Legislation is coming

Porn Valley- Legislation is coming. It's not coming today but by the early part of next year, the adult industry will be facing it's stiffest test yet. Pardon the pun. In the wake of the recent Cal/OSHA announcements, I spoke to state lobbyist Mike Ross to get some insight as to what the adult business might expect in the months to come.

Ross can't say for sure what the specifics are right now as far as bills. "But I've been spoken to," he says. "It's going to be some time in the next six months. Apparently they've taken a position and I think it's a really good position. It's a smart position that argues the same concept that the Leslie Bill argues, that there should be some more responsibility and more protection. And that protection should be afforded to people who are working within the industry and that management has to pay attention to that. The bottom line is I think it's a good thing."

For his part, Ross is also working on a Performers Bill of Rights. "It isn't finalized but I'm a little bummed out because the guy who was helping me with the talent doesn't return my calls any more," he states. "AVN did this thing where they made it sound like I searched him out and was trying to force him to be supportive of the bill. But I think it's a very good document. It's basically ten planks."

I tell Ross I get the impression that the state's on a fast track and wants to start moving some of its tentancles around the industry. Ross points out that the legislature is closed. "No law is going to be passed," he said. "But the departments have the ability to pass regulations. Those regulations are usually based on what current law is. The problem is current law isn't either specific enough or takes into consideration of what's been going on in this industry for the last 20 years," he says.

"We need to have regulations and laws specifically for this industry because of the role the industry plays in the state and because of the role the industry plays in the political and legal framework, i.e., civil rights and all that kind of stuff. The reality is I can see some fast tracking but I don't think it's going to be major fast tracking. I think what's going to happen is that you're going to see someone do a spurt and then it'll die off. But I don't thnk there'll be anything between November and January. In fact today is bill deadline day. Any bill that the governor doesn't veto today becomes law."

That being said, Ross doesn't think you'll see much happening in the next couple of months. "Unless you're going to see overzealous people jump up and that's kind of what's happened here." Ross, who believes there's more adult movies being shot around the state than there is in L.A., says there's a need for a coordinated policy.

"The policy has to be made that affects L.A., and Eureka; Sacramento and San Diego exactly the same," he says. "To come up with a policy that affects just Los Angeles doesn't do much good. It does nothing because I believe there's more adult stuff being produced around the state than in L.A. It just navigates to L.A., especially when they want to distribute it."

Apparently there are some website arguments being made as to the distinction between employees and contractors. "That's part of the problem," says Ross. "The reality is that Russell [Hampshire] used to do this thing where he took out taxes for everybody. And that was a smart move on his part because it limited his liability. The reality comes down to that there's got to be uniformality throughout the industry. And that's how come the industry is only going to face more and more problems."

According to Ross, the distinction to be made between employee and contractor is means of production and control over work place. "What happens is," he says, "if the employee is told what to do, if the employee has to report to a certain place, if the person has to do certain things and are told to do these things and don't have an option, then it's said that they're employees.

"If the person has the opportunity to say thumbs up or thumbs down, to report yes or no- to do whatever they want to do with their money, then that makes the a contractor," Ross goes on to say. "The thing that does not play into it all has to do with the specifics of the taxes. The taxes are a very minor thing because a lot of companies collect the taxes and send them back to the Franchise Tax Board and the IRS as a course of business. The industry should not be looking at that as a test but the control over the operations of the person performing the job."

According to Ross, porn performers are employees. "They're told when to be at a place. They're told what to do. They're controlled based on the money and having to meet certain requirements, i.e., the testing. The reality comes down to it that they're even told what to bring with them. That I look at is total control over somebody's work place. As a result, that makes them employees. I think there are bigger issues to worry about."

But as far as Cal/Osha's concerned, Ross said it wouldn't matter if you're an employee or independent contractor. "If you're doing stuff that is unsafe you're going to get nailed. And this industry is not known for dotting it's i's and crossing it's t's."

Despite some of the other rumblings on different websites, Ross is inclined to say that statements being made to the press by Cal/OSHA are of the take it to the bank variety. "They would not be making a statement unless they had the ability to within their department. Someone who's been quoted in the paper, most likely, has been given the job duty. Does it reflect the policy of the state? The problem is Cal/OSHA is divided up into districts. Each district has the opportunity to operate, make some policy and then make recommendations back to the state, so it's a state-wide policy. My argument in this issue is that having a policy in L.A. means nothing because it has to be uniform throughout the state."

I asked Ross is it fair to say that if you're a betting man, bet on the state coming in. "A betting man would say, yes, the state is coming in," Ross replies. "No question. The question is what is the state going to do, how is it going to be enforced and how is it going to be fought with the attorneys."

According to Ross, FSC's Kay Sunlove used to rely on John Burton. "He was her big friend in the legislature," Ross points out. "John ain't there no more. He's termed out. The guy who's now president pro temp happens to be my friend. And we're talking on an entirely different level. He's a crusty guy. He's a fiery guy but the fact is Kat doesn't have eyes into the legislature. And I know she doesn't have ties into the regulatory body because she doesn't spend enough time doing that stuff. I do. I know people in all these departments so I've been getting information from them for years on a whole variety of stuff. When regulations come up, I'm going to know about it."

The state's current m.o. is to come up with test cases says Ross. "You noticed the company [TT Boy's] they picked- what they're trying to do is go after people who will make good policy and good case law." Ross' opinion is that neither will this stop with TT Boy. "They're going to force those persons to get representation and fight it as they go through the court process. That's how they're going to determine whether the legislation is legal or not."

In TT Boy's case, Ross said he would have to appeal. "He's entitled to have a hearing. He's going to have to go before some board or panel to talk about this. He has to be presented with the evidence and have a right to refute and also present his own evidence. He's going to have more presentations to give- it's a type of court but it's not a going to jail type of court. It's policy before a review board, and then they can bring criminal fines against him."

Ross also ventured to say that companies facing real problems will be those that pay talent under the table.

"The reality is you have to look at what the state is trying to do," says Ross. "They're trying to set up a good case to hold water so they can enforce the rules the way they want."

But what shocks Ross the most is the fact that FSC's Kat Sunlove had the opportunity to nip the Leslie Bill in the bud but failed to do so.

"If the Free Speech Coalition had just said, yes, we support this concept, then this stuff wouldn't be happening," Ross is inclined to say. "Kat could have theoretically defeated the bill by saying, yeah, we think it's a great thing. We want to thank Tim Leslie for doing it. Then Tim Leslie would have stood there and said well gosh I don't know if this is so good. The industry wants it.

"The key is showing that the industry is willing to work with everybody," Ross continues. "You may hate the regulation and you may hate what's going to come down the pike but you can't forget what your roots are. But the legislature is there, and the departments are there and they're going to regulate you. That's their job. If I was Kat I would have supported it. She could have stood up and done something but Kat is not an insider. Kat likes to paint herself as an insider and a friend but she's not an insider. The reality is, I think this industry next year is going to be severely tested."