Attorneys' Op-Ed: Ballot Measure B — Moving Forward

The following opinion piece was written and submitted by attorneys Greg Piccionelli and Michael W. Fattorosi. AVN's coverage of the Measure B panel held Nov. 8 at the FSC Summit can be found here. LOS ANGELES—Since the Election Day many industry members have been speculating as to what happens now that Ballot Measure B has passed and will eventually become law in some or possibly all of the 85 independent towns and cities in Los Angeles County. We have noticed a somewhat panicked approach to how the industry can survive and continue to thrive in Southern California and especially Los Angeles, the home of adult motion picture entertainment since the 1950s. As an industry, we have a 50-year relationship with California and Los Angeles that cannot change quickly, and, in our opinion, when viewed from a legal perspective, should not change quickly. Judicial opinions in California provide far more legal protection than any other state that currently also has a developing production industry. Some have speculated that the industry should pack up our tents and relocate to Las Vegas or perhaps some other part of Nevada. Many believe that since the industry has a relationship with Las Vegas either by virtue of the AVN Awards or because there are other studios now producing there it will be a friendly home. While Las Vegas may eventually become the home of the industry, now is not the time. As attorneys, we cannot ethically advise our industry clients to move to Las Vegas to produce sexually explicit content in a state where there are, at least at the present time, no legal protection to shield producers and performers from potential prosecution under its pandering, prostitution, and other laws. California and New Hampshire are the only two states in which there are controlling judicial precedents providing such protection. Therefore, this should be made very clear: commercial production of sexually explicit content outside one of the those two states places any production company and performer doing so in jeopardy of serious criminal prosecution. Therefore, there is not, in our opinion, currently sufficient reason for a company to take such a risk while over 99% of the state of California currently remains legal for production. If the Nevada State Legislature were to amend their current laws, or if the courts of Nevada were bound to a judicial decision holding reflect that hardcore porn production would be a protected under the First Amendment or the free speech provisions of its state constitution, the industry would have the kind of legal protection required to legally shoot commercial adult content. Unfortunately, that is yet to happen. When and if it does, perhaps then would be the time to seriously consider a move to friendlier pastures. However, as those legal protections simply do not currently exist, now is not the time. Ballot Measure B is not a state-wide initiative. It only applies to Los Angeles County. Therefore, at this point, a costly and legally risky move out of California entirely is not required to avoid its applicability. However, a move out of Los Angeles County, like the one that has been discussed by Steven Hirsch of Vivid Entertainment in Variety magazine, could certainly be a possibility. Ventura County, as well Riverside County and San Bernardino County, are all three relatively close counties in which Ballot Measure B will have no effect (Note: Simi Valley in Ventura County did in fact pass a measure similar to B; therefore, it is recommended that no one produce in Simi Valley as well). Three cities even closer to the San Fernando Valley than the counties discussed are Pasadena, Vernon and Long Beach.  Under current law in those municipalities, Ballot Measure B cannot be adopted by any of those three cities. Pasadena, Vernon and Long Beach all have their own health departments and do not contract with the Los Angeles County Department of Health. Therefore, an inspector from the Los Angeles County Department of Health does not have jurisdiction to enter those cities to check production company headquarters for permits and condoms. Therefore, under current law in those cities, it simply cannot lawfully happen. Ballot Measure B is a two-part law. The first, more stringent part of the law are the sections requiring all producers in Los Angeles County to secure health permits and use barrier protection. This is really the crux of the law. And that is what makes B so expensive for production companies. We do not know how much these health permits will cost but estimates of $2,000 to $30,000 a year have be discussed. The second part of the law are the sections discussing film permits. As you are probably aware, any commercial filming in Los Angeles requires a film permit secured from FilmLA. Ballot Measure B does not change that. As most of you are aware if you film in Los Angeles without a permit and are apprehended doing so by law enforcement you can be charged with a misdemeanor crime.  You may also have your equipment confiscated and held until your first court appearance. Ballot Measure B does not change any part of the law in regards to shooting without a permit. In actuality, Ballot Measure B prescribes no differences in criminal charges for shooting without a permit and shooting without a permit and without barrier protection. There is no increase in penalty for getting caught shooting without barrier protection—unless the production company is located within Los Angeles County and then there would be an increase in penalties for having a health permit but not using barrier protection. It should be noted that according to an legal opinion provided to the Los Angeles County Board of Supervisors by its counsel, Ballot Measure B will not apply to out-of-state production companies that are also headquartered outside of Los Angeles County. If your production company was incorporated and is located in a city outside Los Angeles County—for example, Las Vegas, Phoenix, North Carolina or even Canada—the health permit aspects to Ballot Measure B cannot be enforced on your production company. Again, the Los Angeles County Department of Health inspector has no authority to visit your company headquarters in one of those states to perform an inspection. In our opinion, Ballot Measure B can easily be worked around while staying fully compliant with the law (when it does go into effect). It does not require the exodus of the industry from Southern California or even Los Angeles County. We should remain united towards the end goal of defeating Measure B via a legal challenge that will be brought by the Free Speech Coalition. Until then, the sky isn't falling and we should all remain calm. The opinions stated in this story should not be viewed as legal advice. Therefore, if you have legal counsel, you should call him or her soon to discuss how Measure B will impact your business. This applies equally to established production companies, talent as well as webcam companies. Measure B does not distinguish between different types of production. If you do not have counsel, either of us would be more than happy to set up a consultation to develop a specific plan for your business. Michael can be reached at his office at 818-881-8500 or via email here. Greg can be reached at 818-201-3955 or via email here.