Assembly's Arts & Entertainment Committee Passes AB 1576

SACRAMENTO—It took just four votes from among the seven members of the California Assembly's Arts, Entertainment, Sports, Tourism and Internet Media Committee to pass Member Isadore Hall III's mandatory barrier protection bill, AB 1576, and though it took a bit of time after the hearing concluded, when the final vote was tallied, the four votes were there.

Voting in favor of the bill were committee chair Ian Calderon, vice-chair Marie Waldron, members Richard Bloom and, later, Jimmy Gomez, while member Cheryl Brown, who asked the most questions during the hearing, abstained, and member Scott Wilk voted against the controversial measure. No word yet on whether committee member Marc Levine has taken a position on the bill.

The hearing got under way shortly after 9 a.m. this morning, and began with Hall spending most of his allotted time attempting to debunk points made by opponents of the bill.

“You have been told a lot by this bill's opposition to make you question your previous decision to support your workers," said Hall. "They question the constitutionality of the law and they claim the industry will leave California. ... The adult industry's home is and will be in California. The fact is, the industry isn't going anywhere; frankly, I don't want them to go anywhere but California where they employ thousands of employees and generate millions of dollars in tax revenue. Yet for too long the film industry has thrived on a business model that exploits its workers and puts profit over workplace safety."

Those words formed the theme for Hall's argument throughout the hearing, with his final words before the committee echoing the sentiment: "Shame on us, shame on you and shame on this legislature if we're at a point where we are negotiating the health and safety of our employees of California for a green dollar bill."

Hall was joined in his support by AIDS Healthcare Foundation (AHF) representative Rand Martin, who seemed less sure than Hall that the adult industry would not leave California over the bill, which would require that adult producers force performers to wear, as performer/director Princess Donna noted, "goggles, dental dams, gloves, condoms, hazmat suits basically."

"I know that has been a concern for a long time, and AIDS Healthcare Foundation just like Assemblyman Hall is not interested in this industry leaving the state of California any more than we're interested in any industry leaving the state of California," Martin stated. "We are concerned about making sure that the workers in the industry are protected from exposure to STDs. The opposition has made claims about fleeing to Nevada. They make it sound as if Nevada is standing there with open arms waiting to receive this industry wholeheartedly. Mr. Hall has already indicated that there are laws in Nevada as there are in other states that make that very challenging for the industry to move. I want to point out in particular, in Nevada, since that seems to be the state they claim is the most likely beneficiary of their move, is the fact that Nevada law says that if you are engaged in sex work, and it's only in counties where there are fewer than 400,000 residents, you must use a condom, so fleeing California to avoid a condom law in California takes them to the state of Nevada where the condom law is already the law of the state and only in those counties where this type of work would be legal."

But like so many statements made by proponents of the bill, the claim that the industry was here to stay lacked any evidence, and someone connected with the adult industry was there to debunk the claim with facts.

"I can see the good intentions that Assemblyman Hall has here, but unfortunately, he seems to have been miseducated on the state of the law," stated attorney Marc Randazza, whose law practice includes Florida, Nevada, California, Arizona and Massachusetts. "There has been a conflation in the prior testimony of 'sex work,' and they've been saying that this seems to be a catchall phrase. It is not. Nevada has very specific and strict prostitution statutes; however, filming adult movies in Nevada, and frankly in all 50 states, is legal. The misunderstanding, I think, comes from the fact that there are two state supreme court cases, one in California and one in New Hampshire, which specifically state that filming adult movies in those states is not prostitution, and specifically state that the free speech clause of both the New Hampshire Constitution and the First Amendment say that you could not interpret it as prostitution. The fact that there have been no such cases in other states yet does not mean that those states do not permit it.

"In fact, in Nevada, last year, there was an effort to change the prostitution statute so that it would not be like California's, so it would state that any sexual contact of any kind would be prostitution," he continued. "Not only was that measure withdrawn, that measure was withdrawn by the attorney general because the attorney general understood the logic in Freeman v. California, so the legislative history of the Nevada prostitution statute at this point specifically exempts adult film production. So it's perfectly legal in Nevada, protected in Nevada."

Martin also claimed that the language of AB 1576 "aligns very cleanly with what CalOSHA is currently doing relative to regulations for this industry," apparently referring to the fact that AHF's Mark Roy McGrath has been a frequent speaker in front of the CalOSHA Standards Board, pushing to revamp the state's Health Code to include specific "barrier protection" requirements for adult filmmaking.

"We have worked very closely, very diligently to insure that what we write into the law hits at the most important elements of protection for these workers without going against what CalOSHA wants to accomplish in the rest of their regulations," Martin stated, implying that AIDS Healthcare had had some role in writing AB 1576 in the first place—an implication that followed through the rest of Martin's statement. "We have taken language out of regulations; we have written language that looks like the regulations so that the statute and the regulations will end up being closely aligned once both become law at some point in the future."

Martin also attempted to minimize another point that opponents of the bill have raised in connection with the industry's possible move to another state: The fact that while about 480 film permits had been purchased by adult companies to film in Los Angeles in the first 11 months of 2012, just 24 such permits had been issued for the same period in 2013.

"The fact is that 400 permits is only a sliver of the filming that occurred in Los Angeles County prior to [Measure B passing], so to the extent that this issue has had any impact on film permits being pulled, that issue predated Measure B," Martin opined. "They have failed to pull film permits in almost all cases, even prior to this issue arising as a matter of legislation, so it is a red herring; it is not indicative of any change in what's happening in California, the San Fernando Valley."

But once again, an opponent of AB 1576 was handy with the facts—and this time, the truthsayer was a prominent San Fernando businessman.

"This was a $6 billion industry in our area," testified Stuart Waldman, president of the Valley Industry and Commerce Association (VICA). "The people who worked in this industry didn't just work only in this industry. They are people who went from the set of Grey's Anatomy, doing catering, over to a set for an adult industry shoot. This is a huge hit on our economy, and if this bill passes, it will just drive all these businesses out. You heard about all the businesses, and I dispute the argument that going from 400-plus permits to 12 permits is not really real. It's very real, and that's a lot of money that's coming into our community and is having a lot of effect on the San Fernando Valley and the Los Angeles region, and if you pass this bill, it will do it for the state of California as well."

Indeed; at somewhere between $1,000 and $1,200 for the average filming permit, Los Angeles County lost nearly half a million dollars in permit fees in 2013—nothing to sneeze at in a city whose economic growth coming out of the Great Recession has been put at near zero percent.

Also speaking in favor of the bill were two performers who were found last summer to be HIV-positive: Cameron Bay and her boyfriend, gay performer Rod Daily.

According to Bay, her last negative HIV/STD test had been July 27, 2013, after which she had shot three scenes, having been injured during the last of them, requiring surgery to fix one of her breast implants.

"I was unable to work for two weeks due to my injury on the Kink set, which is when I found out that I had shot with a performer who was Hepatitis-C positive, so I went and got a full panel before I actually had to," Bay told the committee. "When I went and got my full panel, I found out I was HIV-positive and the whole fact of the matter is, if I had not gotten a full panel on the day that I had, I had a whole entire week that I could have been shooting with people, and I was booked to shoot six or seven shoots that week at my highest infectious rate. So I could have infected a lot of people had I been shooting, had I not gone and gotten tested on my own, and that is why condoms on the sets are a necessity in porn along with the testing, and I really need you to support this bill."

This version of her infection, however, is somewhat at odds with what she said in August of 2013, as rumors of her positivity ran through the industry.

"Bay ... said she tested Monday at Cutting Edge Testing (CET) after not having shot any content since July 31 due to an unrelated injury," wrote AVN's Peter Warren after interviewing Bay. "On Tuesday afternoon, she received a call from CET saying her test was contaminated and another blood sample needed to be drawn. A CET employee then came to her residence to draw the new sample."

At that time, Bay said nothing about asking for a non-required "full panel" of tests, and while testing every 28 days was still common in the industry in August, if one of Bay's reported bookings were with Manwin (now MindGeek), she would have been required to follow that company's 14-day testing protocol which had been adopted several months earlier—a requirement that was made industry-wide in September of that year.

Even more problematic was the testimony of Rod Daily.

"I was in the adult industry for eight years up until this past August when I found out I was HIV-positive," Daily told the committee. "I performed in predominantly gay films, always using condoms, and also, I maintained regular testing."

That statement brings up the conundrum that's been puzzling the industry since the couple were first found to be HIV-positive: Where did their infections come from? No performers with whom Bay had worked in the weeks before her infection was detected have been found to have been HIV-positive, and if Daily worked only with condoms, by whom could he have been infected? And if the initial infection were Daily's, that suggests that condom use is not the panacea that the couple (and AHF) are claiming them to be.

Daily was the final speaker in favor of AB 1576, though four audience members announced their support for the bill, including one representative from Planned Parenthood.

Randazza was the first opponent of the bill to speak, and beyond what he said above, he also informed the committee of some companies, including his own, which had already moved across the state line.

"When this effort first started in Los Angeles, I moved the first company from Southern California to Nevada," he stated. "That was about $25 million worth of revenue per year that left California and went to Nevada. The Nevada political environment is very comfortable with this, very happy to have this industry. ... It is simply not true that they will not move there. Last year, another large company, representing about another $25 million in revenue, moved to Nevada, benefitting—now remember: These are not only taking revenue that is money that moves around in a local community; all of this money is primarily generated over the internet. This is siphoning money from all over the world and dropping it right in the district where these businesses are located. Mr. Calderon, I moved one from your district. $25 million and about 150 jobs left your district and came to my back yard. That was a direct result of this. ... If you want to do the final move here, to push all of these businesses to go there, we're looking at about eight billion dollars that you're going to put out of California into Nevada, and as a Nevada resident, I'm happy to have them."

The next speaker in opposition was actress Kayden Kross, who voiced concern about the negative effects of condom use, noting that condoms are meant primarily for home use, and that when subjected to the rigors of shooting a sex scene, the condoms can cause chafing of the vaginal walls.

"Condoms are made for home environments, normal sex, normal time frames, and we're talking 45 minutes, an hour and a half, rigorous positions, all that, and it creates the type of friction that really hurts," said Kross, who's also one of the plaintiffs in the lawsuit against Measure B. "It will limit your work, the work you can do in a week, because it's too hard on the body to work with condoms. On top of the friction caused by that, it creates small tears in the body which creates a condition where disease is more likely to be spread in the event that one person has it and the other does not."

Kross also expressed her displeasure at the idea that under AB 1576, adult producers would be required to keep copies of her medical records on file—a requirement that she termed "really unsafe."

But perhaps the most important part of Kross's testimony was her presentation to the committee of a large stack of petitions signed by performers opposing the bill.

"I have here a stack of 259 signed petitions from performers in the industry," she said. "I don't know if you know the population, but it's small, so this is about 25 percent of the working population. We're notoriously independent-minded people, so the fact that all of us came together to create a stack this big is sort of impressive. That's why I as well as over 200 other performers oppose this bill and hope that you vote against it."

Stuart Waldman, whose comments are reflected above, spoke after Kross had finished, and he was the final announced speaker. However, more than two dozen other industry members came to the microphone to state briefly that they too opposed the bill. The speakers included performers, directors and technicians like Mo Reese, Alex Chance, Melissa Contreras, Bella Rossi, Arielle X, Amber Chase, Maitresse Madeline, Robert Sanchez, Mickey Mod, Justin Vice, Mona Wills and several others, as well as Kink CEO Peter Acworth, Manwin USA's Michael Chate and Treasure Island Media CEO Matt Mason, plus FSC CEO Diane Duke and attorney Karen Tynan.

One bill opponent who had a bit more to say was video editor/post-production manager Mylie Deeson, who noted that although AB 1576 contains a clause stating that the various "personal protective equipment" need not be shown in the final video product, "I just wanted to state that having a visual effects staff would cost our company over a million dollars a month to continue to produce as much content as we put out right now. Right now, we produce 23 one-hour videos a week, and it's $400-$500 per edited video. We would need three visual effects artists on top of the video editor that we've already hired to put out a video. With a two- to three-day turnaround, we would need 75 visual effects artists on staff, which would put the cost at $5.8 million per month, and that would definitely drive us out of California."

Calderon then threw the floor open to questions from the committee members, and the main questioner was Member Cheryl R. Brown, who represents California's 47th District—an area pretty much bounded by the I-15, I-10 and I-210 freeways—and she asked some fairly intelligent questions..

For one thing, Brown wanted to know why, if condoms were "going to put an end to STDs and HIV and so forth," was there a mandatory STD testing provision in the bill. AHF's Martin responded that testing was included because in his discussions with various members of the legislature, they "thought that there needed to be a good balance of testing and protection. And we agree."

"Some of the performers were actually talking about how using the condom affects them, and something called chafing," Brown then asked. "Isn't that putting them at greater risk?"

Before Martin could respond, several audience members could be heard shouting "Yes!" before Calderon called for them to be quiet and observe decorum.

"I surely don't want to speak for the women in the audience, either in support or in opposition to the bill, but I would say the balance of chafing versus HIV, there's a huge gulf between the two," Martin opined. "Protecting people against STDs including HIV is far more important to that individual as well as to the state of California than to protect against chafing."

"I'm concerned, if in fact the chafing creates tears and the tears would create a situation where they could get STDs or even HIV because of that, isn't that a problem?" Brown pressed.

"Can I answer that?" Daily interjected. "Ma'am, over my eight years of shooting, I always used condoms and I maintained testing up until I was diagnosed as HIV-positive. I didn't contract a single STD before that. On the other side where they don't use condoms as much, they pass around gonorrhea, chlamydia, syphilis, so the two go hand in hand. Testing and condoms will eliminate that, obviously; plus, you use lube, which will obviously help with reducing the chafing, but the testing and the condoms work together."

Finally, Brown wanted to know why the bill didn't require condoms to be used for oral sex.

"Ms. Brown, the reason that oral is not included is because the CDC and the state Department of Healthcare Services and Public Health have found over the years that oral transmission is not an effective transmission of HIV," Martin told her, "so I'm not even sure I can get into the science or make myself understood, but the reality is that Public Health generally does not find oral transmission to be an effective mode of transmission so that's why we excluded it."

However, when Brown noted that there are other STDs besides HIV such as "herpes, gonorrhea, HPV" that the bill appeared to be ignoring, Martin added, "You raise a good point and I suppose we could consider that for other STDs, but certainly the testing part of that would be helpful as well, whether there's a condom required for oral sex or not."

The final questions were asked by committee member Scott Wilk of the 38th District, representing much of the Santa Clarita Valley north of Los Angeles. He was looking for figures regarding the relative infection rates of adult performers as compared with the rates of the rest of the population of Los Angeles County, but Martin said he didn't have those numbers handy, but "I can tell you that the studies have been done on all the other STDs that say that adult film performers have a higher propensity for those STDs than the general population, in the magnitude of double digits."

However, when Wilk suggested that considering how much sex adult performers engage in on a weekly basis, that "therefore I would think even double-digits is a pretty successful rate," Cameron Bay chimed in with, "I would just like to state that the industry's testing did not catch my HIV; I did. That was my choice. I still had a full entire week on my test that I was available to work in their PASS system. I still had a check mark that I could work. ... Had I not been responsible and got tested for my own well-being, they would not have caught my HIV and others would have been infected and that is a fact."

All that was left, then, was for Hall to give his final summation for passing the bill, and he was, as they say, full of piss and vinegar.

"First of all, the public was heard loud and clear when Measure B was passed in Los Angeles County, when two-thirds of the voters of Los Angeles County voted for Measure B," Hall began. "So the public was in fact heard. It said producers shall allow or must provide condoms to workers when they are on the job. It is a workplace safety bill. Every worker, regardless of any industry that you work in, members, should be given safety measures, should be allowed to have protection while performing his or her job, regardless of whether you are in a medical field, an adult entertainment field, a public safety field, a construction field—employees must be protected. Two-thirds of the voters of Los Angeles County, the voters, spoke."

Of course, Hall left out the fact that the signature gatherers hired by AHF to get Measure B on the ballot told various lies about why the measure was needed, with some claiming that HIV was already rampant in the industry, as AVN reported earlier.

Hall also decried the idea that the industry would leave California, trotting out a raft of "similar" moving claims he said had been made by car manufacturers when mandatory seatbelts were introduced, cigarette manufacturers when "safety measures while smoking cigarettes that were imposed" (we're guessing he means those little warnings on the sides of the packs) and when smoking was banned in restaurants and the like, and cellphone manufacturers when the legislature barred talking or texting on the phone while driving—none of which, of course, are in any way comparable to the First Amendment implications of mandatory "barrier protections" in porn.

As Hall continued talking, his voice began to raise, so that by the end he was nearly shouting.

"Thank God for these bold actors that will have the unmitigated gall, the audacity to come and talk to each one of you and bleed their hearts out with shame and despair and tell you that they have contracted HIV because they were not given the opportunity to wear a condom, and you want to question whether or not the industry will still make a dollar?" he exclaimed. "They were bold; at their most vulnerable stage, they confronted the issue and opened up their hearts to each and every one of you and to all of those that are viewing, and say 'We are hurting, our lives have changed, we're no longer the person we used to be. We're looked upon different from society and we're judged accordingly because we are ill permanently; our lives have been changed.' And yet we are now discussing health and safety for green dollar bills. Shame on us, shame on you and shame on this legislature if we're not at a point where we are negotiating the health and safety of our employees of California for a green dollar bill. Something that has impaired and will impair and change one's life forever."

While it's unknown how much of an effect Hall's histrionics had on the committee members, AB 1576 nevertheless did pass the committee, with its next stop the Assembly Appropriations Committee, on a date to be announced later.