This article is from the LAWeekly and as I read it makes the Vivid lawsuit a moot point as state law supersedes local laws. No doubt this ruling will shore up AB 332 even though it would appear to be superflous in some areas.
Condoms are mandatory for porn production in California, an administrative law judge has ruled.
The AIDS Healthcare Foundation, which has been fighting for laws that explicitly require prophylactic use in adult film, last night called the decision by a California Division of Occupational Safety and Health (Cal/OSHA) judge a “landmark decision” that affirms “barrier protection” applies specifically to the porn business.
See also: News of Porn Industry’s Move to Vegas is Flat-Out Wrong.
AHF spokesman Ged Kenslea told us that one of the most important aspects of the ruling …
… is its affirmation that performers are indeed employees due protection under under workplace safety rules. The group has long argued that federal law prohibiting exposure to bloodborne pathogens such as sperm at the workplace applies to California’s adult performers.
The industry has said that porn stars are very part-time workers who paid per “scene” as independent contractors.
The ruling by Judge Mary Droyovage wrote that, without condoms, there is “substantial probability that employees would suffer serious exposure resulting in serious physical harm or death if violation occurred.”
Kenslea said AHF’s stance is that the ruling applies only to condom use and that it does not mandate dental dams, surgical masks, eye protection, gloves and other gear feared by the industry.
The case involved a “bareback” sex tape by Bay Area studio Treasure Island Media. The video featured multiple partners on film, none apparently using condoms. Treasure Island appealed Cal/OSHA’s sanctions, leading to the ruling.
The AHF was “a catalyst for” the ruling, Kenslea said, because the case included a complaint from the organization. He said he was surprised the studio appealed.
In other cases, including one involving Larry Flynt’s video house, the studios just paid their fines, sometimes about $10,000 worth, and moved on, Kenslea told us. It’s a move that had become the norm when producers were faced with citations for failure to use condoms, he said.
Because Treasure Island appealed, however, it allowed the judge to issue what AHF believes is “a precedent-setting ruling” that covers the entire industry, he said.
The industry is waging a court challenge against an L.A. law that requires condoms for productions in most of the county. And it’s expecting another round of legislation that would codify condoms in porn in California.
This ruling could make those battles moot, however. AHF president Michael Weinstein said:
Treasure Island has been quite outspoken in its opposition to condom use in the company’s films. That is partly why we filed workplace health and safety complaints with Cal/OSHA: to press for the enforcement of existing state and local workplace regulatory guidelines which require the use of condoms in their – and all – adult films produced in California. After Treasure Island took its OSHA case to trial, claiming that the performers in their films were independent contractors and that the section of the regulations regarding Bloodborne Pathogens did not apply to the adult film industry, the court sustained Cal OSHA’s citations after testimony and evidence were presented. This ruling is a milestone for workplace safety in California …
The industry argues that its twice-a-month testing of its performers works. It says consumers don’t want to see condom porn.
In the face of this kind of regulation, the business has threatened to move out of its longtime base of L.A., but so far it has been mostly talk.
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Judge Rules Condoms Mandatory for Porn in Whole State of California http://t.co/dL5eTe0i3m
@MikeSouth1226: Judge Rules Condoms Mandatory 4Porn Whole State of Ca
Cool. Big Comps will still do fine & the rats will scatter to Vegas.
(NSFW due to ads) RT @MikeSouth1226 Judge Rules Condoms Mandatory for Porn in Whole State of California http://t.co/A0CrwC4Fpx
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This is EXACTLY what I have been saying on these adult industry boards for several years now. OSHA has cited a number of companies over the years, but nobody ever challenged the citations, like Hustler, they just paid the fine. But why did no one challenge them in the past, exactly as I have been saying, they didnt want to take the chance of loosing and setting a legal precedent. I have written before, the reason no company ever fought one of these citations is because they have good lawyers, and a good lawyer knows not to get into a battle he cant win. Looks like Treasure Island didnt have to good of an attorney, and the outcome is exactly as I have been predicting for several years. Thank you Treasure Island. And to the industry apoplogist who have been crying “independent contractor” for all these years, its game over.
Now lets see if they appeal this ruling to a higher court. In the meantime I am going to pat myself on the back one more time.
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Good analysis, Jilted. I have argued many of the same points you just stated here and on Luke Is Back, especially with regard to independent contractor status. I also argued here, and on Luke Is Back, that this is not a First Amendment issue. While Mike’s readers are pretty well reasoned, the response on Luke Is Back, in general, was that they would try to explain this to me, but I was probably too stupid to educate, so why bother. So, what’s been the outcome:
A Federal Judge dismissed the First Amendment argument out of hand in the Vivid suit. And now OSHA has ruled against porn.
I think they have no choice but to appeal it. Losing on appeal doesn’t hurt them – right now, its mandatory – and winning could help them. I don’t think it matters, but Treasure Island is a gay company. Maybe hetero porn will argue that there should be different rules for male/female? Again, I think the exchange of bodily fluids is relevant, not whether the recipients are same sex. But its worth a shot.
If Vivid does prevail, Vivid could argue that the First Amendment trumps OSHA. I think they’re wrong – Hollywood feature films have to comply with OSHA rules – but it wouldn’t surprise me if you see that argument.
Porn in LA County now has two strikes against it – a local regulation as well as an OSHA ruling that applies statewide. The only real question is whether any agency will enforce them.
I have this feeling that the AHF is already on the ground in Vegas… But, Vegas should be much easier than CA. Porn isn’t illegal in Vegas, but it’s not LEGAL either. Challenge the legal status of producing porn without protection and it’s a rather easy victory. Shit, if they challenged the legality of porn production in every state, condoms would be mandatory across the country.
No OSHA organization in the country would support the production of porn without protection. And no, the testing system provides no protection. It’s not even designed to offer protection.
@BT-
It’s extremely hard to determine whether performers are considered employees or independent contractors according to Cal-OSHA, but if you look at the Cal-OSHA guidelines created specifically for the adult industry, there is a link to form that applies to “seasonal” or “temporary” employees. This actually clearly recognizes that even federally classified independent contractors are covered under OSHA regulations while performing work on the job site.
So, according to OSHA, whether you are classified as an independent contractor or an employee at the federal level you are always considered a “temporary” employee in regards to state or county issued OSHA laws meaning all OSHA mandated rulings apply.
Vegas is a UNION town. While ther may be few ragtag productions going on there now,the wholesale move to Vegas by the biggest companies, Vivid, Hystler, just aint gonna happen. And Nevada already has laws regarding sex workers, condoms and mandatory testing, reported directly to the state.
Cal-OSHA cannot adopt any rule that is less restrictive than the Federal OSHA standard. Cal-OSHA cannot mandate PRE-emplyment testing because the person is not yet an employee, and OSHA has no jurisditction until a person is an employee. The current proposal that allows for oral without protection if there is testing will never pass muster. Sounds good on paper, but it will never be approved.
Also, regarding enforcement:
All Cal-OSHA really has to do is sit back and let companies rat out each other out… and they will. Shit, if they really wanted to heavily enforce the condom mandate, then offer financial compensation to anyone willing to rat another company out.. if Cal-OSHA didn’t have the funds, I’m sure the AHF would contribute. There are numerous ways to enforce laws other than just popping up on a set somewhere to do an inspection.
And who was Treasure Island lawyer, defending them againstthese OSHA regulations. You guessed it, that would be KAREN TYNAN. Now do you think Karen Tynan is a performer advocate. What a fucking joke.
Oh shit, you’re absolutely right. For some reason, I completely forgot about the “Bunny Ranch” sex worker laws. I always forget that they have pretty stringent laws on the books… I guess Brazzers, etc. just shoots under the radar??
I never realized that certain performers would be willing to lie and trick their fellow performers into thinking they created an advocacy group with the intention of advocating on behalf of performers or being an advocacy group who represents the performers when they knew all along the group was created by the FSC or its lawyers and then hired certain performers to show the group was legit.
While I may not agree 100% with her suggestions, the fact that Charity Bangs was completely left out of this scam just proves they weren’t looking for performers who wanted to help other performers. They needed performers who would be willing to lie and trick the rest of the talent pool that they were advocates for them…
What a bunch of assholes. That’s beyond fucked up.
Lets see what happens when producers have to pay union scale wages to cameramen, lighting techs etc. Evento construction workers who build sets, or the electrician hired to wire a set. It really is funny, after all this time, to see all of these industry arguments finally being completely debunked. But Nina Hartley still insists that its safer to not use condoms. LOL
LIB is dead.
This is porn Lacey, They lie to their fellow performers every day, like when they present their two week old test after having screwed everything with two legs in the last 13 days.
Or when they say that the positive Hep C result doesnt really mean they have Hep c. And youre right about Charity too. I didnt see Lisa Ann on that list either. I wonder why?(not really) Or when Nina Hartley says its safer to not use a condom, now there’s a whopper of a lie.
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Or when they say spots all over their dick are a new powder and not VD.
It’s safer to not use condoms, but fisting, dp, tp, and everything else is perfectly acceptable. We all know those activities don’t cause potential damage. Oh wait, yes we do. They reminded us in PORN 101 that there’s a possibility of torn rectums and torn vaginal canals.
But, condoms are dangerous…
I’ll never understand… it defies common logic.
For what it’s worth, the porn industry in the US does have a few potential destinations, but none of the have the glamour or the sheer “cost of living” incentive to get people to fuck on camera.
The most likely at this point is Arizona, as close to California as possible. Mostly making it a “run for the border” type production deal. You are also very likely to continue to see productions in Vegas area, but not in the city itself. While the Bunnyranch stuff is “on the books”, it’s still not clear that it applies also to movie productions, I don’t think anyone has legally taken it there.
Miami and Florida in general are also potential landing spots, but with some counties being very anti-porn, it’s likely someone will put their foot in it. Bang Bros and Manfail (as Nasty Dollars) shoot there stuff down there.
You may also see the worst possible solution come into play, the moving of porn to South of the Border (Mexico, not that shit-hole on the interstate in South Carolina). There is a pretty solid potential.
Finally, the last outpost of porn could also be it’s most western point, Hawaii. That’s a place that you can fly without a passport (or with a criminal record) and still be able to work – and it’s somewhat attractive to the talent.
Porn Valley will continue, there will be a move to condoms but honestly, I don’t think it will be enough. Someone will turn up with an infected eye from a cumshot or an oral STD and the judge’s ruling will suddenly actually mean “no avoidable contact”, which would preclude most sex acts. Like it or not, intimate swapping of stuff is the underlying fact of sex movies, and without it, there is little point.
Lacey: Completely agree. However, whether you are a contract employee, a temp employee or a W2 employee, an employer has a responsibility to be in compliance with OSHA and provide a safe workplace. That’s the part that porn can’t get around. Under porn’s theory, it would be OK to shoot a porn actor in the foot with a real bullet because they wanted the scene to be authentic even if that would violate OSHA regulations, because, hey, they’re not an employee, they’re an independent contractor, and its not a violation of other laws because the First Amendment allows me to express my vision.
The other shoe that someone will challenge – perhaps Cameron Bay – is workers comp, holding the production company responsible for medical treatment as a result of an injury (or disease) that occurred on set. Porn has tried to get around that by saying that the actor was an independent contractor. But in most states – I don’t know about California, but I do know about Ohio and New Hampshire, for instance – an employer is responsible for injuries that occur on its property to independent contractors if they or their company does not have workers comp insurance. You hire a roofer who doesn’t have workers comp and he falls off your roof. He can get workers comp and it dings against your policy.
Again, porn has operated outside the laws and regulations that apply to every other business – including legal prostitution in Nevada – by hiding behind the First Amendment, claiming that it doesn’t have employees only independent contractors, and the fact that no regulatory agency gave a shit because its icky.
I really don’t understand James Deen’s paysite business model. I’m not even an inspector and could potentially bankrupt his company with penalties and fines. It can’t get much easier than that… he shoots almost every scene at his fucking house which, I think, is in the valley aka LA county. Not sure on that?? If so, condoms have been mandatory in LA county since Measure B passed…
He only has about 2 options to use as a defense:
OSHA would have to prove the videos were shot before the law went into effect which is rather easy to do…
or
Claim it’s some kind of personal sex and no money was exchanged. Proving this one would be easy as well…
I can’t think of any other strategies? There has to be something I’m missing because there’s no way he’s that fucking stupid not to realize how easy it would be to fine not only him for thousands upon thousands of dollars, but also fine any talent that works with him for thousands too…
It seems so unbelievably easy that there has to something I’m missing? Possibly shielding all assets or just be willing to pay the fines if caught? I doubt the talent would be able to easily pay fines in the thousands…. Unless, the law isn’t retroactive which I seriously doubt.
I don’t get it? Not just for his site, but the many others as well?
“However, whether you are a contract employee, a temp employee or a W2 employee, an employer has a responsibility to be in compliance with OSHA and provide a safe workplace.”
Exactly. But, the adult industry doesn’t understand that and has been operating on the fact that all talent are independent contractors which means OSHA rules don’t apply.
THIS is why Cal-OSHA created OSHA guideline specifically for the adult industry: to make it easier to enforce and to make it official that OSHA regulations apply to ANYONE hired to be on a job site.
It’s the same exact reason that you should ALWAYS require contractors working on your to provide you with their work comp. ins. Cert. If the contractor gets hurt falling off your roof and doesn’t carry his own work comp. Policy then the homeowner is responsible for ALL medical bills.
I’ve actually seen this happen once to a homeowner’s assoc. and because the contractor didn’t even have personal health insurance, they had to pay over $20,000 in medical bills. It’s fucked up…
@rawalex –
Companies can shoot porn anywhere.. it doesn’t mean it’s legal to do so…
If someone where to challenge the production of pornography at the government level the state government would be forced to pass laws making it either legal or illegal. If legal, there is no fucking way state OSHA depts. would allow non-condom porn.
CA is the absolute hardest state to fight.. since pornography is clearly legal to shoot there.. the other states are fairly easy because most don’t have laws on the books yet… it just takes 1 bill.
Mexico may be a pretty idea, but who the fuck wants to live in Mexico.
Hahaha…
^pretty good idea.
I can’t fucking type today…….
With northern Mexico getting shot up constantly by drug cartel members I doubt anyone is stupid enough to film there right now, even the scummiest porn directors and producers value their lives. Filming there is just about guaranteeing someone will get shot. Cancun may be far enough away from the border that it would be (relatively) safe to film in but all of Mexico is still a country without working justice and medical systems. If someone got chlamydia he/she would probably have to fly back to the US to get appropriate treatment.
@karmafan –
Have you ever seen the videos on efukt.com where they have a couple of videos with closeup genital shots during sex and you can clearly see sores all over the place…
It’s so fucking disgusting. If you ever want to see what some of the STD’s look like in action then visit the site. But, there is some seriously fucked up shit on there… Also, very funny shit too.
Some of trolling pornstar videos are funny and there’s one where a guy accidently shoots a load in another guys mouth during a 3some which was funny as hell, but those pornstar meltdown videos are hard to watch…
Mexico is such a corrupt place. I think trying to set up shop there would be like moving from Iowa to New York during the Mob heyday to set up some kind of illegal activity. Producers will end up spending lots of money to get protection from drug cartels who are going to want a piece. Mexico is just a crazy idea.
How about flying and shooting in Cuba? or Puerto Rico? Hot as fuck though.
Lacey, it’s never quite as simple as all of that. While California has caselaw that makes porn legal to shoot, the basis under which is was made legal can be applied all over the US. What has held it back for the most part has been that “obscenity” is not a well defined concept in the law, and what meets community standards in LA or San Fran is not the same as what would pass in Polk County Florida. That said, a recent past AG made it very clear that adult mainstream porn (boy meets girl, boy fucks girl stuff) is protected speech, As such, it would be very hard to block it. However, that doesn’t stop the conservative luddites from making it difficult or not impossible by delaying permits, refusing locations, or other obstructive moves.
Quite simply, in 2014, it’s not illegal to shoot porn pretty much anywhere, first amendment trumps all the huffing and puffing out there. However, condom laws and other moves by local and state governments are akin to zoning laws against adult theaters and book shops, they don’t make it illegal but they make it almost impossible to comply. In the end they cannot completely deny first amendment rights, but they can make it difficult to operate legally.
Mexico was just an example, my concept was any place that is “not the US” but close enough. Vancouver is nice! There are plenty of options, and porn production will go wherever it makes sense on a given day. But it’s pretty clear that Porn Valley will either have to wrap that rascal or move to another state.
@rawalex –
I actually do think Canada would be a pretty good option, if needed.
I wish I knew more about the first amendment, but I don’t. I’m not a lawyer. But, couldn’t everything on earth be considered a “freedom of speech/expression”?
Meaning why is prostitution illegal? Shouldn’t it be covered under the 1st amendment? Or, what about being naked in public? That seems like a pretty strong way to express yourself… and it doesn’t really hurt anyone… so, what exactly makes it illegal?
Couldn’t everything on earth be considered a “freedom of expression?” What makes obscene materials illegal? I need to go read up on the 1st amendment…. it’s a little scary how much I don’t know about it….
Lacey. The best way to think of the First Amendment is that it was freedom of speech/freedom of expression. There is a content, a message, an attempt at communication, no matter how abhorrent, insulting or repugnant the message. Prostitution falls under commerce, or the right to conduct business. Its transactional in nature. The courts have pretty much universally upheld the right to own pornographic materials in your own home, even in areas where its illegal to sell it. They have also pretty much universally upheld that sexually explicit material – everything from stripping to porn – is protected speech. After all, the message in the Big Wet Butts series – or Buttman, for that matter – is no different than Sir Mix-A-Lot: I like big butts and I cannot lie.
What’s illegal, as Rawalex points out, is obscenity and that’s been tough for the Supreme Court to define, so they punted and used community standards. That’s the reason that Rob Black was prosecuted in Pittsburgh or that Larry Flynnt was run out of Cincinnati and people have been prosecuted for selling sex toys in Alabama. The other rules they have upheld is child pornography, bestiality, and scatology.
It’s funny you mention public nudity – although I realize you were just musing. But, in Vermont and New Hampshire (and possibly Maine) it is legal to be buck naked in public as long as you are not lascivious. A few years ago, Brattleboro, Vermont, had a problem with a group of 8 or 10 senior citizens who met downtown on a regular basis to sunbathe in the altogether for a couple of hours on the public square. I’m not sure it was a First Amendment issue, but there was no regulation against it. Similarly, its legal to be naked in public in my home town under certain circumstances, and we get the occasional woman every summer who decides to slip off her top and sunbathe downtown. The message I take away from it is: It’s never the pretty ones who get naked in public.
It’s true that California and New Hampshire are the only two states where its expressly legal to film porn. That doesn’t mean its necessarily illegal everywhere else. It just means that it hasn’t been tested.
But, as Rawalex points out, even if its legal, it doesn’t mean that communities can’t regulate the heck out of it, which is what California potentially is doing with condom compliance and now the Cal-OSHA ruling. Other states could legally regulate where it could be produced under zoning laws; they could enact permitting fees that are onerous; they could pass their own condom laws and have regular health inspections like Nevada does with brothels. There is no First Amendment right to violate workplace safety standards.
Scatology – Are you serious? Is that an actual term for playing and/or eating shit?
Holy shit, that’s funny!!!! (Pun intended)
So, could someone be arrested for not using condoms on set or would they just always be fined? Obscenity charges are punishable by jail time because it’s illegal, but not wearing condoms isn’t “illegal” so they would just face a ton a fines?
Do I have that even partially correct?
So, prostitution is “illegal” which is punishable with jail time. What constitutes whether you get arrested or not? OSHA can’t arrest people. So, you just pay the fine and you’re clear.. right?
The problem at this point is that the adult industry is fighting the increase in fines??
I think I’m still half asleep.. and my brain isn’t fully functioning yet.. hahahaa..
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Yep, scatology is a real thing. http://www.merriam-webster.com/dictionary/scatology. It’s also the science of the study of feces. And, it is generally accepted as obscene.
With the exception of certain places in Nevada, prostitution is a crime, so, OSHA isn’t relevant, just like OSHA doesn’t have workplace rules for breaking and entering. The cops can bust you, the criminal courts deal with the aftermath – you pay a fine or you go to jail or both.
But …. prostitution is legal in certain parts of Nevada. Once its a legal business activity, as it is in Nevada, then regulation comes into play just like any other business. It’s commerce, baby. You have to comply with zoning regulations, business permitting regulations, fire codes, the Department of Health, insurance requirements, unemployment and workers comp, and workplace safety rules, which would include OSHA. So yeah, OSHA could fine a place of prostitution in Nevada. The girls may be independent contractors, but the bar tenders, maintenance people, etc., could all get laid off and file for unemployment insurance. It’s like any other business.
Someone smarter than me would have to weigh in on the condom regulation. My guess is that its a civil fine and not a criminal penalty. But, if you have a business that is repeatedly fined for ignoring regulations and someone is then injured as a result of ignoring those regulations, there could be criminal charges.
I don’t always agree with Rob Black and almost never agree with the way he presents things. However, his take on the OSHA ruling makes a lot of sense. And, this is a guy who, after all, went to prison for thumbing his nose at regulations. http://www.adultfyi.com/read.php?ID=60282
Hell , Head for Fresno, those cops up there don’t give a crap or even Kern County. Shelly Lubben might have the Production crew and Talent over for dinner.
I for one am not interested in having dinner with Shelley Lub-and-Hate. That chick can go blow Marc Wallice. However, Fresno might be an interesting place to film and gather talent. My understanding is that most of Fresno’s population is poor (the ultimate impetus to lots of porn careers) and that city is close enough to Mexico (within 300 miles) that there are probably some hot Mexican chicks roaming around there for fresh off the bus talent (we always need more hot Mexican chicks in porn, especially kinky Mexican women). Mark Speigler can open up a branch office in Fresno and get new porn chicks comfortable with the biz, then send them up to San Francisco to star in their Kink.com premiere (Mark is a good guy but I have to admit for some reason he gets most of the kinky performers as most of his talent performs at Kink regularly nowadays).
Good points Michael about Fresno. The other thing is you have Calif State Fresno University there and Mark Spiegler would be able to recruit those fine ass Fresno Bulldog girls and have them also feature dance there to at some of the strip clubs lead and taught by Kristina Rose. Mark are you listening comprade? Holla….
My name is not Michael but thanks for the comment (maybe you were thinking Michael Whiteacre because of the Shelley Lub-and-Hate comment — definitely forgivable). I had forgotten about CA State Fresno — there should be lots of hotties on campus there. There usually are at colleges and universities.
“Mark Speigler can open up a branch office in Fresno and get new porn chicks comfortable with the biz, then send them up to San Francisco to star in their Kink.com premiere (Mark is a good guy but I have to admit for some reason he gets most of the kinky performers as most of his talent performs at Kink regularly nowadays).”
WOW, harris? you sound like both a predator and recruiter for kink.com. Did you get the check in the mail from Acworth, yet?
looky here! harris is also endorsing mark Spiegler! Harris thinks he’s a good guy! LOL Harris!
WARNING:
Talent this IS PROOF that mark Spiegler is a scumbag.. notorious bullshitter mharris is endorsing him and likes him! STAY AWAY from Mark Spiegler! better yet stay away from all agents!