LGBT Compassion files new challenge to San Francisco live markets

From ANIMAL PEOPLE, March 2011:
SAN FRANCISCO–Flaring again, the 142-year-old conflict
between the San Francisco humane community and the mostly ethnic
Asian owners and customers of live markets has morphed into a clash
between the city’s two most prominent minority cultures. About 45%
of the San Francisco population are of Asian descent, according to
recent polling; 14.5% declare themselves to be lesbian, gay,
bisexual or transgender.

LGBT Compassion founder Andrew Zollman, 43, and fellow
live market protester Alex Felsinger, 25, contend in a recently
filed three-part lawsuit that live poultry seller Raymond Young, his
employees, and the Heart of the City farmers’ market in U.N. Plaza
have violated their right to free speech; that the City of San
Francisco has failed to enforce applicable health laws against the
live marketers; and that the city has also improperly excluded
poultry from the scope of humane law enforcement. Alleged a media
statement describing the Zollman/Felsinger case, “The pattern of
misconduct peaked in the early hours of December 29, 2010 when one
of Young’s employees punched Felsinger in the head, causing him to
fall to the ground and drop his camera. The manager of the company,
Christina Ly, then stole the camera and later discarded it on the
sidewalk after removing its memory card.

“Anti-gay remarks”

“While the video footage of the recent attack was lost, ”
Zollman and Felsinger say they “have documented several similar
incidents in the past ten months,” including other alleged assaults
and alleged “anti-gay remarks.” One such remark was a suggestion
from one live market worker to another “that he should avoid physical
confrontation” with Zollman and Felsinger “because they are gay and
therefore probably have HIV.” Attorney Matt Gonzalez filed the case
for Zollman and Felsinger one week after the city Human Rights
Commission mediated inconclusive talks among the parties.
Defendant Young, 41, has sold live chickens in San
Francisco for about 20 years. Zollman and Felsinger contend that the
chickens are “spent hens” obtained from “egg factories” in Modesto,
Sacramento, and Manteca.
“The activists demonstrate nearly every day the market is
open,” according to San Francisco Chronical staff writer Jessica
Kwong, “recording video and handing out pamphlets in two languages.”
Before filing suit, Kwong wroter, “they lodged complaints with the
district attorney, the city attorney, the Public Health Department,
and Animal Care and Control. The city has investigated the
allegations but has not taken any disciplinary action, allowing
vendors and the market–the only one in the city with live fowl– to
continue operating as usual.
The Zollman/Felsinger lawsuit came amid a renewed effort by
live market opponents to persuade the California Fish & Game
Commission to halt the import of live frogs and turtles into the
state. The live markets import and sell about 300,000 turtles per
year for humane consumption, according to Action for Animals
coordinator Eric Mills, a veteran of decades of anti-live market
activism.
“When members of the commission attempted to ban the import
of turtles and frogs for food last year,” recalled Malcolm
Maclachlan of Capitol Weekly, “a half-dozen Asian-American
legislators joined together to block the idea, noting that the
animals were traditional to the Asian diet. The de facto leader of
that group, Senator Leland Yee (D-San Francisco), is now viewed as
the front-runner to replace Gavin Newsom as mayor of San Francisco.
After 15 years of efforts by animal groups, the Commission voted last
March to ban bringing frogs and turtles into the state for food,”
Maclachlan remembered, but “In the end, the commission opted to
continue to study the issue and ordered a California Environmental
Quality Act review, essentially shelving the idea rather than
issuing a strong regulation.”
Live frogs, turtles, and poultry are reportedly also sold
for human consumption in Los Angeles, Oakland, San Jose, and
Stockton. Humane investigators have documented cruelties at the
other California live markets. But the San Francisco live markets
are especially prominent, not only because of the size of the city’s
Asian-American population, but because the San Francisco live
markets operate in central Chinatown, long a leading tourist
attraction.
While the other live markets tend to be seen only by those
who go looking for them, those in San Francisco frequently shock
casual visitors who discover them by accident.
Yet the live markets have withstood humane pressure since
1868, when banker James Sloan Hutchinson became so upset at the
abuse of a pig he saw dragged to slaughter that he founded the San
Francisco SPCA.

1905 language

San Francisco attorney Baron Miller in 1998 filed a lawsuit
somewhat antecedent to the Zollman/Felsigner case, hoping to oblige
city and state agencies to enforce a variety of anti-cruelty and
public health statutes, which he held should have forbidden the
methods the live markets commonly use to keep and slaughter a variety
of birds, reptiles, and amphibians.
California Superior Court Judge Carlos Bea rejected the
Miller case, citing language in the state anti-cruelty law dating to
1905 which states that “No part of this title shall be construed…to
interfere with the right to kill all animals used for food.”
As the Miller case was in progress, the San Francisco SPCA
won the signatures of representatives of all 12 live markets then
operating in the city on a Joint Statement of Principles &
Guidelines. “In principle,” the marketers agreed, animals are to be
killed humanely, though the term “humanely” was not defined; “no
animal” was to be “dismembered, flayed, cut open, or have skin,
scales, feathers, or shell removed while alive”; no injured or
diseased animal would be sold or offered for sale; no live animal
would “be kept in a manner likely to cause starvation, dehydration,
or suffocation”; no live animal would “be kept in a manner likely to
cause them to be crushed, attacked, or wounded by other animals”;
and animals would “be able to lie down, stand erect, change
posture, and rest in a normal manner for their species.” But when
the Miller lawsuit was dismissed, the live marketers declared that
they were under no obligation to honor their agreements.

Non-enforcement

Lobbying led by then-San Francisco SPCA Department of Law and
Advocacy chief Nathan Winograd in 2000 won passage of a state law
based on the Joint Statement of Principles & Guidelines. But Mills
less than five months later documented that the law was not enforced
in San Francisco. Then-San Francisco Department of Animal Care and
Control director Carl Friedman acknowledged, Mills wrote to ANIMAL
PEOPLE, that the department would not and/or could not enforce the
new law, due to a lack of funding, lack of staff, and lack of
support from city hall.”
The 1905 language in the California humane law that thwarted
the Miller case also states that the humane law applies to “frogs,
turtles, and birds sold for human consumption, with the exception of
poultry.” The Fourth District California Court of Appeals ruled in
2000 that this clause should cover all birds, but San Francisco
District Attorney George Gascon holds nonetheless that chickens are
specifically exempted.
Current San Francisco animal control director Rebecca Katz
recently acknowledged to Heather Mack of the San Francisco Bay
Guardian that the way poultry are kept at the Heart of the City
farmers’ market “is not the way we would recommend they be cared for.
Do we think there is some cruelty? Probably,” Katz said. “But there
is nothing we can do at this time until the law changes.” Zollman
and Felsinger contend that San Francisco is simply misinterpreting
the law.