BILL ANALYSIS Ó
SB 1062
Page 1
Date of Hearing: June 21, 2016
ASSEMBLY COMMITTEE ON ARTS, ENTERTAINMENT, SPORTS, TOURISM, AND
INTERNET MEDIA
Kansen Chu, Chair
SB
1062 (Lara) - As Amended June 15, 2016
SENATE VOTE: 29-9
SUBJECT: Elephants: prohibited treatment.
SUMMARY: Prohibits, beginning January 1, 2018, the use of a
bullhook and other devices designed to inflict pain to train or
control an elephant. Specifically, this bill:
1)Prohibits any person who houses, possesses, manages, or is in
direct contact with an elephant, from using, or authorizing or
allowing an employee, agent or contractor to use, a bullhook,
ankus, baseball bat, axe handle, pitchfork, or other device
designed to inflict pain for the purpose of training or
controlling an elephant. Use includes brandishing, exhibiting,
or displaying the devices in the presence of an elephant.
2)Makes any person who violates this prohibition subject to a
civil penalty of not less than $500 and not more than $10,000
per violation, and immediate suspension or revocation of a
restricted species permit.
SB 1062
Page 2
3)Authorizes a person to appeal a restricted species permit
suspension or revocation to the Fish and Game Commission
(FGC).
4)Clarifies that a person who violates the prohibition is not
subject to criminal penalties under the Fish and Game Code.
5)Provides that the prohibition in this bill is in addition to
and not in lieu of other existing animal welfare laws,
including any state or local laws.
EXISTING LAW:
1)Prohibits the importation, transportation, possession, or
release of specified wild animals, including elephants, in
California except under a restricted species permit issued by
the Department of Fish and Wildlife (DFW), in cooperation with
the Department of Food and Agriculture.
2)Authorizes the FGC to adopt regulations governing the
importation, possession, transportation, keeping, and
confinement of wild animals, including elephants.
3)Makes a violation of these requirements subject to a civil
penalty of not less than $500 and not more than $10,000 per
violation. Also makes a violation a misdemeanor, punishable by
up to six months imprisonment in a county jail, or a fine of
up to $1,000.
SB 1062
Page 3
4)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).)
5)Provides that the actions of a person who maliciously and
intentionally maims, mutilates, tortures, or wounds a living
animal, or maliciously and intentionally kills an animal as a
criminal offense. (Pen. Code, § 597.)
SB 1062
Page 4
6)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).)
7)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).)
8)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
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,
SB 1062
Page 5
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: This bill passed out of the Senate
Appropriations Committee, pursuant to Rule 28.8.
COMMENTS:
1)Author's statement in support of legislation: According to the
author, "SB 1062 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.
Los Angeles and Oakland have prohibited use of the bullhook,
and San Francisco has banned the performance of elephants,
among other performing animals. Supported by the California
Association of Zoos and Aquariums, it is time for the State to
follow suit and 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
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
SB 1062
Page 6
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. Without use of "guide" free contact will be
ended. 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
viable model for interacting with elephants. In order to
have a live performance involving an elephant, for
SB 1062
Page 7
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
Guides and Tethers, AVMA.)
www.avma.org/KB/Policies/Pages/Elephant-Guides-and-Tethers.a
SB 1062
Page 8
spx
c) Elephants in the California entertainment and tourism
industries: Impacted entities are two businesses which
work with the film and entertainment industry and provide
public interaction 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 9 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.
3)Arguments in support:
SB 1062
Page 9
a) Use of the "guide" or "bull hook" is de facto
abuse. According to information provided by the
author, 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. . . ."
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
SB 1062
Page 10
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."
4)Arguments in opposition:
a) 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." 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.
b) Existing law is sufficiently protective of elephants.
Numerous letters to the committee contain similar language
and content to the effect of the following: In addition to
SB 1062
Page 11
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)."
5)Committee comment and suggested amendment. According to the
author, sponsors and supporters of this measure, the goal of
SB 1062 is to ensure that elephants are not mistreated.
Indeed, it is the uniform view of both supporters and
opponents of SB 1062 that elephants should not be subject to
any form of abuse, nor subjected to cruel or harmful
treatment. Toward this shared goal, both the Penal Code and
Fish and Game Code already provide express prohibition in the
law against such conduct.
Where there is a conflict of opinion is the differing view of
experts in animal husbandry, regulators and veterinarians as
to the need for and proper use of the elephant guide, also
known as a bullhook or aunk. Given the existing protection in
the law against abuse of this tool, and the sometimes mortal
consequences asserted by veterinarians and experts in elephant
care if the tool is abolished, including; mothers accidently
crushing their newborn baby elephants, inability to provide
medication to baby elephants untrained in protected contact
and adult elephants too sick to cooperate with their handlers
in protected contact, and current unavailability of
alternative means to allow safe direct contact with the public
as required by federal regulations, the committee suggests an
alternative to the absolute ban proposed in the current
SB 1062
Page 12
language of the bill.
Suggested amendment. The committee suggests that the bill be
amended to add the additional language in a manner that would
violate Penal Code section 596.5, so that the bill would
prohibit using or authorizing or allowing an employee, agent
or contractor to use, a bullhook, ankus, baseball bat, axe
handle, pitchfork, or other device designed to inflict pain
for the purpose of training or controlling an elephant
(including brandishing, exhibiting, or displaying the devices
in the presence of an elephant) in a manner that would violate
Penal Code section 596.5.
As mention under Existing Law above, PC 596.5 generally
prohibits any and all abusive behavior toward elephants and
expressly prohibits (a) Deprivation of food, water, or rest,
(b) Use of electricity, (c) Physical punishment resulting in
damage, scarring, or breakage of skin, (d) Insertion of any
instrument into any bodily orifice, (e) Use of martingales,
(f) Use of block and tackle (emphasis added).
The impact of this amendment would be to allow the continued
use of the guide or bullhook, but only in a safe way which
could not be abusive or cause any harm to the elephant. The
burden of proof threshold would be the civil standard of
preponderance of the evidence, rather than the more stringent
criminal standard of beyond a reasonable doubt. Any violator
would be subject to loss of their permits and license to
maintain their elephants.
SHOULD NOT THE BILL BE AMENDED TO PROHIBIT ELEPHANT ABUSE
CONSISTANT WITH PROVISIONS IN THE PENAL CODE?
SB 1062
Page 13
6)Prior related legislation.
a) SB 716 (Lara) of 2015, was a substantially similar
measure to SB 1062 currently under consideration, which
would have prohibited use of bullhooks for managing
elephants but placed the prohibition in the Penal Code,
making a violation of the law a crime. SB 716 along with 8
other bills was vetoed by the Governor.
The veto message stated:
"Each of these bills creates a new crime - usually by
finding a novel way to characterize and criminalize conduct
that is already proscribed. This multiplication and
particularization of criminal behavior creates increasing
complexity without commensurate benefit. Over the last
several decades, California's criminal code has grown to
more than 5,000 separate provisions, covering almost every
conceivable form of human behavior. During the same
period, our jail and prison populations have exploded.
Before we keep going down this road, I think we should
pause and reflect on how our system of criminal justice
could be made more human, more just and more
cost-effective."
In response to the Governor's concerns, the author moved
the language banning the use of bullhook and other
SB 1062
Page 14
implements contained in SB 716 from the Penal Code to the
Fish and Game Code when drafting SB 1062, and expressly
excludes the criminal penalties under the Fish and Game
Code from its provisions.
b) AB 777 (L. Levine) of 2007, among other things, would
have prohibited use of any implement or device on an
elephant that may reasonably result in harm to the
elephant, including the elephant's skin. AB 3027 failed
passage in the Assembly.
c) AB 3027 (L. Levine) of 2006, among other things, would
have prohibited use of a bullhook or similar device. AB
3027 was held in the Assembly Appropriations Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
The Humane Society of the United States (sponsor)
SB 1062
Page 15
Active Environments
Alaska Zoo
American Society for the Prevention of Cruelty to Animals
(ASPCA)
Animal Legal Defense Fund
Best Friends Animal Society
Born Free USA
California Association of Zoos and Aquariums
California Travel Association
Center for Animal Protection and Education
City of Oakland
Compassion Works International
Connection Africa
Detroit Zoological Society
SB 1062
Page 16
Earth Island Institute
East Bay Regional Park District
East Bay Zoological Society (Oakland Zoo)
Elephant Aid International
Elephant Sanctuary of Tennessee
Global Sanctuary for Elephants
Humane Society Veterinary Medical Association
Humane Society Wildlife Land Trust
In Defense of Animals
Lieutenant Governor Gavin Newsom
Lions, Tigers & Bears
Liuna Locals 777 & 792
March for Elephants
SB 1062
Page 17
Marin Humane Society
Performing Animal Welfare Society
San Diego Humane Society
San Francisco SPCA
Santa Clara County Activists for Animals
Sierra Club California
Sierra Wildlife Coalition
State Humane Association of California
Numerous individuals, including veterinarians.
Opposition
American Association of Zoo Veterinarians
American Humane Association
SB 1062
Page 18
Animals All Around
Asian Elephant Support
California Fairs Alliance
California Responsible Pet Owners Coalition
Circus Fans Association of America
Circus World Museum Foundation, Inc.
Elephant Managers Association
Feld Entertainment, Inc.
Have Trunk Will Travel
International Elephant Foundation
Lake County Fair
Livingston Exotics LLC
Los Angeles Foundation for the Circus Arts
SB 1062
Page 19
Monterey Zoo
Pacific Animal Productions
P.M. Productions Entertainment
QE Productions
Ringling Bros. Center for Elephant Conservation
The Shrine Circus, Pittsburgh
The Syria Shrine Circus
Traveling Paws LLC
Western Fair Association's Ag Council
Wild Wonders, Inc.
Wildlife Safari
Zoological Association of America
Numerous individuals, including veterinarians.
SB 1062
Page 20
Analysis Prepared by:Dana Mitchell / A.,E.,S.,T., & I.M. / (916)
319-3450