L.A. County Board of Supervisors: Condom Ballot Measure a Go

LOS ANGELES—By a vote of 3-1, with one abstention, the Los Angeles County Board of Supervisors has voted in favor of placing The Safer Sex in Adult Film Industry ballot initiative on the November ballot up for public vote.

Voting in favor of placing the measure on the ballot were supervisors Zev Yaroslavsky, who represents much of the portion of the San Fernando Valley that contains the adult film industry, as well as Don Knabe and Michael Antonovich.

Opposing the measure was supervisor Gloria Molina, with supervisor Mark Ridley-Thomas abstaining from the vote.

There were several speakers who spoke for and against the measure at the meeting held this morning in downtown L.A. Speaking in support of the measure was Mark Roy McGrath, a public health consultant to the AIDS Healthcare Foundation, sponsors of the initiative, as well as Adam Cohen of the UCLA Reproductive Health Interest Group and AHF's attorney Steven Kauffman.

Speaking against the measure was Free Speech Coalition's Executive Director Diane Duke, FSC board chairman Jeffrey Douglas and First Amendment attorney Allan Gelbard.

Though the Board of Supervisors' meeting began at 10 a.m., the Board didn't reach "Discussion Item 15"—the AHF initiative—until 11:45, which gave audience members time to study a memorandum report from County Counsel John F. Krattli which was created in response to concerns by Board members about the efficacy of the initiative as well as its cost and its constitutionality.

Krattli summarized the course of the initiative so far, noting that the Board had two options: Either put the measure on the November ballot or pass the initiative without alteration. At today's meeting, the board chose the ballot course.

Of particular interest, Krattli noted that even if county voters pass the initiative, it would still require additional measures to be passed by all 85 of the county's incorporated cities to which the LA County Department of Public Health (DPH) provides services before it could be implemented, and in any case, the measure would not apply to the three cities—Vernon, Long Beach and Pasadena—which have their own health officers and do not contract with DPH.

Krattli noted that if approved by county voters and accepted by the county's incorporated cities, the initiative would create a "Public Health Permit" under Title 11 of the Health and Safety section of the County Code, which permit would be valid for two years. In addition, it would amend Title 22—the County Code's Planning and Zoning provisions—to add new provisions and requirements to the existing zoning code to create an "on-location film permit." Krattli was careful to note that even if a city adopted the initiative's Title 11 changes but not the zoning revisions, DPH would nonetheless have the duty to do permit inspections on adult movie sets. The Title 22 changes would mostly have the effect of alerting DPH to the existence and location of specific film shoots, as well as providing permit fees to finance DPH's inspection regimen.

Krattli also discussed what duties the county would have to defend the initiative against legal challenges either before or after passage. With respect to a pre-enactment "facial" challenge to the measure's constitutionality, Krattli opined that the county would have no duty to defend to initiative, but in the case of an "as applied" challenge after passage, the county would still have no duty to defend the validity of the measure, but that the California Supreme Court has held that a proponent of the initiative—for example, its creator, AIDS Healthcare Foundation (AHF)—could undertake to defend the initiative for the county. However, Krattli ventured no opinion regarding who would have to pay attorney fees to the moving party if that defense were to fail.

Krattli noted that even if the initiative passes, any specific enforcement procedures and actions would be entirely at the discretion of DPH, and he opined that the new ordinance would not create "a mandatory duty to protect a particular performer or performers from injury." He also noted that there are a variety of immunities that would apply to county officials were they to be accused of lax enforcement, although under the ordinance, DPH would have to create an enforcement scheme that would provide for citations to be issued by DPH if it found that a producer had violated the ordinance, and would have the power to enter adult filming sets to inspect whether such violations were occurring. As part of DPH's inspection powers, it would legally be able to "take possession of any sample, photograph, record or other evidence, including documents bearing upon an adult film producer's compliance," which might easily include seizing any video footage or photographs shot during the course of production.

Krattli also opined that the county would not be required to set up its own film permitting office, since FilmLA already handles permits for shoots in the county as well as in the city of LA.

The Board of Supervisors also received a report from Dr. Jonathan E. Fielding, director of DPH and Health Officer, which raised further concerns about the ordinance should it be passed.

"[A]dult film producers do not publicly disclose their intended film location in advance and are difficult to be identified by competitors, thus limiting the ability to locate and inspect them," he stated. "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."

But perhaps the biggest news in Dr. Fielding's report was the projected costs associated with ordinance enforcement. After noting some of the activities and infrastructure that would be required—training of inspectors and administrators; database maintenance; the cost of the inspectors themselves; everyday staffing and complaint follow-up; appeals; engagement with law enforcement; and evidence warehousing—Dr. Fielding opined that establishing ad Adult Film Public Health Permit Office would cost, at minimum, $582,932 for the two-year permitting process "not including potential additional costs associated with confiscation, law enforcement involvement, and administrative and appeal proceedings." That would mean, if just 10 Public Health Permits were issued, it would cost the county $58,294 per permit, while if 50 were issued, each would cost $11,658 for the two years that the permit was valid.

While Dr. Fielding noted that the costs would be diminished if "all or nearly all of the estimated 200 adult film production companies in Los Angeles County" bought permits, in fact, there are less than 100 adult film production companies currently operating in the county, and there are unlikely to be new companies opening up in the forseeable future.

With that as background, Board Chairman Yaroslavsky called the first commenters to speak to the Board. For his part, McGrath repeated several previous arguments in favor of the legislation, including that "as a matter of fairness, adult film performers should be entitled to the same clean and healthy work places the majority of Californians and Angelenos enjoy," and that condoms are the best way to protect that health.

"Condoms are not just latex and polyurethane; they are medical devices," he declared.

McGrath took issue with Dr. Fielding's statement that adult film production was "hidden" and therefore difficult to detect, noting that producers are required to disclose the location of their production records under the federal recordkeeping and labeling law, 18 U.S.C. §2257. He seemed unaware that much if not most adult filming is not done on the premises of the companies' business offices.

The next speaker, RHIP's Cohen, stated that, "The adult film industry argues that testing is a suitable form of prevention but any public health professional and all my professors would emphasize that testing is only part of the equation and barrier methods like condoms are the most effective means of preventing transmission of STIs and HIV." He then echoed McGrath's 2257 argument, and went on to state that "since 1998, incidences of workplace-acquired HIV are well documented," when in fact there have been less than 10, and that "the County of LA DPH has documented thousands of cases of workplace-acquired STIs in this industry," although the accuracy of such statistics has been challenged.

Diane Duke spoke next, stating, "Adult productions are safe for performers and it's also good for communities." She also compared the huge number of cases of HIV identified in the county as a whole between June of 2008 and June of 2011—nearly 6,500 new cases—noting that, "none of those transmissions happened on an adult set." She also handed the supervisors copies of two reports; one 2010 epidemiological report that talks about the risks of HIV in LA County—where she noted, "nowhere in this two-page report is the adult entertainment industry even mentioned"—and the 2012-2014 health plan authored by DPH, and again, "nowhere in this plan is the adult entertainment industry even mentioned as a risk or as part of the problem of HIV in LA County." What was mentioned, she said, was the difficulties faced by the county's poor in obtaining decent healthcare.

"Our population is tested much more frequently than anybody else," she stated. "It's the most tested population in LA County and that's one of the areas that was identified in this report, is people who are walking around with HIV unknowingly. You're not going to find that in our industry."

"I view this ordinance as unconstitutional and an attempt to fix a non-existent problem," Gelbard began when it was his turn to speak. He also stated that enforcement of the ordinance would drive "a significant portion of the adult entertainment industry out of California, and what would be required beyond the constitutional issues are creating works that people don't want to buy, so I was looking up there on the wall and I see that the county stand on free enterprise, 'cherish while preserving,' and I respectfully suggest to you that this ordinance would do precisely the opposite."

"More importantly, your counsel, your county counsel has indicated that there are serious First Amendment issues," he continued. "Compelled speech—compelling somebody to put something in a movie that they do not want to put in a film—is a core violation of the First Amendment."

Gelbard also argued that the county would have to pay the costs to defend the ordinance, and opined that even if that defense were left to AHF to pursue, the county would be responsible for those costs as well—a point with which Yaroslavsky agreed.

When his turn came, Douglas argued that the projected costs for filming health permits were much too high.

"The notion of an $11,000 permit for filming should make everyone laugh," he stated. "Even if 200, the maximum number, you're still talking about maybe $3,000 to get a filming permit; it's just completely out of scope with the budgets of the materials and the First Amendment implications of it."

Douglas also argued that the ordinance was preempted by state law, and predicted that if all of the county's incorporated cities enacted enabling legislation for the ordinance, there would be 86 different rules that companies would be required to follow.

The final proponent of the initiative was AHF's attorney Steven Kauffman, who stated that, "The Board really has only two decisions in front of it today and that is to either put this measure on the ballot and let the voters decide the issue, or adopt the ordinance as it's been written in the proposed ballot initiative...There's no other choice before this body today other than to take one of those two actions. To do so would be to thwart the will of 371,000 voters who signed the petition and the voters of the county who will be presented with this matter for consideration in November."

Kauffman said he also wanted to take issue with Gelbard's and Douglas's position regarding the First Amendment implications of the ordinance.

"This is not a speech-related issue," Kauffman declared. "This is not a speech-related law. The focus of this measure is on the health and safety of performers in the workplace who are subjected to conditions that other workers are not subjected to, and it is merely a law that is designed to address those issues and does not at all affect First Amendment concerns or speech-related concerns that relate to the content of adult films."

At the end of Kauffman's presentation, Supervisor Molina directed several questions to him, the first related to where the county is allowed to take over "workplace issues" that are more properly the province of CalOSHA. Kauffman didn't agree that the ordinance would exclude CalOSHA from the process, and that several people or agencies were responsible for workplace safety and health, including the city of LA's mandatory condom ordinance. Molina, however, drew out the fact that the city ordinance only addresses the permitting process, not workplace safety or health.

"Why would our municipality take on responsibility for workplace issues that are not presently our responsibility," she asked.

"Because the County Department of Public Health is supposed to oversee and work on the prevention of the spread of these infectious diseases throughout the county, and by implementing this ordinance on a countywide basis, it would be fulfilling its duties and responsibilities to the Department of Health," Kauffman responded.

"Right now, we don't govern safe sex in the bedroom under county responsibility," Molina stated, "and yet, if you look at any of the issues as to how AIDS is spread, it is because of unsafe sex in the bedroom, and Public Health has a responsibility and duty and if you take those responsibilities very seriously—we've done a lot of work in that area—but we are not in the bedroom during that time and so consequently while we make every effort on behalf of the public to promote safe sex, we are not involved in those issues. So I'm trying to understand why we would, as a county, taking on the huge responsibility of workplace issues which can be related to all kinds of issues; you could have a performer who might have some kind of STD of some type and then sue us as a responsibility. Under this condition, the county would not be free of those lawsuits, is that correct?"

Kauffman said he didn't know, but argued that the initiative was only about regulation of a commercial enterprise in the county, but Molina wasn't buying it.

"I understand that," she said. "And we're all in favor of safe sex, we're all in favor of porno stars using condoms, but the issue is liability of the county and all of the money that the residents of the county would have to pay."

After suggesting that the county had paid out $136 million in legal expenses and settlements in the past year, she asked, "Why would we add to this burden?"

Molina continued in this vein for a couple of minutes, noting that it was unlikely that the adult industry itself would indemnify the county for such costs, and that she would be hard-pressed to encourage voters to approve the initiative because "at the end of the day, all the liability that could come from any kind of workplace jurisdiction is huge, and we know because we have a lot of those responsibilities just as a major employer. So I just don't understand how all of a sudden we are taking away the workplace responsibilities of CalOSHA and inheriting all the liability that goes with it. We are not being indemnified by the people who are supporting this initiative in any way, we're not being paid for or anything. There's no conclusion in here as to how this county can take on such onerous responsibility."

Molina continued along those lines for a few minutes, and Kauffman might have had an answer for those concerns, but his time to speak had expired, and shortly thereafter, the vote to approve AHF's initiative for the county ballot was taken, and the meeting adjourned.

Keep checking back with AVN.com for more developments on this important issue.