Condom measure heads to the ballot

In spite of wide-ranging concerns, a measure to require condoms on porn shoots will go before voters.

An initiative to mandate condom use in adult film production moved this week to the November ballot, despite predictions that it could expose the county to lawsuits and leave taxpayers picking up the tab for some of the program’s costs.

The measure also raises potential free speech questions; compelling filmmakers to put condoms in their movies could be construed as an infringement of the First Amendment.

Acknowledging concerns about the measure, the Board of Supervisors voted to 3-1-1 Tuesday to place it on the ballot, after supporters gathered enough signatures to easily qualify it earlier this month.  Supervisor Gloria Molina voted no and Supervisor Mark Ridley-Thomas abstained.

“We’re all in favor of porno stars using condoms,” Molina said, “but the issue is liability for the county.” Molina noted that existing law requires the state, not the counties, to enforce workplace safety, and said that the county already pays out more than $100 million a year in liability claims.

Backed by Los Angeles AIDS activists, the ballot measure would require the county to issue and enforce public health and film permits for porn producers, whose performers would have to use condoms on their sets. Violators could be fined and/or charged with misdemeanors.

The initiative addresses longstanding concerns about unsafe sex in the San Fernando Valley’s burgeoning porn industry, and qualified for the ballot with more than 370,000 signatures.

It has been dogged, however, by concerns about jurisdiction and enforcement.  Workplace safety in California is currently regulated by federal and state law and enforced by Cal/OSHA. And most adult films are shot quickly and without permits, often in private homes and garages, which makes it hard to police them.

Those concerns were echoed in reports from the Department of Public Health and County Counsel. The Public Health analysis noted that, unlike, say, catering truck owners, adult film producers rarely disclose their locations in advance, and their competitors rarely know enough about their procedures to notify the county of suspected violations. Thus, even with laws in place, it would be difficult to protect many if not most adult film performers.

Meanwhile, County Counsel John Krattli noted that if the initiative passes, the county would be vulnerable to lawsuits, not only from the measure’s backer, AIDS Healthcare Foundation, which could sue if enforcement fails, but also from the adult industry, whose lawyers confirmed the threat on Tuesday.

“This is an unconstitutional and unwise attempt to fix a nonexistent problem,” said Allan Gelbard, a First Amendment lawyer.  “What’s it going to cost the county if you enact it and you are sued and lose? . . . I believe the county would be on the hook.”

Although the measure would require the adult film industry to foot the bill for the enforcement, the Public Health analysis found “significant” startup costs attached to the measure that are unlikely to be covered by the permitting fees built into the initiative because so few adult film producers bother to apply for permits.

Among other things, the report noted, the county would have to set up training programs for producers, create a permitting and review process, maintain an industry database, conduct regular inspections and spot checks, staff a complaint line, assess fines and administer appeals.

The establishment of an Adult Film Public Health Permit Office would cost at least $291,466 a year, not including the costs of confiscation, law enforcement and evidence warehousing, the report said.

“If 10 public health permits were issued, the two-year costs translate into a fee of $58,294 per permit,” the report noted. Even if 50 adult film producers were to apply for permits, the per-permit fee would still be more than $11,000.

Advocates for the measure insisted, however, that it is necessary for porn performers to be ensured of a safe workplace.

Posted 7/24/12