Will CalOSHA or FilmLA Force Adult Producers Underground?

LOS ANGELES—AIDS Healthcare Foundation (AHF), fresh from losing its lawsuit to force the Los Angeles County Department of Public Health (LADPH) to require adult production companies to use condoms, dental dams, rubber gloves and face shields during the filming of adult scenes, has now produced an opinion from James Clark, a CalOSHA staff attorney, that  the L.A. City Council, if it wanted to, could instruct FilmL.A., the private company that issues filming permits, to require that exact outcome anyway.

The fracas began last December when AHF convinced its friends on the council (some of whom it helped get elected in the first place) to have the City Attorney's office investigate whether the council could force FilmL.A. to make condom/dental dam/etc. use on adult sets a requirement in order to receive a filming permit.

The City Attorney's response, which came in a letter dated March 22 from Deputy City Attorney Kimberly Miera, was less than satisfactory from AHF's point of view.

"Presently, the language on the permit requires the permittee to adhere to all federal, state and local laws, which would include Title 8 of the California Code of Regulations Section 5193 requiring employees exposed to blood borne pathogens to wear protective gear," Miera wrote. "In the event any terms of the permit are violated during the permitted activity, LAPD has the discretion to revoke the permit."

"Thus, there are already mechanisms in place requiring that permittees adhere to regulations regarding workplace safety on adult film sets," she continued. "While the Los Angeles Police Department has the authority to revoke the permit in the event the conditions of the permit are breached, as a practical matter, due to issues of preemption and the high level of staffing that would be required, it is doubtful the City of Los Angeles can actively enforce the wearing of condoms on adult film sets."

Interpreting those statements, a lay person would probably summarize them as, "The L.A. police department already has enough to do preventing real crime and catching real criminals, much less devote any time and personnel to 'investigating' whether anyone's cock or pussy is rubber-covered while they have sex."

Miera goes on to note that the LADPH, as recently as 2005, had taken the position that it didn't have the power to require such "barrier" use, in part through a power-sharing agreement with the state's Division of Occupational Safety and Health (Cal/OSHA). And in the opinion issued by California's Second District Court of Appeals in mid-June, and published July 18, a three-judge panel agreed, striking down AHF's petition for a writ of mandamus to force the health department to make such a requirement.

But if there's one thing the adult industry has learned over the past couple of years, it's that AHF, in its constant quest for publicity and donations, is not about to let any legislative or judicial decision regarding the adult industry that it doesn't like stand without some attempt to overturn it.

Hence, AHF took it upon itself to request the opinion letter from Clark—and in the process opened another can of worms.

Of course, AHF focused on Clark's stated "conclusion": "It is the Division's position that State law does not preempt such action by the City [in requiring condoms, etc.] because the City does not seek to enact an occupational health and safety standard but rather a public health standard applicable to any film activity (regardless of employment realtionship) within the City boundaries."

But indeed, Clark makes it clear that Cal/OSHA only has power of employer/employee situations—an issue that has been hotly contested before the Cal/OSHA Standards Board's subcommittee on performer health which has held several meetings over the past year.

"The Division has jurisdiction over 'places of employment,'" Clark wrote. "It has no jurisdiction unless an employer-employee relationship exists. ... The Labor Code and Title 8 CCR also set forth the means by which the Division is to exercise its authority to assure employee safety. The system for asserting its authority is, generally, by issuing citations that include administrative penalties for violating one or more of the Title's workplace safety standards."

Indeed, that's something CalOSHA has done a dozen times to adult producers since 2004, though four of those cases (including one against AIM) remain under appeal.

But according to Clark, nothing in CalOSHA's regulations prohibit the city from dealing with what it may perceive as violations of occupational health and safety regulations.

"It is clear that the only matter that the Legislature has put in the hands solely of the Division is the 'enforcement of occupational safety and health standards adopted by the [Standards] [B]oard'," Clark stated. "By clear implication, localities may adopt and enforce their own standards as long as that adoption is within the localities' police powers. This is true even if the local standards could be construed as 'occupational safety and health standards.'"

AHF, of course, was overjoyed with Clark's opinion—even as it continues to repeat misinformation about the infection rates and number of infectees in the industry.

"Cal/OSHA and Mr. Clark have provided a very clear and compelling case as to why the City of Los Angeles can condition the issuing of film permits to adult film producers based upon compliance with condom use in their film productions, as currently required under state statute," said AHF president Michael Weinstein said in a press release. "Ordinarily, state agencies are given deference by cities and local bodies in situations such as this, and we ask the Los Angeles City Council to do so in this matter in order to better protect workers and performers working in the adult film industry here in Los Angeles."

However, as things stand now, FilmL.A.'s website gives no indication that permits are conditioned upon complying with any particular laws or regulations. It merely requires that the company obtain liability insurance, which may be increased if the action being filmed includes "exceptional activities"—but having sex on camera isn't one of them. The permitting process also includes the possibility that a FilmLA Monitor may be assigned to the production "in areas that have Special Filming Conditions in place," which are generally "many of the most popularly filmed neighborhoods in Los Angeles."

But what many may not remember is that adult companies have been applying for and receiving filming permits for less than 20 years. Prior to that, the usual practice was for the cast and crew to meet up at an agreed-upon location, then caravan to wherever the movie was to be shot, often in some out-of-the-way, little-traveled place where they would be unlikely to be observed.

If the LA City Council, the LADPH and/or FilmL.A. makes it impossible for adult producers to make movies that will sell—i.e., through rules that require condoms, dental dams, rubber gloves and face shields for all sexual acts—the possibility exists that many of the companies will go back to the "old way" doing doing things—and few in the industry want that to happen, since to do so would likely even further compromise the health and safety of the very performers AHF claims it wants to protect.