LOS ANGELES—No one can accuse AIDS Healthcare Foundation (AHF) of sitting on their hands when there's still a Los Angeles-based adult industry to torment. Building on the Ninth Circuit Court of Appeals' refusal to strike down Judge Dean D. Pregerson's decision in Vivid Entertainment, et al v. Fielding (the Measure B case), AHF General Counsel Tom Myers has written a letter to the County's attorney Mark J. Saladino, insisting that the county implement a filming permit plan, even though, thanks to the one part of Measure B that Pregerson struck down, it doesn't yet know how much to charge for it.
"Among the parts of Measure B that were found to be valid are the requirement of condom use during the filming of certain acts, and the development and imposition of a revenue neutral permit fee," Myers wrote. "The District Court's ruling enjoined the imposition of the previously set fee of $2,000-$2,500 because there was no evidence presented by the County that it was 'revenue neutral,' meaning that the amount of the fee did no more than cover the anticipated cost of enforcing the Measure, and was not designed to impose a 'tax' on speech. In so holding, the Court stated '[S]ince there is no evidence that measure [sic] B's [current] fees are revenue neutral, there is no reason to believe the Department's measure B duties cannot be performed without fees—or performed at least until the fees' defect is cured, either by enacting a new, constitutional ordinance or providing this Court with evidence of revenue neutrality." [Emphasis in original]
Myers goes on to threaten Saladino that if the permitting scheme is not developed and implemented within 30 days, "there will be no choice but to seek a writ of mandate compelling the performance of this ministerial duty."
Over the entire course of the Measure B lawsuit, Los Angeles County has taken a minimal role, declining to defend the Measure at all, and it was only the intervention of AIDS Healthcare in the lawsuit that has kept it alive—and since the Ninth Circuit declined to follow the U.S. Supreme Court's decision in Hollingsworth v. Perry regarding the requirements for a party to have standing to prosecute a lawsuit, AHF remains in the case.
Moreover, no one from the County has yet set forth in an official document, nor in court testimony, its reasoning for establishing the original $2,000-$2,500 filming permit fee, and it is unknown whether the County has hired anyone, or used its own employees, to perform a study of just how much implementing the Measure B-required permit scheme would cost.
"When some of my clients applied for the permit, the permit fees were always kind of like off in the future, and they had to develop what the cost would be, and I don't think they ever did it," noted entertainment attorney Michael Fattorosi. "Once the Measure B litigation was filed, the County kind of backed off of everything, waiting for the litigation to be finished."
Fattorosi noted that none of his clients paid a permit fee at the time of applying for the permit, and it was his understanding that the fee would be billed later. However, to his knowledge, none of his clients have yet received such a bill.
If no such fee study exists, the County will be out on a limb at the end of the allotted 30 days, since it would certainly take more than that amount of time to create and put out a Request for Proposal (RFP), hire a consultant, and for the consultant to gather the information needed to come up with a figure that the County could charge, which would be "revenue neutral," meaning that the County could make no money from the permit fee beyond the expenses needed to enforce the scheme—and to then implement the scheme for adult producers wishing to shoot content within the County.
Vivid Entertainment founder and co-chair Steven Hirsch had some choice words for AHF, which has been trying to impose its will on the adult industry for more than five years.
"The letter is nothing more than smoke and mirrors politics from Mike Weinstein and AHF," Hirsch charged. "The truth is the Ninth Circuit struck down the implementation of Measure B as unconstitutional. Understandably, the L.A. County Health Department would rather focus its efforts on people who actually are at risk of contracting HIV. While there hasn't been a confirmed [hetero] on-set transmission of HIV in over 10 years in the adult industry nationwide, there are approximately 5 new cases of HIV in L.A. County daily. If only AHF would focus its efforts on service rather than politics, that number likely would be much lower."
AVN has contacted two of the attorneys involved in the Measure B litigation, Paul Cambria and Robert Corn-Revere, but at press time, they had yet to provide a comment on the issue.
Sharon Reichman, an Asistant County Counsel in Mark Saladino's office, told AVN this afternoon that she could not discuss details of the case since it was still in process.
"As you may understand," she said, "we have several open cases with AIDS Healthcare and we are in the process of evaluating our positions on all of them, but we are unable to comment on any specific case now."
Reichman was apparently referring to several lawsuits filed by AHF over the county's denial of funding for various proposed AHF projects and services.
However, Free Speech Coalition CEO Diane Duke provided the following statement:
"This is yet another attempt by AHF to bully public health departments and harass adult film performers," Duke wrote in an email. "While the adult industry continues to work with the Department of Public Health, Cal/OSHA and healthcare advocates to find practical policies to keep performers safe and to keep production in California, AHF resorts to harassment and tantrums. What should be a collaborative process between health professionals and performers has been hijacked by AHF's tantrums and grandstanding."
The letter from Myers to Saladino can be found here.
UPDATE: On January 30, Los Angeles County Counsel Mark Saladino sent a letter to AHF, saying that he disagreed with the organizatiion's interpretation of Judge Pregerson's ruling regarding motions to dismiss the lawsuit, which AHF had claimed put a duty on the County to set a permit fee for adult filming in the County—and had threatened Saladino with legal action if the County did not set such a permit fee by February 26.
"Accordingly, any litigation on this matter, as threatened in your letter, would be legally insupportable," Saladino wrote regarding AHF's demand.
What AHF will do in response is anyone's guess, especially since it appears that the CalOSHA Standards Board has pushed back the date on which it will hear argument regarding implementation of the new Health Code standards in revised Section 5193.1 until April or later. In order to hear such arguments at its March 19 scheduled meeting, it would have had to have begun soliciting comments on the revision on February 3, but no such notice was forthcoming.
