Why I Think We Have The Right To Choose by Alia Janine

The opinions, beliefs and viewpoints expressed by the various contributors on this web site does not necessarily reflect the opinions, beliefs and viewpoints of AdultBizLaw.com and Michael Fattorosi nor should they be considered legal advice.

Reprinted with permission. As first published on September 12, 2012 at http://aliajanine.com/2012/09/12/why-i-think-we-have-the-right-to-choose/

This is something I wrote back in June of 2011 after attending one of the Cal/OSHA meetings. I didn’t have my awesome blog that I have now so I posted it in different forums like Adult DVD Talk and FreeOnes.com. After this meeting I remember feeling very disturbed by Cal/OSHA and the AIDS HealthCare Foundation as a whole for even fathoming trying to control something like the Adult Industry the way that they wanted too. I thought they were crazy fascist, that this couldn’t be happening in this day of age, in America nonetheless, I still do.

I wrote this after looking up state statues, laws, and Supreme Court rulings trying to find some answers that I knew were there. I was more concerned for the complete disregard of our First Amendment rights then the debate on if we were independent contractors or employees, as you’ll read. But after some more research, talking with my buddy Michael Fattorosi, and a little common sense I couldn’t really fight the fact that performers are not independent contractors. At the time it seemed like a logical explanation to me (and everyone else) because that’s the reason Cal/OSHA was involved. If we weren’t “employees” they could never regulate the way they wanted to, but we are employees and they can regulate, but not to the extreme measures that they want. Anyways, this what I had to say over a year ago…..

Written June 10, 2011 5:16am.

*Yesterday I attend the Cal/OSHA Advisory Committee Meeting on barrier control protocol in the Adult Industry. Now if any of you have been following this story in the news you should know what’s going on. But, for those that don’t here’s a short briefing; Cal/OSHA came up with a 17 page draft of proper barrier controls, definitions, and procedures for the Adult Industry. Mind you, barrier controls have been in place since the early 90s but due to recent events and formal complaints from the AHF they’re stepping up enforcements and trying to make new regulations.

Why does Cal/OSHA get to regulate what happens on a porn set like they can a hospital or construction site? Because apparently all adult performers are consider “employees” and all production companies “employers”. We’re consider “employees” because of the state’s definition of what an employee/employer is. Regardless, if performers are incorporated within themselves, pay taxes as a self employed person or business owner, or the fact that most performers work with multiple companies. You need to understand that if we were considered independent contractors, as many of us consider ourselves, they would have no control over what we do on a porn set. All they have is the states definition of what an employee/employer is.

There’s so much more that goes with that but that’s not what I want to discuss. Because honestly, even with the states definition of an “employee” I still believe they are in violation of our 1st Amendment right to free speech/expression.

Let’s start from the very beginning-

  • Our 1st Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law “respecting an establishment of religion”, impeding the free exercise of religion, infringing on the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances.
  • Pornography fits under freedom of speech and freedom of expression. It clearly states that it includes sexual expression.
  • The state of California defines hardcore pornography as; Hardcore pornography commonly includes explicit depictions of sex acts such as vaginal or anal penetration, cunnilingus, fellatio and ejaculation and/or extreme fetish acts.
  • The Supreme Court ruling in California VS Freeman in 1989 legalized pornography. (With the states definition of what pornography)
  • Our 1st Amendment also states that: “federal and lower government may not apply “prior restraint” to expression with certain exceptions such as national security and obscenity.”
  • It is not obscene to show genitals in sexual acts. We have the Miller VS California Supreme Court ruling (The Miller Test) to prove that the majority of what we do is not obscene.
  • Prior restraint or prior censorship is censorship in which certain material may not be published or communicated, rather than not prohibiting publication but making the publisher answerable for what is made known. Prior restraint prevents the censored material from being heard or distributed at all; other measures provide sanctions only after the offending material has been communicated, such as suits for slander or libel.

So if Cal/OSHA is forcing us to use any and all types of barrier protection, how is that not censoring us from being able to fully express ourselves sexually? Also, how is wearing barriers not forcing us to produce and distribute fraudulent products? Can it also be said that they are in violation of the Due Process Clause of our 14th Amendment? And of our Universal Human Right Laws? Considering that everyone in Adult Industry that was at the meeting got shut down anytime we brought up valid disputes or ideas against/for their proposal, I would say yes. They were unfair, unrealistic, and have absolutely no idea about how our industry works and they don’t care.

My thoughts; I don’t care if Im consider an employee or not. I know that my 1st Amendment right gives me the right to sexually express myself, in the legal state definition of pornography. By forcing me to use barriers they are violating my rights by censoring me and not allowing me fully express myself in the way that I want to. And by not allowing me and other industry members to have any say with what we can do with our own bodies, sexual expressions, our income, and our livelihood, is denying us Due Process.

I got everything from Wikipedia. So, if I can spend a few hours online doing some research and can find all of this, why is Cal/OSHA (and we’ll even throw in the AHF) still so hell bent on ‘protecting’ our industry? Well to me and many other industry members, they are being discriminatory against our industry for what we do. With the law clearly stating we’re in our legal rights how are they not?*

To me it’s not about having to wear or not wear condoms, it’s about having the right to choose what we think is best for OUR bodies, OUR expression, OUR livelihood. Yes, I believe that everything needs to be regulated to a certain extent, I think that there needs to more rules set into place (like requiring everyone to get the proper vaccinations if applicable), I think there needs to be more education about STIs (EVERYWHERE), but trying to force and control something upon anyone the way the AHF is trying to impose on the government to do to the Adult Industry is just plain Un-American to me.

Changes to the CAO’s Implementation Plan

I just received this revision to the CAO’s Implementation Plan which is linked below and reviewed.

Interesting that it appears the City has now realized the problem with their ordinance as how it does not address the issues of oral sex or facials (ejaculating on a performer’s face) in the actual text of the law. It appears that by adding the language below the City is attempting to also adopt the Cal-OSHA regulations in regards to workplace health and safety by making it necessary to fully comply with Cal-OSHA regulations as a part of the permit process.

The newly added language is below in blue;

1.         Revise the Film Permit Application

 

Section (5) of the Ordinance requires the City to add the following language to all adult film permits: “If this production is an adult film, 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.”

Here is the old language in red;

Create a new section on the Film L.A., Inc. Permit Application Request that seeks information
about various filming activities that involve dangerous special effects or hazardous conditions,
including the current categories relating to Gun Fire, Special Effects (breaking glass,
explosions, fire), and add a section entitled, “Activities Carrying Risk of Transmission of Blood
or Infectious Materials Pursuant to California Code of Regulations, Title 8, Section 5193(b),”
which include a “check box” to reflect the exact language in the Ordinance which specifies
whether or not production employees will be filmed engaging in non-simulated sexual
intercourse, defined as vaginal or anal penetration by a penis.

2.         Require Licensed Medical Inspections

 

Issue a Request for Proposals (RFP) seeking to contract with a licensed medical professional to conduct the periodic inspections of adult film productions involving “Activities Carrying Risk of Transmission of Blood or Infectious Materials.” If this recommendation is adopted, more information would need to be gathered to determine City enforcement parameters and the CAO should be directed to report back to the Mayor and Council within 90 days with a draft RFP for further action.

 

Review of the City’s Implementation Plan for Condoms in Porn

The City’s plan is quite lengthy, which is not surprising due to the fact that this ordinance is relatively “unworkable.” For the sake of brevity the more important aspects on how this ordinance will affect Los Angeles based producers and studios can be found below in bullet points. Please be aware that this ordinance only affects those that produce within the limits of the City of Los Angeles (illustrated below in the map). In November, the voters in the County of Los Angeles will decide on a ballot measure that may make condoms mandatory through-out the entire county.

Producers and studios operating within the red areas below will be affected by the new ordinance;

The following cities within Los Angeles County are NOT within the scope of the City’s ordinance; 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, Long Beach, Lynwood, Malibu, Manhattan Beach, Maywood, Monrovia, Montebello, Monterey Park, Norwalk, Palmdale, Palos Verdes Estates, Paramount, Pasadena, 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, Vernon, Walnut, West Covina, West Hollywood, Westlake Village and Whittier.

Here are the recommendations made by the Working Group to the City Council and the Mayor’s Office’

  1. FilmLA will add a classification to their permit application process so as to clearly identify adult film producers;
  2. The City will employ a licensed medical professional to perform spot checks on permitted adult film locations to insure they are in compliance;
  3. Wait until November and if the County ballot measure is adopted then place a measure on the City ballot in March 2013 in order to adopt the County law instead of this one;
  4. Develop a fee structure to pay for #2 and #3 (above).

Their implementation plan then goes on to discuss the other overlapping laws in regards to barrier protection/condoms including the Cal-OSHA standards, federal regulations and those proposed in the County ballot initiative and their enter play with the “Safer Sex in Adult Film Ordinance.”

Overall the Working Group indicates several factors that would make compliance with the law more likely;

  1. FilmLA would host a free one time seminar for adult film producers to teach them how to comply with the law;
  2. Refer calls to FilmLA about non-compliance to Cal-OSHA for inspection purposes;
  3. Force adult film producers to hire and pay for an on-set medical professional to monitor the use of condoms. That professional would then have to certify under penalty of perjury that all ordinances were complied with on-set;
  4. If the County measure passes adopt that instead and then contract with County to do periodic location inspections.

Interestingly the CAO’s office does point out in their report and recommendation that they have no authority to regulate safety issues where there is an employer-employee relationship and that right remains with the state government, not local. (This is where I believe this law is at it’s weakest and it is an overreach of the City and possible the County’s authority to regulate).

Finally, the report discusses the financial impact of the ordinance. It discusses how the City does not have the resources to actually pay for the enforcement of this ordinance. It goes on to state how this is ordinance is not business friendly to the industry and may unfairly target adult film producers for extra fees.

Overall, it postulates that establishing an Adult Film Public Health Permit Office will require approximately $241,000.00 a year. This cost should be passed on to the producers of adult films. Meaning the more permits that are issued the less each permit will cost. If 100 adult film producers secured a permit then each permit would cost $2,401 per year or approximately $200 a month (This is of course in addition to the $1600 a month for just a permit to film motion pictures paid to FilmLA).

As for the cost the City could also tie the inspections into the Los Angeles Fire Department which already does spot checks on film locations which could place the cost of the permits between $2,204 and $3,472, again depending on the number of permits issued.

Finally the CAO’s plan concludes with the fact that the cost may actually be much higher then the estimates they have provided.

 

Los Angeles City Council’s Implementation Plan for Condoms in Porn

Linked below is the City Council’s Implementation Plan for how they are going to implement the Safer Sex in Adult Films Ordinance, otherwise known as the “Condoms in Porn” law.

We have been waiting for several months for the city’s final report and it was just forwarded to my offices by Eva Bitar from the City Administrator’s Office.

It is rather lengthy and it will take some time to fully digest the entire breadth and scope of their recommendations. In the interim, please feel free to read it for yourself.

I will be posting my thoughts to the implementation plan later tonight so check back tomorrow for the Cliff Notes version.

Safer Sex in Adult Film Recommendations & Report

Please post any questions/comments which I will try to answer in my review of the CAO’s recommendations.

 

The Condoms Have Arrived (Sort Of)

As you may remember from my article last summer for XBIZ World, I declared that the condoms were coming. That declaration was in reference to the position that Cal/OSHA had taken at the June 7, 2011, meeting in Los Angeles where a strong contingency of representatives of the industry turned out to battle their attempts to (further) mandate barrier protection use in the production of adult entertainment. It should be noted that technically, barrier protections are and have been mandated by California Code of Regulations, Title 8, Section 5193 for quite some time. However, the enforcement of such regulation has been spotty at best.

Based on the rather slow enactment of additional barrier protection regulation by Cal/OSHA, Michael Weinstein and the AIDS Healthcare Foundation decided to take their safe sex battle to a different receptive governing body, the Los Angeles City Council and Mayor Antonio Villaraigosa.

What Does The Act Require

On Jan. 23, Villaraigosa signed into law, the City of Los Angeles Safer Sex in the Adult Film Industry Act, hereby now requiring any production of adult content, within the limits of the City of Los Angeles, to use condoms for anal and vaginal sex while filming content involving penetration and ensuring that all ejaculate remains outside of a performer’s body. The act also requires all producers to be compliant with CCR Title 8, Section 5193, noted above.

Where Does The Act Apply (or doesn’t)

If you are not aware of the city limits of Los Angeles it may be easier to understand what cities the Act does not apply to. Remember this is a City of Los Angeles law and not a County of Los Angeles law. The Board of Supervisors of the County of Los Angeles has not (yet) adopted this law and therefore there are still numerous unincorporated cities in Los Angeles County where the act does not apply. Also, the act is not law within the 88 other incorporated cities in the County of Los Angeles.

For example 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, Long Beach, Lynwood, Malibu, Manhattan Beach, Maywood, Monrovia, Montebello, Monterey Park, Norwalk, Palmdale, Palos Verdes Estates, Paramount, Pasadena, 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, Vernon, Walnut, West Covina, West Hollywood, Westlake Village and Whittier do not have a similar law mandating condoms as a condition to receive a film permit. However, two cities in Ventura County, Moorpark and Simi Valley, are contemplating passing similar municipal laws.

Also, the act does not apply to the 144 unincorporated areas of Los Angeles County. The act is not law in Ventura County or any other county in California, at the time this article was written.

The act is law only in the City of Los Angeles. However, it is the law and must be adhered to if a production is going to occur at a location that is within the City of Los Angeles. If a production is outside the limits of the City of Los Angeles, then the use of barrier protection is not a required condition to securing a permit.

Who Is Required to Secure a Permit for Production ?

If you are going to produce a commercial shoot in any of the following areas; the County of Los Angeles, the City of Los Angeles, Diamond Bar, City of Industry, Lancaster, Palmdale or Southgate you must apply for a receive a permit through a non-profit organization called FilmLA Inc. (FilmLA.com). Other cities may have their own permit process so it is imperative that you check with each city’s permit department and remain compliant with those laws. However, for purposes of this article we will focus on productions within the City of Los Angeles.

Without or without condom, it should be noted that shooting a commercial production within the City of Los Angeles without a permit is considered a misdemeanor.

Since the fall of 2009, Section 41.20 of the Los Angeles Municipal Code (LAMC) makes it a misdemeanor offense for production companies to film without a permit. Since the then, the LAPD’s Contract Services Section Film Unit has made arrests and filed charges against film producers for Section 41.20 violations. Under Section 41.20, an unpermitted producer’s equipment can also be confiscated until the time of the court hearing to insure that the producer appears at the court. Obviously, if the producer is renting equipment by the day this could end up being more costly that the fine itself for failing to secure a permit. Needless to say, failing to secure a permit can not only end in heavy costs and fines but also jail time since a misdemeanor offense is punishable by incarceration for up to one year in jail.

What Is a Commercial Shoot ?

Under the City of Los Angeles Planning and Zoning Code section 12.22(A)(13), which requires all producers to secure film permits, it is safe to assume that every adult production would be considered a commercial shoot and thus would require film permit, even it occurred in the producer’s own home. The one area that is still somewhat gray is whether a webcam production would require a permit. And taking the act one step further, would a webcam show involving penetration between a husband and wife for commercial purposes require a permit and, if it occurs within the City of Los Angeles, a condom to prevent the exchange of bodily fluids between two married and consenting adults? This is one area of the law that has yet to be defined.

Do Content Trades Now Require Condoms?

The short answer is yes. As you may remember from some of my earlier articles about the condom law I had indicated that any attempt by Cal/OSHA to impose condoms would not apply to content trades. Cal/OSHA is a regulatory body that only has power over employment practices. A true content trade between performers would not involve employment issues and therefore Cal/OSHA had no legal authority to enforce condoms be used in that regard. However, now that condoms are no longer tied to the issue of employment, but rather as a condition of receiving a film permit, even a content trade would be considered a commercial shoot. Condoms would therefore have to be used on any hardcore production within the City of Los Angeles. As I noted above, the Act is so far reaching even a married couple in the privacy of their own home performing on web cam together may need a permit and a condom to stay compliant of the law.

Enforcement of the Act

Over the past several weeks I have received numerous phone calls from agents, producers, directors and even performers as to how the act will be enforced. At the time of writing this article that question remains unresolved and unanswered. Since the act has been signed into law by Mayor Villaraigosa there has been discussion about forming a committee to decide how to enforce the act. Within the provisions of the act there is a language that allows the City of Los Angeles, through its contracted agency, FilmLA Inc., to charge additional fees to pay for “inspectors to ensure compliance with conditions on film permits.”

Without going into a full analysis of First Amendment law, the act may be subject to a future legal challenge based on the its lack of content neutrality. Meaning that the city should not be able to impose a tax, which is what these additional fees may in fact be, based solely on the adult nature of the productions. This is still an area of law that is in flux though.

For argument’s sake, let’s assume that the law is not challenged. The obvious question is how will the city ensure compliance? While it is not known at this point how compliance will occur, my assumption will be that it will follow the same path that the Los Angeles Police Department used to ensure permit compliance in the past.

In past years I had been called to set several times by several different clients where a “bust” by LAPD was occurring. Previously, the San Fernando Valley vice unit of LAPD was responsible for policing and enforcing the permit law in regards to adult productions. Then, towards the end of 2007 Mayor Villaraigosa started a special unit that would target unpermitted productions, mainstream and adult. This unit comprised of uniformed and plain clothes officers.

Often the LAPD permit enforcement unit would work closely with FilmLA Inc., and perform spot checks on known shoot locations. FilmLA Inc., would provide shoot location information to the unit and a patrol car would be sent to drive by the location to check to see if there was any abnormal activity at the location, meaning, if someone was shooting at that location on that day without a permit. If they suspected that someone was shooting they would knock and ask questions and in some instances, when no one answered and they would jump a fence and/or gate to investigate.

While it is impossible to say with certainty whether this will be the way to enforce the act, I would suspect that it may be. Others have talked about requiring a nurse to be on all permitted sets as well to ensure compliance. There have been rumors that the City of Los Angeles will subpoena information from the agents and producers to learn the usual (unpermitted) adult production shoot locations. I doubt that this will happen but it is certainly a possibility. This type information has been subpoenaed in the past by Cal/OSHA from talent agents in the industry.

Penalties for Failure to Use a Condom

The actual law does not contain any information as to the possible penalties for shooting adult content within the City of Los Angeles with a permit and without barrier protection. I am sure that the committee previously noted will be setting the penalties associated with the act. As for shooting without a permit, those penalties have been previously noted. At this time, I do not know if there will be an enhanced violation for shooting adult content without a permit and without a condom.

It is the opinion of this author that it is just simply too early to begin to panic over this law. It does not appear that the city has yet formed the committee to devise the manner of enforcement or the penalties associated with it. There has been discussions of a March 5 date that the law will be implemented.

Hopefully, by then there will be more information released by the City of Los Angeles. I have talked with numerous people in the industry about their desire to move to Las Vegas, Miami or Phoenix to produce. It’s not necessary to leave Los Angeles to produce. Just based on the geographical limitations of the law, it is rather easy to produce around it.

As more information becomes available I will update this article. This author hopes that by the time this article is in print, the City of Los Angeles will have promulgated rules on to how to comply with this new law and the penalties involved for violating it. In my next article I will discuss those issues as well as tips on how to avoid being found in violation of the act.