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Legal battle over L.A. County's condom requirement for porn actors coming to a close

The pitched legal battle over the constitutionality of a Los Angeles County law that requires porn actors to wear condoms during sex scenes appears to be coming to a close.

Attorneys for Vivid Entertainment and affiliates of the AIDS Healthcare Foundation told a federal magistrate judge last week that they had reached a tentative settlement in a lawsuit that contested Measure B, the initiative approved by county voters in 2012, according to papers filed in federal court.

The measure, which was sponsored by five people affiliated with the Los Angeles-based AIDS foundation, requires porn actors to wear condoms during scenes with anal and vaginal intercourse and imposes a permitting and penalty scheme to enforce the law.

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Details of the tentative settlement were not contained in court papers. But Michael Weinstein, the president of the foundation, told The Times that Vivid Entertainment has agreed not to contest the constitutionality of the law’s condom requirement.

"The battle is effectively over," Weinstein said, noting that the porn industry's arguments against condom requirements have fallen "one by one."

The pending deal comes as California voters weigh an initiative on the November ballot that would make the condom requirement a state law. Weinstein also proposed that measure. 

In a statement, Vivid’s founder and co-chairman, Steven Hirsch, called the tentative settlement agreement a “positive outcome,” but he declined to further elaborate.

“It would not be appropriate for me to comment on the details until approved by the L.A. County Board of Supervisors,” Hirsch said.

Shortly after Measure B was passed, Vivid sued the County of Los Angeles, calling the condom mandate an infringement on 1st Amendment rights of free expression. Vivid also said the law's enforcement provisions violated the 4th and 14th amendments.

AIDS Healthcare Foundation's affiliates, including Weinstein, were not initially part of the lawsuit, but they successfully argued for inclusion since they had proposed the ballot measure. The county had said it would not fight the suit.

In the tentative settlement, Vivid was not the only side to make concessions. Under the agreement, county health inspectors must provide notice before inspecting porn sets, and filming permits cannot be denied on the basis of poor compliance with the condom requirement, Weinstein said.

L.A. County has also tentatively agreed to conduct a study to develop a fee structure that is not punitive, Weinstein added.

The settlement, which holds each party responsible for its legal fees, still needs approval by the county Board of Supervisors.

The porn industry had threatened to sue the county over Measure B and had vowed to move productions to other locales in the Southwest. In the months after the measure passed, the number of film permits issued for X-rated film productions dropped sharply in the county. 

Since Vivid filed the lawsuit in 2013, the federal courts have whittled down parts of the original law passed by voters.

In an Aug. 16, 2013, ruling U.S. District Judge Dean Pregerson struck down parts of Measure B that allowed searches of film sets without a warrant, noting that adult films could occur anywhere -- even a private home. He also shot down the law’s “broad” scheme for suspending and revoking a permit.

But Pregerson’s ruling upheld the condom requirement as a means to prevent the spread of sexually transmitted diseases, noting that evidence indicates that merely testing actors for STDs was an inadequate alternative to condoms.  

The U.S. 9th Circuit Court of Appeals upheld the lower court’s ruling, with a three-judge panel concluding that a condom mandate has a minimal effect on expression and is narrowly tailored to help reduce the spread of infection.

It’s unclear when the Board of Supervisors may take up the settlement agreement. The court imposed a deadline of March 31 for filing papers to dismiss the lawsuit.

For breaking news in California, follow @MattHjourno.

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