The jiggling and gyrating strippers at Larry Flynt’s Hustler Club are selling sexual fantasy — not demonstrating their dance skills — in the private rooms at the Hell’s Kitchen skin palace, an administrative law judge ruled.
“The dancing portion of the service is merely ancillary to the performer removing her clothes or creating the sexual fantasy,” Judge Donna Gardiner wrote in a decision released Monday that means the raunchy moves are subject to the state sales tax.
After listening to strippers’ testimony and watching the club’s videotapes, Gardiner ruled that some of the strippers’ routines involve dance, choreography and music, but overall, these are not artistic performances.
Gardiner said the Hell’s Kitchen jiggle joint will have to pay $2.1 million in sales tax on the $23.8 million worth of scrip, or the club’s in-house currency, that it sold between June 1, 2006 and November 2008.
Gardiner cited a 2012 Court of Appeals decision involving Nite Moves, an adult “juice bar” outside Albany.
The state’s high court found that Nite Moves failed to show that its admission fees were for dance routines that were performed on the main stage or in private rooms qualified for tax-exempt status.
The majority from that 4-3 decision said it was not “irrational” for tax officials to disqualify strip club performances “by women gyrating on a pole to music” since the legislature already disqualifies ice shows where performers engage in “intricately choreographed dance moves precisely arranged to musical compositions.”
One judge, Robert Smith, criticized the majority, arguing that it was making a distinction based on their preferences.
“Like the majority and the tribunal, I find this particular form of dance unedifying — indeed, I am stuffy enough to find it distasteful,” Smith wrote.
“Perhaps, for similar reasons I do not read Hustler magazine; I would rather read the New Yorker,” he wrote. “I would be appalled, however, if the state were to exact from Hustler a tax that the New Yorker did not have to pay, on the ground that what appears in Hustler is insufficiently ‘cultural and artistic.'”
A lawyer for the strip club did not immediately return a request for comment.
