LA County Health Issues Measure B Letter to Adult Producers

LOS ANGELES—Dr. Jonathan E. Fielding, the director and health officer for the Los Angeles County Department of Public Health, sent a letter to adult producers on Friday that attempts to explain the process by which Measure B, the so-called mandatory condom law that went into effect Friday, will be enforced by the department, the county, the cities in the county and FilmLA, which issues filming permits on behalf of the city and county of Los Angeles. FilmLA was also contacted by the county, which asked them to start providing the letter today to adult producers who apply for filming permits, and also to begin denying permits to producers who have not obtained the required health permit. The letter is somewhat convoluted with respect to what is currently required of adult producers, however, and AVN has learned that FilmLA was initially confused about the approval process for adult producers who have not yet acquired the health permit required under the new law—a health permit, by the way, that does not exist yet. FilmLA was first led to believe that in the absence of an Adult Film Production Public Health Permit issued by the Los Angeles County Department of Public Health, a film permit cannot be issued. In short order, however, the non-profit determined that permits can be issued to adult producers as long as they are not for productions taking place in the unincorporated areas of the county. The situation was first brought to our attention by industry attorney Michael Fattorosi, whose client, "Porno Dan" Leal of Immoral Productions, was informed this morning in an email from FilmLA that his permit, which he renews on a monthly basis, could not be renewed at this time. "Unfortunately, due to a new ordinance in place, we cannot issue any adult film permits until an Adult Film Production Public Health Permit has been obtained," the email stated, adding, "This act became effective 12/14/12." Within a half hour of receiving the email, Fattorosi called FilmLA seeking an explanation, and was told that the decision was being reversed. Until Los Angeles County Health and Safety Code, Title 39, has been officially adopted by Los Angeles County cities under the auspices of the L.A. County Health Department, he was told, permits will continue to be issued unless, as mentioned, they are for an adult production in an unincorporated part of the county. AVN spoke with Leal, who confirmed that his permit had been renewed for another month. He also said he received the County Health letter, which includes a section on the public health permit fee that states, "Within the next 90 days, an ordinance will be filed for approval by the County’s Board of Supervisors establishing the final fee for the public health permit required by Title 11, Chapter 39 of the Los Angeles County Health and Safety Code. Until that time, a provisional fee ranging from $2,000 to $2,500 per year has been established and will be billed on an annual basis." Leal said he has no problem paying the provisional fee if the county sends an invoice for the amount, but added he has no intention of proactively informing the county of his intention to continue producing. Considering that the county has projected an amount in the range of $500,000 a year to administer the new ordinance, however, it's hard to see how the final annual fee will remain as low as the provisional fee without the county having to dip into taxes to pay for enforcement. The status of the health permit is also unclear, with the letter doing little to clarify what producers, cities or FilmLA can anticipate. Despite the fact that the “Safer Sex in the Adult Film Industry Act" became effective on Friday, and in spite of the fact that L.A. County Health neglected today to clarify to FilmLA that the restricted permitting is currently effective only in the unincorporated areas, it states in the letter that a conditional permit might be forthcoming... within the year. "During the first twelve months following the effective date," the letter reads, "the Los Angeles County Department of Public Health (DPH) may issue Conditional Adult Film Public Health Permits to producers of adult films." [Italics added] Once that conditional permit is possibly issued, producers shooting in the unincorporated areas or in cities that have adopted the new health code for porn sets must then abide by the following requirements: (a) Within six months, provide proof of successful completion of a blood borne pathogen training course specific to the adult film industry and approved by the Department for the individual owner or all company principals and management level employees, including but not limited to all film directors; (b) within six months, submit and receive Departmental approval for an Exposure Control Plan that meets all requirements of the California Code of Regulations, Title 8, Sections 3203 and 5193, identifying how the employees’ risk of exposure to blood or other potentially infectious material will be minimized; (c) require the use of condoms for any acts of vaginal or anal sexual intercourse in compliance with existing law (Los Angeles County Code, Title 11, Section 11.39.110A); and (d) display of the Public Health Permit in an area visible to performers at all times at the location where an adult film is being filmed. What this means, of course, is that the county has said that it has ostensibly begun levying fees to pay for the enforcement of a law that is not fully in effect, and may not be for as long as a year from now, and that the current fees being charged ($2,000-$2,500 annually) may increase significantly in as little as 90 days. As of today, it has also directed FilmLA to require of adult producers looking to shoot in unincorporated areas of the county a health permit that does not exist. That is called putting the cart before the horse. Following the calls with Fattorosi and Leal, FilmLA president Paul Audley spoke with AVN at length about his current understanding of FilmLA's obligations under the new law, and what we can expect going forward. AVN: Can you walk us through what happened this morning? Paul Audley, FilmLA: Sure thing. So this morning, County Health asked us to forward their letter to anyone applying for a film permit to make an adult film. We don't actually have a category for an adult film, by the way, so that makes it interesting, but there are known producers we have worked with a lot in the past. Anyway, I wrote the county back and asked them if this was effective immediately, because we have not had the chance to let anybody know this was coming. AVN: Was it your understanding that what they were telling you at first was that you should forward this letter now and let producers know immediately that unless they have the health permit they can't get the filming permit? Audley: No permit, correct. But what we discovered later—because they had not made it clear to us—was that it currently only applies in unincorporated L.A. County. The cities that use L.A. County Health will actually have to take action on their own to add the new ordinance. That was not clear, which is why this particular permit (Immoral Productions) tripped. It shouldn't have because it's not in unincorporated L.A. County. So as soon as we found that out we went back in and released the permit. AVN: Does the county know that you don't have an adult category, per se? Audley: Yes, and we don't want one. AVN: That was actually my next question, because whether you like it or not,  FilmLA has now been pulled into this, haven't you? You're the ones who issue the film permits. Audley: No, not really. We are actually under contract from the city to administer this program, but the permit authority and approval authority is the Los Angeles Police department (LAPD) when it's in the city, and the County of Los Angeles when it's in the county. So we process the stuff for them and handle it, and then the final act of approval is under their authority. For instance, with this [Immoral] one, which is in the city of Los Angeles, it would have gone to LAPD's unit with an note from us—if it had been the situation we thought it was at first—saying L.A. County requires a health permit, they couldn't produce one, so it should be rejected. And then the LAPD would actually be the rejecting authority. We don't actually own these permits. I do recognize that we are a part of this process, but we don't have the authority to actually approve or deny a permit. We just do all the work up until that point for the city or county. AVN: As this law becomes officially codified, do you anticipate that in the future, when you communicate with, say, LAPD, that they will add another layer of enforcement or inspection? Audley: No, I don't. Not on the city side, anyway. You're probably aware that the city also passed its own condom ordinance, and they are very different. The city's, if they can ever figure out how to work it, will require some form of inspection and they will ask us on behalf of the city to collect a fee to pay for that work. And that's really different, because the county's is an annual license to make these films, which doesn't really have anything to do with the film permit process except that we would be required to have them demonstrate that they have one. We do this now for things like special effects, where they have to show us that they have a special effects permit, for us to send it over to the city for approval. It would be more like that for us. We don't evaluate anything, but just have these things we have to do before sending it for approval. Right now, for the unincorporated areas of the county, and then if the city of Los Angeles and other cities adopt this code, then we will be doing the same thing; sending it to the approval authority, saying that everything is in order, including that health license. AVN: During this interim period where things haven't been codified and there isn't even a permanent or provisional health permit in existence, is that normal for this sort of process? Audley: Well, with the special effects license, that one is issued by the state fire marshal to a company that does pyrotechnics, so that process has always been around. We do not, for instance, if they hire a caterer, check to see if the caterer has a required license, or when they have generators we don't make them show us an AQMD certificate. So it's really not a part of what we typically do. In this case, however, the county passed an ordinance, and as their contractor they have asked us to do this thing, so that's pretty much how it works.   AVN: So this is unique for you? Audley: Yes, it is. AVN: Okay, so where are we at right now in this process?  Audley: Right now, we are under instructions from County Health that if a known adult film producer is going into unincorporated L.A. County, we are to provide them with that letter and ask them for their license. If they don't have the health license, the county will not issue the filming permit. AVN: Do you have any clue at this point how that will work? Will they have to show you an actual permit? Audley: Typically, with the special effects license, they either provide a PDF of it, which will show us the correct dates, or they just give us the license number, and we can just check with the issuing authority. In that case, the County Health Department. AVN: So, for the purposes of our readers, until the cities that are under the LA County Health Department have adopted the safety code, and the county is issuing these health permits, until that happens you are issuing permits unless it is an unincorporated area of the county? Audley: Correct. The only place we are currently under this restriction are the unincorporated areas of the county. AVN: Does that also mean, because the cities will not adopt these at the same time, that... Audley: It's going to make me crazy, yes! Yeah, it will roll out the way it rolls out, and we don't even represent every city in the county. For instance, Vernon has its own health department, so they will be applied to this, but most of the other ones we serve are fairly small cities and are under County Health, so if and when they adopt the ordinance we'll just begin sending the letter and requesting the health permit. AVN: Right now, what do you ask for in terms of the type of production? Audley: Currently, there are a whole bunch of questions we ask filmmakers, including if there will be any nudity, or brandishing of weapons, will there be loud noises, special effects, a whole list of things that are activity based and not  labeled by the type of movie being made. AVN: Will that have to change? Audley: We have not been asked to do so, and I don't think we will, because our counsel is that we wouldn't want to have a special category for a protected class of speech. AVN: And yet that is the requirement whether you want to consider it speech-based or not; it is content that is sexually explicit. Audley: Correct. All I can say is that we don't intend to have a category called Adult Films. What currently happens is, if somebody ticks off the box for nudity, our automated system automatically puts on the permit that the activity cannot be seen or heard by neighbors. So that would include a PG-rated film where they are going to film someone's bare butt running across from a shower and also full-on sexual acts. AVN: Are they getting the letter if they check nudity? Audley: No. What we're doing right now is that some companies have self-identified to us that they make adult films. They will get the letter, and the Health Department has also sent out letters to adult companies they are aware of; also, if companies that have self-identified to us in the past as adult producers apply again, we'll send them the letter so that they know. Otherwise, unless they describe to us activity that suggests it's an adult film—in other words, suggests that it is going to have the sexual intercourse or other things described in the ordinance—we won't know. AVN: Well, I don't want to suggest that anyone is doing this, but wouldn't it be entirely possible for someone to not self-identify as adult, click the nudity box, not get the letter and then slide in under the wire? Audley: It's totally possible, and it wouldn't surprise me if that was happening now, because even non-sex films often don't tell us the truth about what they're doing; we don't go and chase people around. But what can happen when people fool around like that is that if they do get caught, their permit gets revoked by the permit authority and in some cases they will actually seize equipment, which we don't ever like to see happen. AVN: So you are under no current obligation, and do not anticipate being called upon to be the Big Brother here? Audley: FilmLA will not be the investigator, inspector or anything else. Under no circumstance will we, even if requested.