BILL ANALYSIS Ó
SB 716
Page 1
Date of Hearing: July 14, 2015
ASSEMBLY COMMITTEE ON ARTS, ENTERTAINMENT, SPORTS, TOURISM, AND
INTERNET MEDIA
Ian Charles Calderon, Chair
SB
716 (Lara) - As Amended May 5, 2015
SENATE VOTE: 29-7
SUBJECT: Animal cruelty: elephants.
SUMMARY: Would make it a misdemeanor for any person who houses,
possesses, or is in direct contact with an elephant to use
specified devices designed to inflict pain for the purpose of
training or controlling the behavior of an elephant.
Specifically, this bill:
1)Declares that on or after January 1, 2018, it shall be a
misdemeanor for any person who houses, possesses, or is in
direct contact with an elephant to use a bullhook, ankus,
baseball bat, axe handle, pitchfork, or similar device
designed to inflict pain for the purpose of training or
controlling the behavior of an elephant.
2)Provides that prohibited behavior includes brandishing,
exhibiting, or displaying any of the devices, listed above, in
the presence of an elephant.
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EXISTING LAW:
1)Declares that it is a misdemeanor for any owner or manager of
an elephant to engage in abusive behavior toward the elephant,
including the discipline of the elephant by any of the
following methods:
a) Deprivation of food, water, or rest. (Pen. Code, §
596.5, subd. (a).)
b) Use of electricity. (Pen. Code, § 596.5, subd. (b).)
c) Physical punishment resulting in damage, scarring, or
breakage of skin. (Pen. Code, § 596.5, subd. (c).)
d) Insertion of any instrument into any bodily orifice.
(Pen. Code, § 596.5, subd. (d).)
e) Use of martingales. (Pen. Code, § 596.5, subd. (e).)
f) Use of block and tackle. (Pen. Code, § 596.5, subd.
(f).)
2)Provides that the actions of a person who maliciously and
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intentionally maims, mutilates, tortures, or wounds a living
animal, or maliciously and intentionally kills an animal as a
criminal offense. (Pen. Code, § 597.)
3)Specifies when a person overdrives, overloads, drives when
overloaded, overworks, tortures, torments, deprives of
necessary sustenance, drink, or shelter, cruelly beats,
mutilates, or cruelly kills any animal, or causes or procures
any animal to be so overdriven, overloaded, driven when
overloaded, overworked, tortured, tormented, deprived of
necessary sustenance, drink, shelter, or to be cruelly beaten,
mutilated, or cruelly killed; and whoever, having the charge
or custody of any animal, either as owner or otherwise,
subjects any animal to needless suffering, or inflicts
unnecessary cruelty upon the animal, or in any manner abuses
any animal, or fails to provide the animal with proper food,
drink, or shelter or protection from the weather, or who
drives, rides, or otherwise uses the animal when unfit for
labor as a criminal offense. (Pen. Code, § 597, subd. (b).)
4)Requires punishment as a felony by imprisonment pursuant to
subdivision (h) of Section 1170, or by a fine of not more than
twenty thousand dollars ($20,000), or by both that fine and
imprisonment, or alternatively, as a misdemeanor by
imprisonment in a county jail for not more than one year, or
by a fine of not more than twenty thousand dollars ($20,000),
or by both that fine and imprisonment for violations of Penal
Code section 597 (animal cruelty). (Pen. Code, § 597, subd.
(d).)
5)Requires that if a defendant is granted probation for a
conviction of animal cruelty, the court shall order the
defendant to pay for, and successfully complete, counseling,
as determined by the court, designed to evaluate and treat
behavior or conduct disorders. If the court finds that the
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defendant is financially unable to pay for that counseling,
the court may develop a sliding fee schedule based upon the
defendant's ability to pay. The counseling shall be in
addition to any other terms and conditions of probation,
including any term of imprisonment and any fine. If the court
does not order custody as a condition of probation for a
conviction under this section, the court shall specify on the
court record the reason or reasons for not ordering custody.
This does not apply to cases involving police dogs or horses
as described in Section 600. (Pen. Code, § 597, subd. (h).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's statement of need for legislation: According to the
author, "SB 716 simply codifies industry standards for
elephant management by prohibiting the use of bullhooks, bats,
and pitchforks to discipline an elephant. A bullhook is
typically embedded into most sensitive areas of an elephant,
which involves areas around the ears, mouth, and back of the
legs. The use of this instrument also puts handlers at severe
risk, should an elephant decide to rebel against the trainer.
Since 1990, there have been at least 16 human deaths, and 135
injuries in the U.S. have been attributed to elephants. Simply
put, it is time for the State to prohibit this inhumane
practice."
2)Background:
a) Existing state and federal law prohibits animal abuse,
and provides specific protections for elephants. As
mentioned in the "Existing Law" section above, California
law makes abuse of an animal a crime punishable under the
Penal Code. Further specific protections exist for
elephants, including (Pen. Code, § 596.5, subd. (a).) which
provides, "It shall be a misdemeanor for any owner or
manager of an elephant to engage in abusive behavior toward
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the elephant, . . ." Id. The statute goes on to list
specific conduct which is included under "abusive
behavior," but does not limit the definition of abusive
behavior towards an elephant in any way. A "bull hook" or
"guide" used by an owner or manager to engage in abusive
behavior toward the elephant is already a crime under
existing law. Enforcement of these laws is done at the
local level by the local Animal Control Officer and local
law enforcement.
In addition, federal law provides, under the Animal Welfare
Act (AWA), that zoos, circuses, transporters, roadside
menageries and exhibitors of elephants must be licensed and
participate in record-keeping and marking requirements.
Additional protections exist governing their care,
handling, and transport. The AWA gives power to the
Secretary of Agriculture and the United States Department
of Agriculture, whose power is further delegated to the
Animal Plant and Health Inspection Service (APHIS) to
administer and enforce the AWA's requirements. APHIS
enforces the Act through conducting inspections and
instituting rules and regulations for facilities. APHIS is
required to conduct yearly inspections and investigate
facilities whenever a complaint is filed.
Unlike California law, the AWA does not prohibit any
particular instruments in the handling of elephants or
other warm blooded animals.
b) Two models for handling elephants: protected contact and
free contact. There are two models for elephant trainers
and caretakers to interact with elephants: "protective
contact" and "free contact." In the protective contact
model, the trainer or caretaker only interacts with
elephants through a barrier or fence. In free contact the
trainer/caretaker shares a physical space with the
elephant. According to some experts, the bullhook/guide is
necessary for free contact training or management. Without
use of the "bull hook" or "guide," free contact is not a
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viable model for interacting with elephants. In order to
have a live performance involving an elephant, for
instance, free contact is necessary. A live performance
with elephants typically occurs in a circus, but can also
include use of elephants in films, events like county
fairs, or attractions such as theme parks and safari
experience parks.
It should be noted that while California zoos accredited
by the Association of Zoos and Aquariums (AZA), along with
many other facilities housing elephants no longer use
bullhooks, the American Veterinary Medicine Association
(AVMA) policy does not prohibit the use of
guides/bullhooks, and many facilities nationwide have
contacted the committee to state that they incorporate
guides into their protected contact protocol.
AVMA policy prohibits the use of guides in a manner which
inflicts harm on an elephant, but allows use of the guide
as a husbandry tool for elephant management.
"The AVMA condemns the use of guides to puncture, lacerate,
strike or inflict harm upon an elephant. Elephant guides
are husbandry tools that consist of a shaft capped by one
straight and one curved end. The ends are blunt and
tapered, and are used to touch parts of the elephant's body
as a cue to elicit specific actions or behaviors, with the
handler exerting very little pressure. The ends should
contact, but should not tear or penetrate the skin."
(Elephant Guides and Tethers, AVMA.)
www.avma.org/KB/Policies/Pages/Elephant-Guides-and-Tethers.a
spx
"Guides and tethers are used for training elephants in some
elephant management systems, and appropriate training is
important for facilitating veterinary care. However, guides
and tethers should only be used in a manner consistent with
the promotion of optimum welfare of the elephant. Personnel
using these devices should be trained adequately, as well
as introduced to alternative management systems." (Elephant
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Guides and Tethers, AVMA.)
www.avma.org/KB/Policies/Pages/Elephant-Guides-and-Tethers.a
spx
c) Elephants in the California entertainment and tourism
industries: Impacted entities are two businesses where the
public interacts directly with elephants. As mentioned
above, all zoos and major sanctuaries in California have
moved to protected contact and have ceased use of the guide
tool. There are two remaining commercial organizations -
which have 10 elephants between them - that have direct
contact with elephants as their business model. Both claim
they need to use guide tools in order to provide their
services. The first is Have Trunk Will Travel, who provides
elephants for work in films, television, commercials,
traditional Indian weddings, as well as offering elephant
rides at fairs and theme parks. They are the exclusive
providers of elephants to the film industry and have worked
on projects such as George of the Jungle and Water for
Elephants. Their research and development of elephant
handling and medical care techniques are recognized
nationwide.
The second affected business is the Monterey Zoo, which
offers a safari style bed and breakfast experience, public
meet and greets with exotic animals and educational
experience and research facilities all inside an expansive
property outside of Salinas California. There are over 100
exotic animals onsite, with five elephants among them.
Education, public interaction with exotic animals and
research are all supported through a related non-profit as
well as the proceeds from their ranch. The facility's
animals are also stars of stage and screen, with their
lions and bears, parrots, squirrels, yaks and more
appearing in numerous television shows, commercials and
films. The Monterey Zoo is currently undergoing a $10
million dollar renovation and expansion of their facility.
The committee also heard from The American Humane
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Association, the film industry expert veterinary officers
who grant films with the "No Animal Was Harmed"
certification for films, who also use the guide tool in
their work with elephants.
Conversely, PAWS wildlife sanctuary offers tours of their
facility with up-close-but-no-touch encounters with
elephants, known as "Seeing the elephant" tours. Visitors
are able to observe the elephant's habitat, special
handling techniques for bull elephants, and observe
positive reinforcement training to deal with medical
problems and foot care. Education and conservation are
combined with overnight options and vegetarian lunches.
These tours would not be impacted by passage of SB 716.
3)Arguments in support:
a) Use of the "guide" or "bull hook" is de facto
abuse. According to the sponsor, a "bullhook is a
steel-pointed rod resembling a fireplace poker that is
used to prod, hook, and strike elephants in order to
dominate and control them during training, performing,
and handling. The sharp tip and hook are applied with
varying degrees of pressure to sensitive spots on an
elephant's body, causing the elephant to recoil from
the source of pain. The handle is used as a club,
inflicting substantial pain by striking areas where
little tissue separates skin and bone. . . . Elephant
calves are forcibly separated from their mothers
(females elephants naturally remain with their mothers
for life) and taught to associate the bullhook with
pain and fear. While the elephant is typically
restrained, handlers repeatedly administer sharp jabs
and hooks with the bullhook, and strike sensitive
parts of their bodies with the handle or metal hook.
Thereafter, the elephant responds to the bullhook out
of fear of pain (moving away from the device) and will
be expected to perform a behavior on cue or suffer the
painful consequences. . . ."
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The president and co-founder of PAWS, which is a
co-sponsor of this bill, states in part, "Based on
firsthand observations, I have concluded that there is
no way to humanely use a bullhook - a weapon
resembling a fireplace poker, with a sharp metal point
and hook at the end - to train and manage elephants.
By its very design, the bullhook is meant to inflict
pain and instill fear. I have spent time around many
circuses and personally seen handlers forcefully hook,
jab and strike elephants with bullhooks on sensitive
parts of their bodies before and during performances,
and as a matter of routine handling. It was very
obvious by the elephants' responses that they both
anticipated and experienced pain."
b) The professional community of elephant handlers is
moving away from direct human contact with elephants, and
thus the instrument should be banned from use as outmoded.
The East Bay Zoological Society, which owns the Oakland
Zoo, supports this bill, explaining in part that it has
used the management style called "Protected Contact"
described in Comment 2 above since 1991. "The elephants and
staff do not share the same physical space, and the
elephants also have a choice of whether or not to
participate in training sessions. This management style
ensures not only the safety and care of our elephants, but
also our staff. According to the Humane Society of the
United States, "California zoos accredited by the
Association of Zoos and Aquariums (AZA) no longer use
bullhooks, nor does the Performing Animal Welfare Society's
sanctuary which is home to numerous rescued elephants. The
AZA now also urges all its member zoos to switch to a safer
and more humane elephant training system that does not
utilize the bullhook." (Emphasis in original).
4)Arguments in opposition:
a) Existing law is sufficiently protective of elephants.
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Numerous letters to the committee contain similar language
and content to the effect of the following: In addition to
state laws against animal abuse, and specific laws
protecting elephants, there are existing federal
regulations that strictly govern elephant care under the
Animal Welfare Act, that are overseen and revised
frequently by the U.S. Department of Agriculture, animal
and Plant Health Inspection Service (USDA/APHIS).
USDA/APHIS utilizes trained veterinary professionals who
are instructed specifically in animal/elephant care and
welfare to conduct regular inspections of all license
exhibitors of elephants (and other animals)."
b) The "guide" is a humane and irreplaceable aspect of
elephant handling in direct contact with humans, which many
vets and zoo keepers still need to use, in addition to use
with performing animals. According to the Elephant Managers
Association (EMA), who oppose this measure, "All animal
species are vastly different in their husbandry needs and
each species requires specialized equipment to ensure
proper care. Tools such as the elephant guide (or
bullhooks) are safe and productive components of elephant
care and training. Elephant tools are not intended to
injure or harm the animal and are proven and humane
husbandry tools that are widely utilized by knowledgeable
and experienced elephant care professionals in a variety of
settings. They also add an increased degree of safety for
the trainer, the animal, and the public."
Additionally, they add, "The American Veterinary Medical
Association (AVMA) has gone on record supporting the use of
professional tools, including the guide, to manage
elephants." In particular, The EMA states, "All animal
species are able to be trained using "operant
conditioning." This is a type of learning in which the
probability of a behavior recurring is increased or
decreased by the consequences that follow. This teaching
process includes both positive and negative reinforcement.
Operant conditioning is used in all forms of elephant care,
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and the process of training animals responsibly utilizes a
variety of science-based techniques which are critical to
providing proper welfare and husbandry. Utilizing an
elephant guide and employing positive reinforcement are
often part of the same overall operant conditioning
system." They relay a concern with reliance solely upon
protected contact, which depends upon the animal's choice
to cooperate, especially with baby elephants that are not
yet conditioned to approach their medical treatment area,
which is when elephants don't feel well; they won't come
into medical pens for treatment. Sadly, this has resulted
in more than one baby elephant's death from a treatable
condition, an EMA representative asserts.
c) Economic hardship: lost tourism and entertainment
dollars. The Western Fairs Association, states in
opposition, "Our organization has been monitoring
proposed legislation regarding guides for several
years. Groups including the Elephant Manager's
Association, the Zoological Association of America,
the Association of Zoos and Aquariums, the
International Elephant Foundation Elephant Husbandry
Resource Guide, and the American Veterinary Medical
Association all recognize the guide as a husbandry
tool to aid in caring of elephants and have policies
in place for its use. ?We see the efforts to ban the
guide -- effectively shutting down elephant exhibits
and rides at fairs -- as the beginning of a slippery
slope that has serious implications for all fairs."
The Salinas Valley Chamber of Commerce adds in
opposition, "The Monterey Zoo is an important tourist
attraction in our area and elephants are the flagship
of their new facility. Should the proposed legislation
in SB 716 be enacted, it would create severe barriers
to the success of this responsible 501(3) non-profit
organization that provides so much to our community."
d) Request for amendments: assignment of responsible
oversight agency to existing California Fish and Wildlife
Committee on "restricted species held by exhibitors," and
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one year extension of delayed implementation. Concern has
been raised that if SB 716 were to become law and use of
the bullhook/ankus is outlawed; there is not sufficient
guidance in the measure to direct development of an
alternative tool and approve adoption for use. For
instance, if a tool is created that is similar in design,
but without barbs or points at the tips (imagine something
more like a cane than a fire poker), that implement would
seem to comply with the intention of the bill to be a tool
for "training or controlling the behavior of an elephant"
which is not "designed to inflict pain." Who will be the
agency authorized to make that determination? As mentioned
above, the enforcement of animal abuse laws falls upon the
local Animal Control and law enforcement; that disbursement
of authority would make uniform compliance and adoption of
accepted tools of husbandry difficult to achieve.
In order to address this situation, the Monterey Zoo and
Have Trunk Will Travel urge the adoption of amendments to
refer the implementation and adoption of any new husbandry
tool to the Department of Fish and Wildlife. In support of
this concept, they share the following:
"Specifics on animal husbandry and care as well as tools
used in animal care for species requiring permits in
California are regulated by section 671 of title 14 of the
California Code of Regulations. Section 671 of Title 14 of
the California Code of Regulations contains all of the
specifics on the care and housing of restricted species
held by licensed exhibitors, including husbandry tools. Per
Section 671, the California Fish and Wildlife Commission
has an appointed committee that is required to meet on a
scheduled basis to address such issues as addressed in SB
716, and submit recommendations to the Director of Fish and
Wildlife. After the Committee votes on such issues and
presents their report to the Director, he then may present
his recommendation to the Fish and Wildlife Commission,
where the law may be modified."
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"The Director of Fish and Wildlife's Advisory Committee is
composed of representatives of Human Society of the United
States, PAWS, Monterey Zoo, Have Trunk Will Travel, UC
Davis, laboratories, education facilities, several other
animal rights representatives, and animal experts as well
as representatives from Fish and Game legal, enforcement
and licensing departments. This Committee needs to have the
opportunity to debate this issue and possibly come to
middle ground on an acceptable means of developing and
using the guide tool. The use of the guide tool (bullhook)
should go through this proper channel where individuals
with actual and specific professional experience with these
matters can apply both science and experience to their
task."
In addition to the amendment to refer the enforcement and
oversight of the issue to Fish and Wildlife, Monterey Zoo
and Have Trunk Will Travel also request an extension of the
date of implementation, to January 1, 2020, in order to
allow sufficient time for the administrative process to
determine an acceptable husbandry tool, and the affected
entities proper time to retrain their staff and elephants
to its proper use.
5)Committee comments:
a) Definitions: Is a "Guide" by any other name still covered
by SB 716? The opposing sides of this legislation use
differing terminology to refer to the same tool of elephant
husbandry, supporters often referring to "bull hooks" or
sometimes "ankus", while opponents refer to a "guide." As
defined in, Literature Review on the Welfare Implications of
Elephant Training, (April 2008), the guide is a shaft with a
tapered metal hook attached, and it sometimes has a blunt
metal point at the end. It is also sometime referred to as
the ankus, (bull)hook, or goad. The guide extends a
handler's reach so s/he may touch, push, or pull various
parts of the elephant's body. A guide is used in all free
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contact programs in the United States, and may also be used
in conjunction with protected contact.
www.avma.org/KB/Resources/LiteratureReviews/Documents/elephan
t_training_bgnd.pdf
This legislation prohibits the use of a bullhook, ankus,
baseball bat, axe handle, pitchfork, or similar device
designed to inflict pain? The bill does not include "guide"
in its list of prohibited husbandry devices. Many opponents
of this legislation believe that the use of a guide, when
done properly, is not painful to the animal. They further
argue that it is not intended to be painful, but rather
mimic the physical interplay of tugging and prodding common
in elephants. Additionally, earlier versions of this measure
contained reference to the word "guide", but it was amended
out. Therefore, there is some ambiguity as to whether use of
the "guide" would be prohibited by this bill. The author may
wish to clarify this by expressly including reference to
guides and adding a definition.
b) Conflict within scope of covered persons within PC 596.5
(a) and (b). This bill amends an existing section of the
Penal Code, 596.5 which contains prohibited devices and
abusive acts directed at elephants done by "any owner or
manager of an elephant" and as of January 1, 2018 the new
subsection (b) will prohibit use, including brandishing,
exhibiting, or displaying or enumerated additional
prohibited devices (bullhook, ankus, pitch fork, etc?), by
"any person who houses, possesses, or is in direct contact
with an elephant." The committee wishes to point out that a
conflict in the scope exists between these two sections,
with the latter being substantially more broad than the
existing law (which will remain in force). The author may
wish to amend subsection (a) to also address abusive acts by
any person who houses, possesses, or is in direct contact
with an elephant, in order to provide consistency within the
section.
6)Prior Legislation:
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a) AB 777 (Levine), of 2007-2008, would have prohibited
specified conduct in relation to housing, possessing,
contacting, or traveling with an elephant. AB 777 was held
in the Assembly Public Safety Committee
b) AB 3027 (Levine), of 2005-2006, would have prevented the
use an Ankus, bullhook, or similar device on an elephant.
Would have prevented the use of any chain that is used to
restrain an elephant, except if utilized for the shortest
amount of time necessary to provide actual medical
treatment. AB 3027 was held in the Assembly Appropriations
Committee.
c) AB 1000 (Horcher), of 1995-96, would have prohibited the
chaining of elephants in their permanent facility unless
the chaining was for training purposes limited to two hours
per a day or veterinary care. AB 1000 failed passage in the
Assembly Committee on Public Safety.
REGISTERED SUPPORT / OPPOSITION:
Support
Organizations (CA)
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Active Environment
American Society for the Prevention of the Cruelty to Animals
Animal Film Festival
Animal Legal Defense Fund
City and County of San Francisco, Board of Supervisors
City of Los Angeles
City of Oakland
Elephant Voices
Global Sanctuary for Elephants
Humane Society Veterinary Medical Association
In Defense of Animals
International Marine Mammal Project
Laborer's International Union of North America, Local 777 & 792
Last Chance for Animals
Lions, Tigers and Bears
March for Elephants
Oakland Zoo
Performing Animal Welfare Society
Sacramento SPCA
San Diego Humane Society
San Francisco SPCA
Santa Clara County Activists for Animals
Sierra Wildlife Coalition
Society for the Prevention of Cruelty to Animals Los Angeles
State Humane Association of California
The Elephant Sanctuary
The Fund for Animals
The Global March for Elephants and Rhinos
The League of Humane Voters, California Chapter
The Marin Humane Society
Organizations (Out of State)
Action for Animals
Best Friends Animal Society
Detroit Zoological Society
Elephant Trust
Global Sanctuary for Elephants
Humane Society Veterinary Medical Association
The Elephant Sanctuary in Tennessee
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The Humane Society of the United States
Uganda Carnivore Program
8 California residents
12 Out of state individuals
Opposition
Organizations (CA)
American Humane Association Hollywood
Animal Actors of Hollywood
California Fairs Alliance
Circus Fans Association of America
Face in the Crowd Casting
Farm Bureau Monterey
Gentle Jungle, Inc.
Have Trunk Will Travel
Los Angeles Foundation for the Circus Arts
Monterey Zoo
No Animals Were Harmed program
Pacific Animal Productions
Salinas Valley Chamber of Commerce
Silver Screen Animal, Inc.
Western Fairs Association
Wild Wonders, Inc.
Worldwide Movie Animals
Organizations (Out of State)
Asian Elephant Support
Columbus Zoo and Aquarium (Jack Hanna)
Feld Entertainment Inc.
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International Elephant Foundation.Org
National Animal Interest Alliance
Outdoor Amusement Business Association
United States Zoological Association
Zoological Association of America
75 California residents
43 Out of state individuals
Analysis Prepared by:Dana Mitchell / A.,E.,S.,T., & I.M. / (916)
319-3450