SAN FRANCISCO—A three-person panel has ruled that Treasure Island Media’s failure to use a condom in a 2009 adult shoot was not a “serious violation” of Cal/OSHA regulations, and assessed the company a mere $685—a reduction of 96 percent from its original fine of $18,000. The ruling is reportedly precedent-setting.
Attorney Karen Tynan, who tried the case for Treasure Island and performed the appellate work, called the ruling a game changer for the adult industry, and a sharp rebuke of the AIDS Healthcare Foundation, which brought the complaint.
According to the Cal/OSHA "Decision After Reconsideration," three issues were involved in the hearings, which began in 2009:
1) "Were Employer's employees exposed to blood and/or 'other potentially infectious materials' within the meaning of section 5193?"
2) "Were the performers involved in the production(s) at issue Employer's employees?"
3) "Were the violations properly classified as serious?"
The decision also recounts Treasure Island's arguments for why the complaints filed by AIDS Healthcare and upheld in part by Cal/OSHA should be dismissed on appeal: "Employer asserts (1) that the inspectors' testimony was based on uncorroborated hearsay; (2) that there was no evidence of exposure to blood or OPIM; (3) that even if there were violations, there is no evidence that they occurred within the period of the statute of limitations; (4) that the performers were independent contractors, not employees; (5) that section 5193 does not apply to the adult film industry; (6) that even if there were violations as alleged, the violations were not shown to be serious; (7) that the ALJ [Administrative Law Judge] erred in admitting Division's Exhibit 30 into evidence; and (8) that because the ALJ's Decision was issued after the period stated in Labor Code section 6608, the Board acted in excess of its powers and therefore the Division did not meet its burden of proof to establish the safety orders applied."
Regarding those objections, the Appeals Board did agree that, "For purposes of our analysis of the performers' status as employees we here give Employer the benefit of the doubt and assume without deciding that the record does not establish that its acknowledged employees were exposed to blood or OPIM."
More importantly, however, the Appeals Board also found that whatever violations of section 5193 may have taken place during the shooting of the movie in question (which used only HIV-positive performers), the performers' exposure was not "serious."
"The record, however, does not include any evidence of what the probability of contracting any sexually transmitted disease is, assuming one is exposed to them through sexual contact or contact with semen or OPIM. On this record, therefore, we cannot say that, even assuming the alleged violations caused exposure to bloodborne pathogens, it is more likely than not that the exposed employees would contract an illness. And, since we cannot assume the existence of a fact which is not in evidence, we cannot sustain the serious classification."
Therefore, although the three members of the Appeals Board did deny the petition for reconsideration, the lowering of the alleged offense(s) from "serious" to "general" caused a significant reduction in the fine the agency assessed against the production company, as noted in the charts attached to the Appeals Decision.
“For the past six years, AIDS Healthcare Foundation has wasted Cal/OSHA’s time, resources and patience for the regulatory equivalent of a missing Band-Aid. This is a huge win for Treasure Island and the adult industry,” Tynan said. “Hopefully, this is also a win for Cal/OSHA, since AHF no longer has much credibility in bringing these cases. They’ve been wasting millions of taxpayer dollars a year that could be going to actual prevention.”
Over the past decade, AIDS Healthcare Foundation has filed numerous complaints against adult companies for failure to use condoms in adult film, often without any interest expressed by the performers involved in the shoot. Treasure Island’s film, which involved not only condomless sex, but also a turkey baster and a two-gallon jar of semen, was an extreme test case for the Cal/OSHA regs. Still, the panel ruled the lack of condoms was only a minor infraction.
“We’re very pleased with the Cal/OSHA ruling,” said Matt Mason, general manager of Treasure Island Media. “At the end of the day, the agency was just doing their job in responding to a complaint. I suspect they’re as annoyed with AIDS Healthcare Foundation as we are.”
Treasure Island founder Paul Morris defied AHF by funding the defense with revenue from another controversial release, The 1000 Load Fuck.
Mason, Tynan and Morris resisted calls from Cal/OSHA to settle the complaints early.
“Paul Morris funded a trial and allocated the resources to give us this success,” said Tynan. “After a four-day trial against two Cal/OSHA attorneys and two inspectors on the case, for the penalty to be $685 is just terrific.”
“This was a matter of principle, not money,” said Mason. “This was an attack on our rights, and the rights of our models. Michael Weinstein may not like what we do, but he has no business telling us how to do it.”
It is unclear whether Treasure Island Media or its principals will be able to recover attorney fees for expenses connected to defending against AHF's complaint.
The Cal/OSHA Appeals Board's Decision After Reconsideration can be found here.
