As Condom Vote Nears and Record Fines Handed Out, Accusations Fly

As Condom Vote Nears and Record Fines Handed Out, Accusations Fly

SAN FRANCISCO — In less than six months, California voters will decide whether the adult entertainment industry should be further regulated under the California Condoms in Pornographic Films Initiative.

If voters approve the measure on Nov. 8, adult film producers would be forced to pay for vaccinations testing and medical examinations and make talent use condoms and other prophylactic devices during filming of sexual intercourse.

The measure also would require producers to obtain state health license at beginning of filming and to post condom requirement at film sites.

Further, it imposes liability on producers for violations, on certain distributors, on performers if they have a financial interest in the violating film and on talent agents who knowingly refer performers to noncomplying producers.

And, most troublesome and problematic, the measure would permit any state resident to enforce violations.

So far, the AIDS Healthcare Foundation, which has donated 100 percent of FAIR Committee’s funding, has spent $1.86 million to get the initiative on the ballot, according to records obtained by XBIZ. FAIR’s current war chest, as of last month, has about $206,000.

To oppose and fight the measure prior to the Nov. 8 vote, which comes on the same date as the U.S. presidential election, the Free Speech Coalition has launched a political action committee, or PAC. The PAC will be chaired by Eric Paul Leue, executive director of the Canoga Park, Calif.-based adult entertainment trade group.

So far, the opposition campaign backed by the FSC has $33,000 in its own war chest. Leue told XBIZ that the PAC has an additional $45,000 coming to the group through a pledge later this week.

Performer safety is currently regulated by Cal/OSHA, and performers are tested every 14 days for a full slate of STIs — a protocol that has prevented on-set transmission of HIV in California for more than a decade.

“Adult workers have been vocal in their opposition to the law, which would remove their own ability to choose a condom, and open the door to stalkers and serial harassers, a serious issue for many performers," Leue said during the launch of the PAC. "Many also fear that the initiative will further drive a legal industry underground, leaving them less protected.”

“We need to stop pushing an industry that is legal and safe out of this state. We see this as a repetitive conversation,” Leue said.

And that conversation has been going on for more than a dozen years between the adult entertainment industry and the AHF.

In those years, the AHF pushed its agenda with three failed pieces of legislation at the state level, saw success with its Measure B mandatory condom campaign in Los Angeles and some parts of Ventura counties (a law that is on the books but seen as unenforceable) and saw another defeat with its failed drive to impose stricter Cal/OSHA rules for adult productions. And now its gunning for a statewide ballot vote.

But with just six months prior to the California condom vote, Cal/OSHA  announced the most expensive set of proposed penalties ever levied against an adult entertainment company —  $146,600 against for 13 violations of worker safety laws that are alleged to have occurred in November.

The six-figure proposed fine announced last week, however, has many in the business shaking their heads and accusing Cal/OSHA officials of fueling AHF’s cause to heavily regulate the industry.

Many are now claiming that the issuance of $146,600 in citations was “politically motivated” and made at the behest of Michael Weinstein, the president of the AHF.

“Cal/OSHA is there to protect workers — not to serve as a political weapon to intimidate the opponents of a ballot initiative,” Leue said.  

Industry attorney Karen Tynan, who represents, told XBIZ that Cal/OSHA’s proposed $146,600 in fines against the BDSM production studio is about “sending a message.”

“It's really no surprise that [Cal/OSHA], whose ridiculous goggles and condom regulation we defeated in February, decided to go after us so aggressively,” Tynan said. “What these citations neglect to mention is that all performers involved are tested every 14 days, in addition to option to use a condom at any time. 

“To say that we take no reasonable steps to prevent a known hazard, or that we did not provide them with condoms is not only wrong, it's anti-science, anti-sex and anti-performer.”

Numerous other attorneys focusing their efforts on the adult entertainment business, and not part of the Kink case, matter-of-factly agree with Leue and Tynan’s assertion — that Cal/OSHA has been unduly influenced by the AHF’s aggressive stance on pushing through new rules for the industry.

“It’s unfortunate that Cal/OSHA has allowed itself to become a pawn of Michael Weinstein in his unconstitutional anti-porn agenda,” industry attorney Allan Gelbard told XBIZ. “If Michael Weinstein wants safer sex porn to be more readily available, he can produce it himself. But forcing erotic artists to create works that convey a message that he wants to convey violates core First Amendment principals. 

“Moreover, it now appears that anyone with the temerity to criticize Weinstein’s ballot proposal — which is clearly engaging in core political speech — will be subject to increased scrutiny by Cal/OSHA as well. I applaud [ owner Peter Acworth] for standing up and urge the rest of the industry to do so as well."       

Other industry attorneys, including D. Gill Sperlein and Marc Randazza, agree Cal/OSHA has been entangled in AHF’s agenda, which could drive the adult filmmaking biz out of the state.

Sperlein remarked to XBIZ: “Cal/OSHA is clearly engaged in a political campaign against the adult entertainment industry.”

Meanwhile, Randazza quipped to XBIZ: “California seems hell bent on driving the industry out of state. If it does, other states are willing to have the multibillion-dollar industry.”

XBIZ on Monday reached out for comment to Cal/OSHA on the statement that the state is engaged in a campaign against the adult film industry.

Cal/OSHA Chief Juliann Sum, in a statement to XBIZ, said: "By law, we are required to respond to accidents and complaints and evaluate petitions from members of the public for new regulations. We carry out these responsibilities in the adult entertainment industry as we do in any other industry."

Pictured: Free Speech Coalition’s Eric Paul Leue