L.A. Fights Condom Law for Porn Actors

12/12/2011 3:15:00 AM, Matt Reynolds

     LOS ANGELES (CN) - The City of Los Angeles says a proposed initiative that would require porn actors to wear condoms is pre-empted by state law and could end up costing taxpayers millions of dollars.

     The city sued the five registered voters who proposed the initiative on Aug. 31: Gerard Kenslea, AIDS Healthcare Foundation president Michael Weinstein, Marijane Jackson, Arlette De La Cruz and Mark Roy McGrath.
     It asks the Superior Court to declare that Los Angeles voters "have no power" to adopt the measure, known as the Adult Film Workplace Condom Initiative.
     It also asks the judge to relieve the city of its duty to verify and count more than 70,000 signatures on the petition.
     "On or about August 31, 2011, the five registered voters of the city, the defendants, submitted a proposed initiative petition, for circulation to the City Clerk's Office. The petition, circulated pursuant to Los Angeles City Election Code Section 700, would require the city to adopt an ordinance or submit to the voters a prospective ordinance to require any film permit issued under the authority of the city for commercial production of an adult film be conditioned on the usage of condoms in the making of the films. The initiative also would require the city to charge film permit applicants a fee to pay for periodic inspections. The initiative petition title is 'Adult Film Industry; Use of Condoms; Film Permits. Initiative Ordinance,'" the complaint states.
     Early this month, the sponsors submitted 70,901 signatures to the city for the next statewide election in June 2012.
     But the city says the proposal is unlawful because California labor law already "mandates the use of barrier protection in the workplace when employees are exposed to blood borne pathogens."
     The complaint states: "Pre-election, judicial review of whether the city is preempted from presenting to the voters the measure submitted by defendants serves the public interest because a post-election judicial determination that the measure is preempted by state law voters undermines public trust in the petition process. Furthermore, a post-election determination that a measure is patently illegal would undermine the public trust in the government institutions and elected officials who play a role in the qualification measures for the ballot. A post-election determination that a measure is patently illegal undermines the credibility of the elections process in general, which is amongst our most treasured and essential democratic institution.
     "A post-election judicial determination that an initiative is illegal would also waste millions of dollars of taxpayer money incurred in the process of preparing such initiative for the ballot."
     The city claims the proposed law is unconstitutional and asks the court to step in "to avoid the needless and wasteful expenditure of public resources made in connection with a measure which the voters have no power to adopt."
     The multibillion-dollar porn industry is concentrated in Los Angeles and the San Fernando Valley. Porn producers have threatened to pack up and leave the state if their actors are required to wear condoms.
     The industry claims that monthly check-ups for sexually transmitted diseases protect actors. But in August, the industry shut down after a performer tested positive for HIV, according to the AIDS Healthcare Foundation.
     Jeffrey Douglas, chairman of the board of the Free Speech Coalition, the trade association for pornographers, said the city "acted responsibly to protect the taxpayers" and told Courthouse News, "The adult industry has been extraordinarily successful in preventing HIV infections through its testing protocols and self regulation."
     Diane Duke, the Coalition's executive director, added: "History has shown us that regulating sexual behavior between consenting adults does not work. The best way to prevent the transmission of HIV and other STIs is by providing quality information and sexual health service, all of which are successfully provided through adult industry protocols and best practices. Clearly AIDS Healthcare Foundation has chosen to squander its donors' resources by filing frivolous lawsuits and ballot initiatives instead of providing valuable resources toward the prevention and treatment of HIV.
     "It is heartening to know that the City of Los Angeles will draw the line on AHF's political grandstanding when it comes to wasting taxpayer dollars," Duke told Courthouse News.
     Deputy City Attorney Kimberly Miera filed suit for the city and seeks declaratory relief to determine the validity of proposed initiative measure. She did not immediately respond to a request for comment.