Friday, June 17, 2011
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County Cannot Be Forced to Adopt AIDS Prevention Rules For Pornographic Film Workers—Court of Appeal
By SHERRI M. OKAMOTO, Staff Writer
The County of Los Angeles cannot be compelled by mandate to implement regulations for hardcore pornography performers as a means of controlling the spread of venereal diseases and HIV among workers in the adult film industry, this district’s Court of Appeal ruled yesterday.
Div. Three, in an unpublished opinion, said the Department of Public Health has discretion to determine what measures are necessary to prevent the transmission of communicable diseases and could not be forced by the courts to implement the specific means advanced by the AIDS Healthcare Foundation as the most effective way to reduce the risk of infection for performers and their nonindustry sexual partners.
The foundation—which described itself as a global organization providing cutting-edge medicine, advocacy, and support services for people living with HIV throughout the world—alleged that Los Angeles county is the “de facto capital of the hardcore pornography industry,” which has been afflicted by recurrent outbreaks of sexually transmitted diseases among performers, including HIV/AIDS, gonorrhea, syphilis, chlamydia, hepatitis, genital human papillomavirus infection, and genital herpes.
From April 2004 to March 2008, the foundation said there were 2,847 STD infections diagnosed among 1,884 performers in Los Angeles. There have also been multiple outbreaks of HIV, the foundation claimed, with the most recent occurrence in 2004.
The foundation asserted that this “epidemic” of sexually transmitted diseases in the hardcore pornography industry is attributable to “a lack of protective equipment for performers, including condoms,” which the county has taken no effective steps to address.
Based upon these allegations, the foundation stated a cause of action for violations of Heath and Safety Code Secs. 120175 and 120575.
The first of these statutes require that a health officer who knows or has reason to believe that any contagious, infectious or communicable diseases exists, or recently existed “shall take measures as may be necessary to prevent the spread of the disease or occurrence of additional cases.”
Sec. 120575 specifically refers to venereal diseases, and provides that it is the duty of the health officer to investigate all cases, to ascertain the sources of infection, and to take “all measures reasonably necessary to prevent the transmission of infection.”
The foundation contended that these statutes impose a mandatory duty to act to control the spread of sexually transmitted diseases. It asked the trial court to issue a writ of mandate directing the Department of Public Health to enforce Secs.120175 and 120575 by requiring adult film producers ensure performers are vaccinated for hepatitis B and use condoms during filming. In the alternative, the foundation asked the court to declare the department had abused its discretion under these sections in failing to take action and direct the agency to “cure that abuse of discretion.”
Los Angeles Superior Court Judge David P. Yaffe, since retired, sustained the department’s demurrer to the petition, and entered a judgment of dismissal.
Writing for the appellate court, Justice Richard D. Aldrich explained Secs. 120175 and 120575 do not “impose a ministerial duty, for which mandamus will lie,” but “a mere obligation to perform a discretionary function.”
These statutes, he reasoned, require the county “to take measures to prevent the spread of contagious and communicable diseases, in general, and specifically to prevent the transmission of infectious venereal diseases,” but the Department of Health has “discretion to choose among various measures, ranging from quarantine and isolation to physician referrals and testing in carrying out this duty.”
Aldrich emphasized the “measures to be taken are qualified by reason,” so that only those measures which are “reasonably necessary” or “may be necessary” for disease control and prevention must be taken.
“The Legislature has used these phrases to signal the exercise of discretion to carry out a mandatory duty,” the justice said, which leaves the “decision on what steps to take to control the spread of sexually transmitted diseases” entrusted to the department.
Aldrich concluded the courts “cannot compel another branch of the government to exercise its discretion in a particular manner,” nor “compel the Department to implement the Foundation’s agenda,” and advised the foundation to direct its efforts “at lawmakers to change the laws and workplace regulations.”
Presiding Justice Joan D. Klein and Justice Patti S. Kitching joined Aldrich in his opinion.
In-house counsel Thomas A. Myers and F. Brian Chase represented the foundation. Deputy County Counsel Andrea E. Ross and Robert E. Ragland represented the county.
The case is AIDS Healthcare Foundation v. Los Angeles County Department of Public Health, B222979.
Copyright 2011, Metropolitan News Company