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Won't You Help LA Times Editorial Board Decide on Condoms?

Should the city waste over $4.4 million on AHF's unconstitutional initiative or what?

Won't You Help LA Times Editorial Board Decide on Condoms?

LOS ANGELES—A curious posting showed up on the Los Angeles Times' website today. Titled "Condoms in porn? What should we do?" by "The Times' Opinion staff," it asks for public comment regarding what position the Board should take on the ballot initiative by AIDS Healthcare Foundation (AHF) that would require FilmLA, the agency that issues filming permits in the city, to withhold permits for adult producers unless they agree to the following language in the permit contract: "Permittee must abide by all applicable workplace health and safety regulations, including California Code of Regulations Title 8, Section 5193, which mandates barrier protection, including condoms, to shield performers from contact with blood or other potentially infectious material during the production of films."

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What's most amazing, of course, is that for the last 18 months or so, every single article written by a Times reporter has championed AHF's mandatory condom (and other "barrier protection") stance, even to the point of unquestioningly accepting bogus claims of HIV infections in the industry, unquestioningly accepting LA County Department of Public Health statistics on infection rates—statistics that were shown to be inaccurate by epidemiologist Dr. Lawrence S. Mayer—and rarely giving knowledgeable adult industry spokespeople a chance to respond to AHF's lies.

The Times' Opinion staff, after acknowledging that it editorialized more than a year ago that "it may be time... to change" the law to specifically require that condoms be used in adult productions, now says that with the introduction of the AHF initiative, things are different.

"But now we're dealing with a more complicated question: Should the city of Los Angeles adopt a condom mandate as part of its power to issue or deny permits for film shoots?" the Times' Opinion staff writes. "Should voters be allowed to adopt such a mandate into law? Should the city attorney go ahead with a lawsuit to block an initiative to require condoms in porn shoots if his lawyers firmly believe that such a law is unenforceable—because it's arguably in conflict with the California Division of Occupational Safety and Health (Cal/OSHA) jurisdiction over workplace safety? What about if going ahead with the arguably unenforceable election will cost the city $4.4 million?"

All good questions—and one has to wonder why the Times is asking them now... unless the Editorial Board sees a possible impact of the initiative on mainstream film and TV production? That despite the fact that the title of AHF's petition is "City of Los Angeles Safer Sex in the Adult Film Industry Act"—but who knows what future ramifications there could be if FilmLA is given responsibilities to act as some sort of "adult industry health czar"?

Of course, in its quest for public comments on AHF's petition, the Editorial Board provides some interesting statistics regarding the initiative.

"The [petition signature] verification process costs the city $372,000," the article notes. "The initiative would have to go on the next available ballot—the June 5, 2012, presidential primary. That's not a city election, so the measure would have to hitchhike on a county ballot, and that's not cheap: It will cost $4.4 million."

Los Angeles taxpayers should definitely be asking themselves, in these budget-strapped days when teachers, firefighters and other valuable public officials are losing their jobs, if they want to be on the hook for a minimum cost of $4.4 million to enact AHF's latest attempt to destroy the (massively taxpaying) adult industry in Los Angeles—and of course, that $4.4 million figure doesn't include the costs of the several lawsuits that are sure to be filed against the initiative by adult producers.

"But City Atty. Carmen Trutanich's lawyers believe there's a good chance that the initiative, if adopted, would be struck down as being outside the city's jurisdiction," the article goes on to note. "Only Cal/OSHA, they say, can regulate workplace safety."

Indeed, as AVN noted, Trutanich filed a lawsuit December 8 to prevent the AHF initiative from appearing on the ballot, and on December 13, City Councilmen Bill Rosendahl and Paul Koretz introduced an emergency motion before the Council to withdraw that lawsuit. But although the City Clerk's website indicates that a vote on that motion was taken and was unanimously approved by the 11 councilmembers present, the Times story states that the motion had in fact been tabled, perhaps until the City Clerk actually verifies that AHF has gathered enough valid signatures, which must occur by December 23.

And Trutanich's point, as previously noted, is a valid one. Although AHF managed to produce a July 20 letter from CalOSHA staff attorney James D. Clark which AHF claimed supported its position, in fact the letter does exactly the opposite.

"It is [CalOSHA's] position that State law does not preempt such action by the City 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 relationship) within the City Boundaries," Clark states in the section titled "Conclusion."

Of course, over the course of more than 18 months of hearings before CalOSHA Chief Inspector Deborah Gold, all of the CalOSHA employees present at the hearings, including counsel Amy Martin, have maintained that requiring condoms and other barrier protection on porn sets is exactly an "occupational health and safety standard"—specifically, the very standard AHF claims its initiative would enforce: California Code of Regulations, Title 8 §5193—and that it considers all adult performers to be employees of production companies.

Clark's twisted analysis of the then-impending AHF proposal actually claims that requiring condoms in porn is more akin to, say, building a residence in an industrial area; in other words, a zoning issue rather than a health one.

"This permit is, in essence, an exception to, or variance from, existing zoning ordinances that prohibit filming in the City except on a sound stage," Clark writes. "In that respect, the potential City action would be zoning in nature... The City's remedy for violating any of the conditions would be revocation on the permit."

Except, of course, the "condition" "violated" would be a CalOSHA regulation!

Later, Clark claims, incredibly, that the state legislature expressly permits FilmLA to take the type of action AHF's initiative proposes, because in Chapter 6, Div. 1 §144 of the state Labor Code, it says (and Clark literally underlines), "Nothing in this section shall affect or limit the authority of any state or local agency as to any matter other than the enforcement of occupational safety and health standards adopted by the board."

So, if FilmLA revokes a permit issued to an adult producer because that producer is not using condoms, dental dams, goggles and face shields, that's somehow not enforcing "an occupational safety and health standard[] adopted by the board"???

"The conclusion is clear," Clark states in the final paragraph. "The Legislature allows local safety action, other than explicit enforcement of the Division's own regulations. It has done so in express and unambiguous terms."

Horseshit!

Sadly, most of the rest of the Editorial Board's article deals with how quickly the city needs to move, in light of Trutanich's lawsuit, to figure out whether the initiative can be put before voters on June 5, but devotes no analysis to the underlying issue, which it has editorially supported for more than a year. The article talks of deadlines like the first week in March, "when initiative documents are due at the County Registrar's Office"—a process that would require Judge Yvette Palazuelos to rule quickly on the suit after the date currently set for its hearing, January 25, and that if she took the allowable 90 days to hand down a decision, it would be too late to get the initiative on the ballot—meaning that things would continue in their current relatively safe manner until AHF pulls yet another in its long line of stunts.

But then, the Times' true agenda comes out:

"The council could cut through much of the morass by simply adopting the substance of the initiative into an ordinance by itself," the Editorial Board writes. "That would save the need for the election, the $4.4 million and the court hearing..."

And why the ellipses?

"— or would it?" the article continues. "Trutanich still would advise that the law was unenforceable, and that the city is likely to be sued and to incur unnecessary costs."

"See? Not quite so simple, is it?" the Editorial Board backpedals a bit. "So should The Times call on the City Council to let the suit go forward so we can get an idea whether the law would even be enforceable before spending money on an election? Or should we tell it to let the people vote and then see if the city is sued? Should we call on the council to just pass the thing into law itself?"

"Your thoughts [and] comments" can be left in the article's comments section—and it's an offer that every non-idiot of the adult industry should take them up on.






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Mark Kernes

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