BILL ANALYSIS
SB 477
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Date of Hearing: June 23, 2010
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
SB 477 (Florez) - As Amended: August 17, 2009
SENATE VOTE : (vote not relevant)
SUBJECT : Employment: heat illness prevention.
SUMMARY : Codifies and strengthens<1> existing regulations that
provide for the prevention of heat illness of employees.
Specifically, this bill :
1 Requires an employer to provide employees with continuous,
ready access to fresh, pure, suitably cool potable drinking
water.
2)Provides that where drinking water is not plumbed or otherwise
continuously supplied, it shall be provided in sufficient
quantity at the beginning of the work shift to provide one
quart per employee per hour for drinking for the entire shift.
An employer may begin the shift with smaller quantities of
water if the employer has an effective procedure for
replenishment during the shift to allow employees to drink one
quart or more per hour.
3)Provides that the frequent drinking of water shall be
encouraged.
4)Provides that when the outdoor temperature in the work area
exceeds 85 degrees, an employer shall have an maintain one or
more areas with shade at all times while employees are present
that are either open to the air or provided with ventilation
or cooling.
5)Provides that the amount of shade shall be sufficient to
accommodate at least 25 percent of the employees on the shift
at any time, so that they can sit in a normal position fully
in the shade without being in physical contact with each
other.
6)Provides that the shaded area shall be located as close as
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<1> Provisions of this bill that are different or go beyond the
existing state regulation are described in bold.
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practicable to areas where employees are working.
7)Provides that when the outdoor temperature in the work area
does not exceed 85 degrees, an employer shall either provide
shade as described above or provide timely access to shade
upon an employee's request.
8)Provides that an employer shall allow and encourage an
employee to take a cool-down rest in the shade for a period of
not less than five minutes at a time when the employee feels
the need to do so to protect himself or herself from
overheating. Such access to shade shall be permitted at all
times.
9)Specifies that (except for employers in the agriculture
industry) cooling measures other than shade may be provided in
lieu of shade if the employer can demonstrate that these
measures are at least as effective as shade.
10)Requires an employer to implement high-heat procedures when
the temperature equals or exceeds 95 degrees. These
procedures shall include all of the following to the extent
practicable:
a) Ensuring that effective communication by voice,
observation, or electronic means is maintained so that
employees at the work site can contact a supervisor when
necessary. An electronic device, such as a cell phone or a
text messaging device, may be used for this purpose if
reception in the area is reliable.
b) Using a buddy system.
c) Observing employees for alertness and signs or symptoms
of heat illness.
d) Reminding employees throughout the work shift to drink
plenty of water.
e) Supervising new employees closely by a supervisor or
designee for the first 14 days of the employee's employment
by the employer, unless the employee indicates at the time
of hire that he or she has been doing similar outdoor work
for at least ten days of the past 30 days for four or more
hours per day.
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11)Prohibits an employer from allowing an employee or a
supervisor to begin outdoor work until he or she has completed
specified training.
12)Requires training to all supervisory and non-supervisory
employees to be provided in the following topics:
a) The environmental and personal risk factors for heat
illness, as well as the added burden of heat load on the
body caused by exertion, clothing and personal protective
equipment.
b) The employer's procedures for complying with these
requirements.
c) The importance of frequent consumption of small
quantities of water, up to four cups per hour, when the
work environment is hot and employees are likely to be
sweating more than usual in the performance of their
duties.
d) The importance of acclimatization.
e) The different types of heat illness and the common signs
and symptoms of heat illness.
f) The importance to employees of immediately reporting to
the employer symptoms or signs of heat illness in
themselves or coworkers.
g) The employer's procedures for responding to symptoms of
possible heat illness, including how emergency medical
services will be provided should they become necessary.
h) The employer's procedures for contacting emergency
medical services, and if necessary, for transporting
employees to a point where they can be reached by an
emergency medical service provider.
i) The employer's procedures for ensuring that, in the
event of an emergency, clear and precise directions to the
work site can and will be provided as needed to emergency
responders.
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13) Requires training to be provided to supervisors (prior to
assignment to supervision of employees working in the heat) on
the following topics:
a) All of the topics described above.
b) The procedure the supervisor is to follow to implement the
applicable provisions of these
requirements.
c) The procedures, including emergency response procedures,
the supervisor is to follow
when an employee exhibits symptoms consistent with
possible heat illness, including
emergency response procedures.
d) Procedures to monitor weather reports and how to respond
to hot weather
advisories.
14)Requires an employer to set forth these procedures in writing
and make them available to its employees and to
representatives of the Division of Occupational Safety and
Health upon request.
EXISTING LAW :
1)Requires employers to follow specified guidelines to prevent
heat illness in outdoor places of employment.
2)Requires employers to provide safe and healthful working
conditions for all employees by authorizing the enforcement of
effective standards and provides for research, information,
education, training, and enforcement in the field of
occupational safety and health.
3)Requires, with certain exceptions, every employer to
establish, implement and maintain an effective Injury and
Illness Prevention Program.
FISCAL EFFECT : Unknown
COMMENTS : One of the most significant workplace safety issues
addressed by the Legislature and state enforcement agencies in
recent years has involved worker exposure to heat illness. This
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bill proposes to codify and strengthen or expand current
regulations that address this issue.
Initial Heat Illness Legislative and Regulatory History
Following a rash of heat-related deaths in the agricultural
industry in July of 2005, Assembly Bill 805 (Chu) was introduced
to address heat illness by requiring the Occupational Safety and
Health Standards Board (Board) to adopt an effective
occupational safety and health standard for heat illness
prevention and response for all employees at risk of heat
illness. The bill made it to the Senate floor, but was never
heard. However, as a result of this legislative push for
regulatory action, the Board promulgated an outdoor heat illness
prevention regulation. This regulation requires all employers
with outdoor worksites to take the following steps to prevent
heat illness:
1) Provide heat illness prevention training to all
employees, including supervisors.
2) Provide enough fresh water so that each employee can
drink at least 1 quart per hour and encourage them to do
so.
3) Provide access to shade for at least 5 minutes of rest
for employees suffering from heat illness or believing a
preventative recovery period is needed.
4) Develop and implement written procedures for complying
with the heat illness prevention standard.
The emergency heat regulations took effect on August 22, 2005,
and the permanent regulations became effective July 27, 2006.
Recent Additional Regulatory Proposals
Despite the 2005 heat illness regulation, heat illness continued
to be an issue of significant concern for workers, particularly
in the agriculture industry. According to the Department of
Industrial Relations (DIR):
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"In 2005, there were 12 deaths out of 25 heat-related
illness cases. In 2006, there were 8 deaths out of 38
heat-related illness cases. In 2007, there was 1 death out
of 17 heat-related illness cases. In 2008, there were 6
confirmed occupational heat-related deaths out of 49
heat-related illness cases. In 2009, there was only 1
death out of 41 heat-related illness cases and one
potential heat-related illness case pending final
determination."<2>
This has led some worker advocates to challenge the heat illness
regulation as inadequate or insufficient. In response, last
summer the Division of Occupational Safety and Health (DOSH)
proposed a number of emergency standards to revise the
regulatory framework. These proposals were criticized by both
some employer and some worker representatives, albeit for
different reasons. As a result, these proposals were not
approved.
Most recently, DOSH filed a proposal for permanent rulemaking
(as opposed to emergency rulemaking) with the Board. A public
hearing was held on that proposal in October of last year.
Again, there were criticisms of that proposal from some
employers and worker advocates. In addition, several Board
members criticized DOSH for not taking the issue to an advisory
committee before going forward with a proposal.
As a result, DOSH convened an advisory committee meeting on
November 16, 2009. A Cal-OSHA Reporter article<3> describes the
discussion at the advisory committee meeting in part as follows:
"Industry representatives at a Nov. 16 meeting on the
Division of Occupational Safety and Health's (DOSH)
proposed revisions to the heat illness standard said they
support an 85F trigger that would require employers to
'have and maintain' one or more areas with shade at all
times when workers are present. Meanwhile, worker
representatives pressed their case for a 'shade up' trigger
of 75 degrees?
?DOSH convened the advisory committee after an October
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<2> DIR, "Targeted Heat Illness Prevention Campaign: 2010 Report
to the Legislature." (April 2010).
<3> Cal-OSHA Reporter, Vol. 36, No. 44 (November 20, 2009).
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public hearing before the board on a set of permanent
revisions that received sharp criticisms from both
stakeholders and board members.
[DOSH Chief Len] Welsh says the changes are necessary
because the current standard, which was permanently adopted
in 2006, is unclear in some areas, and misinterpretations
are resulting in noncompliance, especially regarding shade?
?The core of what DOSH is trying to get the Standards Board
to adopt relates to shade, he adds, one of the most
misinterpreted parts of the standard. The agency seeks to
amend the standard so that employers are required to put
shade up when the temperature exceeds 85F to accommodate
at least 25% of the employees on the shift at any one time,
'so that they can sit in a normal posture fully in the
shade without having to be in physical contact with each
other,' according to the proposed revision. Shade would
have to be located as close as practicable to where
employees are working?
?One of the big issues to non-agricultural employers is an
exemption on the shade-up requirements for situations where
erecting a shade structure isn't practical or might even
create a hazard?
?DOSH is considering reintroducing language similar to the
June emergency proposal stating that if shade is
infeasible, an employer would be required to provide shade
upon request, as long as the employer can demonstrate that
it is infeasible to comply and the alternative provides
comparable protection from heat."
At the time of preparation of this analysis, DOSH had issued no
further proposals since the advisory committee meeting on
November 16, 2009, although there were some indications that
such a proposal might be imminent (perhaps even issued before
this bill is heard). This bill largely reflects the most recent
regulatory proposal that was considered in October and November
of last year.
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RECENT LITIGATION :
Last year, the United Farm Workers (UFW) and the American Civil
Liberties Union (ACLU) filed a lawsuit against DOSH and the
Board, seeking injunctive relief that would require the state to
"perform its constitutional and statutory duty and exercise its
authority to protect farmworkers reasonably and adequately"
against heat illness.
Last month, a superior court ruled that the UFW and ACLU do not
have the right to seek judicial intervention in this case.
However, the judge did rule that the plaintiffs have a right to
seek a writ of mandate forcing DOSH to more strictly enforce the
heat illness standard.
COMMITTEE STAFF COMMENT: OUTDOOR VERSUS INDOOR ?
The existing heat illness standard expressly states that, "This
section applies to all outdoor places of employment."
The limitation of the current heat illness standard to outdoor
places of employment has been somewhat controversial, and there
have been two recent legislative efforts seeking to require the
Board to adopt a standard for indoor places of employment.
Specifically, AB 838 (Swanson) from 2009 and AB 1045
(Richardson) from 2007 were both vetoed by Governor
Schwarzenegger.
From the author's comments in support of this bill, it appears
that he intends the bill only to apply to outdoor places of
employment. In addition, the bill language does refer in
several instances to "outdoor temperatures" or similar language.
Therefore, if this is indeed the intention, the author may wish
to more explicitly state (like the current heat illness
standard) that these requirements apply only to outdoor places
of employment.
COMMITTEE STAFF COMMENT: REST BREAKS
It would appear that the provision of rest breaks or "cool down"
periods is crucial to the success of any efforts to address heat
illness. It is worth noting that with respect to agricultural
workers, for many years advocates have stated that the current
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piece-rate system of payment of wages actually creates an
economic disincentive against such workers taking breaks.
Legislation has been introduced a number of times to address
this issue by requiring such workers to be paid their average
piece-rate earnings during state mandated rest periods. For
example, AB 755 (De La Torre) from 2005 and SB 1538 (Alarcon)
from 2004 were both vetoed by the Governor.
The committee analysis for AB 755 (De La Torre) stated the
following:
"The California Rural Legal Assistance Foundation (CRLAF),
sponsor of this bill, argues that for hourly workers, the
mandate of existing rest period requirements is clear and
unambiguous: workers cannot be docked wage by their
employer during rest periods. However, CRLAF states that
employers of piece rate workers contend that this essential
protection does not extend to their workers. Since these
employers know that the overwhelming majority of piece rate
workers therefore will 'willingly' work through their rest
periods (to avoid losing money), the logic behind the
public policy or requiring mandatory rest periods for all
workers is being thwarted by the piece rate pay system.
CRLAF argues that the purpose of this bill is to bring an
end to this 'forced' waiving of rest periods by tens of
thousands of piece rate workers, who have been leveraged by
economic circumstances to 'freely choose' between taking
needed rest periods or suffering a loss of earnings. CRLAF
states that because there is no definitive decisional case
law on this point, they are seeking legislative
clarification.
As evidence of abuse under the current system, CRLAF
indicates that, in a 2004 survey of more than 1,000 farm
workers, 72.5% of farm workers stated that they 'often'
worked through rest periods to avoid losing money, and 64%
stated that, if they were paid their average piece rate
earning during rest periods, they would be likely to take
them 'more often.'"
CRLAF, in its comments to the Board in October regarding the
regulatory proposal, noted this as an issue of concern once
again:
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"?In addition, employees who are concerned about job
security will not take the risk of seeking additional rest
that other employees are not taking. This is especially
true when the employee is working under a quota or piece
rate system where taking such a rest will reduce the
worker's pay, and possibly lead to the employee getting
fired (or not rehired) for not meeting the quota. In sum,
the cool down rest concept simply does not work in most
workplaces, especially agricultural work."
Therefore, CRLAF proposed adding the following language to the
heat illness standard:
"Employees working on a piece-rate basis shall be
compensated for rest periods, including cool-down rest
periods by being paid their average piece-rate wage for
each rest period during each pay period or portion of a pay
period, in which they were employed on a piece-rate basis.
Each employer shall be responsible for ensuring that all
rest periods required by this section are, in fact, taken
by his or her employees and that they are relieved of all
duties during such rest periods."
Prior legislative efforts in this regard have been controversial
and vigorously opposed by the agricultural employer community -
and were vetoed twice. Therefore, this may be a bigger issue
than the author wants to take on in the current bill. However,
it does seem that an evaluation of the effectiveness of rest
breaks in preventing heat illness requires at least an
acknowledgement of how likely it is that employees are actually
able or willing to take such breaks.
ARGUMENTS IN SUPPORT :
The author states the following in support of this bill:
"The current standard has not adequately addressed the
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needed protections for outdoor workers during temperatures
of high heat. Since 2006, approximately 11 farm workers
died - 6 farm workers who died during the summer of 2008 -
while hundreds more suffer from heat related illnesses and
hospitalizations. Additionally, despite increased
education and outreach efforts, there are still heat
violations in outdoor workplaces, a sign that the current
standards need to be clarified.
For example, some agricultural employers interpret the
shade requirement as only requiring the employer to put up
shade when the employee requests it after becoming ill.
Employers have been non-compliant, in part [due] to poor
understanding of shade requirements. In addition, current
law does not require employers to monitor environmental
conditions that affect the heat burden that is often left
up to the employees to determine, nor does current law stop
work activities when heat stress illness becomes intolerant
to humans.
This bill provides for clarification and further
protections for outdoor workers relating to water, shade,
cool down periods, high heath procedures, and training.
Future heat related illnesses and deaths were preventable
with implementation of stronger measures."
Worksafe states that they will support this bill if amended to
address issues that they identify as "shortcomings" in the bill.
Specifically, they state the following:
"This legislation is commendable in its goal of improving
Cal/OSHA's heat illness regulation, found at 8 CCR 3395,
and I applaud many of the provisions in the bill. However,
the legislation also contains serious shortcomings, in
particular the excessively high temperatures at which the
rules would become operative, that would fail to protect
some workers from heat illness. Thus, we will support the
legislation if it is amended to address these concerns.
Worksafe supports the proposed Labor Code 6713(b),
requiring provision of water to employees. These
provisions are consistent with the field sanitation
regulations already in effect for agricultural workers.
Thus they will not impose an additional burden on
agricultural employers. In addition, they will improve the
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quality and quantity of water provided for all workers who
toil in outdoor heat.
Worksafe applauds the requirement that employer obligations
to provide shade and water go into effect at a particular
temperature. This "trigger temperature" approach provides
a bright line at which employers' most significant
obligations go into effect. However, the temperature at
which the shade and water requirements go into effect, 85
Fahrenheit, is simply too high. As shown in the 2006 study
on heat illness performed for Cal/OSHA, heat illness has
been documented in cases investigated by the agency at
temperatures as low as 75F?Thus it is already known that
the 85 trigger will not prevent numerous cases of actual
heat illness. This high temperature trigger for shade
requirements also implies to employers that they need not
provide shade at lower temperatures, even when working
conditions and workers' personal heat load are to the
contrary. Most employers will do the right thing by their
employees, but regulations are written in particular for
those who will not. We recommend a trigger temperature of
75 F that better reflects a level at which heat illness
can occur, and that would foster prevention of heat illness
rather than reaction to it. Even with the proposed changes,
this regulation would not be not so onerous that employers
would suffer hardship by providing shade at 75 F.
Next, the requirement that shade only accommodate 25% of
workers apparently anticipates that employers will have
difficulty making enough shade available for all their
workers. Such an argument is unfounded. In other safety
contexts, from car seatbelts to construction site hardhats,
there is no exception made for financial inability or
inconvenience as an excuse for failure to protect all
workers. Nor should there be a lack of protection for
those who toil in the hottest conditions. The times at
which all workers most need shade will be on the hottest
days of the year at the hottest times of the day.
Under this proposal, only a quarter of them will be
guaranteed shade at any time. As a moral issue, employers
must find a way to provide shade for all their workers, and
indeed, many already do.
Another fundamental weakness of this legislation is that it
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relies on employees to take affirmative action to limit
their heat exposure when the temperature is below 85. The
mere fact that tens of thousands of workers in California
toil for less than the minimum wage in grueling conditions
is an indication of their lack of bargaining power and the
need for employee protections to be mandatory, rather than
upon request?Under this bill's proposed creation of Labor
Code 6713(c)(2), employers can chose to provide shade as
described in subsection (c)(1) or only to workers who speak
up and demand it. Given this choice, those employers least
concerned with their employees' well-being - those for whom
this statute was principally written - will simply provide
shade when it is demanded by their vulnerable, low-paid
workforce, in other words not at all.
Similarly, it is laudable to include a provision regarding
cool-down rests. However, this subsection also places the
burden of action on employees, who will only receive a
cool-down rest when they make a request to their employer.
The proposal thus provides no meaningful additional
protection for workers, who cannot be expected to step
forward to demand such breaks, especially when they are
working under piece-rate or other production incentive or
quota systems.
The only effective rest break protection for workers is in
the form of mandatory breaks, as often as every hour when
the temperature reaches certain levels. Other
organizations to examine the issue of heat illness,
including the U.S. military and American Conference of
Government and Industrial Hygienists, recommend this
approach. For example, the U.S. Army has a policy of
20-minute rest breaks every hour during hard work when the
wet bulb globe temperature is 78F or above, with more rest
as the temperature rises?The policy provides for breaks to
get longer as conditions worsen.
In addition, the provision of a five-minute break included
in the legislation is insufficient to achieve the purpose
of actually cooling a worker's core body temperature. The
allowed break should be at least ten minutes to reflect
human physiology, as opposed to the economic compromise
that apparently led to the five-minute proposal.
Next, Worksafe strongly support the proposal for High Heat
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procedures with additional protections for employees at
higher temperatures. However, there simply must be a lower
trigger temperature for these procedures than the 95
provided for in paragraph (d) of this legislation. The
proposed trigger does not appear to recognize the
extraordinary stress that working in such temperatures
places on the human body. Even being outside in such
weather is uncomfortable, let alone performing hard work
under the sun. A High Heat trigger temperature of 85 F
better reflects the need to prevent heat illness, and would
recognize that heat combines with work load, sun and
humidity to impact workers' bodies. The High Heat
Procedures would not place an unreasonable burden on
employers; the provisions in this subsection would simply
require a higher degree of supervisor attentiveness to
conditions.
Worksafe does support the other High Heat procedures.
Requiring effective communication is an important part of
protecting workers in high heat, so that workers can
receive help when they are in danger. Close supervision of
new employees is also a critical aspect of protecting
workers who begin to show signs of heat stress. n
addition, hydration has also been shown to be a major issue
in cases of heat illness investigated by Cal/OSHA. In
addition, the requirement for observation of new employees
is well-supported, as experience shows that they are the
most at-risk group. Over 80% of the 2005 heat illness
cases reviewed in the 2006 memorandum to Cal/OSHA involved
workers who had been on the job for four days or less.
Worksafe also supports the other proposed High Heat
requirements in this legislation, in particular training.
Cal/OSHA's experience reveals that lack of supervisor
training has been an important contributing factor in
investigated cases of heat illness, while training for new
employees will reach those who are most vulnerable to heat
illness."
The California Rural Legal Assistance Foundation (CRLAF) and the
National Lawyers Guild Labor and Employment Committee also
support this bill if amended and raise similar concerns to those
expressed by Worksafe.
ARGUMENTS IN OPPOSITION :
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Opponents argue that this bill is unnecessary and pre-empts the
DOSH regulatory process with regards to heat illness prevention.
They state that the Board is in the process of permanent
rulemaking to amend the current regulation and should be allowed
to continue.
Opponents state that, since the adoption of the regulation in
2005, DOSH has partnered with labor and business across industry
segments to educate thousands of California employers and
employees about the prevention of heat illness and compliance
with the regulation. DOSH has developed a guidance document to
help clarify the regulatory requirements and subsequently
developed emergency rulemaking packages twice to amend the
regulation. Due to public input, the Board did not adopt either
emergency rulemaking proposal. In response to Board and
stakeholder concerns, the Board has filed for a permanent
rulemaking which included an open public advisory committee.
Opponents state that a 15-day notice for public comment is
expected soon, perhaps even this month. They contend that this
regulatory process is alive and active, and should be allowed to
move forward to adoption.
Opponents contend that the regulatory process is designed to
provide sufficient time for stakeholder input and agency
responsiveness. This process allows flexibility and
responsiveness to create the appropriate balance between worker
safety and feasibility by gathering information from affected
parties. Compared to the legislative process, rulemaking can be
accomplished in a timely manner throughout the life of the
regulation, and provides for ample public input.
REGISTERED SUPPORT / OPPOSITION :
Support
California Applicants' Attorneys Association
California Rural Legal Assistance Foundation (support if
amended)
National Lawyers Guild Labor and Employment Committee (support
if amended)
Worksafe (support if amended)
Opposition
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Agricultural Council of California
Associated General Contractors of California
Associated Roofing Contractors of the Bay Area Counties, Inc.
California Attractions and Parks Association
California Chamber of Commerce
California Construction and Industrial Minerals Association
California Farm Bureau Federation
California Fence Contractors' Association
California Independent Grocers Association
California Landscape Contractors Association
California Manufacturers and Technology Association
California Professional Association of Specialty Contractors
California Restaurant Association
California Retailers Association
CSAC Excess Insurance Authority
Engineering Contractors' Association
Flasher Barricade Association
Marin Builders' Association
Motion Picture Association of America
Public Agency Safety Management Association - South Chapter
The Wine Institute
Walter and Prince, LLP
Western Electrical Contractors Association
Western Growers
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091