Sunday, August 7, 2011

Porn Panic 2011 Redux: FSC Unleashes APHSS System For Testing, Protection Of Porn Performers; But AHF/Cal-OSHA Continue Condom Mandate Plans Anyway (UPDATED)

Updated below....scroll to bottom.

It's been a while since I last updated you on the Porn Protection Wars....so here's here's the latest.

First, the AIDS Healthcare Foundation, not completely satisfied with its efforts with Cal-OSHA to impose the condom mandate through workplace regulations, decided to attempt to strike at another angle from which it had been supposedly denied: the use of leveraging approval film permits for shooting porn scenes by the local Los Angeles Film Board.

You will recall that that particular body had been compelled via a request from the LA City Council to report on whether the board could force the condom mandate as a requirement for the Film Board's approval to shoot porn scenes in Los Angeles County and the incorporated citiy of LA. The LA County Attorney's office had filed a report concluding that the film board didn't have that authority.

Well...you know that Michael Weinstein, the head of AHF, is not too well known for taking defeat with grace and gratitude... so, it's not surprising that he would seek a second opinion on the matter. And glory be, he seems to think he's found one...from none other than his colluding associates at the LA County Department of Public Health Cal-OSHA, which has been the OTHER agency attempting to push the condom mandate on the industry in LA.

Here's some snippage from the press release from AHF, as reposted to LukeIsBack.com:

Opinion by Cal OSHA legal counsel contradicts Los Angeles City Attorney’s March 2011 report claiming the City does not have authority to condition issuance of adult film permits to condom use
In its evaluation, Cal OSHA counsel noted, “…State law does not preempt such action by the City because the City does not seek to enact an occupational health and safety standard but rather a public health standard applicable to any film activity (regardless of employment) within the city boundaries.”

LOS ANGELES–(BUSINESS WIRE)–In response to a push by AIDS Healthcare Foundation (AHF) to compel the City of Los Angeles to tie the issuance of its adult film permits to condom use in adult film productions, a recent opinion letter by Cal/OSHA’s (California’s Department of Industrial Relations, Division of Occupational Safety and Health) legal counsel sharply contradicts a March 2011 report in which the Los Angeles City Attorney’s office claimed it did not have the authority to condition issuance of adult film permits to condom use.


“Presently it (Cal OSHA) mandates that all employees exposed to blood borne pathogens wear protective barriers, which includes the use of condoms. CAL-OSHA has been responsive to complaints and has several open investigations, including production companies affiliated with Larry Flynt Publications and Playboy.”
In the initial City report, dated March 22, 2011 titled, “Mechanisms Necessary to Enable the City’s Film Permit Process to Require Workplace Safety in the Production of All Adult Films,’ Kimberly Miera, Deputy City Attorney, City of Los Angeles, on behalf of City Attorney Carmen A. Trutanich, wrote:
“It is the opinion of this Office (City Attorney, City of Los Angeles) that the current permit language covers the use of condoms on all permitted adult film sets to the extent that the City may legally do so. Based on the current permit language, along with the jurisdictional concerns in regulating workplace safety issues, our Office recommends the permit language remains unchanged and this report be noted and filed.”

However, in a researched opinion letter dated July 20th titled, ‘Position of the California Division of Occupational Safety and Health Concerning Possible Conditions on the City’s Film Permits Issued to Adult Film Producers,’ written in response to the City Attorney’s March report and addressed and sent to ‘the Honorable City Council, City of Los Angeles,’ James D. Clark, Staff Counsel for California’s Department of Industrial Relations, Division of Occupational Safety and Health, Legal Unit, Southern California, wrote:

“It is the Division’s (of Occupational Safety and Health) position that State law does not preempt such action by the City because the City does not seek to enact an occupational health and safety standard but rather a public health standard applicable to any film activity (regardless of employment relationship) within the City boundaries.



“Cal OSHA and Mr. Clark have provided a very clear and compelling case as to why the City of Los Angeles can condition the issuing of film permits to adult film producers based upon compliance with condom use in their film productions, as currently required under state statute,” said Michael Weinstein, President of AIDS Healthcare Foundation. “Ordinarily, state agencies are given deference by cities and local bodies in situations such as this, and we ask the Los Angeles City Council to do so in this matter in order to better protect workers and performers working in the adult film industry here in Los Angeles.”


In her March report to City Council, Deputy City Attorney Miera also confirmed that condom use in adult film production in the state is required, writing,

“Presently it (Cal OSHA) mandates that all employees exposed to blood borne pathogens wear protective barriers, which includes the use of condoms. CAL-OSHA has been responsive to complaints and has several open investigations, including production companies affiliated with Larry Flynt Publications and Playboy.”
 The latter refers to a case that was filed against Larry Flynt Productions and Playboy on behalf of AHF, which resulted in fines imposed on the two companies for allegedly not using the proper protective measures for their performers.

Of course, the problem with all this is that the LA County Attorney's opinion is the word of law, while Cal-OSHA's and AHF's opinions are just subjective....and I'm just wondering whether or not AHF is willing to risk a legal challenge to the local office just to force the condom mandate on the Film Board. Or, are they simply awaiting the final appeal on that other case involving the LA County Department of Public Health's supposed lack of fervor in forcing condoms down performers' throats??

AVN.com columnist Mark Kernes found some other flaws in AHF's arguments, too.
Of course, AHF focused on Clark's stated "conclusion": "It is the Division's position that State law does not preempt such action by the City [in requiring condoms, etc.] because the City does not seek to enact an occupational health and safety standard but rather a public health standard applicable to any film activity (regardless of employment realtionship) within the City boundaries."

But indeed, Clark makes it clear that Cal/OSHA only has power of employer/employee situations—an issue that has been hotly contested before the Cal/OSHA Standards Board's subcommittee on performer health which has held several meetings over the past year.


"The Division has jurisdiction over 'places of employment,'" Clark wrote. "It has no jurisdiction unless an employer-employee relationship exists. ... The Labor Code and Title 8 CCR also set forth the means by which the Division is to exercise its authority to assure employee safety. The system for asserting its authority is, generally, by issuing citations that include administrative penalties for violating one or more of the Title's workplace safety standards."


Indeed, that's something CalOSHA has done a dozen times to adult producers since 2004, though four of those cases (including one against AIM) remain under appeal.


But according to Clark, nothing in CalOSHA's regulations prohibit the city from dealing with what it may perceive as violations of occupational health and safety regulations.


"It is clear that the only matter that the Legislature has put in the hands solely of the Division is the 'enforcement of occupational safety and health standards adopted by the [Standards] [B]oard'," Clark stated. "By clear implication, localities may adopt and enforce their own standards as long as that adoption is within the localities' police powers. This is true even if the local standards could be construed as 'occupational safety and health standards.'"


AHF, of course, was overjoyed with Clark's opinion—even as it continues to repeat misinformation about the infection rates and number of infectees in the industry.


"Cal/OSHA and Mr. Clark have provided a very clear and compelling case as to why the City of Los Angeles can condition the issuing of film permits to adult film producers based upon compliance with condom use in their film productions, as currently required under state statute," said AHF president Michael Weinstein said in a press release. "Ordinarily, state agencies are given deference by cities and local bodies in situations such as this, and we ask the Los Angeles City Council to do so in this matter in order to better protect workers and performers working in the adult film industry here in Los Angeles."


However, as things stand now, FilmL.A.'s website gives no indication that permits are conditioned upon complying with any particular laws or regulations. It merely requires that the company obtain liability insurance, which may be increased if the action being filmed includes "exceptional activities"—but having sex on camera isn't one of them. The permitting process also includes the possibility that a FilmLA Monitor may be assigned to the production "in areas that have Special Filming Conditions in place," which are generally "many of the most popularly filmed neighborhoods in Los Angeles."

The next two graphs by Kernes spell out the real risks in AHF's actions.
But what many may not remember is that adult companies have been applying for and receiving filming permits for less than 20 years. Prior to that, the usual practice was for the cast and crew to meet up at an agreed-upon location, then caravan to wherever the movie was to be shot, often in some out-of-the-way, little-traveled place where they would be unlikely to be observed.

If the LA City Council, the LADPH and/or FilmL.A. makes it impossible for adult producers to make movies that will sell—i.e., through rules that require condoms, dental dams, rubber gloves and face shields for all sexual acts—the possibility exists that many of the companies will go back to the "old way" doing doing things—and few in the industry want that to happen, since to do so would likely even further compromise the health and safety of the very performers AHF claims it wants to protect.
 Another way in which good intentions unfettered by common sense lead to bad outcomes.

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On the other hand, the other news couldn't come at a better time for performers waiting for a replacement to the system that AIM had in place. The Free Speech Coalition last week finally unveiled their highly vaunted performer testing and health information system for performers and producers alike.

The program is called APHSS, for Adult Performer Health and Safety Services, and it includes not only a secure database that would protect sensitive information about performers without dealing with medical data, but would also provide comprehensive STI testing through various vendors (or through personal doctors) at a yearly fee that would be affordable to all.

Joanne Cachapero, Membership Director over at the FSC, gave a brief description of how the APHSS system and database would work, and how it improves on the pioneering work of AIM.


Performers, agents and producers can go to www.APHSS.org and click “sign-up” to be led through a simple registration process. Other information that is available at the website includes links to testing facilities, FAQs and contact information. Users are encouraged to view the FAQs on the website.
As with any new system, users should be aware of small glitches. When signing up, users should receive a confirmation email, but some have indicated that the emails went to their spam folders; please, check there if you sign-up and don’t receive an email. For any questions or if you need assistance in accessing your account, please contact [email address redacted to protect privacy].

“We’re starting from scratch with this database so we really need the support of performers and producers to get signed up. We already have the support of major industry producers including Wicked, Vivid, Hustler, Adam & Eve, Kink.com, Girlfriends Films, Pink Visual and Manwin producers, and we appreciate their recognition of the need for this resource. We will be working closely with the LATATA Organization and industry talent agents, to make sure to have their input for the program. We also want people to know they can contact us if they need assistance with any issues.
“Once we have the database populated, and as performers use APHSS.org testing facilities, data will be updated and users will be able to verify work availability on the site; this will take some amount of time, before the database is populated with information, as people start to use it. If anyone encounters any questions or issues, they can contact me directly. We also will have a Twitter feed @YourAPHSS,” Cachapero explained.

For two months, APHSS.org will be accessible free-of-charge, in order to give users a chance to get used to the new format and for the database to become fully populated. After the initial period is over, performers will be charged an yearly fee of $50, and producers will be charged monthly, to use the database. Funds from those fees will go to expenses for APHSS program and website operations. Eventually, APHSS.org also will add educational resources for users, to keep industry members up-to-date on health & safety-related information.

While some have questioned the safety of the database and whether or not sensitive medical information will or won't be included, Ms. Cachapero has assured everyone that medical data will NOT be included in the database at all, and that other steps will be taken to insure the security of the information that will be included, so that no Donny Long/Pornwikileaks shenanigans ever happen again.

In addition, APHSS has announced the formation of its advisory committee who will oversee and monitor the operations of the system and database, with representation from performers and producers alike. As this article posted at FSC's blog shows, they include some heavyweight names indeed.



The performer representatives are Jessica Drake, Bobbi Starr, Danny Wylde and Steve Cruz. Producer representatives are Dan O’Connell (Girlfriends Films) and Steven Scarborough (Hot House Entertainment). Performer Nina Hartley will serve as Educational Advisor, and attorney Karen Tynan has been appointed as Legal Advisor.

The appointees have agreed to a six-month term, as the APHSS.org program is launched and in its initial stages. The responsibilities of committee members are to provide insight and feedback on policies and operation of the APHSS.org. They also will help develop resources for the program to benefit performers and producers.
And, the organization has been hard at work informing the public as well. ABC's Good Morning America website on Thursday featured a surprisingly balanced and non-panicky (at least, for ABC) article on the formation of APHSS, quoting freely from many representatives (and the prerequisite contrary opposition from Mike Weinstein of AHF, of course)  Nina's contribution to the article is worth snipping:


For Nina Hartley, condoms make on-set sex uncomfortable and, she argues, more dangerous. But off-set it's a different story.

"I would say it's different in a civilian population," said Hartley, a performer of 27 years with a degree in nursing. "But public health is not served by forcing a small group of professionals to use condoms instead of being tested."



To those who say pornography without condoms promotes unsafe sex, Hartley has strong words.

"It's not the job of adult entertainers to be educating people about safe sex practices," she said, adding that the "ignorance-based abstinence-only model of sexual education" does little to promote safe sex either.


"People say cartoons promote bad behavior, and Hollywood movies promote unsafe driving. But this is pure entertainment," said Hartley. "We don't ask other entertainers in our culture to slip in the vegetables of education."
Still want that debate, Ministress Lubben??  And how about thou, Gail??


Update (8-12-11): Well now, that didn't take long, didn't it?? APHSS legal council Karen Tynan decided to launch a Scud missile of her own towards Cal-OSHA and the AHF's attempts to browbeat the LA City Council towards imposing the condom mandate via workplace regulations through the LACDPH. The weapon of choice?? An official legal-issue letter to LA  City Attorney Carmen Trutainch.

The letter, which can be read here (warning, pdf doc, needs Adobe Reader), clearly debunks the claims of AHF and Cal-OSHA in attempting to overrule establishment legal precedent and hand off their responsibilities over to the locals, while still attempting their other legal coups through the regulatory processes.

The synopsis of the letter that was posted to the FSC blog says it better than I ever could, so I will simply quote from it.


“When I saw that counsel for Cal/OSHA was advising the City of Los Angeles to jump into this issue, I was appalled,” said Tynan. “I don’t see Cal/OSHA writing to the city council of Bakersfield or Fresno imploring those cities to write regulations on heat illness to protect the field workers, so why is Cal/OSHA taking this position on condoms?  This is another glaring example of the politics, judgment, and discrimination that swirl around the condom issue.

“I certainly hope that the Los Angeles City Attorney and his staff attorneys can cut through the misinformation and propaganda that continues to pour forth from AHF and their allies,” Tynan added.

In the letter, Tynan states clearly that Cal/OSHA’s attempt to hand off regulatory enforcement to local agencies is unprecedented on a legal basis, allowing local agencies to enforce health & safety regulation without clear authority to do so.


Also, Tynan points out several conflicts of interest raised by the relationship between the Cal/OSHA and nonprofit HIV organization AIDS Healthcare Foundation (AHF), including evidence that shows that AHF has provided expert witnesses and its own physicians to give testimony in proceedings regarding adult industry health & safety, while adult industry stakeholders had limited opportunities to present testimony or counterpoints to the data provided by AHF.

FSC, as the adult industry trade association, commissioned a report from respected biostatistician Lawrence Mayer MD, MFA, PhD, debunking the methodology used to analyze the data presented by AHF and showing that statistics used by AHF are inaccurate. That report was entered into record at the most recent Cal/OSHA meeting regarding adult industry health & safety.


“Since 2009, FSC and industry stakeholders have been working cooperatively with Cal/OSHA to arrive at industry-appropriate regulations for health & safety, so we are surprised at the latest developments,” said FSC Membership/Communications Director Joanne Cachapero. “Frankly, it’s shocking that a state agency would take action allowing the issues to become further politicized. The letter from Cal/OSHA to the LA City Attorney seems to indicate bias. It appears as if Cal/OSHA has decided to align their actions with Aids Healthcare Foundation’s continuing anti-industry campaign to mandate condom use on adult production sets.”

"Appears"??? Really, Ms., Cachapero?? There's nothing "appears" about it...Cal/OSHA and the AHF have been 69'ing each other for the past 5 years attempting to impose the condom mandate in porn. They've perfected the art of "conflict of interest" the way Dick Cheney did with Haliburton during the Iraq War years.

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