Los Angeles Sues AIDS Healthcare Over Condom Initiative

LOS ANGELES—In a lawsuit filed yesterday in Los Angeles County Superior Court, the City of Los Angeles has sued AIDS Healthcare Foundation (AHF) over that organization's much-vaunted mandatory condom ballot initiative, for which AHF solicited over 64,000 signatures, many of them obtained by misleading the public as to the initiative's effects. Named as defendants in the suit are AHF president Michael Weinstein, AHF director of communications Gerard ("Ged") Kenslea, AHF public policy health consultant Mark Roy McGrath, AHF legal assistant Arlette de la Cruz, and Marijane Jackson, described in a 1997 LA Times article as a "family health educator," but whose connection to AHF is not currently known. The purpose of the lawsuit is to have a Superior Court judge determine the validity of AHF's proposed ballot initiative, and LA City Attorney Carmen A. Trutanich has put forth some compelling reasons why AHF's plan to require FilmLA, the agency that approves permits for production companies to shoot their movies within the city, to force adult producers to use condoms and other "barrier protections" during permitted shoots, should never be put before city voters. Essentially, Trutanich's arguments mirror those used by the city to strike down AHF's lawsuit filed sometime last spring to have the Superior Court require the Los Angeles County Department of Public Health (LADPH) to force all adult movie producers to have their performers to use condoms while performing sex acts. As AVN previously noted, Trutanich's office opined that those sorts of functions had, by agreement, been turned over to the California Division of Occupational Safety and Health (CalOSHA), and in June, the state's Second Circuit Court of Appeals rejected AHF's attempt to force LADPH to police porn sets for condom use. AHF appealed that decision to the California Supreme Court, and it is unknown whether that court has issued a ruling on the appeal. Once again, Trutanich argues that "the proposed measure is preempted by California Labor Code Sections 140, et seq., and specifically California Labor Section 144.7, which mandates the use of barrier protection in the workplace when employees are exposed to blood borne pathogens." "The CITY contends that the California Legislature expressly retained exclusive jurisdiction with Cal-OSHA for the enforcement of occupation safety and health standards adopted by the Standards Board," the city's complaint reads. "Labor Code Section 144, subsection (e) provides '[n]othing in this section shall affect or limit the authority of any state or local agency as to any matter other than the enforcement of occupational safety and health standards adopted by the [Standards] Board; however nothing herein shall limit or reduce the authority of local agencies to adopt and enforce higher standards relating to occupational safety and health for their own employees.' The CITY contents that Labor Code Section 144.7 is an occupational safety and health standard adopted by the Standards Board." [Emphasis in original.] Trutanich further argues that the Court should rule on the validity of AHF's initiative before the June 5 election because, were the initiative to pass, and a court were to rule then that the initiative violated state law, such a result would "undermine public trust in the petition process," "undermine the public trust in the government institutions and election officials who play a role in the qualification of measures for the ballot" and "undermine[] the credibility of the elections process in general, which is amongst our most treasured and essential democratic institutions." Oh; and a post-election determination that the initiative was illegal "would also waste millions of dollars of taxpayer money incurred in the process of preparing such initiative for the ballot." A Superior Court ruling on the invalidity of the initiative would also save the costs associated with the City Clerk's duty to count and verify the petition's 64,000+ signatures. "Such declarations are necessary in order 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 complaint states. "Clearly AHF 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," FSC Executive Director Diane Duke said in a press release. "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." A copy of AHF's petition and some of the paperwork associated with it were attached as exhibits to the complaint, which is accessible here.