New York Decided to Tax Art That Gives People Boners

A dancer at Nite Moves. Photo by John Figlesthaler.

On Tuesday the flaccid penis fans on the New York State Supreme Court dropped the hammer on Nite Moves, a strip club on the outskirts of Albany that has had the taxman on its ass claiming it doesn't host “dramatic or musical arts performances.” In a 4-3 ruling, the judgment against Nite Moves is forcing the club to pay nearly $125,000 in taxes owed on cover charges and lapdance fees. I visited Nite Moves earlier this month and concluded that what the dancers do there has definite artistic and athletic merit, but unfortunately I wasn’t consulted in the ruling. After the decision was announced, I spoke with Stephen Dick Jr., the club’s owner, to get his reaction.

VICE: Hey Stephen. I was very sorry to hear the New York State court shot down Nite Moves.  I've been to your establishment myself, but I wonder, did any of the judges actually visit the club?
I'm not sure.  None of them have said they did.  I have seen a few customers who looked like they might've been judges from the court, but I couldn't say for sure.

OK.  What constitutional grounds did the judges who voted in favor of the club have to stand on here?
I would say first amendment and 14th, Equal Protection.

How is everyone at the club taking the news? Are the dancers upset?
They were nervous at first.  They said, "How does this affect us?"  And I said, "It doesn't affect you at all."  It only affects me, and that's only if I run out of appeals.  It doesn't change the way we're operating the club.  We planned ahead for this for about two years just in case. Worst case scenario is that we wouldn't be very profitable for a while until this follow-up audit is paid off.

What's next?  Are you taking this to federal court?
We were just discussing that with our attorneys—what's the best move for us, our next step.  It's going to be difficult to get into the federal courts given that the New York State Court of Appeals has already ruled on this. There's an act that prevents federal courts from getting involved in state tax issues, so we have to see if we can convince them that this isn't so much a tax issue as it is an equal-protection issue.  Otherwise, our best chance—and it's a long shot—is the US Supreme Court.

What are the steps to getting to the Supreme Court?
We're working on filing a writ actually this week.  It won't be cheap at all. Just to print the copies we need to file will be over $3,000.

Another way for the taxman to get you.
They don't make it easy.  That's why most people just give up, because they can't afford it.

What do you think about the courts being able to decide what’s art and what’s not?
If we were to say that, moving forward, classical music concerts are exempt, but rock and rap concerts will be taxed, musicians would be up in arms and protesting.  If we said award-winning movies are OK but slasher films are going to be taxed, the theaters would be up in arms.  But if we say that we’re going to exempt certain types of dancing, but other types we're going to tax based solely on the content of the performance, somehow that's OK to people.  What they don't seem to get is that if you can limit one form of speech, there's nothing precluding them from limiting another.

It's terrifying.  I'm sure it feels like you're not getting a fair shake because people deem this as a subcultural thing almost.
We're truly treated as second-class citizens, and we aren't given the same rights as any other form of dance in the state, and that's what Judge Smith said in his dissenting view.  You aren't allowed to base tax on the value of the performance.  It doesn't matter if someone personally doesn't like it.  It's no different than trying to tax Hustler more than New York Magazine.  He would never read Hustler, but he would be appalled if someone attempted to tax it differently, because it's unconstitutional.  This has been spelled out for hundreds of years in this country.

You’re just an honest businessman and the girls are performers just trying to make a living. The fact that what they do gives people boners shouldn’t factor into it.
The fact that there's nudity doesn't take it out of the realm of dance.  There are off-Broadway performances that have nudity, and that doesn't render them taxable.  There are modern forms of dance that are minimalist, where the performers barely move on stage, or they walk, and that's deemed as dance, but somehow the performances you saw at the club don't qualify as dance.

Well, hopefully your case will bring this issue to the public’s attention and serve as a catalyst for greater change so we won't see this kind of discrimination in the future.
I'll do my best to keep fighting and standing up for our rights, I just hope I can inspire more people to do the same.  If we don't fight for our rights, we're going to have them taken away.

Previously - Judging Nite Moves' Artistic Merit in the Flesh