LOS ANGELES — Now that a settlement has been signed off over Los Angeles County’s Measure B ordinance, counsel for the county are exploring ways to enforce condom use during porn shoots.
“The department will need to determine an appropriate regulatory approach in light of the district court’s ruling that much of the department’s independent enforcement authority over these permits was unconstitutional,” said Robert E. Ragland, deputy counsel for the county, in a statement.
County officials haven’t offered any explanation on how long it will take to come up with terms of regulatory enforcement. However, the settlement calls for the county to conduct a health permit fee schedule within 12 months.
The agreement over Measure B, which was crafted in January and signed off by plaintiff Vivid Entertainment, defendant Los Angeles County and intervenor AIDS Healthcare Foundation, means that the constitutionality of the ordinance can no longer be challenged by Vivid.
Alternatively, the AHF can no longer use the courts to pressure the county to enforce Measure B for three years.
The settlement is based on U.S. District Judge Dean Pregerson’s August 2013 ruling over Measure B, which was approved by voters in 2012 and requires porn performers to wear condoms in all vaginal and anal sex scenes shot in Los Angeles County.
The ordinance also forces porn producers to pay an annual fee to the county's Department of Public Health. In addition, all performers and workers on the set also are required to undergo bloodborne pathogen training.
Pregerson struck down portions of the law, including a $2,000 to $2,500 permit fee, but upheld the constitutionality of requiring condoms in adult films and any fee that was “revenue neutral” to cover enforcement costs. Pregerson also denied Vivid’s motion for preliminary injunction.
Vivid appealed Pregerson’s ruling that upheld the measure, and in December 2014 the 9th U.S. Circuit Court of Appeals affirmed the federal jurist’s order denying a motion to overturn the ordinance.
The 9th Circuit, however, held that Pregerson did not abuse his discretion in declining to enjoin the enforcement of Measure B’s condom mandate.
The case was sent back to the lower court to adjudicate Vivid’s claim that its First and Fourth Amendment rights were violated with Measure B and, prior to the settlement, the case was to slated to move back to Pregerson’s courtroom this December.
After signing off on the settlement, the war of words between the AHF, which not only intervened in the suit but also was the chief sponsor of Measure B, and the adult entertainment industry trade group Free Speech Coalition continued on.
Asked for comment, Michael Weinstein, the president of AHF, told XBIZ, “There is no bar to enforcement. AHF has simply agreed to let the county take the lead as it should have all along.”
“The constitutionality of the condom requirement is now settled law, which is a monumental accomplishment,” Weinstein said. “No producer can any longer claim that if they film without condoms that they don't know that they are breaking the law. Now the county will be required to do a fee study to come up with a revenue neutral fee for their health permit.
“While certain provisions of Measure B were overturned such as surprise inspections and denying future permits to past violators, the road is now clear for L.A. County to fully enforce the law."
Eric Paul Leue, who leads the FSC as executive director, responded to Weinstein’s statement to XBIZ without reserve.
“As men so often like to exaggerate about size, Weinstein is as usual no exception and is overshooting once more,” Leue told XBIZ. “This settlement concerns the parties involved in this lawsuit, not the entire industry.
"Others may well choose to challenge the condom requirement in the near future," Leue said.
