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Is pole dancing in a strip club an art form comparable to ballet?
Utah attorney Andrew McCullough thinks so. He's made a living defending unpopular causes, from a Provo man's right to ask for sex with notes left in public restrooms in 1989 to, more recently, defending a strip club at 165 S. West Temple against a lawsuit filed by the LDS Church alleging it was a nuisance.
Now he's fighting on a bigger stage: New York's highest appeals court.
When he flies back to his hometown of Albany, McCullough occasionally drops by the exotic dance club Nite Moves, to see old friends who run it. On his latest trip, he was tasked with defending the club before the appeals court.
New York taxes admissions sales to places of amusement, but exempts the tax for venues where the program consists of "dramatic or musical arts performances," including dance. Nite Moves' owners believe their ladies' dancing should qualify for the same exemption given other forms of dance, such as ballet.
The state disagreed, billing the club nearly $125,000 plus interest for lap dances and admission fees stemming from a 2005 audit.
So the club owners called McCullough, who is currently running again for Utah attorney general as a Libertarian candidate and went to court.
When McCullough argued the case in lower court, he brought in an expert witness, Judith Hanna, who he said "literally wrote the book" on strip clubs The Naked Truth: Strip Clubs, Democracy and a Christian Right.
Hanna, a cultural anthropologist, has testified in 140 other constitutional and tax cases related to adult entertainment and exotic dance in the past 15 years but never on this issue of taxation. In the New York case, Hanna discussed how strip teases and the like involve choreography, applying the same definition she would use to characterize dance in Africa, children's playgrounds and American theaters.
"Essentially," Hanna said in a later interview, "the dancers learn by watching and being coached, or some have been former dancers, and they work out routines so that they are able to transition, to have variety, to have contrast."
The strip club won. But the New York Tax Appeals Tribunal appealed the case, and won that round.
Now the matter is before the state's highest appeals court, where McCullough presented his arguments on Sept. 5 to a panel of seven judges.
Rob Goldfarb, who represented the tax tribunal, argued that the state applied a "common sense" dictionary definition of choreography a dance where the steps and the moves are planned in advance and then performed that way which does not fit strip clubs, according to a court transcript.
"There are some commonly used moves in stripping. The women would perform what they called various pole tricks, some of which are very difficult to perform, but that doesn't make the entire performance a choreographed one," Goldfarb said in court. He also argued there is insufficient evidence the private dances are choreographed.
McCullough contended that everything in the club is part of the performance.
Several judges went back and forth with Goldfarb about what his argument meant for other dance forms. They questioned whether the improvisations a ballerina or other performer might include in a performance would eliminate that venue's tax exemption on admission fees, too.
They also questioned if the tribunal was making a judgment call on strip clubs.
"Is there a difference between the ballet dancer and these pole dancers in terms of their artistic value or their benefit to the world? And could that be the basis for what the tribunal found, or does it have nothing to do with that?" Chief Judge Jonathan Lippman asked Goldfarb.
Goldfarb said artistic value had nothing to do with their argument.
McCullough has represented Utah strip clubs for years, including as legal battle at the Utah Supreme Court to exempt them from a tax the Legislature levied on their cover charges if the performances feature full nudity. He lost that one.
He is convinced that prejudice against strip clubs makes its way into the courtroom. But whether it's pole dancing or the Bolshoi Ballet, McCullough argues that dancing is dancing.
"The point is that the State of New York doesn't get to be a dance critic," McCullough said in court.
Judges took the New York case under advisement and are expected to issue a ruling within several months.