opinion - Los Angeles Times
Should performers in pornographic films be required to use condoms? For the editorial board, that's an easy one: Yes. We editorialized more than a year ago for tougher enforcement of workplace protection laws on porn sets and said we just may need a clear state law that mandates condom use.
Both federal and state labor laws specifically require the use of personal protective equipment or barriers against blood or bodily fluids in the workplace, such as the gloves and masks used by medical technicians. Or, as Cal/OSHA officials say, employers must have "enclosure control plans." The office has inspected porn operations and cited several for violations, but the refusal to comply is firm. No state law specifically requires condom use; it may be time for that to change.
But now we're dealing with a more complicated question: Should the city of Los Angeles adopt a condom mandate as part of its power to issue or deny permits for film shoots? Should voters be allowed to adopt such a mandate into law? Should the city attorney go ahead with a lawsuit to block an initiative to require condoms in porn shoots if his lawyers firmly believe that such a law is unenforceable -- because it's arguably in conflict with the California Division of Occupational Safety and Health (Cal/OSHA) jurisdiction over workplace safety? What about if going ahead with the arguably unenforceable election will cost the city $4.4 million?
The editorial board has to deliberate, decide and editorialize. What should we say? Your thoughts and comments are welcome.
Some background: The Los Angeles-based AIDS Healthcare Foundation began gathering signatures in August for an initiative to add a new condom mandate for porn films to city law. Petitioners needed signatures equal to 15% of the voters who voted in the last mayoral election; that comes to 41,138 valid signatures; AIDS Healthcare on Nov. 30 said it had gathered and filed 70,901. The city clerk has until Dec. 23 to verify a random sampling of those signatures to determine whether the petition is valid.
The verification process costs the city $372,000. The initiative would have to go on the next available ballot -- the June 5, 2012, presidential primary. That's not a city election, so the measure would have to hitchhike on a county ballot, and that's not cheap: It will cost $4.4 million.
[Updated, 1:03 p.m.: AIDS Healthcare asserts that the direct cost to the city would be $700,000. Associate Director of Communications Lori Yeghiayan said the $4.4 million figure is an estimate for total city and county costs, and that the cost per measure would drop if more measures are added to the ballot.]
But City Atty. Carmen Trutanich's lawyers believe there's a good chance that the initiative, if adopted, would be struck down as being outside the city's jurisdiction. Only Cal/OSHA, they say, can regulate workplace safety. So Trutanich went to court last week to seek a declaratory judgment from the court as to whether the law, if passed, would be enforceable.
By the way, initiatives in Los Angeles are extremely rare. Almost all of those ballot measures you see every other year are put there by the City Council, not by voters. If this one goes to the ballot, it would be the first one here in 19 years.
Just to keep things interesting, Cal/OSHA sent the city a letter in July asserting that it saw no reason the city couldn't adopt a ban.
Time is of the essence. Los Angeles needs a ruling by the first week in March, when initiative documents are due at the County Registrar's Office. Courts don't usually rule that fast, so Trutanich asked Los Angeles Superior Court Judge Yvette Palazuelos for an expedited briefing and hearing schedule. This week, the judge granted it and set a Jan. 25 hearing date.
If Palazuelos takes her full 90 days to rule, it would be too late -- the city would already have had to submit its papers to the county. But given that the judge agreed to move the process quickly, she would likely prefer to rule in time, if she can. Of course, either side could appeal her decision and thus still blow the county election filing deadline.
Either way, the City Council would have to adopt a motion by Feb. 1 to go ahead with the election, just to give city officials enough time to gather together the materials they need to file with the county.
Meanwhile, some members of the City Council are miffed that Trutanich took this legal action without consulting them. After a closed session with city lawyers earlier this week, the council tabled a motion to direct lawyers to dismiss the suit. We're likely to see that motion again in early January.
The council could cut through much of the morass by simply adopting the substance of the initiative into an ordinance by itself. That would save the need for the election, the $4.4 million [Update 1:03 p.m.: or $700,000?] and the court hearing -- or would it? Trutanich still would advise that the law was unenforceable, and that the city is likely to be sued and to incur unnecessary costs.
See? Not quite so simple, is it? So should The Times call on the City Council to let the suit go forward so we can get an idea whether the law would even be enforceable before spending money on an election? Or should we tell it to let the people vote and then see if the city is sued? Should we call on the council to just pass the thing into law itself?