Evidently, with the gang at County Health at least temporarily sidelined by that inconvenient retraction of earlier false statements issued yesterday, Cal-OSHA, which shares the same "mandatory condoms at any price" approach, has decided to act unilaterally in an attempt to impose their standards through some kind of administrative fiat. They laid the groundwork for this yesterday by playing Elliot Ness at AIM's main Clinic. Read all about it via the L.A. Times:
Health officials inspect clinic that serves porn industry
Tired of waiting for a response from the Adult Industry Medical Healthcare Foundation about a positive HIV test for a performer, state investigators make the surprise visit.
By Kimi Yoshino
June 18, 2009
Tired of waiting for a response from the San Fernando Valley-based health clinic where an adult film actress recently tested positive for HIV, state health and safety investigators Wednesday performed a surprise inspection of the medical offices and this week will issue subpoenas demanding access to patient records.
Since the HIV case was disclosed last week, public health officials and AIDS advocacy groups repeatedly have criticized the Adult Industry Medical Healthcare Foundation for not cooperating fully with county and state authorities and for protecting the industry by withholding the name of the production company that filmed the woman without a current, clean test.
The state also is seeking information about 18 additional HIV-positive cases that the clinic has reported to Los Angeles County health officials since 2004. The county did not investigate those cases and has no information on whether they involved active adult performers or how the transmissions occurred. AIM has said that the latest case involves the first active performer to contract the disease since a 2004 outbreak shut down production for a month.
"We were unaware of all of these cases until recent reports came out," said Dean Fryer, a spokesman for the state Division of Occupational Safety and Health. "That's why we wanted to get into the clinic. We wanted to interview staff that work there. We wanted to look at records. We want to understand this."
The agency was prepared to obtain a court warrant to gain access, but when investigators arrived at the Sherman Oaks facility Wednesday afternoon, clinic officials let them in and cooperated.
"The response was fairly good," said Amy Martin, special counsel to the Division of Occupational Safety and Health. "They allowed our people to do a walk-around. They allowed them to speak to employees. There was no exchange of documents yet. There will be in the future and we'll see how that goes."
Sharon Mitchell, the former porn star who opened the clinic in 1998, could not be reached for comment.
The clinic's attorney, Mark Levinson, said, "It's strange that this happened at this particular moment, but it's their right and we have nothing to hide."
He said he could not comment on requests to turn over documents until he receives the subpoenas.
In statements on the clinic's website, Mitchell repeatedly has maintained that the clinic is following all laws. She has said that the actress and her two sexual partners have been barred from work, pending additional testing. The partners haven't tested positive.
Mitchell has told county officials that the clinic, which was sued for breach of privacy after the 2004 outbreak, is awaiting final, confirmatory test results and legally has up to seven days to report the information.
But state health and safety officials didn't buy that.
"If you're going to err, err on the side of caution," Martin said. "Don't say let's wait another seven additional days and meanwhile, let's go make some more unprotected films. . . . We think they're creating a hazard by sending people into a known unsafe work practice. They're who the industry relies on to stop the people from working."
The industry has long held that its practices are safe. Producers say that no performer is filmed without proof of negative tests, which should be taken every 30 days, according to industry standards.
That is not adequate protection, Martin said, because the disease might not show up in tests for days. The only protection is condom use, she said.
So, other than disrupting clinic operations and attempting to intimidate the entire porn community, the purpose of this fishing expedition would appear to be the beginning of an effort to use whatever flmsy excuse they can to compel the whole industry to do sex the way they tell us or face random inspections (of which there can never be very many because they lack the funds and personnel to properly regulate the thousands of industries already under their jurisdiction) and fines and other administrative penalties where they see opportunities. That's clearly what they were seeking yesterday - opportunities.
As it's already be established, by the admission of our friend Dr. Fielding, that the so-called "undisclosed cases of HIV in the porn community" weren't really in the porn community at all, Cal-OSHA's spokesman Dean Fryer's claim that: "We were unaware of all of these cases until recent reports came out," and that they are the reason "... we wanted to get into the clinic. We wanted to interview staff that work there. We wanted to look at records. We want to understand this" seems pretty flimsy. Those cases, as we know and as County Health now admits, were not industry-related, and the last time I checked, Cal-OSHA didn't have authority to regulate people's behavior in their own bedrooms.
But the real object of their interest is pretty obvious, and directly related to the single HIV case detected on June 4. In the words of Cal-OSHA's chief condom crusader Amy Martin: "If you're going to err, err on the side of caution. Don't say let's wait another seven additional days and meanwhile, let's go make some more unprotected films. . . . We think they're creating a hazard by sending people into a known unsafe work practice. They're who the industry relies on to stop the people from working."
Of course, AIM has already quarantined the tiny group of contacts from the single established HIV case discovered on June 4, and in any event, AIM doesn't "send" anybody anywhere. AIM monitors, reports, traces contacts, makes notifications and recommends action. That's what it was created to do and that is the extent of its abilities.
But somewhere in those records that Cal-OSHA seeks by court order, hoping to override California's medical privacy laws (for the greater good, of course) these officials want to find specific information about the infected performer, and where, when and with whom she worked. This would pave the way for levying fines against the company that shot her wiithout a clean test. Martin and her friends read the papers and know the other cases waved in the wind by Dr. Fielding and his pals are unrelated. That's just a cover for the obvious objective of pinning down a culprit in this affair and making an example, which they will try to expand to include the entire industry.
Anyone doubting that that is the goal should re-read Martin's parting shot:
"The industry has long held that its practices are safe. Producers say that no performer is filmed without proof of negative tests, which should be taken every 30 days, according to industry standards.
That is not adequate protection, Martin said, because the disease might not show up in tests for days. The only protection is condom use, she said."
Cal-OSHA has previously fined a production company for creating a workplace hazard during the events of 2004 and I have no doubt if they turn up what they're looking for, which may or may not be possible from trolling the paperwork of an unspecified number of AIM's clients and whatever other information AIM's contact tracing activities may have generated, that the agency will act against the company in question.
How far they can go beyond that is not Their intention to extend what powers they legitimately enjoy to try and impose universal condom use in porn without the benefit of specific enabling legislation by pursuing sanctions against purported safety regulation violators in an effort to intimidate everyone else into adopting their preferred approach is clear enough from Martin's statement.
This did not happen in 2004, when there were demonstrated workplace HIV transmissions and fines were successfully imposed on producers, so it's pretty doubtful that they'll get what they want, other than somebody's head to hang on their office wall, out of this latest show of force.
The overwhelming majority of producers who have followed AIM's recommendations and never had an HIV incident on any of their sets are quite likely to go on doing what they've been doing, just as they did after 2004.
However, the invasion of AIM's facilities by the inspectors, the attempt to discredit AIM's methods and the disruption of AIM's operations pretty much confirm worst suspicions about the agency's secondary goal of undermining confidence in the existing safeguards, even if no workable replacement yet exists.
Can this blatantly political exercise of state power succeed in making things worse for everybody? To some extent, by compromising AIM's confidential relationships with its clients, it already has. But how far it can really go from there would appear headed for some kind of juridical determination.
There are legal limits to CAl-OSHA's reach, and the standard they wish to force down all our throats having been created for a different industry without consultation with those to be subjected to sweeping new rgulations most likely exceeds the agency's authority.
It looks like we're going to find out.
In the meantime, Amy Martin can pursue her agenda at taxpayer expense to whatever end while the industry continues to do what it has been doing all along: operating as normal under AIM's accepted testing protocols.
The ugly way in which Martin and her gang have conducted their campaign deserves whatever push-back it's going to get, but the end result is unlikely to have much impact on the broader operations of porn producers. Existing laws don't support a single state agency's desire to dictate massive new regulations by administrative fiat, and the laws that will enable them to do so aren't going to be enacted for reasons that have been previously discussed at interminable length.
More showboating, more grandstanding, more strong-arm tactics and no substantive change in anything. That's what Cal-OSHA's latest door-busting at a health care clinic amount to. They should know by now that these things don't go down well around here. Bigger government entities with much more impressive powers at their disposal have been using those same tactics for years in efforts to regulate porn content through criminal prosecution. They get some heads now and then too, but the rest of us go on according to our own best judgment, and I'm betting that these arrogant bureaucrats are going to run into some pretty stiff resistance when they try to prevent us from engaging in our lawful production of adult entertainment.
But I'm sure they'll keep on trying.