BILL ANALYSIS                                                                                                                                                                                                    



                                        
                       SENATE LOCAL GOVERNMENT COMMITTEE
                      Senator Gloria Negrete McLeod, Chair


          BILL NO:  AB 2427                    HEARING:  6/4/08
          AUTHOR:  Eng                         FISCAL:  No
          VERSION:  2/21/08                    CONSULTANT:   
          Weinberger

                               LOCAL REGULATIONS
          
                           Background and Existing Law  

          The California Department of Consumer Affairs (DCA) issues  
          statewide licenses in more than 100 business and 200  
          professional categories, including: architects, automotive  
          repair facilities, contractors, cosmetologists, doctors,  
          dentists, engineers, and veterinarians.  Semi-autonomous  
          boards, bureaus, commissions, and other regulatory entities  
          - whose members are appointed by the Governor and the  
          Legislature and which are administered by the DCA -  
          establish minimum statewide qualifications and levels of  
          competency for licensure and enforce occupational standards  
          of practice.

          Counties or cities may not prohibit a person authorized by  
          an agency of the DCA to engage in a particular business,  
          from engaging in that business, occupation, or profession,  
          or any portion thereof (AB 2310, Shoemaker, 1967).

          A 2007 appellate court decision in California Veterinary  
          Medical Association v. City of West Hollywood found that  
          state law does not preempt or otherwise prohibit a City of  
          West Hollywood ordinance which, to prevent animal cruelty,  
          imposed a ban on the performance of declawing procedures on  
          any animal within the city.  The court found that the  
          language enacted by the 1967 Shoemaker bill only prohibits  
          a local agency from imposing additional licensing  
          requirements or qualifications on a state licensed  
          profession.  The court also found that, in the California  
          Veterinary Medical Practices Act, the Legislature has  
          neither explicitly nor implicitly preempted local  
          regulations by occupying the field of regulating the  
          practice of veterinary medicine.  As a result, the court  
          decided that West Hollywood's declawing ordinance was  
          permissible as an incidental restriction on the manner in  
          which veterinary medicine is practiced.





          
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          Veterinarians and other professionals licensed by the DCA  
          want the Legislature to amend state law in response to the  
          court's decision.


                                   Proposed Law  

          Assembly Bill 2427 prohibits a city or county from  
          prohibiting a person, or group of persons, 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 any act or series  
          of acts that fall within the statutory of regulatory  
          definition of that business, occupation, or profession.


                                     Comments  

          1.   Restoring the balance  .  Last year's CVMA v. West  
          Hollywood decision disrupted a balance between local  
          regulatory power and the state power to license businesses  
          and professions that had been maintained for nearly 40  
          years.  Veterinarians and other state-licensed  
          professionals think that the court's decision could allow  
          cities and counties to ban a variety of medical practices,  
          including elective cosmetic surgery, the use of mercury in  
          dental fillings, and some fertility procedures.  That  
          result would undermine the fundamental purpose of statewide  
          licensing by substituting the judgment of local elected  
          officials for that of state regulators.  DCA's appointed  
          regulatory bodies possess the necessary expertise to  
          regulate the uniform statewide conduct of the professions.   
          Granting such wide latitude to cities and counties could  
          result in a patchwork of conflicting local standards for  
          hundreds of different professions, confusing both licensees  
          and consumers.  AB 2427 restores the equilibrium between  
          the state's power to establish and enforce uniform  
          occupational standards and local governments' power to  
          enforce regulations protecting the public health, safety,  
          morals, and general welfare. 

          2.   Too far  .  AB 2427's overly broad response to the CVMA  
          v. West Hollywood decision unnecessarily erodes local  
          governments' home rule powers.  In attempting to establish  
          the state's exclusive authority to regulate licensed  





           
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          businesses and professions, the bill precludes any local  
          regulation of any practice that falls within the definition  
          of a statewide occupation.  This approach prohibits  
          legitimate local regulations that are permissible under  
          current law.  For example, the statute amended by AB 2427  
          authorizes counties and cities to levy a tax solely for the  
          purpose of covering the cost of regulation.  Other statutes  
          explicitly authorize state regulators to take disciplinary  
          actions against licensed acupuncturists and funeral  
          directors who violate local ordinances relating to the  
          functions and duties of those professions.  Local  
          regulations play a valuable role in reflecting the unique  
          priorities and circumstances within local communities.  The  
          Committee may wish to consider whether the prohibition  
          proposed by AB 2427 encroaches on legitimate local  
          regulatory powers.

          3.   Drawing a brighter line  .  The Committee may wish to  
          consider whether a narrower response could reverse the CVMA  
          v. West Hollywood decision while avoiding unintended  
          consequences for local police powers.   For example, by  
          explicitly declaring its intention to reverse the court's  
          decision by fully occupying the field of regulating any  
          part of the practice of veterinary medicine, the  
          Legislature could clearly delineate veterinarians' "scope  
          of practice" as off-limits to local regulators without  
          invalidating current statutes that allow for local  
          regulation in other professional fields.  

          4.   Double-referral  .  AB 2427 is double-referred to the  
          Senate Business, Professions, and Economic Development  
          Committee.


                                 Assembly Actions  

          Assembly Business and Professions Committee:10-0
          Assembly Floor:                         65-7


                         Support and Opposition  (5/29/08)

           Support  :  California Veterinary Medical Association,  
          American Nurses Association/California, American Society of  
          Landscape Architects, California Association of Marriage  





           
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          and Family Therapists, California Dental Association,  
          California Hospital Association, California Optometric  
          Association.

           Opposition  :  Action for Animals, Animal Legal Defense Fund,  
          Animal Place, Animal Protection Institute, Born Free USA,  
          California Animal Association, California Contract Cities  
          Association, California Federation for Animal Legislation,  
          California State Association of Counties, City of West  
          Hollywood, Give a Dog a Home, Humane Society of the United  
          States, League of California Cities, the PAW Project,  
          People for the Ethical Treatment of Animals, San Diego  
          Animal Advocates, State Humane Society of California,  
          United Animal Nations.