After 2nd Working Group Meeting, Still No Condom Regs In Sight

LOS ANGELES—The Safer Sex in the Adult Film Industry Ordinance Working Group met for the second time this morning to discuss how to implement the titular ordinance, and what emerged was a clear picture that no one is sure how to do that, and that virtually no city agency wants the job of "condom police"—not even the real police.

The meeting, which began at about 10:30 in a conference room adjacent to the Office of the City Administrative Officer at 200 N. Main Street, was sparsely attended, and the first order of business after City Administrative Officer (CAO) Miguel Santana called the meeting to order was a review and approval of the minutes of the prior meeting, which no one from the adult industry attended because no meeting announcement had been made. Nonetheless, those minutes were highly revealing.

According to the minutes, nearly everyone who might be involved with ordinance enforcement was there, from the City Attorney's office to LAPD to the LA Fire Department (LAFD) to the LA County Department of Public Health (LACDPH) to an attorney for the county to the president of FilmL.A., the permitting agency, and both Deborah Gold and Amy Martin of CalOSHA were present by phone.

At that initial meeting, which took place on March 2, the Working Group ascertained that LA's forced-condom ordinance was unique, in that no other jurisdiction had any similar ordinance in place. The police and fire representatives, as well as someone from the city's personnel department, then described for the Group what inspections each department had previously undertaken of adult filming sets and locations, with both the LAPD and LAFD attendees noting that none of their inspection practices even approached the scope of those contemplated in the forced-condom ordinance, and the city personnel office stating that it had no contact with the adult industry whatsoever.

At that meeting, the representatives from FilmL.A. discussed their implementation of the permitting system, but they too noted that, "FilmL.A. does not enforce safety standards, nor do they conduct inspections, but they do occasionally send monitors to film sets, though only to "address film permit compliance," which is not concerned with whether performers use condoms.

The county health department representative noted that the LACDPH does currently track the spread of HIV and STDs in bathhouses and sex clubs, whose owners pay a fee to the county for such services, but they stated that, "from their perspective, adult film inspection is an issue of workplace safety" and does not fall under the jurisdiction of LACDPH.

Finally, CalOSHA's Gold and Martin weighed in, noting that they do not currently have a monitoring role in enforcing workplace safety, and that "Enforcement is conducted on a complaint basis if Cal/OSHA receives a filed complaint of non-compliance with state law," though they will also inspect if requested to do so by the county health department.

If all that adds up to the sneaking suspicion that none of the agencies involved wants to take on the job of visiting every permitted adult movie set in Los Angeles to check to see if the actors are wearing condoms, that was certainly the conclusion drawn by several of today's spectators as well.

Present at today's meeting were several of the same representatives who'd attended the March 2 meeting, including Kimberly Miera of the City Attorney's office, FilmL.A. president Paul Audley and VP of Communications & Public Affairs Todd Lindgren, and two representatives from LACDPH, Mario Perez and Robert Ragland.

Santana then presented to the group a "draft report" which he said summarized "the issues, both the challenges in implementing this ordinance as well as providing clarification of what other jurisdictions do in relation to this particular area, and trying to find a way in which the city can still move forward and comply with the city directive while not duplicating other efforts done by both the state and the county."

Among the recommendations in that draft report were that the Working Group would ask the City Council to have the City Attorney change the mandatory inspection fee to a "permissive one," and "direct that a collaboration between the City, with the assistance of FilmL.A., Inc, and the Los Angeles County Department of Health, and Cal-OSHA be established. This collaboration may involve the enforcement of mandating that adult film employers inform their employees of their rights to wear barriers and condom protection when exposed to bloodborne pathogens during vaginal and anal penetration when filming, along with the proper public agencies to file grievances should their employers violate any of these rights." They would also provide fliers containing this information that adult producers would give to performers.

The draft report also contained several "findings," including an admission by CalOSHA that it had "difficulties" applying the section of the California Health Code—Section 5193—to the adult industry, noting that, "In several cases no enforcement actions were taken because the Division was unable to locate the actual employing entity." It noted that some producers buy finished movies from what the report terms "secondary producers," which are difficult to locate without the assistance of the releasing company. It also noted that "many employers/producers in the heterosexual adult industry have publicly announced that they will not comply with this regulation," and that "there are no existing requirements for any film producer to maintain records of where raw footage is produced, so the Division also has difficulty establishing that video was produced in California."

Yet another section of the report states that the Los Angeles County Department of Public Health "has held a consistent position... that screening [testing] alone is insufficient to prevent STDs and HIV/AIDS," and that "there are other preventative measures that should be employed by the AFI [adult film industry] such as condom use and hepatitis B vaccinations."

However, after one CAO staff member summarized the report for the group, very little was added in the following discussion, which lasted about 15 minutes. FilmL.A.'s Audley noted that his agency doesn't currently have the technology to identify the type of film that the permit is being issued for beyond the permit applicant's own statement, and that in any case, the permit doesn't currently distinguish between movies featuring simply nudity and those that involve hardcore sexual encounters—which attorney Jeffrey Douglas later pointed out would include some mainstream productions that include hardcore action on the set, even if that is not shown in the finished product.

Santana opined that the cost of changing FilmL.A.'s software to take into account the difference between nudity and hardcore could be included in the agency's fees that it charges producers, but he wondered whether asking FilmL.A. to make that distinction might pose any First Amendment problems in terms of possible content discrimination. Audley responded that the asking was likely not a problem, but there might be problems if any content-based actions were taken. City Attorney Miera agreed with that analysis, and said she would research the issue—though her statement that, "Pornography is generally not protected by [sic] First Amendment speech; it's very fact-specific," raised some eyebrows among the adult industry attendees. In any case, Santana said he would add Miera's findings to the report.

LACDPH's Perez called attention to the fact that CalOSHA had stated in the draft report that enforcement of the ordinance would be difficult. Santana said that the Working Group could review how enforcement could take place, and suggested that Perez work on that methodology.

After a bit more discussion, Santana opened the floor to public comment, and after recognizing two mandatory-condom supporters—AHF's Mark Roy McGrath and Adam Carl Cohen of UCLA's Reproductive Health Interest Group—three adult industry supporters were allowed their first input into the discussion.

"A couple of issues in the report should be addressed before you report back to Council," noted Jeffrey Douglas, attorney and Free Speech Board chairman. "First of all, while of course it makes sense to focus on adult productions, MPAA productions—that is, productions not associated with the adult industry—do on occasion have both intercourse and oral copulation. I believe that is something you do need to address. If the inquiry is made at the permit level, it needs to be made across the board because there would be no particular way to distinguish between—if you only ask the question of self-identified or known adult productions, you are ignoring others that presumably you have as much interest in as adult, and of course, only reflecting adult would create some of the constitutional issues that you have been alerted to."

Douglas went on to observe that some adult productions that seek permits would not necessarily fall under the forced-condom ordinance because they only involve masturbation or girl/girl sex, so the permit application should reflect that distinction. He also saw possible problems when the performers in an adult scene are husband and wife, since the ordinance may conflict with that couple's usual practices regarding contraception, and in any case, their sex would not involved any risk to the public of STD transmission. He also stated that there would definitely be First Amendment issues involved if FilmL.A. refused to grant a permit based on an applicant's possible refusal to answer whether the movie to be shot involved nudity or hardcore.

"One comment that has enormous significance... [is] the notion that a formal Working Group was established to regulate an industry without formal participation of that industry is short-sighted," Douglas said in conclusion. "I mean, both the reality and the perception are that the industry is being not invited to fully participate, because being allowed to speak for three minutes does not equate by any means to the participation of the other groups, some of whose interest is attenuated greatly compared to that of the industry. The most certain way to generate ineffectual regulation is not to engage in real dialog with the industry you regulate, and no matter how detested or socially unattractive an industry is, if you were regulating trash collection, the idea that you not have participation of the regulated—nuclear waste, whatever it might be—it presents a very poor perception to the industry being regulated, [and] presumably to the public, but as I said, just in terms of quality of regulation, the surest way to do it is to not have us participate. And there is a trade association, and the fact that we were not invited at the get-go is short-sighted and most regrettable."

Santana's only response was that beyond speaking at the public forum portion of the meeting, Douglas or any other interested party could file a statement with the Group's staff and it would be considered in due course, and he could also ask for a personal meeting with Santana or any other Group member.

Free Speech executive director Diane Duke spoke next, agreeing with Douglas that not only should the industry have been included in the Working Group, but that the meetings themselves should be better publicized.

"This is the 152-page report the County of Los Angeles put together talking about high-risk populations for HIV," she stated, holding up the massive report. "The adult entertainment industry is not even mention in this."

"The bloodborne pathogen plan that our industry is supposed to follow includes rubber gloves, goggles, lab coats—clearly not conducive to an adult film," she continued. "As you guys from the film industry know, there is some eases given to an industry when it's trying to produce a film, and so that's what we are working with CalOSHA to try to work out. We have developed a bloodborne pathogen plan and submitted that to them and I would be very happy to submit that same plan to you. But if you're looking at what does CalOSHA require and you're going to be following that, it's going to be a hell of a lot more than just condoms so you're really going to have to focus if you can narrow it to that."

"This is a content based focus that you're doing, focusing in on the adult entertainment industry, we're a very easy industry to kick," she stated, but noting, "We haven't had a case of HIV contracted within the industry on a film set since 2004, so we're very proud of our record, and if you have questions, please use us as a resource."

The final commenter was entertainment industry attorney Michael Fattorosi, who summarized some of the myriad problems the forced-condom ordinance presents.

Agreeing with Douglas's concerns about husbands and wives working together in adult productions, Fattorosi also noted other possible problems with the new law.

"The law states that 'any person or entity directly engaged in adult films'," he commented. "From that definition, it's unclear whether you're talking about employees of the producer, which could include a director, which could include the performers, which could include a makeup artist, which could include editors of that particular movie, or even the homeowner that has their location being rented. So all of those people would fall under what seems to be the purview of this law. What I'm concerned with is from an enforcement standpoint - if LAPD or whatever unit is created to enforce this law, I need to advise my clients as far as the performers, are they going to be arrested on the set? Are they going to be fined for engaging in the production of a film without a permit and without a condom? What if the producer happens to be an entity that is outside the jurisdiction of Los Angeles? This is now a global business; there are producers that live in Europe, that live in Canada, that live outside the state of California, and they're the actual people who finance these films. Are those the producers who are going to be charged under this law, or are you going to go after the worker that is a hired-for-the-day performer or a hired-worker-for-the-day director? Same thing with the owners of the film location: They may be unaware of exactly what may be filmed on their location. That is an issue."

As a veteran of police busts on several adult film sets, he asked, "Are we going to be confiscating equipment? Are we going to be holding that equipment until the first hearing date? ... Are you going to be holding equipment of an employee? Are you going to be holding the equipment of a producer? These are all issues that I think that this law has with actual on-the-streets enforcement that need to be addressed and resolved before you can even think about putting thismeasure into place. What I think you'll end up doing is netting a lot of innocent people that don't really have control over their working environment, and they may end up being prosecuted and end up having a criminal record for something they didn't have control over."

Fattorosi also discussed the question of how the law would apply to a married couple that wanted to film the moment of conception and put that footage on the internet?

"What we basically have is forced contraception; that's what this law comes down to in some instances," he opined. He also questioned how cam sites would be affected by the law, since the activity all takes place in the privacy of a person's own home, with now film crew or other outsiders present.

It was certainly a lot to think about, and hopefully the Working Group will take all of the industry's comments and concerns seriously—and actively seek industry involvement in future discussions about the law and its regulations.

One additional meeting of the Working Group is currently scheduled for May 2, though there seemed to be an indication that that might have to be changed to conform with some of the participants' schedules. Keep checking back with for the new date, and any further developments regarding this vitally important issue.