Ballot Measure B – Moving Forward

On November 9, 2012, in Legal, Op-Ed, by adultbizlaw

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.

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Today is B Day !!

On November 6, 2012, in Op-Ed, by adultbizlaw

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.”

 

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Mia Gold – Condoms Break – Says No on B !

On November 2, 2012, in Op-Ed, by adultbizlaw

Another video from PerformersForChoice.com – Mia Gold says No on B ! She discusses how condoms break…

Several More Reasons to Vote Against B

On November 1, 2012, in Op-Ed, by adultbizlaw

One issue that is yet to be discussed is the permanency of the law if Ballot Measure B is passed. While some may realize that it may be challenged in a court of law what many do not realize about B, or any other ballot measure, is that once passed it cannot simply be overturned by an act of an legislative body. Which means if B passes the only way to get rid of it is if there is another ballot measure to repeal it. And that almost never happens. Once law, it will be law for a very long time – quite possibly forever.

For example, Proposition 13, a California ballot measure that was passed in 1978 to reduce property taxes paid by homeowners in California ( Please see: http://en.wikipedia.org/wiki/California_Proposition_13_%281978%29 ). It intent of Prop 13 was to limited the amount of tax that can be assessed on real property. Through-out the years Prop 13 is often cited as one of the main reasons behind California’s economic woes. To many it has crippled the California government is being able to balance the state budget. It was legally challenged but the United States Supreme Court upheld its constitutionality in 1992. Many governors since 1978 have wanted to abolish the tax restrictions in place since 1978 but have not been able to challenge the law with the voters.

This will be the exact situation the industry will face if Ballot Measure B passes. If the law withstands a legal challenge in the courts it will require another public vote to repeal it. It will not be sufficient to lobby against this law with local or even state level politicians in the hope they would act to repeal it. Not only does the industry need to realize this but also the tax payers of Los Angeles County.

Also, while the initial law seems to indicate that the permit fees paid by the those requiring to secure the permit will pay for the enforcement of the law, it should be noted that this funding requirement can be changed sometime in the future by the Los Angeles County Board of Supervisors.

According to Ballot Measure B, the ordinance can be amended by the Board of Supervisors ONLY to further the goals of the measure. Meaning they can vote to change anything in regards to the law if those changes enhance its effectiveness. Which basically means that they can, sometime in the future, amend the law to shift the burden of enforcement to the tax payers. If the Department of Health realizes that no one is securing the necessary permits and therefore there is not enough money for enforcement, the Los Angeles Board of Supervisors could budget county tax dollars to spend on inspections and enforcement of Measure B.

Another legal issue I see with Ballot Measure B is the ability for a Los Angeles Department of Health inspector to enter the private residence of Los Angeles’ citizens at will and without a search warrant in order to perform an inspection. Ballot Measure B makes no distinction between a business location and a private residence in regards to inspections. As I had discussed in prior articles, Ballot Measure B also applies to married monogamous couples that live web cam with each other. It’s not limited to just “traditional porn production companies.” It would also apply to any adult performer that may also produce content for his/her website. Usually performers do not have a studio address and many work out of their home. With Ballot Measure B, a health inspector will have the right to knock on the door of performers with websites and search their homes and records.

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What are the Benefits of Porn Without Condoms ?

On October 31, 2012, in Op-Ed, by adultbizlaw

A funny video from the Not Safe for Your Mom Crew ( http://www.facebook.com/nsfym ) on how keeping condoms out of porn can improve your life…

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New starlet Teal Conrad was in favor of Ballot Measure B – until she learned the truth about what it would require. Now she has changed her mind. See other performers that are against Ballot Measure B at PerformersForChoice.com

 

Pornstar Taylor Wane says “No on B!”

On October 31, 2012, in Op-Ed, by adultbizlaw

Taylor Wane and a host of other pornstars have come out publicly against Ballot Measure B – check out www.PerformersForChoice.com for dozens of video statements from your favorite stars.

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Reason.com’s video on Ballot Measure B, starring Vivid’s Steve Hirsch, AHF’s Michael Weinstein and pornstar Alex Chance. Weinstein slips up and clearly states AHF is trying to promote condom use at 3:12.

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The Problem with AHF’s Porn STI Rates

On October 30, 2012, in Op-Ed, by adultbizlaw

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.

 

 

 

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Video produced by DWB from AsianDivaGirls.com at the Folsom Street Fair (NSFW). Please show him some support for making this video and visit his site for some great videos and photos the hottest asian girls!

Sex Workers Outreach Project: No on Prop 35 (Calif), No on Measure B (LA) from Dick Webber on Vimeo.
 

 

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