US District Court Judge Pregerson Rules on Measure B

Judge Pregerson rules some parts of Measure B are constitutional while others are unconstitutional.

This is the initial ruling we have all been waiting for from the Court. Judge Pregerson has decided that condoms in porn do not violate the First Amendment, however, he did go on to find that much of Measure B does violate the Constitution.

Note: This ruling by the court was on Vivid et al. request for an Order enjoining Measure B from being enforced as well as AIDS Healthcare Foundation’s motion that Vivid’s case be dismissed in its entirety. The case will continue since neither side won a total victory. Vivid was able to convince the Judge to block certain aspects of Measure B while not being able to convince the Judge to enjoin all of Measure B. And AHF could not convince the Judge to dismiss all of Vivid’s claims.

Interestingly, the Judge has allowed the requirement that a producer secure a permit prior to shooting an adult scene or movie. However, he has basically limited the County’s ability to suspend or revoke the permit. The Judge has determined that just allowing the County to have the ability to decide what is or is not a violation would be considered “prior restraint” and is unconstitutional. Judge Pregerson went on to note that the County would have “unbridled discretion” if they were allowed to revoke permits and suspend filming if there were any type of potential “harm” including even a cameraman having a cold.

Furthermore, the County of Los Angeles will not be able to conduct warrantless searches of producers. And once a warrant is obtained, if a violation is found, a fine or criminal penalties could not be imposed without a judicial hearing.

The Court also went on to find that Measure B does not define adult films sufficiently since “adult films” may be a movie that contains activities such as kissing which could possibly transmit disease since saliva contains infectious materials.

Also, the County cannot impose fees under Measure B for permits.

Here are the Judge Pregerson’s own summary of his decision;

“Here, adult film actors must still use condoms. A permit is still required. Although the permit may not be modified, suspended, or revoked, fines and criminal charges may still be brought against offenders, as described in footnote 23. While administrative searches cannot occur, nothing prevents law enforcement from obtaining a warrant to enforce Measure B. Regarding fees, since there is no evidence that Measure B’s fees are revenue neutral, there is no reason to believe the Department’s Measure B duties cannot be performed without fees–or performed at least until the fees’ defect is cured, either by enacting a new, constitutional ordinance or providing this Court with evidence of revenue neutrality.”

In short, we still have to contend with Measure B, but the fees are gone, the searches are gone, the permit stays but it cannot be suspended or revoked without a proper court proceeding and thus producers cannot be forced to “shut down” and prevented from shooting other movies.

So AHF wins some and Vivid wins some… All in all – Measure B will now be much harder to enforce than it already is. But condoms remain a required aspect of shooting porn in Los Angeles County and California. The real question is does the County want to enforce a condom law that will now require a warrant for a search in order just to find violations.

In my opinion, I doubt the County will have the man power, the resources or the funding to start searching sets especially since they will not be able to charge fees for their permits.

Click here for a copy of Judge Pregerson’s Ruling;

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Ballot Measure B – Moving Forward

by Attorneys Greg Piccionelli and Michael W. Fattorosi

Since the Election Day many industry members have been speculating as to what happens now that Ballot Measure B has passed and will eventually become law in some or possibly all of the 85 independent towns and cities in Los Angeles County. We have noticed a somewhat panicked approach to how the industry can survive and continue to thrive in Southern California and especially Los Angeles, the home of adult motion picture entertainment since the 1950s. As an industry, we have a 50 year relationship with California and Los Angeles that cannot change quickly, and, in our opinion, when viewed from a legal perspective, should not change quickly.  Judicial opinions in California provide far more legal protection than any other state that currently also has a developing production industry.

Some have speculated that the industry should pack up our tents and relocate to Las Vegas or perhaps some other part of Nevada. Many believe that since the industry has a relationship with Las Vegas either by virtue of the AVN Awards or because there are other studios now producing there it will be a friendly home.

While Las Vegas may eventually become the home of the industry, now is not the time. As attorneys, we cannot ethically advise our industry clients to move to Las Vegas to produce sexually explicit content in a state where there are, at least at the present time, no legal protection to shield producers and performers from potential prosecution under its pandering, prostitution, and other laws. California and New Hampshire are the only two states in which there are controlling judicial precedents providing such protection.  Therefore, this should be made very clear: commercial production of  sexually explicit content outside one of the those two states places any production company and performer doing so in jeopardy of serious criminal prosecution. Therefore, there is not, in our opinion, currently sufficient  reason for a company to take such a risk while over 99% of the state of California currently remains legal for production.

If the Nevada State Legislature were to amend their current laws, or if the courts of Nevada were bound to a judicial decision holding reflect that hardcore porn production would be a protected under the First Amendment or the free speech provisions of its state constitution, the industry would have the kind of legal protection required to legally shoot commercial adult content. Unfortunately, that is yet to happen. When and if it does, perhaps then would be the time to seriously consider a move to friendlier pastures. However, as those legal protections simply do not currently exist, now is not the time.

Ballot Measure B is not a state-wide initiative. It only applies to Los Angeles County. Therefore, at this point, a costly and legally risky move out of California entirely is not required to avoid its applicability. However, a move out of Los Angeles County, like the one that has been discussed by Steven Hirsch of Vivid Entertainment in Variety Magazine, could certainly be a possibility.  Ventura County, as well Riverside County and San Bernardino County are all three relatively close counties in which Ballot Measure B will have no effect (Note: Simi Valley in Ventura County did in fact pass a measure similar to B therefore it is recommended that no one produce in Simi Valley as well).

Three cities even closer to the San Fernando Valley then the counties discussed are Pasadena, Vernon and Long Beach.  Under current law in those municipalities, Ballot Measure B cannot be adopted by any of those three cities. Pasadena, Vernon and Long Beach all have their own health departments and do not contract with the Los Angeles County Department of Health. Therefore, an inspector from the Los Angeles County Department of Health does not have jurisdiction to enter those cities to check production company headquarters for permits and condoms. Therefore, under current law in those cities, it simply cannot lawfully happen.

Ballot Measure B is a two-part law. The first, more stringent part of the law are the sections requiring all producers in Los Angeles County to secure health permits and use barrier protection. This is really the crux of the law. And that is what makes B so expensive for production companies. We do not know how much these health permits will cost but estimates of $2,000 to $30,000 a year have be discussed.

The second part of the law are the sections discussing film permits. As you are probably aware, any commercial filming in Los Angeles requires a film permit secured from FilmLA. Ballot Measure B does not change that. As most of you are aware if you film in Los Angeles without a permit and are apprehended doing so by law enforcement you can be charged with a misdemeanor crime.  You may also have your equipment confiscated and held until your first court appearance.

Ballot Measure B does not change any part of the law in regards to shooting without a permit. In actuality, Ballot Measure B proscribes no differences in criminal charges for shooting without a permit and shooting without a permit and without barrier protection. There is no increase in penalty for getting caught shooting without barrier protection – unless the production company is located within Los Angeles County and then there would be an increase in penalties for having a health permit but not using barrier protection.

It should be noted that according to an legal opinion provided to the Los Angeles County Board of Supervisors by its counsel, Ballot Measure B will not apply to out of state production companies that are also headquartered outside of Los Angeles County. If your production company was incorporated and is located in a city outside Los Angeles County, for example, Las Vegas, Phoenix, North Carolina or even Canada, the health permit aspects to Ballot Measure B cannot be enforced on your production company. Again, the Los Angeles County Department of Health inspector has no authority to visit you company headquarters in one of those states to perform an inspection.

In our opinion, Ballot Measure B can easily be worked around while staying fully compliant with the law (when it does go into effect). It does not require the exodus of the industry from Southern California or even Los Angeles County. We should remain united towards the end goal of defeating Measure B via a legal challenge that will be brought by the Free Speech Coalition. Until then, the sky isn’t falling and we should all remain calm.

The opinions stated in this story should not be viewed as legal advice.  Therefore, if you have legal counsel, you should call him or her soon to discuss how Measure B will impact your business. This applies equally to established production companies, talent as well as webcam companies. Measure B does not distinguish between different types of production.

If you do not have counsel, either of us would be more than happy to set up a consultation to develop a specific plan for your business. Michael can be reached at his office at (818) 881-8500 or via email at michael(at)fattlegal.com. Greg can be reached at (818) 201-3955 or via email at greg(at)piccionellisarno.com.

Today is B Day !!

This is the day we have been waiting for since the end of July when the AIDs Healthcare Foundation was able to place their “Condoms in Porn” legislation on the ballot. Today is the day the voters of Los Angeles County decide the faith of personal freedom in our bedrooms and on set. Today is the day that will decide if a small community of former outlaws and outcasts can defeat an over powering multi-million dollar special interest group that is intent on forcing their agenda on not only our industry but the rest of the world. If you do not live in Los Angeles do not think that a ballot measure or law like “condoms in porn” cannot come to your city or state. It can and it will. AIDs Healthcare Foundation has vowed to fight and to go anywhere to force condoms not only on porn but on monogamous couples of any sexual orientation to force them to use condoms in their own bedrooms while they cam.

Ask yourself this – do you want special interest telling you how to live your life ? How to have sex with your partner ? Do you want AHF to set the standard of what is acceptable behavior in the bedroom between two consenting adults ? AHF wants you to think this is a vote about worker safety. When was the last time you were asked to vote on a hard hat ?

Vote No on B and keep Weinstein and government out of our bedrooms !

Here is an excerpt from the speech I gave at the LA Porn Tours Rally on Bus Tour on Saturday, November 3rd;

“On November 6, the voters of Los Angeles County are going to be asked to decide a ballot measure about the sexual rights of a small inclusive community within its borders, a community that is often misunderstood and rarely given a  voice, a community that is publicly shunned but privately enjoyed, a community that has fought for its right to exist through years of struggles, court battles and legislation. Those that make up this community only want one thing: The right to choose for themselves how to live and work.

Michael Weinstein wants the voters to believe that the adult industry in Los Angeles is a cesspool of HIV and sexually transmitted diseases. He is playing the fear mongering card, that somehow, if not stopped, the porn industry will infect the rest of Los Angeles. This is a familiar argument to the gay community; this is the argument that was used against them when the world first learned of HIV.

Michael Weinstein… wants to use the industry and their products to send a message. He wants to use porn for nothing more than product placement. That message and that product are condoms. Yet he calls it a workers safety issue. Instead of government representatives, workplace safety experts, physicians and industry representatives working together to develop a comprehensive plan to protect performers without infringing on First Amendment rights, Mr. Weinstein is asking the voters of Los Angeles County to decide workers safety laws. This is unprecedented in California. The public does not and should not vote on the height of scaffolding or the guards on chainsaws. As an industry, we only want the right to decide this issue for ourselves and not have it forced upon us. Performers should have the right to choose. They want their sexual rights…. Measure B is an attack on the industry, it is an attack on performers, it is an attack on the Constitution, it is an attack on the sexual rights of all Americans that want—no, demand—that the government and those like Weinstein stay out of their bedroom.”

 

The Problem with AHF’s Porn STI Rates

For the past 16 months the AIDS Healthcare Foundation has been citing a study that seems to indicate that the STI rates for porn performers are much higher than the general population. AHF has trotted out these numbers during the fight on Ballot Measure B as “evidence” as to why condoms are needed in adult entertainment as a worker safety device. However, they are not being honest in the veracity of the statistical analysis they are providing.

The study titled “High Chlamydia and Gonorrhea Incidence, Reinfection and HIV Infection Among Workers in the Adult Film Industry: Time to Regulate and Protect Workers” has an obvious reason for being written. The title says it all. The authors of the study are Binh Goldstein, Christina Rodriguez-Hart, Getahun Aynalem and Peter R. Kerndt of the Los Angeles County Department of Public Health. Dr. Peter Kerndt would be the person responsible for regulating the adult industry if Ballot Measure B passes.

According to AHF here is what the study states;

“Chlamydia incidence in adult film performers was 8.5 times higher than the rate in Los Angeles County residents aged 18-29 and 34 times higher than in the general population. Gonorrhea incidence was 18 times higher in porn performers than Los Angeles County residents aged 18-29 and 64 times higher than in the general population.”

As a lawyer I can state this report as no value as evidence in a court of law. What AHF is asking the voters of Los Angeles County to do is to ASSUME that, even if the numbers are correct, that all of these initial infections and re-infections occurred in the workplace.

There is just simply no way to “prove” that STI infections such as gonorrhea or chlamydia occurred on set. The Los Angeles County Health Department would like you, the voter/reader to jump to the conclusion that it’s – “Time to Regulate and Protect Workers.” However, you simply cannot do that.

Matter of fact, the California Legislature has refused to do exactly what the Los Angeles Department of Health is asking you the voter to do. In 2011 California Assembly Bill 375 was introduced in order to provide hospital workers with a presumption of injury if they happen to be infected by an exposure to a bloodborne pathogen – the same type of diseases that AHF states occurs on set. Even though chlamydia and gonorrhea are sexually transmitted diseases they are also listed as bloodborne pathogens for work place safety issues in California.

What that means is that in a workers compensation claim filed by a hospital worker who suffers an infection because of an exposure to a bloodborne disease it would be presumed that the infection happened at work. Basically, the law would require a judge to make a ruling that just because someone worked in a hospital as a healthcare provider the judge would be forced to ASSUME that the infection was related to their work. This is exactly what the AHF is asking you the voter to ASSUME about porn performers and the STI rates in the study they cite.

At this point it would be easy to quote a famous saying about what happens when one ASS U ME  anything. Instead, it is much more telling to inform you as to what happened to AB 375 – it died in the Senate. It did not pass ( Please see: http://www.leginfo.ca.gov/cgi-bin/postquery?bill_number=ab_375&sess=CUR ). The esteemed members of the California Senate decided to vote against this bill and refused to force a judge in California to make a legal presumption of infection just because of an exposure to a bloodborne pathogen.

However, AHF wants to change that vote at least in regards to porn performers. They want the voters of Los Angeles County to presume that because of an exposure on set that all of the STIs they have cited in their report are work related injuries. Based on the rarity of infection it would be easier to prove that an HIV infection occurred on set though. Trying to prove that a performer contracted chlamydia and/or gonorrhea on set is akin to stating that an office worker caught the flu at work and therefore we should all wear surgical masks on our face at work since their is a chance that you may infect your cubicle mate.

 

 

 

89.9 KCRW Condoms in Porn Debate

Ballot Measure B debate on 89.9 KCRW in Los Angeles between AHF’s Michael Weinstein & Derrick Burts versus James Lee of the “No on Government Waste Committee” and veteran performer Rebecca Bardoux. Hosted by Warren Olney of “Which Way, L.A.”

http://www.kcrw.com/news/programs/ww/ww121025measure_b_enforcing_/embed-audio

Ballot Measure B Contest – Win a Solid Silver Constitutional Medal

What does Ballot Measure B mean to you ?

I would like to hear your opinion ! There are only a few days left until the November 6th election and the debate is heating up. With the Los Angeles Times and Daily News coming out against Ballot Measure B there has been an increase in the overall coverage of the “condoms in porn” law. However, not all voices are being heard.

This contest is open to everyone. No purchase is necessary. All you have to do is submit an article on the issue. Winner will be determined based on the number of votes received. Whether you’re a fan, a member of the industry or a member of the public your voice counts. Submit an article (less than 500 words) of what Ballot Measure B means to you – for or against – and you can win a United States government issued 1987 commemorative coin of the US Constitution’s 200 year anniversary. So many people see Ballot Measure B as a constitutional issue I decided to use the US Constitutional $1 Silver Commemorative Coin as the prize.

The best two articles as voted upon by visitors to AdultBizLaw.com will each win one – 1 ounce solid silver coin for their efforts (retail value $39.99). All submissions must be emailed to ABL by 11:59pm PST on October 30th. Winners will be based on the number of votes received by a voting poll posted on ABL. Placement on poll will be random and marked by title of the entry. All entries will be posted on ABL on October 31st and all voting will end at 11:59pm PST on Election Day, November 6, 2012. Winners will be announced on November 7th.

Please submit all entries to michael(at)fattlegal.com. By submitting your entry you are providing a non-exclusive worldwide non terminable perpetual license to post your entry on AdultBizLaw.com. Only one entry per person. Please include name and shipping address so that in case your entry wins the prize can be awarded. Failure to provide a mailing address voids the entry. Prizes will be sent via certified insured mail with return receipt requested. I reserved the right to reject any entry.

LA Daily News Comes Out Against Ballot Measure B !!

The Daily News has also come out against Ballot Measure B. There are now three major news publications in Los Angeles County that are against the “Condoms in Porn” law. From the Daily News;

“For many Measure B voters, all of this may be too much detail and disagreement. Some will be inclined to vote for B because they disapprove of pornography on moral grounds. AHF President Michael Weinstein seems all too happy to encourage this, calling people in the porn industry “bottom feeders.”

So it’s instructive that the Valley Industry and Commerce Association opposes Measure B. VICA might have been expected to veer from its usual anti-regulation philosophy to protect the Valley’s good name, but its board of directors voted unanimously to stand up for porn producers, saying new restrictions could endanger 10,000 legal local film jobs.”

Read the full Editorial Endorsement by clicking here – http://www.dailynews.com/opinions/ci_21795793/endorsement-no-b-measure-force-condoms-porn-films

 

LA Times Comes Out Against Ballot Measure B !!!

In addition to the LA Daily Breeze, the LA Times has also come out against Ballot Measure B. From the LA Times;

“It is on the ballot as Measure B, and in preparing to make a recommendation, The Times’ editorial page studied the city’s experiment and interviewed public health and legal experts and performers, producers and others in adult entertainment. Two conclusions became inescapable: Performers should protect themselves and others by wearing condoms, and should have the full support of producers and others in their business; and laws are unlikely to force them to do it. Given the nature of adult films, viewers will continue to demand, and producers will continue to present, films depicting explicit unprotected sex…

Measure B is well intentioned, but it is likely to stymie county government and bring little benefit to performers. The Times recommends a no vote…

Performers should use condoms. Producers should encourage them to do so”

To read the rest of the Editorial Endorsement click here -> http://www.latimes.com/news/opinion/editorials/la-ed-end-measure-b-20121018,0,1623510.story