Wednesday, February 20, 2013

"Wherever They Go, We Will Follow Them": AHF Takes Condom Mandate Statewide; Then Goes Off On Los Angeles County

Never let it be said that the AIDS Healthcare Foundation rests on their laurels.

You would think that they'd be content with the major victory of passing Measure B in Los Angeles County last November.  But noooooo, getting the glass of water 3/4ths of the way full just isn't enough for Michael Weinstein; he won't rest until he owns the whole well, the glass, and the treatment plant.

Last week, AHF dropped the first boot by announcing that they had found a California Assemblyman -- namely, Isadore Hall III (D- Compton) - to execute the next phase of their plan for world condom domination: a bill (titled Assembly Bill 332) which would extend the mandate for condoms for all porn shoots to cover the entire state, rather than just local jurisdictions such as the City of Los Angeles or Los Angeles County.

Basically, the bill would do its damage by mandating that certain "engineering and work controls" be used by porn performers in the shooting of sex scenes, including mandatory condoms for all anal and vaginal scenes; mandatory Hepatitis B vaccines and other testing paid for directly by producers and performers, and it would require, similar to the 2257 regulations regarding verification of performer age, a detailed "Custodian of Records" certification to be made available to state officials.

Aside from the invasive regulatory impact of the proposed bill, there is also the fact that the proposal is almost a mirror image of the proposed Cal-OSHA regulations on "bloodborne pathogen" protection..which, as you recall, would even require performers to don gloves, goggles, and other forms of "barrier protection" to prevent exposure to internal fluids...the kind of protections usually imposed on medical professionals doing surgery or other types of exposure to blood or other internal fluids. (The proposed Cal-OSHA standard, though, does also require "barrier protection" for oral sex as well..though there was an exception to that that was proposed that would mandate a Hepatitis B vaccination and verification for each incidence of oral sex as a substitute for wrapping up.)

Also fascinating is that this proposed bill would apply equally to gay porn as to the "staight" porn industry..which would mean a major turnaround for Weinstein, whom has mostly focused his crusade on straight porn (even as he has profited from selling bareback porn out of AHF's thrift stores.

Reaction from the porn world, natually, has been swift and furious. Here's Diane Duke of the Free Speech Coalition (full statement here):

“Tragically, this law – if passed – will not only waste taxpayer dollars and compromise the effective performer health protocols already in place, but also compromise funding for critical HIV programs by diverting program funds to create an unnecessary condom-police bureaucracy,” Duke said. “Additionally, this regulation would force an industry vital to the San Fernando Valley and to California’s economy out of the area.”

The proposed bill, which has been tagged as AB-332, follows the passage of the Los Angeles “Safer Sex” Ordinance for Adult Production, which mandates barrier protection for adult productions shot in L.A. County. The new legislation is being sponsored by Assemblyman Isadore Hall III (D – Compton), who held a Valentine’s Day press conference to announce that he will introduce the bill to California lawmakers.

“While other legislators are focused on gun safety, improving our schools and reducing crime, Assembly Member Hall has chosen to use his taxpayer funded salary and staff to focus on adult films,” Duke added. “We look forward to Assembly Member Hall visiting with adult film stars in the coming weeks to learn more about the exhaustive safety precautions already used by the industry.”
See also comments from Mark Kernes from AVN and Dr. Chauntelle Tibbals at PVV.


But even that was only the second most brazen act performed by AHF. The real kicker took place yesterday, when AHF dropped their second boot and decided to get their revenge on the Los Angeles County Department of Public Health for not being vigilante enough to impose the condom mandate.

Their idea: simply break the ciity of Los Angeles away from LACDPH and establish their own health care district, through a new proposed public ordinance.

Seems like the current LACDPH director Jonathan Fielding isn't too hot on implementing Measure B as quickly as Weinstein would like...which was more than obvious when Immoral Productions head "Porno Dan" Neal -- accompanied by his lawyer, Michael "Pornlaw" Fattorosi -- went to purchase one of these newfangled permits. Mark Kernes explores the deets of the ensuing comedy:

"To get the permit, you have to go to their office, which is in Commerce, just off the 5 freeway," Fattorosi said. "The application has to be submitted in person, and it has to be submitted with proof of identity. Once you apply and you fill out the application, it looks from the application that you have six months in which to secure your bloodborne pathogen training as well your bloodborne exposure plan for your company. Now, it gives you a place to list your directors and everyone else that would be covered by this application, so for instance, if you have a company and you have four, five, six, seven directors, they give you two pages to put those names on. When you're shooting, one of those people has to be on the shoot, okay, because they have the training necessary. Now, you can have other people shooting for you as long as one of those people that's listed on the application is present for the shoot."

The Public Health License/Permit Application form, Fattorosi said, "acts as your conditional permit until the regs are promulgated and they really understand what's going on. The idea I got was that even the Department of Health has to figure all this out, and what they're going to do. The reason you fill this out is because this goes to the Treasurer of the City of Los Angeles, who then approves the permit and sends a bill to the actual applicant—the studio, the production company—and then when you pay the bill is when they send you your full permit. They're estimating anywhere between three to six months before that even happens."
But here's where it gets, as the dearly departed Cajun humorist Justin Wilson would say, "reeeeeeeal good" (Bolded emphasis added by me):

However, Fattorosi also reported that the Health Department has not yet hired any additional personnel to enforce the new law.

"They have a staff that's going to do this," he reported. "They haven't hired anybody else at this point. Right now they've got several inspectors on staff who'll cover it and they'll have people that will cover it, but they are starting to make sure that people are getting their conditional health permits, because the way this came up is, FilmLA refused to renew a film permit for Dan Leal, for Immoral, until this was taken care of. Now that he's got his conditional permit, FilmLA will go back and issue him his shooting permit."

What's perhaps most interesting about the inspections, the first of which may be a year or more in the future, is that the investigation managers told Fattorosi that, "They will not be reviewing scenes; they will not be sitting around watching porn. They made it very clear to us, they've made it very clear to their boss that they have no interest in watching porn as part of their job.  They made it clear that they're not going to be watching the sex scenes."

One might then legitimately wonder how the health inspectors will determine whether any particular production is in compliance with the condom/barrier protection mandate, but according to Fattorosi, the health inspectors don't see enforcement as part of their job.

"They really don't have police power," Fattorosi said. "They don't have the ability to come in, arrest people; they can't close your set. All they can do is cite you. Just like if they walk into a restaurant and they found something unhealthy or unsanitary in the restaurant, unless it's an immediate huge public health risk, they don't have police powers so they can't shut down someone's set. One of the two people I talked to indicated they would have to have a conference with County Counsel as well as meeting with the City Attorney's office, County Attorney's office, and decide, and that's when they would issue any fines or anything like that. But she made it abundantly clear that this is a learning process, not only for the industry but also for them, that they're trying to find their way; they're not really sure about how to do any of this, and it's all new ground for them, so they want to work with the producers, the producers that are willing to step up and do this; it's not going to be a matter of, they're going to come in and the first violation, they're going to fine you. They're going to give you chances to correct the thing before they take any kind of remedial action against the studio."

Certainly, that "hands off" scenario, if it is actually Health Department policy, will meet strong opposition from, among others, the AIDS Healthcare Foundation, which gathered the petitions to put Measure B on the ballot in the first place, and has consistently pushed the lie that adult performers are in imminent danger from many STDs including HIV while having sex. And it's unclear how, if a health inspector visited an adult movie set and saw that the performers weren't using condoms and other barrier protections, the inspector could give the studio "chances to correct the thing," especially if they don't think that watching sex scenes being shot is part of their job. Would they require the company to reshoot the scene with the condoms and rubber gloves and face shields?

"While we were there, we went into the bloodborne pathogen plan, what's required, and what they're looking at is what's required by the language of the law," Fattorosi reported. "They didn't want to get into all of that because they weren't lawyers; they didn't want to have a legal debate about what's required or what is not required. What they were basically looking at was, we were there to go over the application procedure and how to get the ball rolling. As far as how this is all going to play out, they still don't really know.

"Their attitude is, they're not in the business of trying to hunt down and root out people who violate the law," he added. "That's not their goal, that's not their purpose, that's not what they're going to do. The two people I talked to seemed sincere in regards to their willingness to work with producers. They understand or they're beginning to understand the difficulties of porn producers and studios to deal with this particular law, so they're not—at least the two people I talked to, they're not interested in trying to shut people down. They're not trying to shut studios down, they're not trying to shut porn production down; that's not their goal. Only health inspectors will be asking for the health permits. It doesn't appear that the police will have anything to do with the health inspection or the health permits. The police will deal with the FilmLA permits, and the Department of Health will deal with the Department of Health permits."
In other words, there will be NO "Condom Nazis" invading porn shoots and frogwalking performers to jail or to court for not wrapping least, not for now.

And, that's probably what motivated Weinstein to perfect this instant coup against LACDPH...though he does attempt to cloak this act in the name of tackling "bureaucracy" and "streamlining" health care closer to the public. may be simply that LACDPH is starting to get hep to AHF's gravytrainning and money laundering schemes. Quoteh Mr. Kernes once again:
One can only wonder how much money, promises of support and/or other perks AHF promised to Assemblyman Isadore Hall III (D-Compton) to convince him to sponsor Assembly Bill (AB) 332, a measure that would require hazmat suits during sex scenes shot anywhere in the state!

Of course, there is another possible reason why AHF wants the city to form its own health department: Back on August 16, 2012, L.A. County Auditor-Controller Wendy L. Wantanabe issued a report to the County Board of Supervisors charging that AHF overbilled the County Health Department's Division of HIV and STD Programs (DHSP) by $1,731,175 for providing services and medications to STD-infected patients who didn't qualify for county funds, and also billed DHSP more than $21,000 for "unallowable earthquake and flood insurance costs" and other "unsupported expenditures," all in violation of its contracts with the county. AHF has filed a lawsuit against the county, claiming that the county falsified its audit findings.

Perhaps it was that investigative work by Wantanabe's office that led Weinstein, in AHF's press release advocating for a city health department, to charge that LACDPH suffered from a "lack of professional leadership and accountability" that "has led to rampant cronyism and a repeated refusal to adhere to standing state and federal laws." (Needless to say, the press release was short on any information that might let the public know just what "rampant cronyism" was allegedly taking place at LACDPH, and which "standing state and federal laws" it was failing to adhere to—but it wouldn't be much of a stretch to suggest that AHF might be talking about the state health code, which already mandates that condoms, rubber gloves, face shields and even hazmat suits be used during sex scenes.)

As one might expect, AHF's alleged overbilling caused the county to retaliate against AHF, according to the press release AHF disseminated regarding its lawsuit against the county—but if the city had its own health department, perhaps staffed by AHF supporters like Dr. Peter Kerndt and Dr. Robert Kim-Farley, Weinstein could easily assume that taxpayer dollars could once again flow into AHF's coffers!
And then there is this:

So with AHF having been involved in so much political activity over the past three-plus years, beginning with its petition to CalOSHA to change the state health code to mandate condom use during sex scenes, to its pro bono (free) representation of Diana "Desi Foxx" Grandmason in her lawsuit against AIM, to its city and county ballot measure petitions, to its advocacy of AB 332, and now to its impending campaign to force the city to form its own incredibly duplicative and expensive health department, one has to wonder how this tax-exempt organization has managed not to have its exemption pulled by the Internal Revenue Service?

See, the federal tax statute in question, 26 U.S.C. §501(c)(3), states in pertinent part that it exempts from taxation "Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes... no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h))." Now, there's no question that AHF has not only carried on propaganda but has clearly attempted to influence legislation. But the question then becomes, has it also violated the terms of subsection (h) by either "mak[ing] lobbying expenditures in excess of the lobbying ceiling amount for such organization for each taxable year," or "mak[ing] grass roots expenditures in excess of the grass roots ceiling amount for such organization for each taxable year"?

We aren't privy to AHF's tax returns, so we have no idea what its annual "lobbying ceiling" or "grassroots ceiling" amounts are, but considering how much time and effort—and money—AHF has put into creating, filing and defending its CalOSHA petition, creating, gathering signatures for, promoting and filing its city and county mandatory barrier protection (so-called "condom") measures, its current and future support of Assemblymember Hall's AB 332 bill, and its creation, impending signature-gathering, promotion and defense of its city health department bill, we have to wonder if it's not the IRS that is suffering from a "lack of professional leadership and accountability"?
Paging Lydia Lee...

These two events make two things obvious:

1) Michael Weinstein doesn't give a tinkers Goddess DAMN about protecting performers from STI's or even about treating AIDS; it's all about getting condom ads on porn for instant strategic placement and $$$$. And, about running porn completely out of California (and even nationwide) if he doesn't get his wish of an all condomized industry.  And, about lining AHF's pockets with government largeese.

2) Sad to say, but Weinstein has been able to use progressive people of color as a foil for his condom campaigns (Isadore Hall is, after all, Black and a Dem represantative), and the ease to which his proposals could pass in the California Assembly (where Dems have a supermajority and Proposition 35, which criminalizes "sex trafficking" to the point of potentially affecting porn performers as well, has passed) does raise the issue of how easy it is for such paternalistic proposals to pass. All I will say on that is that the industry absolutely, even while they fight these laws in the courts, needs to confront the basic fact that they need to win over the majority of Black and Latino voters, rather than merely dismiss them as "stupid" and rely on old tired "libertarian" arguments about "big government" abuse. I still say that that's how Measure B got passed in the first place, and unless some things change really quick, the adult sexual media industry will find itself in a bind that no move to Vegas or South Florida or even Budapest will loosen.

There's a reason I titled this post with Weinstein's blast, people....take heed and react and defend your rights.