The owner of both companies, Phillip Troy Rivera, was given 15 days to appeal the citations, and according to Dean Fryer, an official spokesperson for Cal/OSHA, the letter of intent was received on Sept. 23.
Fryer told XBiz that the next step will be a formal conference between Rivera, his legal counsel and Cal/OSHA investigators, during which time the findings will be discussed and Rivera can present information to support his dispute of the citations.
If the conference fails to render an agreement, then a hearing is set before an administrative judge, Fryer said, that is conducted like a court hearing and gives both sides a chance to present their case, evidence and witnesses. Potential outcomes could include a ruling that both citations stand, or they could be tossed, Fryer said. The judge could also decide to decrease or increase the fines, or only fine one of the companies.
"There are many possibilities," Fryer said.
However, Fryer added, Cal/OSHA is currently faced with a huge workload of cases moving though its appeals board and it could be months and possibly a year before the conference date is even arranged.
The original citations against the two Rivera-owned businesses, Evasive and TTB, totaled $61,120 for violating the state's bloodborne pathogen standard, a regulation that requires employers to protect workers exposed to blood or bodily fluids on the job.
Because Cal/OSHA was unable to determine which production company under Rivera's ownership was responsible for the actual filming of "Split That Booty 2," two separate citations were issued against Evasive and TT Boy because both were mentioned on publicity material surrounding the video's release. Each company was fined $30,560.
The film in question starred Darren James, Jessica Dee and Lara Roxx, three of the five performers who recently contracted HIV and set off the most recent HIV scare to rock the adult industry in years.
After a total of five actors were diagnosed with HIV, a temporary moratorium shut down all adult film production for 30 days in March.
The response from the adult community upon hearing of the citations against Evasive and TT Boy has been that Cal/OSHA's decision was ambiguous and that it blurred the lines between enforcing health and safety regulations that protect employees and unfairly extended jurisdiction over independent contractors.
"The problem is that OSHA is chartered to deal with employee relationships, and in adult entertainment, particularly for the talent, these folks are independent contractors so they move from one company to the next seamlessly," Kat Sunlove, of the Free Speech Coalition, told XBiz in an earlier interview. "The real upshot of OSHA's move is yet to be seen because we don't know if they have authority in this area."
Although according to Fryer, that issue has been firmly resolved in the case against Evasive and TT Boy by the legal staff from the state Labor Commissioner's officer, which deals with issues pertaining to contract disputes between employees and employers.
"They deal with this issue all the time," said Fryer. "They determine on a daily basis whether an employee or employer relationship exists as it pertains to payroll, benefits and commissions.
Fryer added that in the case against Evasive and TT Boy, if the employer provided a specific place for the employment to occur, tools or props that go with the job, direction and control over how the work was to be done, and how the person for hire was going to fulfill the terms of their employment, then the person hired was an employee not an independent contractor and is therefore subject to state-enforced health and safety regulations.
"We try to determine the control the hiring company has over the hired individual and how the employee or contractor conducts their work," Fryer said. "If they just set the guidelines and parameters then they are an independent contractor. The control the employer has in that case is minimal."
Fryer added that those determinations only apply at this time to the citations against Evasive and TT Boy and are in no way intended as a blanket decision against the entire adult industry or any subsequent health and safety violations that might occur.
"This does not extrapolate to the entire industry," Fryer said. "This is on a case-by-case basis."