AIDS Healthcare Releases Condom Ballot Measure Text-UPDATED

LOS ANGELES—AIDS Healthcare Foundation (AHF) has released the text of its proposed ballot measure, for which its employees will be collecting signatures over the next several months. The measure, to be titled "The California Safer Sex in the Adult Film Industry Act," would require, among other things, that all sexual performances recorded in the state employ the use of condoms and, in a near-echo of the California Health Code's Title 8 Sec. 5193, "any other reasonable STI prevention engineering controls and work practice controls as required by regulations adopted by the Board through the Administrative Rulemaking process, so long as such engineering controls and work practice controls are reasonably germane to the purposes and intent of this Act." Such "engineering controls and work practice controls" could easily include latex gloves, dental dams, goggles and face shields. The measure, if enacted, would also require employers to pay for all of a performer's STI tests, vaccinations and (if required) examinations, either up front or as a fine imposed by the state if the employer refuses to pony up the funds. Also, if they become privy to any performer's health information, they will be required to maintain "strict confidentiality" regarding such information. Perhaps most interesting is proposed Labor Code Sec. 6720(e), which reads, "Any adult film performer may seek and be awarded, in addition to any other remedies or damages allowed by law, a civil damages award of up to $50,000, subject to yearly consumer price index increases, if the trier of fact: (1) finds that the adult film performer has suffered economic or personal injury as a result of the adult film producer’s failure to comply with Labor Code sections 6720(a), (b), (c), or (d); (2) makes an affirmative finding that the adult film producer’s failure to comply was negligent, reckless, or intentional; and (3) finds that an award is appropriate. The court shall award costs and attorney’s fees to a prevailing plaintiff in litigation filed pursuant to this section. Reasonable attorney’s fees may be awarded to a prevailing defendant upon a finding by the court that the plaintiff’s prosecution of the action was not in good faith." In other words, if the producer fails to require the use of condoms or other approved barrier protections, any performer who worked for that producer without condoms may sue the producer in civil court and collect a possible $50,000 judgment against the producer. Another section of the proposed law would allow any performer to bring a class action lawsuit against the producer "on behalf of all similarly situated adult film performers." In general, the proposed law is a maze of boobytraps for adult producers. For example, here's Sec. 6720(i): "This section shall not be construed to require condoms, barriers, or other personal protective equipment to be visible in the final product of an adult film. However, there shall be a rebuttable presumption that any adult film without visible condoms that is distributed for commercial purposes in the State of California by any means was produced in violation of this section." In other words, producer don't have to show the condoms and other equipment in the finished movie—but if they don't, having gone to the incredible expense of digitally deleting them from the movie, it will be assumed that they didn't use them in the first place, and unless the producer can prove that he/she did use them—the law also requires the producer to have a records custodian keep a copy of the "original and unedited" film (we're guessing that means all the footage shot, whether used in the final feature or not)—that producer will be subject to fines and other sanctions. Indeed, the law requires the producer to sign a certification, under penalty of perjury, that the condoms/barriers were used, that he/she paid for all testing, vaccinations, etc., and "Any other documentation or information that the Division or Board may require to assure compliance with the provisions of this Act." And if a court refuses to levy the allowed fine, CalOSHA will be allowed to levy the monetary penalties itself! Under the proposed law, producers would also be required, within 10 days of the start of filming, to disclose, in writing and under penalty of perjury, the address(es) where the filming is taking/took place and the dates of filming, as well as the contact information for the producer, the records custodian—and the name and contact info for any talent agent whose performer(s) was/were hired to appear in the movie. Needless to say, the Act makes no mention of compensating the producer for any of these record-keeping and documentation costs. In fact, the producer has to pay the state: "Upon submitting the information required by this section, the adult film producer must pay a fee set by the Division or Board in an amount sufficient for data security, data storage, and other administrative expenses associated with receiving, processing, and maintaining all information submitted under this section. Until the Division or Board sets the fee, the fee shall be $100." (How long that fee will be just $100 is anybody's guess.) Producers can also get hit with huge fines—as much as $15,000 per incident—for failing to "timely or truthfully disclose" whether its employees have completed certain required training and/or the company failing to post required signage related to health matters, particularly condom use. And in an echo of the portions of Measure B that were struck down by Judge Dean Pregerson, the statewide measure would require producers, within 10 days of the beginning of shooting an adult film (but, apparently, not for simply shooting web content), "pay the required application fee, submit a required application to the Division, and obtain from the Division an Adult Film Production Health License," a fee also provisionally set at $100. Supposedly, the license could only be suspended if the producer violated the terms of the new law. And here's a cute codicil: "For any adult film producer who is not an individual, no License shall be valid unless all owners and managing agents of such person obtain a License." [Emphasis added] Even cuter: Producers can't obtain the license if he/she has been found, "through the administrative enforcement process or by a court of competent jurisdiction, to have violated any of the requirements of Labor Code section 6720(a) for the twelve (12) months preceding the filing of an application with the Division or the duration of the adult film producer’s suspension, whichever is lesser." In other words, violate the law and you're done shooting for at least a year, though the suspension is subject to "administrative review." And the capper: "Performing the functions of an adult film producer without a License shall result in a fine of up to $100 per day for any adult film producer who has previously been found to have violated Labor Code section 6720(a). Any adult film producer who fails to register as an adult film producer within 10 days after qualifying as an adult film producer shall be liable for a fine of up to $50 per day for performing the functions of as an adult film producer without a License." Oh—and not only can a producer be fined heavily for breaking the rules, but so can anyone who "Aids and abets another to commit any of the [illegal] acts." This could include an agent, the records custodian, or, really, any of the producer's office employees. Think you can solve your problem by shooting out of state? Guess again: "Every person who possesses, through purchase for commercial consideration, any rights in one or more adult films filmed in California in violation of Labor Code section 6720(a) and who knowingly or recklessly sends or causes to be sent, or brings or causes to be brought, into or within California, for sale or distribution, one or more adult films filmed in California in violation of Labor Code section 6720(a), with intent to distribute, or who offers to distribute, or does distribute, such film(s) for commercial purposes, shall be assessed a penalty of: (1) not less than one-half times, but not more than one-and-one-half times, the total amount of commercial consideration exchanged for any rights in the adult film(s); or (2) not less than one-half times, but not more than one-and-one- half times, the total cost of producing the adult film(s), whichever is greater." And "aiders and abettors" can get popped as well. And the fines can be doubled or trebled for previous violators. UPDATE: This clause is particularly troubling, since it seems to indicate that any adult film shot without condoms, even before the condom use became mandatory under this proposed law, could no longer be sold or distributed in California—and it's possible, under that law, that California may try to prosecute any retailer in any other state who sells any non-condom movie that was shot in California, since the proposed law contains no date before which a non-condom movie would be exempt, even if shot before the ban. And BTW, anybody who turns in a "violator" gets awarded 25 percent of any fines collected. There's also a whole section devoted to talent agents, which essentially restates what the proposed law had earlier included: "It shall be unlawful for any talent agency, as that term is defined in Labor Code section 1700.4(a), to knowingly refer, for monetary consideration, any artist, as that term is defined in Labor Code section 1700.4(b), to any producer, or agent of the producer, including, but not limited to, casting directors, of adult films who are not in compliance with Labor Code section 6720(a). Any talent agency found liable for violating this subsection shall be liable to the artist for the amount of the monetary consideration received by the talent agency as a result of the referral made in violation of this section and for reasonable attorney’s fees associated with successfully pursuing the talent agency for liability for violating this subsection." Of course, if the agent obtains "written confirmation" from the producer that he/she is in compliance, the agent is in the clear—but if they don't, their agent's license may be suspended. But while the proposed measure states that if it's passed but eventually found to be unlawful or unconstitutional, its "proponent" (of which there are five, according to an AHF press release) will have to pay a $10,000 penalty—but, of course, not have to reimburse the adult industry or its attorneys for the costs of having fought the law. But the law would also require the state of California to defend the law if it's challenged in court—and in a direct assault on the U.S. Supreme Court's decision in Hollingsworth v. Perry, AHF and the other "proponents" (whoever they are) have inserted themselves as having a "direct and personal stake in defending this Act from constitutional or statutory challenges to the Act’s validity," even though they have none—except, of course, for the fact that they could be fined if the law is struck down. Hopefully, the courts will someday see through that ruse as an attempt to give AHF standing where none exists. The text of AHF's proposed ballot measure can be found here.