California’s pornography condom rejection has industry returning to L.A.

Southern California’s signature adult entertainment industry may return home after the defeat of a measure that would have mandated condoms on adult film sets statewide.

Californians’ rejection of Proposition 60 gave a major victory to an industry that has long been based in Los Angeles but that has been fleeing the county in recent years to Nevada, Arizona and other locations because of what many in the business see as overzealous condom requirements.

There had been a 95 percent drop in on-location porn permit requests in the past four years, after passage of a 2012 L.A. County measure requiring condoms, according to county permit data. But porn industry leaders say they are optimistic that the defeat of Proposition 60, with other recent condom-related victories, will reverse the departures.

“The industry is moving back to L.A. – unquestionably,” said Steven Hirsch, founder and co-chairman of L.A.-based Vivid Entertainment, one of the largest adult entertainment companies in the country. “The business has changed and has downsized. But you’ll see the vast percentage coming back to L.A.”

Momentum appears to be on the industry’s side. Measure B, the 2012 law that requires condoms on all porn shoots in L.A. County, is still in effect but is no longer being enforced after a lawsuit brought by Vivid was settled in March. The California Division of Occupational Safety and Health declined this year to adopt a different measure that would have mandated condoms on porn shoots.

“I am greatly encouraged,” said John Stagliano, founder and owner of Evil Angel, a maker and distributor of adult movies based in the San Fernando Valley.

He said a rebound in L.A. shoots is likely and that the defeat of Proposition 60 sends a clear message about the rights of porn workers to choose not to wear condoms.

“It’s amazing that in the area of sexuality, people tolerate restrictions on our rights and don’t in other areas,” Stagliano said.

The porn industry continues to contend with dwindling revenue because of ubiquity of free online amateur porn and rampant piracy. The business also faces considerable opposition from activists who argue that it is putting performers at risk by allowing them to engage in unprotected sex.

Proposition 60 would have made condoms compulsory in all scenes showing sexual intercourse. The measure was sponsored by Michael Weinstein, who as head of the AIDS Healthcare Foundation has become a persistent adversary of the porn industry. Weinstein didn’t reply to a request for comment.

Those in favor of the proposition said condoms are necessary to protect performers from sexually transmitted diseases, especially HIV.

“The porn industry wants to be treated as a normal business industry,” said Dawn Hawkins, executive director of the National Center on Sexual Exploitation. “But they aren’t taking care of the people working for them. They’re pushing these lies that they’re taking care of these performers when we hear again and again they are being used and abused.”

Hawkins and others note that the risks are real. In 2010, Derrick Burts, a porn actor, announced that he had contracted HIV, a rare act of public disclosure. Burts was a vocal supporter of Proposition 60, filming PSAs in favor of it.

Opponents argued that the proposition was poorly written because it would have enabled any California resident to sue producers and performers involved in movies in which condoms were not used. They have repeatedly argued that condoms are bad for business – their audience overwhelmingly prefers scenes of unprotected sex – and that the industry already has strict screening measures in place to protect performers.

The proposition was defeated, 54 percent to 46 percent. There was heavy lobbying on both sides, with AIDS Healthcare Foundation billboards throughout L.A. and members of the porn industry demonstrating at rallies and drumming up dissent online.

“This is the first time in my 20-year history (in the business) that I’ve seen the industry so united against a proposition, ” said Alec Helmy, the head of XBiz, an adult entertainment news publisher. “It’s reinvigorated the adult production community.”

But some leaders in the adult film world said that any rebound in L.A.-area production may be slow.

“It’s an uphill battle,” said Ela Darling, an adult film performer and producer, who described herself as “cautiously optimistic” about a return of local shoots. She cited the industry’s tense relationship with the occupational health agency as a major obstacle. “A lot of the time they don’t like what we have to say,” she said.

The agency has taken a series of confusing and seemingly contradictory stances on the condom debate. It declined to adopt a measure in February that would have mandated condoms. However, an agency rule in effect since 1993 requires barrier protection from blood-borne pathogens, “which in the case of the adult film industry, means condoms,” spokeswoman Julia Bernstein said.

The agency tends to enforce the rule sporadically, usually on the basis of anonymous complaints, said industry leaders. Since 2004, it has conducted just 40 on-site inspections, citing 49 condom-related violations.

A series of fines was enough to persuade the owners of ATKingdom.com, a porn site that was based in the San Fernando Valley, to move to Arizona two years ago. It now does most of its production in Las Vegas.

Such departures represent “a huge loss of revenue to California,” said Kim Nielsen, the company’s president and CEO. He would like to move back to the L.A. area because “that’s where the talent is,” but “we took a big financial hit having to use condoms.”

While porn production accounts for less than 5 percent of all film permits in L.A. County, it has traditionally been an important contributor to the local economy and especially San Fernando Valley, where much of the $5 billion-a-year industry is concentrated. As work has dwindled and moved overseas, the number of people who work in adult entertainment in L.A. County has fallen to about 2,000 people, down from more than 10,000 a decade ago, according to industry estimates.

Many have blamed Measure B, enacted four years ago in L.A. County, for the sharp decline in local production. Vivid Entertainment sued the county in 2013, claiming the condom requirement violated the First Amendment right to freedom of expression.

Some have argued that Measure B made conditions less safe for performers, with many choosing to shoot without permits. “They were doing it off the grid,” said Kelly Holland, the owner of Penthouse Global Media. “You don’t need to produce production insurance.”

“California is one of the most regulated states,” she said, adding that proponents of the law are driving productions to states that are less regulated and therefore less safe. “It’s the height of hypocrisy.”

The 2013 case filed by Vivid was settled this year in an agreement under which the measure is still technically on the books, but key enforcement mechanisms have been struck, including language that allows porn permits to be suspended or revoked if the measure is violated. “Measure B is neutralized,” said Paul Cambria, an attorney for the plaintiffs.

The measure could still be resurrected in a different form. The settlement gives the county three years to work out a fee structure that would assess penalties for condom noncompliance. But until then, it remains in legal limbo.

Despite the lingering uncertainties over Cal/OSHA and Measure B, many in the adult film community still prefer to shoot in California for practical reasons, said Adam Grayson, chief financial officer at Evil Angel.

“Production out of state is a pain in the butt,” he said. “You got to buy a lot of Southwest Airlines tickets. People would love to come back here.”