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NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
from .
(snip)An administrative law judge says Larry Flynt’s Hustler Club in Manhattan must charge sales tax on lap dances.
“This adult entertainment establishment provides a service to its patrons that essentially boils down to performers who remove their clothing and create an aura of sexual fantasy,” Administrative Law Judge Donna Gardiner wrote in a decision issued Monday.
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. ***
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."(snip)
Lots of potential take-aways from this court decision ...
It obviously considers lap dances / VIP room sales as 'commodities' that can be subjected to sales tax. This will cost Hustler .1million dollars, and can now also be applied across the board to all other NY strip clubs immediately. The precedent also makes it very easy for other states to implement same. Obviously, if the state is now going to claim an 8% 'cut' of customer private dance / VIP / scrip purchases ( via imposing a sales tax ), that 8% will have to be made up for by one means or another.
By officially ruling that exotic dancing is not 'artistic performance', the court weakens possible 'independent contractor' legal arguments, and thus lays the legal groundwork for clubs to be considered 'employers' and dancers to be considered 'employees'.
Also by officially ruling that exotic dancing is not 'artistic performance', the court weakens possible 'free speech' arguments, and thus lays the legal groundwork for new laws / regulations being enacted against strip clubs.
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
Well, this is now the (administrative) authority with jurisdiction over NYC finally ruling on how they'll apply the 2012 Nite Moves decision (from a Court of Appeals) in the City. Interestingly, so, the Entertainment Tax has to be charged on the Dance Dollars (and I suppose, on any purchase that leaves a paper trail); the report does not go into how or whether they wrote about what to do with cash transactions. I think on that subject it will just mean the end at long last of the $20/song NYC lap dance. It would be a no-brainer for management to adjust the nominal rate to $23.15 so it becomes an even "$25/song, Tax Included".
Agree with Melonie's last two paragraphs on likely repercussions of these decisions, though the Free Speech argument can be made about some entertainment activities so it's not completely lost, just requiring better lawyering.
As to NYC specifically, I mentioned in another thread here or elsewhere, I'm not too confident that the new people in charge in NYC may not go after the clubs, this time in the name of feminism and fighting "exploitation", rather than of keeping the town family-friendly.
As an aside -- I wonder, though, whether taxation of the strip clubs being subsumed under the regular, general "entertainment tickets tax" as just another legit entertainment venue as would be the ice show, should be seen as preferrable to the trend in several states to propose a specifically strip-club-targeted "Pole Tax".
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
One of the nice things about IL is the lack of services tax, but that will likely change in a year or two. O well, Uncle Sam and Co want their Sin Tax. With the net affect of more money to the gov't, less money for the ladies and less dances for the guys. And because it is now a tax I get the feeling many places will do what they do with other Sin Taxes, apply targeted tax hikes. Cigs being an obvious example, many states charge more taxes per pack than the pack costs.
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
^^^ yes but with rising lap dance prices as well as rising cigarette taxes, A. sales volumes thus earnings for the seller are reduced, and B. customers are incentivized to 'shop' at different ( sometimes distant ) venues where net prices are significantly lower.
Agreed that this decision is a 'follow-up' to the earlier Nite Moves court ruling. Also, in principle at least, this latest court ruling mandates that NY clubs now charge sales tax on all 'transactions', cash or credit card. In theory this provides a mechanism by which NY state / city tax agencies 'need' to start tracking the direct cash incomes of NY dancers in order to insure that THEY are also collecting and paying sales tax.
As to future motivations for the NYC government, indeed from the 'policy' side there are now people in power who might wish to pursue strip clubs on the basis of 'female exploitation' etc. But much more pragmatically, NYC also needs tax revenues. And NYC has strong Union interests. So I would see a push for 'employee' dancer treatment as the loghichical next step, as opposed to general club busts. 'Employee' dancer treatment would supposedly stop 'female exploitation' by clubowners, increase tax revenues, and increased union membership all at the same time.
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
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Originally Posted by
Melonie
But much more pragmatically, NYC also needs tax revenues. And NYC has strong Union interests. So I would see a push for 'employee' dancer treatment as the loghichical next step, as opposed to general club busts. 'Employee' dancer treatment would supposedly stop 'female exploitation' by clubowners, increase tax revenues, and increased union membership all at the same time.
Yes, let's hope good sense prevails.
Heh, though how could I tell a work-to-rule labor action from just a lame air dance... The late, lamented Lusty Ladies of San Fran were affiliated with SEIU, I believe.
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
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The late, lamented Lusty Ladies of San Fran were affiliated with SEIU, I believe.
Indeed they were ! And, indeed, the SEIU undoubtedly views the possibility of being able to sign up and collect dues from thousands of new high-earning 'union member' dancers with dripping saliva !!!
Perhaps the most 'telling' aspect of these developments are that they 'dovetail' so well with the recent court decisions throughout the northeast states that have ruled that clubs are 'employers' and that dancers are 'employees'.
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
Melanie excellent summary. If Hustler rents the room to the women and the women sells the lap dances in terms of transactions (which is the norm) and she really is an independent contractor then Hustler can walk away from the problem. They would just have to report the number of dances for the various EINs and leave the dancers responsible for collecting sales tax and everything else pretty much unchanged. In that case because the women would be filling out more paperwork they would look more like independent contractors and it would strengthen not weaken their independent contractor status. In terms of the 8% I don't know if the city really cares about 8% of individually dancer's LD revenue. If they do, then they have a pretty good case. From your summary it appears they are only taxing the script that was sold not the LDs themselves so that makes it even more likely that only LDs paid with script to individual EINs would need to be taxed and that's not terrible.
As far as free speech and LDs. I know that free speech applies to nude dancing as an artistic performance. Has any court ever held that an LD is an artistic performance and has 1st amendment protection?
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
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Originally Posted by
Melonie
Indeed they were ! And, indeed, the SEIU undoubtedly views the possibility of being able to sign up and collect dues from thousands of new high-earning 'union member' dancers with dripping saliva !!!
Perhaps the most 'telling' aspect of these developments are that they 'dovetail' so well with the recent court decisions throughout the northeast states that have ruled that clubs are 'employers' and that dancers are 'employees'.
This one I think we are on the opposite side of. IMHO it would be awesome for dancers to have union representation that had government backing. For my primary regulator is the FCC. Every year the FCC meets with telco players at the state level (in my case the New Jersey Technology Council) and we have a joint meeting where we discuss (a real two way discussion) the upcoming year's problems and how things should be regulated. Those discussions role up to Washington and become the regulations that govern the industry. Those regulations because they mostly originated from the regulated industries are primarily enforced by the industry not by the FCC. We all support the regulations we are subject to (obviously there are exceptions but...).
IMHO dancers right now have the worst regulatory regime possible. They have an intrusive, invasive and threatening regulatory body. And they have no voice in that body. You have nothing like the kind of relationship with your regulators, I do with mine. Your regulations come from people who are quite often hostile to the very existence of your industry. Under a union there could be open conversations where vice and dancers work jointly to improve the lives of the people of New York and you would have effective political voice. Right now dancers have little or no access to police when they have problems. Right now dancers never clearly know what is and is not legal and moreover often the police lie to make busts. Right now dancers have no way to negotiate with vice because vice doesn't care what they think.... The SEIU could change all of that.
On top of that club managers frequently are terrible and unfair to dancers. That's often another layer of arbitrary and unfair management.
Of course none of this can get resolves as long as pimping statutes remain on the books and would apply the second these women became employees. There is simply no way this industry can exist the way it is configured now with the severe penalties for pandering, the rather broad interpretation of what constitutes prostitution and dancers being employees. One of these has to go. IMHO the best thing to go though is making prostitution decriminalized. We've talked about what legalization would mean for strip clubs and I guess Canada will show it. Much less drastic is narrowing the definition of pandering so it wouldn't apply to club owners
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
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If Hustler rents the room to the women and the women sells the lap dances in terms of transactions (which is the norm) and she really is an independent contractor then Hustler can walk away from the problem. They would just have to report the number of dances for the various EINs and leave the dancers responsible for collecting sales tax and everything else pretty much unchanged.
well, not exactly unchanged. In this situation, dancers would have to obtain a NYC business license, would have to report their 'gross sales' as well as paying 8% of those gross sales in sales taxes. However, reporting those gross sales also leads to a federal, state and NYC income tax liability ... which might produce a significantly higher amount of total tax revenues than the sales tax.
As to 'employee' status and union membership being 'good' for the industry, we'll have to agree to disagree. IMHO anything which leaves total customer spending unchanged while diverting more customer dollars away from dancers is NOT a 'good' thing. Between worker's comp / unemployment insurance payments starting to flow to the state, and union dues starting to flow to the union, the numbers come out significantly 'worse' for dancers.
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
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Originally Posted by
Melonie
well, not exactly unchanged. In this situation, dancers would have to obtain a NYC business license, would have to report their 'gross sales' as well as paying 8% of those gross sales in sales taxes. However, reporting those gross sales also leads to a federal, state and NYC income tax liability ... which might produce a significantly higher amount of total tax revenues than the sales tax.
Remember that's business income that they could offset with other expenses in a way that personal income can't be offset. So for example their stripping business might own their car and they only have to pay tax on when they use it for personal reasons, they might be able to deduct closets, clothing... But I agree with your basic points.
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Originally Posted by
Melonie
As to 'employee' status and union membership being 'good' for the industry, we'll have to agree to disagree. IMHO anything which leaves total customer spending unchanged
If you want to stop OK. But I'm not sure that the effects of unionization would leave customer spending unchanged. For example you and I both agree that the loss of strip clubs being a tax deductible entertainment expense was a big hit to the strip club economy. That could change back with unionization. As for workers comp / unemployment net net I suspect that might be hugely in favor of dancers because for example I suspect dancers have less stable employment.
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
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For example you and I both agree that the loss of strip clubs being a tax deductible entertainment expense was a big hit to the strip club economy. That could change back with unionization.
Such a development would indeed be a 'game changer'. And I can see where union lobbying might draw some favorable response from legislators.
However, the fact remains that the original reason that strip club expenditures were ruled to be non-deductible as a customer business expense stemmed from a sex discrimination case filed by a female salesperson. The court ruled that male salespersons' ability to 'entertain' the firm's predominantly male clients in strip clubs provided the male salespersons with a sex based business 'advantage'. This snowballed into the IRS disallowing business expense tax deductions for strip club expenditures, as well as all corporations disallowing employee reimbursements for strip club expenditures as 'insulation' against future sex discrimination based lawsuits.
While union lobbying to restore the strip club tax deduction would benefit 'strippers', it would also 'walk back' progress in regard to equal rights for women in the 'vanilla' business world. Thus IMHO union lobbying to restore the strip club tax deduction an extremely LOW probability event !
Also, there are a number of potential side effects from dancer unionization that could indirectly REDUCE customer spending levels. A major one is obviously 'seniority rights', which would make it much more difficult for clubs to 'fire' dancers who are aging 'ungracefully', thus more difficult for the club to hire hot new dancers to maintain customer interest levels.
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
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Originally Posted by
Melonie
Such a development would indeed be a 'game changer'. And I can see where union lobbying might draw some favorable response from legislators.
However, the fact remains that the original reason that strip club expenditures were ruled to be non-deductible as a customer business expense stemmed from a sex discrimination case filed by a female salesperson. The court ruled that male salespersons' ability to 'entertain' the firm's predominantly male clients in strip clubs provided the male salespersons with a sex based business 'advantage'. This snowballed into the IRS disallowing business expense tax deductions for strip club expenditures, as well as all corporations disallowing employee reimbursements for strip club expenditures as 'insulation' against future sex discrimination based lawsuits.
That's good information! I'd heard about the IRS on expenditures and the lawsuits but didn't know they were connected. Anyway obviously that's the IRS grossly overstepping. They have no right to disallow an expense because its use might lead to discrimination. Hotels can still deduct the cost of white sheets. I would think a powerful political ally like unions would be good for trimming the IRS's sails on this one.
Moreover, since you brought it up I'll just throw in my $.02. I've worked with lots of female salespeople that loved to entertain in strip clubs. It was a way for them to up or displace the sexual tension that might already exist without they themselves crossing any lines. I hate this paternalistic crap towards female salespeople that led to this rulings. If I could take female clients to get a facial and a pedicure before almost every meeting, where I need them relaxed I'd be thrilled to do it. When it is female salespeople or project managers that work for me my policy is that "if the clients wants a blow job you buy him one and just so he doesn't feel awkward you get one too". :) I'll tolerate the ultra conservative women that won't show naked elbows being prudes, but beyond that we all do shit for clients we don't like. Wall Street is a miserable place to work for hundreds of reasons if people want to fix that more broadly that would be great for the country. But until they do, dealing with naked girls is way down low on the problems.
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
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dealing with naked girls is way down low on the problems
That's actually my assessment regarding how a union is likely to feel about a comparative handful of 'strippers' being added to its member base. Taking an active public position in support of 'strippers' ( and against the IRS and 'vanilla' female workers ) would risk both alienating certain groups of existing union members, as well as alienating certain groups of traditional union supporters who arguably view strip clubs as 'exploitation factories' for women that should be closed down or forced to mutate into a new, unsustainable, business model and who view businesses / corporations as exploitive villains who certainly don't need a new tax break for 'adult entertainment' expenses.
At any rate, this discussion is drifting away from the main topic
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
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Originally Posted by
Melonie
At any rate, this discussion is drifting away from the main topic
You are a smart dancer (x-dancer?) who thinks about the industry carefully. I've found you to be insightful, and even when I disagree your reasoning makes sense. If I'd love to discuss some of these issues more in a thread targeted. So I'm happy to open one up: 2030 strip club crystal-ball about where the industry is headed.
If not well I'll catch you the next time.
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
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2030 strip club crystal-ball about where the industry is headed.
that's too easy ...
(snip)"Dubbed Roxxxy (yes, developer True Companion actually did that with the name) the sexbot is a step ahead of your Ryan Gosling costar. She stands at an average height of 5-foot-7, and weighs a waifish 60 pounds. Like any good sex partner, Roxxxy has lifelike skin, and can move her limbs. Interestingly, Roxxxy evolved from True Companion’s line of healthcare robots that were designed to look after the elderly, which perhaps means that she’ll one day be able to cook you breakfast after a regretful night. This, actually, is True Companion’s intent, which is noticeable in the name of the company itself. Rather than creating a sexbot that can simulate real sex to the best of its robotic abilities, True Companion’s aim is to provide its namesake: a true companion. It aims to make a girl or boyfriend instead of a mute doll that you hide during dinner parties.
True Companion makes Roxxxy more than just a lifeless doll by including various motors and responses in the model. She is able to move her private inputs — as the company calls them — when they are being utilized, thanks to dedicated sensors. The bot is also able to mimic an orgasm, so you aren’t the only one having them. She is able to listen and carry on a conversation with the help of some light artificial intelligence installed on a computer embedded in the sexbot. On top of all that, the sexbot comes with pre-programmed personalities, such as shy, outgoing, experienced, or new to the whole thing and in need of some guidance. The bot also cycles through moods, such as tired or horny, so sometimes it just won’t be in the mood, or sometimes you won’t be.
You can customize you sexbot’s personality, and creepiest of all, you can trade them online with friends if you’re proud of your amalgamation of a shy, inexperienced, horny sexbot. True Companion’s product page likens this to wife swapping, but without any of the drama.
Though more sophisticated than a doll that just slumps over on the couch, True Companion’s tech is more or less responsive to stimuli or running on a pre-programmed loop, rather than acting on its own. There is tech out there that, combined with Roxxxy, could create a much more believable companion. A new type of e-skin is responsive to touch, and if combined with Roxxxy, could create a more dynamic response to human advances. Another piece of tech combines augmented reality with a tangible robot in order to create a system where the tactile sensation of the robot can mimic the sensations the AR character would be inducing. Combined with Roxxxy, this could lead to that tactile sensation feeling like a human being, rather than a metal limb.
Variations of the sexbot have been in development since 2001, but a version that is mobile is actually planned for sometime later this year.(snip)
Apply 15 years worth of additional technical developments, and you wind up with ?????
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
Quote:
Originally Posted by
Melonie
By officially ruling that exotic dancing is not 'artistic performance', the court weakens possible 'independent contractor' legal arguments, and thus lays the legal groundwork for clubs to be considered 'employers' and dancers to be considered 'employees'.
Also by officially ruling that exotic dancing is not 'artistic performance', the court weakens possible 'free speech' arguments, and thus lays the legal groundwork for new laws / regulations being enacted against strip clubs.
This case dealt with a New York State sales tax. NY has the power to impose a sales tax, the power to make exemptions to its sales tax, and the power to interpret its law relating to its sales tax. This does not mean they are interpreting or altering the First Amendment of the U.S. constitution.
The exemption from NY sales tax "applies to a production of live dramatic or musical arts performances that will be presented in a theater or other similar place of assembly in NYS (excluding roof gardens, cabarets, or other similar places), with a seating capacity of at least 100 permanently installed seats. It must also be shown that, at the time of purchase, the named production/performances will be presented to the public at least five times a week for a period of at least two consecutive weeks..." -- See the exemption certificate -- http://www.tax.ny.gov/pdf/current_fo..._9_fill_in.pdf
NY may decide what type of "dramatic or musical arts performances" qualify for their sales tax exemption, but that does not mean they are interpreting or changing the First Amendment, or any other law. Very often, the same words mean different things for state law than they mean for federal law and the same words can even mean different things for different purposes within state or federal law. (E.g., "minor" or "underage" can mean under 17, under 18, or under 21 - depending on what the legal matter is.) NY's interpretation of "dramatic or musical arts performances" applies only to their NY state sales tax exemption. They can write their own sales tax laws as long as they don't trample on anyone's constitutional rights (e.g., by unconstitutional discrimination).
With regards to U.S. Constitutional law, the First Amendment protection on free speech/artistic expression protects adult entertainment (unless it is "obscene") and this remains intact. However, keep in mind that this protection is not an absolute freedom, "time, place and manner" restrictions are permissible (e.g., age restrictions, licensing requirements, touching restrictions, zoning, tax, etc.) --- http://smallbusiness.findlaw.com/bus...gulations.html
Also, free speech does not mean "free" as in free from federal and state taxes, unless the taxes are so onerous as to effectively stamp out the free speech. We pay sales taxes on our purchase of books, movies, pictures, art, etc.
The only way for a club to combat a state sales tax like this is to claim some type of unconstitutional discrimination (e.g., against clubs or dancers or against the content of their free speech, i.e., the grinding), but this is an uphill battle, since clubs and dancers, do not fall into a protected class (e.g., race, religion, gender, etc.) Another NY club has already tried this, but the U.S. Supreme Court was not interested in hearing the case. -- http://www.timesunion.com/local/arti...rt-4896147.php
My question is - why is the club responsible for collecting the NY sales tax on LDs? This only makes sense to me if the club collects the LD fees. Do all NY clubs collect LD fees? (E.g., they collect the LD fees from the customers and issue customers tokens to pay the dancers.) Here in Texas, we pay the dancers directly, so, if sales taxes were imposed on LDs in Texas, it would seem to me that the dancer, not the club, would be responsible for collecting the sales tax on the LDs.
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
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Originally Posted by
jack0177057
My question is - why is the club responsible for collecting the NY sales tax on LDs? This only makes sense to me if the club collects the LD fees. Do all NY clubs collect LD fees? (E.g., they collect the LD fees from the customers and issue customers tokens to pay the dancers.) Here in Texas, we pay the dancers directly, so, if sales taxes were imposed on LDs in Texas, it would seem to me that the dancer, not the club, would be responsible for collecting the sales tax on the LDs.
I don't know the rules regarding dances but for services in general if I have a state sales tax ID I have an obligation to not facilitate avoidance. I can't take a fee to assist you in selling a bunch of servers which you then sell to a client without paying sales tax without incurring legal liability. So if you buy stuff from me either:
a) I need to charge you tax and assume you are the end user
b) I need to know your sales tax ID and report that transaction
So in your model the dancers would need to have IDs. Now IDs are of course a matter of public record and need to be held by a legal entity. Which means dancers would need to have an LLC or DBA for their stripping name. That legal entity needs to have a person of record as a point of contact which is a public record.... All this could be handled easily via. a corporate entity except for the pandering laws complicating everything.
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
^^^ and certain pundits would tell you that the legal particulars of having dancers collect, report, and forward NYS sales tax payments is a 'win-win' situation for the state. One outcome is that the state tax people can back-calculate the total 'sales' made by individual dancers based on TIN / State Tax # matching, thus increase their tax revenues by forcing more accurate income reporting on state ( and federal ) tax returns. Another outcome is that clubs start treating dancers as 'employees' thus allowing the club to collect, report and forward NYS sales tax payments ... which also provides the state tax people with W2 income reports for each individual dancer.
In both cases, the collection of sales tax is a mechanism to indirectly force fuller reporting of club and dancer incomes. And as a former NY resident, I can confirm Knightwish's observation that requiring independent contractor dancers to collect sales tax on private dances would in turn force the dancers to 'register' their businesses with the state and obtain a State Tax # ( although forming an LLC or S-Corp is not required ) ... which becomes a matter of public record, as well as an info source for the IRS and NY State Tax agency, as well as a source for the collection of annual 'business license' fees.
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Has any court ever held that an LD is an artistic performance and has 1st amendment protection?
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However, keep in mind that this protection is not an absolute freedom, "time, place and manner" restrictions are permissible (e.g., age restrictions, licensing requirements, touching restrictions, zoning, tax, etc.
Indeed, all of this tracks back to a US Supreme Court Decision Erie vs PAPS ... where justice Sandra Day O'Connor's majority opinion set out a number of points that 'eroded' 1st amendment protections for 'erotic' dancing !!!
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
^ It depends how you look at it - "glass half full" or "glass half empty". Try to imagine the writers of the Constitution sitting in a room with visions of a new nation free from tyrannical monarchies and trying to develop a concept of freedom of speech. I think what they had in mind after risking their lives to pursue a dream of a new democratic sovereign nation was very different than pole dancing and LD grinding. The fact that the First Amendment has become the savior of porn and the adult entertainment industry is quite remarkable and has to do with the fact that there were very liberal justices on the Supreme Court when the critical First Amendment cases relating to porn and adult entertainment were decided. (These liberal justices created the notion that the Constitution is a "living" and "breathing" document that evolves all by itself, so that the original historical meaning of its words becomes irrelevant, and the Constitution says whatever the justices on the Supreme Court, in their ultimately wisdom, say the Constitution says - kind of like ancient priests reading an oracle.)
A more conservative, literal and historical interpretation of the First Amendment, at those critical times in the Supreme Court, could have had the effect of allowing states to complete wipe out porn and adult entertainment. (Except that, given how profitable adult entertainment is and how many different business industries benefit either directly or indirectly from adult entertainment, it is more likely that business interest would have prevailed at the state levels to continue to allow some forms of adult entertainment.)
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
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Originally Posted by
jack0177057
These liberal justices created the notion that the Constitution is a "living" and "breathing" document that evolves all by itself, so that the original historical meaning of its words becomes irrelevant, and the Constitution says whatever the justices on the Supreme Court, in their ultimately wisdom, say the Constitution says - kind of like ancient priests reading an oracle.
No one has ever proposed that sort of interpretative framework. Conservative and liberal justices want to modernize laws to apply to new situations. Should for example the IRS feel free to leak electronic tax returns for political purposes since they aren't "written"? The fault for courts having to make these kind of choices are the legislatures that don't update black letter law on a regular basis, thus creating the ambiguities of law that justices need to resolve.
Quote:
Originally Posted by
jack0177057
A more conservative, literal and historical interpretation of the First Amendment, at those critical times in the Supreme Court, could have had the effect of allowing states to complete wipe out porn and adult entertainment.
A literal reading of the 1st amendment would prohibit all abridgments of the press. A literal reading of the 14th would prevent the states from doing this either. The only way you can possibly have any controls on porn is making an argument against the literal interpretation and going for a historical non-literal interpretation.
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
Justice O'Connor wrote the majority opinion ... from
(snip)"Justice O'Connor concluded that the ( Erie PA strip club ) ordinance did not violate the First Amendment. She reasoned as follows.
1. Nude dancing is expressive conduct although it falls in the outer limits of First Amendment protection.
2. The ordinance regulates conduct and is not aimed at suppressing nude dancing's erotic message. The ordinance's preamble suggests its purpose is to prohibit erotic dancing but it is aimed at combating crime and other negative secondary effects caused by adult entertainment establishments. The secondary effects address public health, safety, and welfare. The interest in combating secondary effects is unrelated to the suppression of the erotic message.
3. The ordinance does limit one way to express an erotic message. In some cases, banning one way of expression does essentially ban the message but that is not the case here. The dancers can perform wearing pasties and G-strings and any effect on the overall expression is minimal.
4. The ordinance does not regulate expression on the basis of its content.
Justice O'Connor stated that the ordinance is valid if it satisfies the test for evaluating restrictions on symbolic speech: (1) the regulation must be within the constitutional power of the government, (2) the regulation must further an important or substantial government interest, (3) the government interest must be unrelated to the suppression of expression, and (4) the restriction must be no greater than necessary to further the government interest. She stated that the ordinance met these four requirements and reasoned as follows.
1. Protecting public health and safety are within the city's police powers.
2. Regulating conduct and combating harmful secondary effects are important government interests. The city can use evidence of secondary effects compiled by other cities and does not need to conduct new studies if the evidence is relevant to the problem. Erie also made its own findings and the city's expert judgment about its own community should not be doubted unless it is challenged. The ban may not greatly reduce the secondary effects but the city must have a reasonable opportunity to experiment with solutions for serious problems.
3. The state's interest in preventing harmful secondary effects is not related to the suppression of expression.
4. The ordinance regulates conduct and any incidental impact on expression is minimal. Requiring dancers to wear pasties and g-strings is a minimal restriction that furthers the government's interest and allows the dancers to convey their erotic message."(snip)
THAT was how the SCOTUS justified a position that a local gov't requiring dancers to wear pasties and G-strings was NOT a significant restriction of the dancers' 1st amendment right of free expression ... and where the SCOTUS specifically stated that erotic dancing is ( only ) protected at the outer limits of the 1st amendment. Arguably, this decision set a precedent that erotic dancing in a strip club does NOT enjoy the same degree of 1st amendment protection as, say, dancing in a Broadway production ( where nudity is fully protected free expression ). The most recent NY court ruling re sales tax collections 'cashes in' on that decision.
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...
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Re: NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...