Setback for Treasure Island Media in CalOSHA 'Condom' Case

SAN FRANCISCO—In an opinion date-stamped January 8, and apparently issued that day, Administrative Law Judge Mary Droyovage found gay adult producer Treasure Island Media (TIM) guilty of, among other violations, "Failure to establish exposure control plan re: exposure to OPIM [other potentially infectious material]" under §5193(c)(1) of the California Health Code, and "Failure to observe universal precautions during production of films" under §5193(d)(1) of the same Code. The judge also found TIM guilty of several minor safety violations, including "Non-compliant wiring," "Failure to have emergency lighting" and similar offenses.

Although the penalties for the Health Code violations are set by statute at $9,000 per offense, Judge Droyovage reduced the fine for one violation to $6,300 and completely gutted the other.

The case has a long history, stretching back to 2009, when the California Division of Occupational Safety and Health (CalOSHA) received more than a dozen complaints, all filed by AIDS Healthcare Foundation (AHF), about TIM movies, though the only one considered at the administrative hearing, held in February and April of 2013, was The Thousand Load Fuck (referred to in the decision as "TTLF")—largely because most of the other movies complained of were shot outside of California, even though distributed by TIM, and therefore not subject to CalOSHA jurisdiction.

The main testimony against TIM was delivered by what the company termed a "disgruntled ex-employee," identified in the decision only as "#N... employed by TIM as Casting Director from 2007 to 2010"; Dr. Janice Prudhomme, an osteopathic physician—a branch of medicine considered inferior to medical doctors until a reconciliation with the American Medical Association in 1969; and Eugene Murphy, a senior safety engineer with CalOSHA who conducted a series of inspections of TIM in early November, 2009.

Judge Droyovage's decision contains a number of "Findings and Reasons for Decision," the first of which is that the performers and crew who worked on/in The Thousand Load Fuck were employees of TIM rather than independent contractors—a position CalOSHA has taken since the "condoms in porn" controversy began nearly three years ago, and considering the adverse rulings on that subject against the strip club industry, arguments in favor of the "contractor" status will face thorny opposition in court.

More significant, however, is her finding that "The adult film industry is covered by Section 5193."

"TIM argues that since §5193 was enacted in reaction to the HIV/AIDS crisis and its focus was healthcare workers, its provisions should not apply to the adult entertainment industry," Judge Droyovage wrote in part. "The California Occupational Safety and Health Act gives Cal/OSHA jurisdiction over virtually all private employers in California, thus including employers in the adult film industry. Cal/OSHA analyzed the impact on a number of occupations, mostly related to healthcare, but the AEI [adult entertainment industry] and the entertainment industry were not discussed in the regulatory history... TIM cites no evidence from the history of the adoption of §5193 that the Standards Board intended to exclude the production of adult films from its requirements."

Although the judge does mention that §5193 "was adopted in 1992 in response to the federal bloodborne pathogen standard," one would think that the burden of proof that §5193 does apply to adult would be on the state rather than TIM, since the adult movie industry was well-established when the law was written, as was the fact that bodily fluids were being exchanged during productions. Moreover, §5193 is so strict in its requirements that one section reads, "Personal protective equipment will be considered 'appropriate' only if it does not permit blood or OPIM to pass through to or reach the employee's work clothes, street clothes, undergarments, skin, eyes, mouth, or other mucous membranes under normal conditions of use and for the duration of time which the protective equipment will be used."

As should be clear, such a requirement would be fatal to adult filmmaking if the wardrobe or skin of one performer were prohibited from coming in contact with the wardrobe or skin of another, simply because one partner might be "contaminated" with "blood or [other potentially infectious materials]." The only conclusion that can possibly be drawn from such language is either A) that such language was put into the law as a backdoor method of shutting down the production of adult movies even though the Supreme Court found such production legal, or 2) that §5193 was not intended to apply to the adult movie industry.

Hence, Judge Droyovage's statement that, "The terms of the California Occupational Safety and Health Act are to be given a liberal interpretation for the purpose of achieving a safe working environment" rings hollow.

However, it must be noted that the reactions to §5193 by some companies dealing with gay product has often been different than those of straight producers.

"We're not just a company being attacked but a culture—one that believes the sex of HIV positive men should be open, celebrated, and embraced as we enter a new era where HIV is no longer looked down upon as a death sentence,” declared TIM owner and founder Paul Morris in a press release.

The fact is, TIM and several other gay companies are not part of the straight industry's testing regimen, thanks to which there hasn't been an on-set HIV transmission on the hetero side of the adult industry since 2004—by contrast, there are five HIV transmissions per day in Los Angeles among non-adult-industry citizens—and according to a top epidemiologist, the County Health Department's statistics regarding sexually transmitted infections (STIs) among hetero performers are wildly overblown.

"The regulations that Cal/OSHA is imposing on the adult industry were originally intended for hospitals, nursing homes, and funeral homes, and require gloves, goggles, and every imaginable impermeable material to be used during sex," noted TIM's attorney Karen Tynan. "It's ludicrous."

Moreover, Judge Droyovage's decision is based in part on the claim that during The Thousand Load Fuck, men had turkey-basters full of semen, filled from a jar allegedly containing 1,000 "loads" of semen, and according to a TIM spokesperson, "In a bold and unprecedented experiment, one young man voluntarily takes a gallon of semen up his ass."—thus violating the requirement that performers be protected from that "other potentially infectious material." However, a source knowledgeable about the filming of The Thousand Load Fuck has informed AVN that the material in the jar of "semen" was in fact a solution commonly used on adult sets to simulate sperm, made up of harmless cosmetic creams and oils.

Almost needless to say, AHF trumpeted the decision in a press release—and as usual, they got at least part of it wrong:

"This Cal/OSHA ruling against Treasure Island is a milestone in three important ways," added AHF’s [president Michael] Weinstein. "1) the ruling unequivocally states that the adult film performers are employees, not independent contractors, as the industry regularly asserts, and as such are indeed covered under OSHA workplace safety statutes; 2) it was the first time an adult film company cited has actually gone to a full trial for appeal with Cal/OSHA instead of settling, paying—or ignoring—its citations; and 3) it is the first time an adult film company has also lost in this precedent-setting court ruling."

"This is not a precedent decision," countered Tynan. "For those minimally knowledgeable about our administrative law or legal system, one judge’s opinion is not precedent. This is the equivalent of a single county judge ruling on some issue. This decision cannot be used by other judges or by cited by Cal/OSHA as precedent."

Also, in a statement to LA Weekly reporter Dennis Romero, AHF spokesman Ged Kenslea claimed that, "AHF's stance is that the ruling applies only to condom use and that it does not mandate dental dams, surgical masks, eye protection, gloves and other gear feared by the industry."

While AHF may have adopted that as its current position, §5193 makes it clear that such "personal protective equipment" is required for the healthcare workers that were the targets of the law as written, and since Judge Droyovage's decision clearly states that §5193 does apply to adult productions, AHF's championing of this decision belies Kenslea's statement.

"Secondly, the fines were not upheld by the judge," Tynan continued. "Originally TIM was fined 2x$9K ($18,000) for two violations of Section 5193. The judge reduced one fine to $6,300 and the other to zero! A reduction by about 60 percent.

"Almost all of Cal/OSHA’s case relied on the testimony of a disgruntled former employee, not the most unbiased individual," she added. "The state’s 'expert' was an osteopath that last treated HIV-positive men twenty years ago in San Francisco—not the most up-to-date medical testimony I’ve ever heard."

Treasure Island Media's response to the administrative law judge's decision?

"We are in the process of preparing and filing the Petition for Reconsideration where a three judge panel will review the decision."