W. Andrew McCullough, an attorney for the suburban Albany strip joint, told the Court of Appeals on Wednesday 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 for three minutes 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."
