SAN FRANCISCO – California’s Division of Occupational Safety and Health has fined a gay adult studio $685 after a three-person appeals panel declared failure to use condoms while filming explicit scenes is not a “serious” infraction of Cal/OSHA regulations.
The case began in November 2009 with an investigation of a Treasure Island Media video alleged to include prohibited sexual activity and indicative of a lack of workplace safety. In March 2010, Cal/OSHA issued three citations for workplace safety violations under state law. The appeals board considered only two of the citations, ultimately rejecting TIM’s arguments and upholding Cal/OSHA’s procedures and conclusions, except for the agency’s determination that failure to require condoms composed a “serious” violation.
In its appeal, TIM listed eight objections to the original findings:
- The inspector’s testimony was based on uncorroborated hearsay.
- There was no evidence performers were exposed to potentially hazardous bodily fluids.
- There was no evidence indicating alleged violations occurred during a period covered by the regulations.
- Performers were independent contractors, not employees, and therefore TIM was not responsible for creating a workplace safety policy or performers’ decisions about condom use.
- Relevant section of California’s codes do not apply to the adult film industry.
- Violations, if any occurred, were not shown to be serious.
- The administrative law judge who allowed the citations to stand erred in admitting some evidence.
- Cal/OSHA did not meet its burden of proof.
The appeals panel disagreed with all of the objections except No. 6.
“The record does not include any evidence of what the probability of contracting any sexually transmitted disease is, assuming one is exposed to them through sexual contact with semen or [other potentially infectious materials],” the panels opinion notes. “On this record, therefore, we cannot say that, even assuming the alleged violations caused exposure to bloodborn pathogens, it is more likely than not that the exposed employees would contract an illness. And, since we cannot assume the existence of a fact which is not in evidence, we cannot sustain the serious classification.”
The determination required a recalculation of the original $2,500 fine, resulting in a figure of $685.
Attorney Karen Tynan, who represented TIM throughout the proceedings, called the panel’s ruling “a game changer” for the adult industry and a sharp rebuke of AIDS Healthcare Foundation, which raised the complaint that led to the citations.
“For the past six years, AIDS Healthcare Foundation has wasted Cal/OSHA’s time, resources and patience for the regulatory equivalent of a missing Band-Aid,” Tynan said. “This [decision] is a huge win for Treasure Island and the adult industry. Hopefully, this is also a win for Cal/OSHA, since AHF no longer has much credibility in bringing these cases. They’ve been wasting millions of taxpayer dollars a year that could be going to actual [HIV and AIDS] prevention,” which is the organization’s mission, according to its charter.
Over the past decade, AIDS Healthcare Foundation has filed numerous complaints against adult companies for failure to use condoms in adult film, often without any interest from the performers involved in the shoot. The TIM film upon which the citations were based involved not only condomless sex, but also a turkey baster and a two gallon jar of semen. A studio spokesman called the case “an extreme test case for the Cal/OSHA regs.”
“We’re very pleased with the Cal/OSHA ruling,” said Matt Mason, the studio’s general manager. “At the end of the day, the agency was just doing their job in responding to a complaint. I suspect they’re as annoyed with AIDS Healthcare Foundation as we are.”
Treasure Island founder Paul Morris defied AHF by funding the defense with revenue from a controversial release not involved in the citations: The 1000 Load Fuck.
“Paul Morris funded a trial and allocated the resources to give us this success” said Tynan. “After a four-day trial against two Cal/OSHA attorneys and two inspectors on the case, for the penalty to be $685 is just terrific.”
Mason added, “This was a matter of principle, not money. This was an attack on our rights and the rights of our models. [AHF President] Michael Weinstein may not like what we do, but he has no business telling us how to do it.”
