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Oct. 6, 2007

XBiz reports Oct. 8:

Adult industry attorney Michael Fattorosi told XBIZ that once the "Doe 43" case — involving adult performer Brooke Ashley's alleged HIV contraction from a bareback anal gangbang — determines that adult performers are considered employees rather than independent contractors, Cal-OSHA inspections could mean trouble for uninsured adult studios.

..."This state is very pro-employee and it takes care of its employees probably more so than other states," Fattorosi said. "It's basically a matter of time until California gets its head out of the sand and starts looking at this industry."

AVN reports:

AIM Health Care founder Dr. Sharon Mitchell told AVN that while she's been unable to verify why the agency visited the Naughty America set, "I can tell you typically these things are prompted by an employee or former talent member that could call and say that they felt they were in unsafe working conditions. They usually just don't pick out of a trick bag and say, 'OK, we're gonna do this one today.' They typically would have a reason for coming, or they would be prompted to come to a specific location."

Dr. Mitchell went on to explain that what OSHA commonly would be looking for is proof of compensatory insurance, or of an injury and illness prevention plan. "This is something that goes along with Section Title 8 of the California Safety Code," she said. "It's to make sure that people aren't at massive risk for any types of infection.

"There really is no clear standard for the adult entertainment industry in that Section 8," she continued. "I mean, technically, if someone wanted to push it, you could have people having sex in moon suits; you could really take this to the nth degree when you're talking about what we [call] 'universal precautions' — that's when we draw blood, we have to have the goggles and the gloves and closed-toed shoes and things like that. I think it's really in everyone's interest to make sure they have [insurance and a safety plan] in place as an adult entertainment company."

This story broke Oct. 4 on GFY.

I hear that Cal-OSHA's representative was pleasant and professional. He wanted to know if the sex on set was protected. He passed his card out to all the performers and encouraged them to call or email him if they had any question about their rights.

Cal-OSHA published guidelines about 18 months calling for an end to unprotected sex but this was the first time, to my knowledge, that a Cal-OSHA rep visited a set, inquired if the sex was protected, and handed out his business cards to all the porn actors.

If Cal-OSHA enforces these guidelines, it would be the end of Southern California's porn industry.

There's a lot of ammunition pointed at porn now but this is the most significant bullet.

The one genre of porn that won't be much affected by Cal-OSHA is the homosexual. It already uses condoms.

Naughty America has been shooting like mad for six months and rents out Remmet Studios a dozen days a month.

AVN knows about this story but they have not yet published anything. 

The director copped an attitude, saying we're not doing anything wrong and here are our permits.

I don't know if somebody called CAL-OSHA in or if this is just a case of a bureaucracy moving slowly.

Male performer Christian says Anita Cannibal was responsible for this visit.

I suspect there will be many more such visits to come.

Another spur for the visit might be the Brooke Ashley case before the California Workers Compensation Board.

Mark Kernes wrote July 20, 2007 for AVN.com:

SANTA MONICA, Calif. - The adult industry will have to wait until at least December 4 before finding out if the relationship between producers and talent will undergo a revolutionary change, thanks to a legal case that's been nine years in the making.

December 4 will mark 90 days after testimony in the workers compensation case known as "Doe 43" will be completed before Judge Lisa A. Sussman, a judge of the California Workers Compensation Appeals Board.

That final witness will be writer/director Cash Markman, who spent about a half-hour on the stand yesterday morning, being questioned by Elliot Berkowitz, attorney for claimant Doe 43, better known to the adult industry as actress Brooke Ashley.

...Beck's financier for The World's Biggest Anal Gangbang was reportedly one Robert Dupree, and in the current proceeding, Berkowitz and Workers Compensation Bureau attorney Nora Tu-Willis are seeking to have the court declare that Ashley was Dupree's employee. If such is the finding of the court, Dupree would be required to pay workers compensation to Ashley, or if for some reason Dupree were unable to do so, Ashley's compensation would be paid from the Uninsured Employees' Benefit Trust Fund. Additionally, Dupree might be assessed fees for not having paid for workers compensation insurance for Ashley while she was his employee.

The central question, however, is whether in fact Ashley was an employee of anyone while making The World's Biggest Anal Gangbang, or simply an independent contract selling her services to the production company, as is currently considered to be the case with the vast majority of adult productions today.

Elliot Berkowitz won a key lawsuit in Nevada, forcing the state's strippers to become W2-filing employees rather than independent contractors. He's expected to win this suit also. Therefore porn stars will be regarded as employees rather than independent contractors and porn producers will be held liable for their workplace health.

Attorney Michael Fattorosi (adultbizlaw.com) writes Oct. 7 on XPT:

I was afraid this was going to happen. I really thought it was going to take another HIV scare/outbreak for them to start visiting sets though.

Maybe it was Anita, maybe it wasnt. Either way, this kind of governmental regulation could be worse than 18 USC 2257. If the Dept of Industrial Relations starts sending people to inspect work comp insurance certificates, there could be some major shut downs of production companies and heavy fines. $1000 per day per employee if there's no insurance.

I have had several non-adult clients locked down and fined heavily because they were operating without insurance.

If this becomes a regular event we are in for some real impact.

T.T. Boy requires performers to sign a self-responsibility release for STDs. Fattorosi notes that release won't hold up in court. The right to a safe workplace can't be signed away.

Anita Cannibal has been written up on IndustryBlackList.com:

This skank with the mangled mammaries pretends to be a law student at a phony, fly-by-night law "school."

She agitates for a condom-only industry, causing trouble on sets and harping incessantly about it on her KSEX show.

In all likelihood, she is the one who ratted the industry out to CAL-OSHA last week...

She also spreads false allegations of rape on set, cf. Madison Scott.

It's time the Industry stopped subsidizing this traitor, and time for Joe Brandi to Man Up and pull the plug on her program.

Vivid Video recently sent one of his contract girls to shoot a movie in Brazil. Shooting out of state and out of the country will become the rule rather than the exception if Cal-OSHA requires California porn sex to be protected.

Shooting porn in states outside of California is not necessarily legal.

Attorney Lawrence G. Walters writes:

A common question asked by adult webmasters across the United States is: "Can I create adult content outside the State of California, where adult films have historically been produced?" The answer is more complex than one might think.

Caitlin Lui and Eric Malnic write for the Los Angeles Times Sept. 17, 2004:

Cal/OSHA said Thursday it had fined two Los Angeles-area adult film companies $30,560 each for allegedly allowing actors to perform unprotected sex, the first time the state agency has taken regulatory action against the porn industry.

The citations against Evasive Angles and TTB Productions, which share the same Van Nuys address, come six months after an HIV outbreak involving four actors prompted a temporary shutdown of adult film production in Southern California. In the wake of the shutdown, Cal/OSHA officials said they would begin investigating the industry to determine whether it complied with state health and worker safety laws.

The companies received citations for violating the state's blood borne pathogen standard, a regulation that requires employers to protect workers exposed to blood or bodily fluids on the job.

"What this means is that any employer whose workers are exposed to any potentially infectious material, such as semen or vaginal fluids, must follow state regulations covering workplaces," said Susan Gard, a spokeswoman for Cal/OSHA, which issued the sanctions Wednesday. "Any bodily fluid is considered infectious. That means barrier equipment must be used."

Health officials have been urging adult film producers to require that all actors practice safe sex during filming, including wearing condoms. But gaining compliance has been a struggle.

Regulators and adult entertainment leaders agree that the vast majority of the Southland's 200 or so porn companies eschew safe sex practices in their films. Only about 17% of actors use condoms on a regular basis, according to the Adult Industry Medical Health Care Foundation, a nonprofit group that conducts sexually transmitted disease testing for the porn industry.

Moreover, many actors say producers refuse to hire them if they insist on practicing safe sex on the job.

Officials at Evasive Angles and TTB Productions could not be reached for comment. Cal/OSHA identified the owner of both companies as Phillip Rivera. The companies have 15 days to appeal the eight citations.

The citations accuse the companies of failing to notify authorities about actors who contracted HIV on the job, as the law requires. The producers also failed to have a written injury prevention program and report a workplace accident to Cal/OSHA within eight hours, as required by state law, agency officials said.

Reaction in the porn industry was mixed, with some questioning whether Cal/OSHA's actions would change filming practices.

"It doesn't matter what Cal/OSHA wants. It's a matter of Cal/OSHA's authority," said Jeffrey Douglas, an industry lawyer and chairman of Free Speech Coalition, a Chatsworth-based trade group for the adult entertainment industry.

The state agency has regulatory power over employees but not over contractors. Porn actors, many of whom are paid by the scene and change employers every day, "are not necessarily employees," Douglas said.

But actor Tony Tedeschi applauded the agency for taking action.

"I think it's about time the government addressed work safety issues that have been a problem for a long time," he said. "It's a good thing to see the government doing something."

Tedeschi, who has been in the industry for 15 years, said he did not insist on using condoms.

"If I did, I wouldn't be able to work," he said.

Actor Brandon Iron said he also welcomed Cal/OSHA's efforts but doubted they would make a difference.

"I'm not sure it's enough of a deterrent to other companies to change the way business is done," he said.

It is a widely held belief among producers that showing condom use in their films would hurt profits because the customers do not want to see safe sex.

The citations were the culmination of a months-long investigation of a complaint filed by a porn industry worker whom the agency declined to identify, citing confidentiality.

The agency, which oversees workplace health and safety, has not decided how it will carry out enforcement in the porn industry.

The agency sometimes conducts investigations only when a worker complains. But the agency has also conducted surprise "sweeps" at workplaces in certain high-risk industries, such as construction and agriculture, to inspect for violations, Gard said.

Employers must not just provide protective barriers to prevent workers from being exposed to fluids but must also "ensure that workers use them," she added.

Cal/OSHA has posted a page on the state government website, http://www.dir.ca.gov/dosh/adultfilmindustry.html , that instructs porn companies that they need to have an exposure control plan as well as worker safety training. Protective equipment, the site suggests, can include condoms, dental dams, gloves and eye protection. It also includes a link on "How to file a complaint with Cal/OSHA."