AHF Files Final Draft of Its Condom Ballot Measure-UPDATED

LOS ANGELES—The AIDS Healthcare Foundation (AHF) yesterday filed its final draft of its statewide mandatory barrier protection ballot measure, which it has titled "The California Safer Sex in the Adult Film Industry Act." The filing marks the beginning of a month-long comment period, when state residents may express their support of or displeasure with the measure. At the end of the comment period, AHF's team of professional signature gatherers will need to collect 365,880 signatures on ballot measure petitions by September of this year in order for the measure to appear on the November 2016 statewide ballot. AVN analyzed the ballot measure when its contents were first released to the public in mid-January, and notes that the following substantive changes have been made to the version that was filed on Tuesday. One confusing change is that in the new version, Sections 6720 (c) and (d) have been swapped, apparently so that the alleged protections for performers' medical information appears before the requirement that producers pay for all performer testing and medical treatment. A new clause has been added to Section 6720(e), which now states that, rather than the huge fines and costs associated with a producer's failure to pay for testing and other medical treatment of performers, "In the event that an adult film performer's damages for economic or personal injury are covered by the adult film producer's workers' compensation insurance, this subsection shall not apply." The section requiring adult producers to hire and/or appoint a records custodian "for purposes of this Act" has been expanded to require that for a period of four years, that custodian "shall maintain: (1) a copy of each original and unedited adult film made, produced, financed, or directed by the adult film producer; (2) a copy of the information required to be disclosed by Labor Code section 6720.1(a)(1)- (7); (3) proof that the adult film producer(s) provided a training program to each adult film performer and employee pursuant to Labor Code section 6720.1(f); and (4) proof that a legible sign was displayed at the locations where the adult film was filmed pursuant to Labor Code section 6720.1(f)." New Section 6720(j) states, "Nothing in this Act shall prevent a state agency, such as the Division or Board, from promulgating regulations governing the making, producing, financing, and distributing of adult films, so long as such regulations enhance workplace safety protections and rights for adult film performers and do not weaken the requirements of this Act." In other words, under this section, the state may create and enforce even more restrictions on adult content production that may be even more onerous than the ones already included in the proposed legislation. Section 6720.1(7)(b) prohibits the state from using the fees collected from adult producers to cover the costs of enforcing the Act itself. (Similar language has been added to several other clauses of the initiative.) The following subsection (c) allows movies that have more than one producer to allow one of those producers to "transmit the information required ... on behalf of all of the adult film's adult film producers." The fines for failing to disclose the information in a timely manner have been revised, so that for a first offense, the producer is to be fined "no less than $1,000 and no more than $7,000 per violation," though for repeat offenses, the original fines of $5,000 up to $15,000 have been retained. Even more onerously, "The failure to provide any individual piece of information required by Labor Code section 6720.1(a)(1)-(7) constitutes a separate violation." A new Section 6720.1(e) has been added, which states, "An adult film producer who knowingly makes any false statement, representation, or certification in complying with Labor Code section 6720.1(a)(1)-(7) shall be assessed a penalty of not more than $70,000 as determined via the administrative enforcement process or a civil action." In other words, if a producer lies about its compliance, it'll cost that producer Big Bucks! Performing the functions of an adult producer without having obtained a license to do so will result in fines in both versions of the Act, but in the latest iteration, those fines have been reduced from $50 to $25 for a first offense, and from $100 to $50 for further violations. Another change in the amount of fines shows up under the Liabilities and Penalties Section of 6720.4. While the original language required penalties of "not less than $10,000 nor more than $30,000" for violation of sections 6720.4(a)(1) or (a)(2), and "not less than $5,000 nor more than $15,000" for violations of section 6720.4(a)(3), those figures have been altered to reduce the penalties for violating 6720.4(a)(1) to $1,000 and $5,000, but raised for violating 6720.4(a)(2) or (a)(3) to a minimum of $5,000 and a maximum of $70,000, while violation of 6720.4(a)(4) will be at least $1,000 up to a maximum of $35,000. Under Section 6720.7(a), talent agencies no longer represent "artists," as in the original version, but now represent "adult film performers." Clearly, the major changes from the original version relate to increased fines and penalties for violating the Act, the text of which can be found here. But perhaps the most interesting change is in the initiative's final paragraph, which states in part, "In the event the Attorney General fails to defend this Act; or the Attorney General fails to appeal an adverse judgment against the constitutionality or statutory permissibly of this Act, in whole or in part, in any court, the Act's proponent shall be entitled to assert his direct and personal stake by defending the Act's validity in any court and shall be empowered by the citizens through this Act to act as an agent of the citizens of the State of California subject to the following conditions: (1) the proponent shall not be considered an 'at-will' employee of the State of California, but the Legislature shall have the authority to remove the proponent from his agency role by a majority vote of each house of the Legislature when "good cause" exists to do so, as that term is defined by California case law; (2) the proponent shall take the Oath of Office under California Constitution, Article XX, §3 as an employee of the State of California; (3) the proponent shall be subject to all fiduciary, ethical, and legal duties prescribed by law; and (4) the proponent shall be indemnified by the State of California for only reasonable expenses and other losses incurred by the proponent, as agent, in defending the validity of the challenged Act. The rate of indemnification shall be no more than the amount it would cost the State to perform the defense itself." The previous version of that paragraph referred to the Act's "proponents" but that has now been reduced to the singular "proponent." Moreover, that "proponent," who now takes the adjective "his," quite obviously will be AHF president Michael Weinstein himself, and would become, if this initiative is passed, an "agent" of the citizens of the state by becoming an employee of the state, which Weinstein obviously believes would therefore give him standing to defend the Act in court. Worse, under point (1) above, Weinstein could only be removed from his position as "condom czar" by a majority vote in both the Assembly and the Senate—and then, only if they have "good cause" to do so. That would make him the only state employee ever with that sort of job protection. And the capper? If "condom czar" Weinstein ever has to go to court to defend the legality/constitutionality of this Act, the state (or, more correctly, the state's taxpayers) will be on the hook for the entire bill, as long as it isn't more than the state would have to spend to defend the act itself. This entire scheme is completely unprecedented not only in California, but in every other state in the Union. In a statement to Reuters News Service, Free Speech Coalition CEO Diane Duke responded to the filing by saying, "The people in our industry are the most highly tested folks out there. It's much safer to be an adult performer than to be just a single person out at the bars." Free Speech Coalition opposes the new ballot measure just as it has opposed Los Angeles County's similar measure, "Measure B," which was created by AHF and which county voters enacted nearly two years ago, and which has been in litigation ever since. In opposing the currently proposed ballot measure, Free Speech Coalition issued a statement which read in part, "The Act would result in an effective criminalization of the adult industry. Under AHF’s proposed Act, those involved in the manufacture of an adult film that did not comply would be personally liable for massive penalties for even minor infractions. The Act would require adult film producers to be issued licenses by the government in order to produce, and would require performers to submit their personal medical records for state inspection. Talent agents would be punished for representing adult performers. And, perhaps most dramatically, and in an acknowledgement that Measure B succeeded in driving the industry out of state, the Act would effectively prohibit the sale and distribution of adult films produced without condoms inside California, even in private transactions. This is not regulation—this is Prohibition. The Act would destroy the industry as we know it, drive the existing producers underground, and eliminate hard-fought performer protections."