Koretz said the City Council was blindsided by the suit filed last Thursday by the city attorney’s office asking a judge to consider whether the city has jurisdiction to enforce the state law through its Police Department permitting process.
“I don’t know that that was intentional, but I think we were all taken by surprise,” Koretz said.
The council briefly recessed into closed session to get an explanation from Assistant City Attorney Valerie Flores.
Flores said the council was notified that litigation was a possibility, but “we do believe that we should have also notified the council immediately before we filed the lawsuit. I think we learned our lesson and in the future will be have better communications with the council.”
Still, Koretz said the effort to assess the initiative before it is considered by the City Council or put to voters is “highly unusual.”
“It’s pretty rare that a government entity will seek to halt something before it actually gets to the ballot,” Koretz said. “I think it sends the wrong anti-democratic message.”
Flores said that during closed session the two branches of government got past the communication issue and discussed the substance of the suit.
The state Division of Occupational Safety and Health has argued the city can enforce state workplace safety laws requiring actors to use condoms during porn shoots via the city’s permitting process.
However, Flores said there is a body of law that suggests local governments are pre-empted from enforcing state laws through the stricter permits.
The AIDS Healthcare Foundation has submitted more than 70,000 signatures in support of the initiative that would require the city to enforce state workplace laws requiring adult film performers to wear condoms.
The city is certain to be sued by the pornography industry if the initiative is approved by the City Council or voters, Flores said, adding that defending against the suit would be extremely costly.
“The only purpose of the lawsuit was to get judicial clarity about whether the city has jurisdiction to enforce Cal/OSHA state standards,” Flores said. “We want to do that before we expend any taxpayer funds to enact or put the measure on the ballot. We are not anti-condoms on adult film sets.”
Koretz called the legal interpretation debatable.
“I think with it being that questionable in either direction, we should let the people decide first,” Koretz said.
The city attorney’s office will present a judge with a request for an expedited ruling schedule Thursday and hopes to have an opinion by late January.