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. AB 2427 -- 2/21/08 -- Page 2 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 AB 2427 -- 2/21/08 -- Page 3 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 AB 2427 -- 2/21/08 -- Page 4 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.