighting, dancer-spectator distance and interaction, hours of performance, etc. While the concert dance world may not wish to align itself with exotic dancers and strip clubs, this case demonstrates the reach that legal cases can have in the world of professional concert dance. Professor and New York attorney Nadine Strossen tells us why action is necessary (1995): “Once we cede to the government the power to violate one right for one person, or group, then no right is safe for any person or group. So when we defend sexual expression, we are really making a stand not only against a specific kind of censorship … but human rights in general.”

Dirty Dancing Bans
History is replete with government attempts to ban dance outright or through regulation. I give some examples in my new book, Naked Truth: Strip Club, Democracy, and a Christian Right, based on 15 years of research. I explain why the current adversaries of dance are more dangerous than previous ones and challenge many misperceptions about exotic dance. Among its adversaries are those who try to impose their scriptural values of modesty and patriarchy on everyone and eliminate the separation of church and state. Their inadvertent allies are some feminists who oppose women’s bodies being the object of the male gaze and view this as a reason for the oppression of all women. There are also people who have been influenced by misleading media portrayals, including unfounded stories about exploited or trafficked dancers. Some people in the professional dance world want to distance themselves from what they view as lowbrow eroticism.

Stigma is the biggest problem exotic dancers face. I have encountered PTA moms who wear wigs and change their contact lens color to perform onstage, and college students who drive great distances from their campuses to conceal their identities.

Rooted in Middle Eastern belly dance and an American tradition of parody, namely American burlesque, striptease and exotic dance are a form of dance and theater art. While somewhat “risqué” or “naughty” with its adult play and fanciful sexualized teasing that transgresses social decorum and dress codes, exotic dance is, like all dance, communication and a learned skill with its own aesthetic. Characteristic is erotic fantasy and exposure of more skin and more provocative moves than are typically seen in public, along with the use of high heels (often eight-inch stiletto platform shoes) and the incorporation of jazz-like movements, such as hip thrusts and shoulder shimmies. So the question arises: how far removed is exotic dance from the world of artistic and concert dance?

During my research, I have found some performers were former cheerleaders, gymnasts, and professional dance company members. Toni Bentley, a former New York City Ballet dancer, tells us in her book, Sisters of Salome, that she wondered why George Balanchine watched “nude women strut their stuff.” So she tried exotic dancing and experienced the power, freedom, creativity, and adulation that many exotic dancers find thrilling. Many women have learned to be exotic dancers by studying, observing, experimenting, and being coached by other exotic dancers. Given the diversity of dancers’ backgrounds, it is no surprise that the quality of performance varies. Some clubs hire and promote talented, experienced dancers; others care less about their qualifications. Well-managed clubs provide security for dancers who must meet legal age limits and chose to dance of their own free will.

Like other dance genres that influence each other, exotic dance can be seen in ballet, Broadway, and contemporary dance. Balanchine featured a sexy burlesque striptease queen in his 1936 ballet “Slaughter on Tenth Avenue.” Jerome Robbins directed and choreographed the popular Broadway musical Gypsy, based on the life of stripper Gypsy Rose Lee. Broadway star Bob Fosse’s work in nightclubs and burlesque joints had a lasting influence on his distinctive choreography. In a New York Times article, Urban Bush Women founder Jawole Willa Jo Zollar has spoken of the influence on her dances of the strippers she saw in her childhood. Madonna and her backup singers perform stripper moves, including crotch grabbing and floorboard grinding. Working as a stripper while attending the San Francisco Art Institute influenced Karen Finley’s performance art.

The Nite Moves Case
For the Nite Moves case, club owner Stephen Dick and his First Amendment attorney, Andrew McCullough, asked me to serve as an expert court witness. As an anthropologist specializing in dance as nonverbal communication, a dance critic and an author of seven scholarly books and hundreds of articles on dance, I had already served as an expert court witness in nearly 150 First, Fifth, and Fourteen Amendment cases across the nation related to exotic dance. (Some of those cases are spotlighted in Naked Truth.)

In the Nite Moves case, I used Labananalysis concepts to analyze a 22-minute videotape of two dancers performing as they usually do at the club. I described the sequential moves of each dancer. For example, one dancer had about 61 different moves in her routine of three songs, about 10 minutes. She used the pole and mirror. I noted the choreographic use of space, time, and effort, and the patterns of locomotion and gesture. The dancers’ choreographies used a common theme and variation pattern with repetition. I also observed dances in the club and interviewed dancers. I concluded that the presentations at Nite Moves were, unequivocally, live dramatic choreographic performances in a theater.

Nite Moves, a juice bar (it serves only nonalcoholic drinks), is the only full nude club in the Albany, New York Capital District. The previous owner liked a song title and used it for the club’s name. Dancers were club employees and paid no “house fee.” In other club establishments dancers can perform as independent contractors and, therefore, they must pay clubs to dance, as would sculptors pay to rent a space in an art show, or independent choreographers who rent a space to show their work. The dancers kept tips and fees for “private” dances they performed near a patron’s seat. They paid the club a percentage of the charges for lap dances in a private area.

The dancers ranged in age from 18 to50 and were from diverse backgrounds—white, Asian, black, and Latina. There were 6 to 20 dancers per night, and 5 during the day. When recruiting a performer, Dick checked ID and background, invited questions from the applicant, and then auditioned her. Occasionally Nite Moves sponsored bikini contests open to anyone with $500 cash prizes.

Nite Moves’ owner, now 37, came into the business by chance. While a biology major at St. Rose College, Dick worked in a convenience store around the corner from the club. A former Nite Moves owner came into the store and invited Dick to visit the club. One day a bartender didn’t show up and a new owner asked Dick to sub, which grew into a full-time position. A 21-year-old in 1997, he made $700 a week and decided not to complete his senior year of college. In 2004 he became a co-owner.

On February 2, 2008, McCullough argued the Nite Moves case before Administrative Law Judge (ALJ) Katherine Bennett. I testified, submitted a report that included my qualifications and basis for my opinion, general findings (definitions of dance, choreography, theater, exotic dance, and art), and research at Nite Moves. Dick was a witness. A bartender and former dancer at Nite Moves testified that the stage dances involve creativity and that she had learned various moves and pole tricks from watching other dancers. New York state presented no evidence.

Judge Bennett ruled in the club’s favor in April 2009. In the ALJ’s view, all of the entertainment at Nite Moves was choreographed dancing and thus fell within the exemption. In addition, the ALJ reasoned that the charges were not taxable because the petitioner’s sale of beverages was merely incidental to the petitioner’s provision of entertainment.
Dissatisfied with the verdict, the state went to the New York Tax Appeals Tribunal in 2009, which reversed Bennett’s ruling. Unlike other states, in New York the Appeals Tribunal is allowed overrule the ALJ on facts, law, and credibility determinations, including the weight to be accorded to an expert’s testimony.

The two Tribunal Commissioners offered no evidence of expertise in dance, choreography and improvisation, creativity, or theater. Although the New York State legislation did not define these concepts, the commissioners exceeded their power by interpreting the law in a way it was not written. Moreover, they compared a peep show/juke box that had to pay taxes—without any evidence that it had choreographed performances—to what takes place at Nite Moves.

They discounted my testimony in its entirety, characterized my interpretation of a choreographed performance as “stunningly sweeping,” to be “so broad as to include almost any planned movements [performed to] canned music.” The Tribunal viewed my description of the private dances offered at Nite Moves as particularly suspect” because there were no lap dances the night I visited the club. But I have seen hundreds—one can describe a baseball game without having seen a specific one. In retrospect, an analysis of a videotape of a dancer on stage and also giving a lap dance would have been helpful.

The Tribunal challenged an expert court witness whose dance credentials and testimony were accepted by a judicial body in 45 court rooms nationwide. Would the Tribunal challenge experts in medicine or science and reject their opinions as to what constitutes disease or treatment?
Nite Moves appealed, advancing to the third stage of litigation in 2012 and asked the New York Appellate Division Court to strike the Tribunal’s holding. Alas, the Appellate Division Court said it was not reviewing the ALJ’s but the Tribunal’s decision—which it upheld because it was not “irrational.”

Angered, Dick and McCullough took the case to a fourth court, the New York Court of Appeals, the state’s highest court. Dick would like to leave a legacy of fighting the government for discriminating against a form of dance. Of course, he doesn’t want an unfair tax burden either.

***
You may find part 2 here.
***

Judith Lynne Hanna has written for many publications including The New York Times, Washington Post, Stagebill, and Dance Magazine. See www.judithhanna.com.