LOS ANGELES—AIDS Healthcare Foundation, in what it termed "a ruling that should give the adult industry pause," yesterday applauded the Cal/OSHA Appeals Board decision to reduce fines levied against Treasure Island Media (TIM) from $21,440 to $3,170, of which only $1,300 was directly related to concerns about disease transmission on sets.
Specifically, the company was fined $410 for "Failure to develop a written Illness and Injury Prevention Program, failure to conduct health and safety training for hazards, including prevention of sexually transmitted diseases, and failure to conduct health and safety inspections for hazards in the workplace"; $205 for "Use of bleach to clean up biological waste including OPIM ["Other Potentially Infectious Materials"] from work surfaces; failure to develop a written hazard communication program"; and $685 for "Failure to establish, implement and maintain an effective exposure control plan where employees are exposed to semen and OPIM due to work activities during filming and set cleaning," which description is accompanied by a note reading, "ALJ [Administrative Law Judge] sustained violation; Board reduced citation to General and reduced penalty."
Of particular note is the fact that the Board reduced the fine for "Failure to observe universal precautions during production of films, failure to institute engineering and work practice controls to eliminate or minimize contact with blood & semen including, but not limited to, the use of barrier protection such as condoms" from $9,000 to zero, with the notation, "ALJ sustained violation. Penalty is vacated as single citation is needed for Citation 2 and 3." (One might note: That's the reason appeals boards exist: because trial court, administrative and other judges who conduct hearings don't always get it right.)
But for AHF, the Appeals Decision is still a big win for mandatory barrier protections (which they've stopped referring to as "mandatory condoms" because the Health Code to which they continually refer clearly states that many other barriers like gloves, goggles and face shields would be required—if applicable to adult content production), in part because the decision states that the Health Code's Section 5193 does apply to the industry, and that adult content performers are considered by the Board to be employees rather than independent contractors. Both of those points will undoubtedly be litigated in court when Vivid Entertainment's lawsuit against Los Angeles County's Measure B finally comes to trial.
The Appeals Decision brings to an end, however, the six year long battle that began with the complaint which AHF made to Cal/OSHA regarding Treasure Island's production 1000 Load Fuck, which featured one HIV-positive actor receiving, as AHF described it, "the previously collected semen of over 1,000 men into one of his body orifices."
AHF attributes the Appeals Decision's reduced fines to the fact that, "Cal/OSHA was forced to interpret and judge the Treasure Island Media case appeal under older federal and state standards in effect at the time. OSHA had to consider the appeal through the lens of 'substantial probability' of infection rather than the newer, current standard: a 'realistic possibility' of infection. Judging standards didn’t change until after the TIM citation and appeal back in 2010," adding that, "The 'Realistic possibility' judging standard in effect today only requires evidence of exposure (e.g., ejaculation on mucous membranes) to be considered a 'serious' violation, and is the standard going forward for all complaints." [Emphasis in original]
"If this ruling is a 'triumph,' as Treasure Island claims, they certainly have an odd view of victory,” AHF president Michael Weinstein claimed. "This ruling confirms that OSHA regulations apply to porn sets and that adult film performers are employees covered by health and safety regulations. We also now know that the criteria for judging OSHA violations going forward is under the newer 'realistic possibility' of infection, which will make it easier to cite companies and protect adult film workers."
Fortunately, just because Michael Weinstein says something doesn't make it true—or accurate.
