LOS ANGELES—Dan "Porno Dan" Leal, owner of adult studio Immoral Productions, went down to the Los Angeles County Department of Public Health's offices in Commerce, Calif. today and left with what might be the first official Conditional Adult Film Production Public Health Permit. According to Leal's attorney, Michael Fattorosi, county officials said that one other studio had applied for a permit, and it was unclear whether who's was issued first, but the producer walked away with a signed temporary "Public Health License/Permit Application."
A blank copy of the form can be viewed here.
"To get the permit, you have to go to their office, which is in Commerce, just off the 5 freeway," Fattorosi said. "The application has to be submitted in person, and it has to be submitted with proof of identity. Once you apply and you fill out the application, it looks from the application that you have six months in which to secure your bloodborne pathogen training as well your bloodborne exposure plan for your company. Now, it gives you a place to list your directors and everyone else that would be covered by this application, so for instance, if you have a company and you have four, five, six, seven directors, they give you two pages to put those names on. When you're shooting, one of those people has to be on the shoot, okay, because they have the training necessary. Now, you can have other people shooting for you as long as one of those people that's listed on the application is present for the shoot."
The Public Health License/Permit Application form, Fattorosi said, "acts as your conditional permit until the regs are promulgated and they really understand what's going on. The idea I got was that even the Department of Health has to figure all this out, and what they're going to do. The reason you fill this out is because this goes to the Treasurer of the City of Los Angeles, who then approves the permit and sends a bill to the actual applicant—the studio, the production company—and then when you pay the bill is when they send you your full permit. They're estimating anywhere between three to six months before that even happens."
Surprisingly, when Fattorosi asked how much the County expected to charge each studio for its permit, the two Public Health investigation managers with whom he spoke said that they expected the fee to be $2,000, but they were not sure. Estimates based on the enormous cost that health official Dr. Jonathan Fielding said it would take to set up the "porn inspection division" within the Health Department, which Fielding estimated at just under $583,000, had suggested that the fee could be as high as $58,000 if just 10 studios enrolled, though the cost would drop to just over $11,000 if 50 studios joined the program.
However, Fattorosi felt that such estimates were likely much higher than the actual cost would be.
"There's only one other industry that the Department of Health charges permit fees for, and those are bathhouses," Fattorosi noted, "and there are 11 bathhouses in the county, and their permit fees are $1,068 per year. So it's the same kind of situation. They're required, according to the Department of Health, to go out and do spot checks on those 11 locations four times a year, so it's possible that it may be less but they're estimating $2,000. When I asked, is it a possibility that it could be $30,000? And they shrugged; they didn't see that as being possible."
However, Fattorosi also reported that the Health Department has not yet hired any additional personnel to enforce the new law.
"They have a staff that's going to do this," he reported. "They haven't hired anybody else at this point. Right now they've got several inspectors on staff who'll cover it and they'll have people that will cover it, but they are starting to make sure that people are getting their conditional health permits, because the way this came up is, FilmLA refused to renew a film permit for Dan Leal, for Immoral, until this was taken care of. Now that he's got his conditional permit, FilmLA will go back and issue him his shooting permit."
What's perhaps most interesting about the inspections, the first of which may be a year or more in the future, is that the investigation managers told Fattorosi that, "They will not be reviewing scenes; they will not be sitting around watching porn. They made it very clear to us, they've made it very clear to their boss that they have no interest in watching porn as part of their job. They made it clear that they're not going to be watching the sex scenes."
One might then legitimately wonder how the health inspectors will determine whether any particular production is in compliance with the condom/barrier protection mandate, but according to Fattorosi, the health inspectors don't see enforcement as part of their job.
"They really don't have police power," Fattorosi said. "They don't have the ability to come in, arrest people; they can't close your set. All they can do is cite you. Just like if they walk into a restaurant and they found something unhealthy or unsanitary in the restaurant, unless it's an immediate huge public health risk, they don't have police powers so they can't shut down someone's set. One of the two people I talked to indicated they would have to have a conference with County Counsel as well as meeting with the City Attorney's office, County Attorney's office, and decide, and that's when they would issue any fines or anything like that. But she made it abundantly clear that this is a learning process, not only for the industry but also for them, that they're trying to find their way; they're not really sure about how to do any of this, and it's all new ground for them, so they want to work with the producers, the producers that are willing to step up and do this; it's not going to be a matter of, they're going to come in and the first violation, they're going to fine you. They're going to give you chances to correct the thing before they take any kind of remedial action against the studio."
Certainly, that "hands off" scenario, if it is actually Health Department policy, will meet strong opposition from, among others, the AIDS Healthcare Foundation, which gathered the petitions to put Measure B on the ballot in the first place, and has consistently pushed the lie that adult performers are in imminent danger from many STDs including HIV while having sex. And it's unclear how, if a health inspector visited an adult movie set and saw that the performers weren't using condoms and other barrier protections, the inspector could give the studio "chances to correct the thing," especially if they don't think that watching sex scenes being shot is part of their job. Would they require the company to reshoot the scene with the condoms and rubber gloves and face shields?
"While we were there, we went into the bloodborne pathogen plan, what's required, and what they're looking at is what's required by the language of the law," Fattorosi reported. "They didn't want to get into all of that because they weren't lawyers; they didn't want to have a legal debate about what's required or what is not required. What they were basically looking at was, we were there to go over the application procedure and how to get the ball rolling. As far as how this is all going to play out, they still don't really know.
"Their attitude is, they're not in the business of trying to hunt down and root out people who violate the law," he added. "That's not their goal, that's not their purpose, that's not what they're going to do. The two people I talked to seemed sincere in regards to their willingness to work with producers. They understand or they're beginning to understand the difficulties of porn producers and studios to deal with this particular law, so they're not—at least the two people I talked to, they're not interested in trying to shut people down. They're not trying to shut studios down, they're not trying to shut porn production down; that's not their goal. Only health inspectors will be asking for the health permits. It doesn't appear that the police will have anything to do with the health inspection or the health permits. The police will deal with the FilmLA permits, and the Department of Health will deal with the Department of Health permits."
Fattorosi also said that unlike CalOSHA, any complaints about on-set activities that are reported to the Department of Health will have to have the name of a complainant attached to them; that they will not act on anonymous complaints.
Of course, all of the above discussion may be moot if the lawsuit filed by Vivid Entertainment and two performers against Measure B is successful, or even if their attorneys are able to get a temporary restraining order to stop enforcement of the new law, but in the absence of such an order, the Health Department is moving forward with putting the law's requirements into effect.