BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    SB 1062


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          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.









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          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.










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          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.)









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          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,  








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            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  








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               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  








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               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 








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               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: 









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             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  








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               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  








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               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  








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            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?








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          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  








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               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)










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          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









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          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









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          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










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          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










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          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.










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          Analysis Prepared by:Dana Mitchell / A.,E.,S.,T., & I.M. / (916)  
          319-3450