As most of the readers of this site already know Ballot Measure B was passed by the voters of Los Angeles County yesterday by a margin of 56% to 44% with approximately 2,000,000 votes cast. The question now becomes – what happens now ? Are condoms now required on all shoots under Ballot Measure B ? (Note: Remember Cal-OSHA regulations now require barrier protection for all shoots where there is an employer-employee relationship) When does the law go into effect ? What if I don’t use condoms what will happen ? What if I move my production company and/or shoots out of Los Angeles County ? Will the FSC or a studio file a legal challenge to Ballot Measure B ?
All of these questions are quite complex and will be answered in this and subsequent articles as more information and analysis becomes available. There is still a lot of uncertainty as to Ballot Measure B. What is certain is that this fight has only begun. I do not anticipate that the industry will just accept the Ballot Measure B and move on. The opposition to B will now move towards a city by city fight and/or a legal challenge.
Where and When Does B Take Effect ?
As I wrote on September 25, 2012 Ballot Measure B will ONLY apply to the unincorporated areas of Los Angeles County when it is certified by the Los Angeles County Board of Supervisors ( http://adultbizlaw.com/what-youre-not-being-told-about-the-condoms-in-porn-law/ ). In order for this law to take effect in cities such as Los Angeles, Glendale, Malibu or any of the 85 independent towns and cities in Los Angeles County – each one of those cities will have to independently debate, vote on and themselves pass/adopt Ballot Measure B as law in their town. How long will that take is anyone’s guess at this point. And it is not certain that all 85 independent towns and cities will even adopt Ballot Measure B. I can envision a situation in which some of the smaller towns that do not have any contact with the adult entertainment industry will simply ignore this law entirely.
Here is a list of the cities that can adopt the law now that Ballot Measure B has passed;
Agoura Hills, Alhambra, Arcadia, Artesia, Avalon, Azusa, Baldwin Park, Bell, Bell Gardens, Bellflower, Beverly Hills, Bradbury, Burbank, Calabasas, Carson, Cerritos, Claremont, Commerce, Compton, Covina, Cudahy, Culver City, Diamond Bar, Downey, Duarte, El Monte, El Segundo, Gardena, Glendale, Glendora, Hawaiian Gardens, Hawthorne, Hermosa Beach, Hidden Hills, Huntington Park, Industry, Inglewood, Irwindale, La Cañada Flintridge, La Habra Heights, La Mirada, La Puente, La Verne, Lakewood, Lancaster, Lawndale, Lomita, Los Angeles, Lynwood, Malibu, Manhattan Beach, Maywood, Monrovia, Montebello, Monterey Park, Norwalk, Palmdale, Palos Verdes Estates, Paramount, Pico Rivera, Pomona, Rancho Palos Verdes, Redondo Beach, Rolling Hills, Rolling Hills Estates, Rosemead, San Dimas, San Fernando, San Gabriel, San Marino, Santa Clarita, Santa Fe Springs, Santa Monica, Sierra Madre, Signal Hill, South El Monte, South Gate, South Pasadena, Temple City, Torrance, Walnut, West Covina, West Hollywood, Westlake Village and Whittier
And there are three cities that cannot adopt Ballot Measure B. Long Beach, Vernon and Pasadena – all three do NOT contract with the Los Angeles County Department of Health. Ballot Measure B requires that the Los Angeles County Department of Health enforce the law and therefore if Long Beach, Vernon and Pasadena have their own health departments, Los Angeles County Department of Health has NO jurisdiction to enforce condoms on any production company in those cities.
What About Production Companies Located Outside Los Angeles County ?
Having a production company located in Pasadena, Long Beach or Vernon will have the same affect as having a production company located in Las Vegas, North Carolina or even Canada. The Department of Health Inspector cannot travel out of state to inspect health permits nor can they go into Pasadena, Vernon or Long Beach to inspect health permits. They simply do not have jurisdiction to do so.
If you do not have a production company located in Pasadena, Long Beach, Vernon, Canada, North Carolina or Las Vegas it is still going to be a while before this law goes into effect in cities within Los Angeles such as Chatsworth, Woodland Hills and Northridge. The first step is that the election results have to be certified and once certified the Los Angeles City Council would have to vote on and adopt Ballot Measure B. I anticipate this could happen as soon as sometime in January 2013 or it may take months after that. I do believe that the City of Los Angeles Council will adopt Ballot Measure B to replace the “Safer Sex in Film Ordinance” that the City Council adopted last January.
After Ballot Measure B is adopted by the city of Los Angeles when will they begin enforcement is also anyone’s guess. It is difficult to estimate how long it would take rules of enforcement to be adopted by the Los Angeles Department of Health. It could be several months or even up to a year. The City of Los Angeles adopted their own “condoms in porn” law last January and have yet to finish trying to figure out how to actually enforce their law. The same may prove to be true of Ballot Measure B.
What About a Constitutional Challenge to Ballot Measure B ?
We also cannot fully anticipate how any legal challenge on constitutional grounds may play out. It is possible that any person or entity affected by Ballot Measure B would ask the court for an injunction on the enforcement of the law. Whether such an injunction would be granted would also be speculation. It would be speculation to state whether any such challenge would be successful.
I have had several discussions with attorneys who have handled First Amendment challenges before and most are split on the issue of how successful a challenge would prove to be. The success will ultimately turn on the issue of whether a court uses “intermediate scrutiny” or “strict scrutiny” to test the validity of the language of the law. If the court finds that the “intermediate scrutiny” test should be used then it is more than likely that Ballot Measure B will survive a challenge. However, if “strict scrutiny” is the standard used then it is likely that B will fail a constitutional challenge. There was a recent decision in the Ninth Circuit Court of Appeals (Los Angeles County is in the Ninth Circuit’s jurisdiction) that might be helpful in challenging the constitutionality of Ballot Measure B.
The Ninth Circuit ruled that the First Amendment protects yellow pages phone books, rejecting a Seattle law that sought to limit distribution of the phone book. Under Seattle’s 2010 ordinance, the phone book publisher had to pay a fee and obtain a permit for each directory it distributed in the city, and create a list through which residents could decline to receive the yellow pages. During hearings on the new law, numerous citizens testified that distribution of the phonebook violated their privacy and created waste.
Read More at Courthouse News – http://www.courthousenews.com/2012/10/15/51283.htm
This is an interesting case in regards to Ballot Measure B. The Ninth Circuit Court of Appeals held that phone books are entitled to full protection under the First Amendment and therefore the “strict scrutiny” test had to be applied to the permit law. The City of Seattle argued that only the “intermediate scrutiny” test had to be applied and thus the permits helped served to reduce waste, protect the privacy of its citizens and helped the city recover the costs of disposal of the unwanted phone books. As in Ballot Measure B, the City of Seattle wanted the phone book publisher to pay a permit fee to enforce the law.
It is simply too early to state with any specificity as to what is actually going to transpire in the industry because of Ballot Measure B. In the words of William Shakespeare Ballot Measure B might prove to be “much ado about nothing.” Ballot Measure B is a badly written ordinance and is very ambiguous as to its definitions of certain types of productions. It actually raises more questions then it answers and we may not have answers until people are actually prosecuted under the law.
We do not know if it covers content trades between performers. We do not know how Ballot Measure B will apply to “celebrity sex tapes” shot in Los Angeles County. Will the “reality star of the month” be required to force her male co-star to a wear condom to have any chance of selling her sex tape to Vivid for distribution ? If a production company is located in Los Angeles County will it still be required to have a health permit even though they shoot all their content overseas ?
The actual application of Ballot Measure B – if it is ever enforced – will be a legal nightmare not only for the companies affected but also those lawyers defending their clients and a judge that has to figure out what the scope and breadth of the law is. This issue is far from over and B is far from being enforced. It is time to take a deep breadth and get back to work. There is a lot to do in order to fully understand what B really means.
Keep checking back here for more updates as to Ballot Measure B as more information becomes available.