BILL ANALYSIS AB 2427 Page 1 ASSEMBLY THIRD READING AB 2427 (Eng) As Introduced February 21, 2008 Majority vote BUSINESS & PROFESSIONS 10-0 ----------------------------------------------------------------- |Ayes:|Eng, Emmerson, Carter, | | | | |Hayashi | | | | |Hernandez, Horton, | | | | |Plescia, Price, | | | | |Torrico, Furutani | | | |-----+--------------------------+-----+--------------------------| | | | | | ----------------------------------------------------------------- SUMMARY : Restricts a city or county from prohibiting groups of persons authorized by one of the agencies in the Department of Consumer Affairs (DCA) by a license, certificate, or other such means to engage in a particular business, from engaging in their business, occupation, profession, or from engaging in any act or series of acts that fall within the statutory or regulatory definition of that business, occupation, or profession, as defined by state law. EXISTING LAW makes it unlawful for a city or county to prohibit a person, authorized by one of the agencies of the DCA to engage in a particular business, from engaging in that business, occupation, or profession or any portion thereof. FISCAL EFFECT : Unknown. This bill is keyed non-fiscal. COMMENTS : According to the author's office, "AB 2427 would prohibit a city or county from prohibiting individuals, who are licensed or certified by the DCA from engaging in their business, occupation, profession, or any portion thereof, or from engaging in any act or series of acts that fall within the statutory or regulatory definition of that business, occupation, or profession. "This bill is applicable to all professionals licensed by the DCA. It is critical that only properly educated, trained professionals, working in conjunction with the legislature and California professional boards and bureaus, define policies AB 2427 Page 2 relative to permissible practice standards, including those standards pertaining to highly complex human and animal medical procedures. "The California legislature, the DCA, and the boards and bureaus overseen by the Department, should have the ultimate authority over both medical scope of practice issues and professional standards for non-medical boards. Without legislation ensuring uniform statewide governance of licensed professions, professional standards will be dissimilar and discordant. Licensed professionals should not have the scope of permissible practice be subject to individualized local restrictions, nor should a practitioner in one county be prohibited from performing a professionally-recognized act that a practitioner in the next county may perform." Recently, the City of West Hollywood adopted an ordinance that would ban veterinarians who practice within the city limits from declawing domestic cats. The West Hollywood ordinance marks the first time that a certain city or county has deemed that a veterinarian shall be prohibited from performing a surgical act that is authorized under the Veterinary Medicine Practice Act (VMPA). As a consequence, the California Veterinary Medical Association (CVMA) entered into a lawsuit against the City of West Hollywood. The suit argued that the ordinance was preempted by the VMPA and Section 460 of the Business and Professions Code which states: "No city or county shall prohibit a person, authorized by one of the agencies in the Department of Consumer Affairs by a license, certificate, or other such means to engage in a particular business, from engaging in that business, occupation, or profession or any portion thereof. Nothing in this section shall prohibit any city or county or city and county from levying a business license tax solely for revenue purposes nor any city or county from levying a license tax solely for the purpose of covering the cost of regulation." Several key groups such as the DCA, the California Dental Association, the California Optometric Association, and the American Veterinary Medical Association (AVMA) joined in support of CVMA's lawsuit effort by writing amicus letters to the court. After the Los Angeles County Superior Court struck down the West Hollywood ordinance, the appellate court reversed the AB 2427 Page 3 decision on a 2-1 vote, and the California Supreme Court chose not to hear the case. The appellate court decision read, "Although section 460 prohibits local legislation imposing separate and additional licensing requirements or other qualifications on individuals holding state licenses issued by agencies of the DCA, it does not preclude otherwise valid local regulation of the manner in which a business or profession is performed." The court concluded that Section 460 does not preempt the West Hollywood anti-declawing ordinance on the basis that: "Because the ordinance is an anti-cruelty measure and it is not directed solely to veterinarians, but to any person who authorizes or performs such procedures, including the owner of the animal, it is outside the scope of section 460, even as the statute was interpreted by DCA's legal office [which did not focus on the cruelty aspect, but rather on the hierarchical structure of state and local regulation] and by the trial court. Finally, by its terms section 460 prohibits local governments from imposing additional licensing conditions or qualification as a requirement for working within their jurisdiction but does not preclude local regulation of the manner in which state licensees actually perform their business or profession." Thus, the court interpreted section 460 as banning localities from issuing additional requirements, not from limiting existing ones. The appellate court's decision raises important questions of law specifically related to the construction and application of Business and Professions Code section 460. This bill seeks to clarify existing statute by adding the language, "or from engaging in any act or series of acts that fall within the statutory or regulatory definition of that business, occupation, or profession," in order to continue to adequately enforce statewide standards of professional practice. It is important to note that this bill does not seek to undo the West Hollywood ordinance, it addresses the important issue that is raised by the ability of local municipalities to ban specific practices of professions regulated by the DCA and asserts that it is critical to have statewide oversight and ultimate authority over professional "acts or series of acts that fall within the statutory or regulatory definition of that business, occupation, or profession." Some examples of professions and acts that could be affected by local government bans on specific AB 2427 Page 4 practices are: the practice of acupuncture and other alternative health care such as homeopathic medicine; the performance of cosmetic surgery and other elective surgeries that are not medically necessary; and, the ability of pharmacists to dispense various drugs like emergency contraception, vaccinations, and psychotropic drugs. According to the sponsors of the bill, CVMA, "Professional organizations and the DCA all agree that undermining statewide uniformity in licensed practice standards will harm professional practice and professional service." CDA's amicus letter to the California Supreme Court, states, "The CDA is specifically concerned that the appellate decision, if allowed to stand, may adversely affect the health of Californians by relegating to local municipalities what is properly the domain of state licensing authorities and the state legislature. Based on the appellate ruling, a local municipality could - for reasons based on popular opinion or otherwise, and without proven and reputable scientific evidence - arbitrarily determine that a certain medical procedure was no longer within the scope of practice or a given health care profession and ban its use. The CDA believes that all decisions affecting the health of the public should be left to the discretion of the state licensing authority governing the relevant profession and the California state legislature. It is only in this arena where the full analysis and discussion of scientific evidence related to medical issues comes to light, and where the public is best protected through the establishment of uniform laws and regulations that apply to all Californians." The AVMA amicus letter to the California Supreme Court argues, "State regulation of veterinary medicine, a system that has well served the American public and animal patients over 100 years, will be undermined if cities, villages, and counties get a green light to chip away at the uniformity of state veterinary practices acts and the regulations issued by state veterinary medical boards, as authorized by those statutes." The DCA's amicus letter to the California Supreme Court, states, "The concept of statewide professional licensure relies on the legislative delegation of authority to state agencies which possess the necessary expertise to regulate the conduct of the AB 2427 Page 5 professions. A municipal body generally lacks that professional expertise, and should not be allowed to substitute its judgment for that of the licensed medical professionals who are appointed to regulate the profession and advise the legislature, in this case, the California Veterinary Medical Board." Analysis Prepared by : Josefina Ramirez / B. & P. / (916) 319-3301 FN: 0004120