City Finally Issues Its Report on Condom Ordinance Compliance

PORNLAND—Fans of classic movies probably know the initials "AFI" as "American Film Institute," but in the world of condom regulation, they stand for "Adult Film Industry"—and the Working Group for Implementation of the Safer Sex in the Adult Film Industry Ordinance has just issued the report it's taken them seven months to prepare.

Essentially, the report has four recommendations, the first being that FilmLA, the agency which issues permits to film within the city, revise its permit application request to seek more information about filming that involves "dangerous special effects or hazardous conditions" like gunfire, breaking glass, explosions and fires, plus that it add a section entitled "Activities Carrying Risk of Transmission of Blood or Infectious Materials Pursuant to California Code of Regulations, Title 8, Section 5193(b)." Those who've been following the condom controversy recognize Section 5193 as the section of California's Health Code that requires employers to, among other things, "[e]liminate or minimize occupational exposure to blood or OPIM [other potentially infectious materials] through the use of engineering and work practice controls," and to "[p]rovide and enforce the use of personal protective equipment where exposure remains after the institution of engineering and work practice controls."

Hence, the City Administrative Officer's (CAO) first recommendation is that all adult producers in the city require performers (whom everyone in state government considers to be "employees" rather than the independent contractors most claim to be) to use condoms, as stated in the city ordinance... but certainly, a requirement can't be far behind—see Recommendation 3—to require dental dams, face shields, goggles and possibly protective suits similar to what can be seen in Hollywood disease movies like Outbreak and Contagion when they have intercourse, participate in blowjobs, pussylicking or rimming, or just sit on furniture upon which others may previously have had sex.

In fact, on Thursday afternoon, CAO Economic Development-Filming staffer Eva Bitar issued a revised version of the first recommendation, which now reads, "Section (5) of the Ordinance requires the City to add the following language to all adult film permits: 'If this production is an adult film, Permittee must abide by all applicable workplace health and safety regulations, including California Code of Regulations Title 8, Section 5193, which mandates barrier protection, including condoms, to shield performers from contact with blood or other potentially infectious material during the production of films'."

There's much more, of course, to that first recommendation, including a requirement to create and maintain reports on an "effective written exposure control plan"; "provide medical services, including post-exposure evaluation and follow-up"; provide Hepatitus B vaccinations; keep records of any exposures and make them available to government employees; and to train employees in all of this and seek their input on the procedures."

Recommendation 2 deals with the main reason it took the CAO seven months to issue its report: Inspections. After several meetings of the Working Group, during which everyone from LAPD to LA Fire to the city's Office of Personnel to CalOSHA to FilmLA itself declined to conduct compliance inspections of adult filming sets, Recommendation 2 suggests that the LA City Council "[i]ssue a Request for Proposals (RFP) seeking to contract with a licensed medical professional to conduct the periodic inspections of adult film productions"—and the CAO expects that it'll take 90 days to create a draft RFP... after it's gathered more information "to determine City Enforcement parameters"; i.e., just what those inspectors should be looking for, based on the ordinance.

But all that may be moot if the City Council adopts Recommendation 3: "Contract with the Los Angeles County Department of Public Health"—which, one might note, also attended at least one of the Working Group meetings and likewise refused to be the city's condom inspectors.

However, the CAO's new idea is that if Los Angeles County voters approve AIDS Healthcare Foundation's (AHF) ballot measure in November, the city could make a contract for inspections with the county, whose ordinance would require all adult producers to obtain a "public health permit." Trouble is, producers can only get one if they require employees (including talent) to complete an approved bloodborne pathogen training course; if the companies post a sign stating that condoms are required for all vaginal or anal sex; and (here's the kicker mentioned above) require that companies follow the "applicable provisions of the Los Angeles County Code, the California health and Safety Code, the blood borne pathogen standard, California Code of Regulations Title 8, section 5193 or the exposure control plan of the producer of adult films, or any combination thereof"... or forfeit their public health permit. Section 5193 requires not only condoms, but all the other "exposure control" gear mentioned above.

But that's not even the good part: "Any person or entity who produces or films adult films for commercial purposes within the county without a valid adult film production public health permit, or any person who violates any law, ordinance or regulation governing any activity regulated by this chapter, or who, upon demand of the county health officer, refuses or neglects to conform to a lawful order or directive of a county health officer pertaining to conduct regulated by this chapter, is guilty of a misdemeanor, punishable by fine of $1,000.00, imprisonment in the county jail for a period not to exceed six months, or both." And of course, "Each such act is punishable as a separate offense." [Emphasis added]

All of that and more would be in force if the City Council elects to follow Recommendation 3.

Recommendation 4 involves developing a fee structure to pay for all these permit issuances and inspections, which structure the CAO says he'll report on to the Council within 90 days—and that he can only assess the costs of the entire program (and hence the fees to be charged) once the Council adopts either Recommendation 2 or 3.

Nonetheless, there is a section of the report titled "Adult Film Industry Fees," which first takes the position that even if mainstream producers are shooting movies where blood or OPIM might be exchanged, FilmLA can't charge them the same fees it would charge adult producers "because they would be paying for a service that is not provided to them"; namely, the inspections.

When the report gets down to numbers, the proposals are at least as bad for the adult industry as previously reported. For instance, the report notes that the LA County Department of Public Health estimates that it will take "approximately" $582,932 just to set up an office for compliance with the ordinance and staff it, figuring that if only 10 adult producers get two-year public health permits, it would cost each company $58,294 per permit, though if 50 producers get them, the two-year cost drops to only $11,658 per permit. (Of course, those companies are likely to be out of business by then due to the "barrier protection" requirements, so higher costs are almost a sure thing.)

But it's not only County Health that will have costs; the city's ordinance says the city "may conduct periodic inspections to ensure compliance" with its ordinance, and that if the city can convince the fire department to do such inspections along with its usual fire safety inspections, "the cost could range from... $3,472 per permit for 480 permits to $2,204 per permit for up to 10,000 permits"—costs that it would have to pass along to adult producers. In fact, according to an article in the Los Angeles Times, officials said that "[d]epending on the number of film shoots and the frequency of the spot checks, the task could require more than 100 full-time Fire Department employees and cost more than $1.7 million."

But according to this report, the Working Group had even more ideas targeting the adult industry, the most interesting of which was that as part of obtaining a permit from FilmLA, adult producers could be required to "employ an on-set, licensed medical professional monitor who will file with the City of Los Angeles a post-production certificate declaring under penalty of perjury that the film producers complied with Los Angeles Municipal Code Section 12.22.1 [the LA City condom ordinance] in the production of the film." Rest assured, "licensed medical professional monitors" don't come cheap.

Worse for ordinance implementation, as County Health Director Dr. Jonathan Fielding notes in a July 23, 2012 letter to LA County Supervisors that is attached to the report, "The ballot measure's effectiveness will be a challenge with respect to compliance as there are few options to identify and require underground, inconspicuous, intentionally non-compliant filmmakers to obtain permits... [A]dult film producers do not publicly disclose their intended film location[s] in advance and are difficult to be identified by competitors, thus limiting the ability to locate and inspect them. The by-product of the film production (the film) is not released until months or even years after the film shoot takes place, highlighting the enforcement difficulties with respect to the adult film industry." Indeed, FilmLA reported to the CAO that just 480 adult filming permits were issued in 2011, though by AVN's estimates, the industry distributed a minimum of 5,000 new straight, gay and fetish adult features that year, and possibly as many as 7,500—a magnitude of figures that Fielding readily compares to the problem of unlicensed food carts, where permit enforcement is similarly difficult.

Also attached to the report as exhibits, besides CalOSHA's brochure on "Vital Information for Workers and Employers in the Adult Film Industry," Dr. Fielding's September 17, 2009 letter to LA County Supervisors containing STD/HIV infection rates in the industry (figures that were later debunked by Dr. Lawrence Mayer), County Health's proposed budget for setting up a permitting and inspection program, and a heavily-redacted budget for the LA Fire Department that touches on inspection costs, is County Counsel John F. Krattli's July 23 report to the LA County Board of Supervisors, which noted that even if the supervisors adopted AHF's health permit proposal, or even if it were passed by voters in November, it would still take enabling legislation to be passed by the 85 incorporated cities within the county in order for it to be implemented—and warned that the county might be liable for costs and attorney fees if adult industry members sued the county over the ordinance's constitutionality and enforcement.

Bottom line: All the problems that AVN has previously reported upon with the Working Group's tasks are reflected in the report, which also makes clear that the costs of enforcing either the city or county ordinance will be astronomical—and will be passed onto adult producers who at that point will be trying to make a product that few porn fans want to buy. The good news? It'll take about 90 days—well past the November elections, where AHF's ballot measure will be approved or rejected—before any action will be taken, and still longer, depending on the election's outcome, for the city to issue its RFP and find a suitable company to do the inspections, or for the city to attempt to contract with County Health for its inspection services, which also will likely be many months in coming since the county's permitting and inspection division isn't yet even in the planning stages.

As usual, keep following for further developments in this ongoing clusterfuck.

The report can be accessed here.