Friday, Jun 17, 2011    Text size: 

LOS ANGELES — Los Angeles County public health officials have the discretion to mandate regulations to control sexually transmitted diseases on porn sets, an appeals court ruled Thursday.

The county had been sued by the AIDS Healthcare Foundation, which has been a thorn for the adult entertainment industry for years as it attempts to make condoms mandatory for all porn productions.

The AHF sued the county for its inaction over regulating porn shoots. It lost in a lower court and reached out to the California Appeal Court, which ruled against it, 3-0.

Appellate judges, in the unpublished opinion, said the county's health department has discretion to determine what measures are necessary to prevent the transmission of communicable diseases and could not be forced by the courts to implement the specific means advocated by the AHF.

The AHF said in the appeal that that the porn biz in Los Angeles county has been afflicted by recurrent outbreaks of sexually transmitted diseases among performers — an "epidemic" — including HIV, gonorrhea, syphilis, chlamydia, hepatitis, genital human papillomavirus infection and genital herpes.

It blames the "lack of protective equipment for performers, including condoms,” for the so-called "epidemic," and says the county has taken no effective steps to address it.

In their appeal, the AHF honed in on alleged violations of Heath and Safety Codes, including Sec. 120575, which requires that a health officer who knows or has reason to believe that any contagious, infectious or communicable diseases exists, or recently existed “shall take measures as may be necessary to prevent the spread of the disease or occurrence of additional cases.”

The appeal also focused on Sec. 120175, which refers to venereal diseases, and provides that it is the duty of the health officer to investigate all cases, to ascertain the sources of infection, and to take “all measures reasonably necessary to prevent the transmission of infection.” 

The AHF contended that the laws impose a mandatory duty to act to control the spread of sexually transmitted diseases, and asked a lower court to issue a writ of mandate directing the Department of Public Health to enforce Secs.120175 and 120575 by requiring adult film producers ensure performers are vaccinated for hepatitis B and use condoms during filming.

The AHF, in the alternative, asked the court to declare the department had abused its discretion under these sections in failing to take action and direct the agency to “cure that abuse of discretion.” 

But Los Angeles Superior Court Judge David P. Yaffe entered a judgment of dismissal, setting up a ruling on appeal.

On Thursday, writing for the majority, Judge Richard Aldrich said Secs. 120175 and 120575 do not “impose a ministerial duty, for which mandamus will lie,” but “a mere obligation to perform a discretionary function.”

The county Health Department has “discretion to choose among various measures, ranging from quarantine and isolation to physician referrals and testing in carrying out this duty,” he ruled.

Aldrich concluded the courts “cannot compel another branch of the government to exercise its discretion in a particular manner,” nor “compel the [county Health Department] to implement the [AHF's] agenda.”

Aldrich, who was joined by judges Joan Klein and Patti Kiching in the appeal, pointed the AHF to direct its efforts “at lawmakers to change the laws and workplace regulations.”

The AHF told XBIZ late Friday that they won't challenge the appellate ruling but would fight on.

“While it is unfortunate that the court found the Department of Public Health’s statutory duty to investigate and respond to outbreaks of sexually transmitted diseases in the adult film industry did not rise to the level warranting a writ of mandate, AIDS Healthcare Foundation will continue to pursue all available means to protect adult film workers in the industry," AHF spokesman Ged Kenslea said.

Diane Duke, executive director of the Free Speech Coalition, told XBIZ that AHF has a history of filing frivolous lawsuits.

"L.A. County had already identified sexually transmitted infections in the adult industry as a 'non-issue' when it comes to public health," she said. "Moreover, a recent report concerning STIs in the adult entertainment industry confirmed that adult performers have a lower rate of STIs than populations of individuals who test at STI clinics and other sexually active groups."

The case is AIDS Healthcare Foundation vs. Los Angeles County Department of Public Health, B222979.