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
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.