BILL ANALYSIS                                                                                                                                                                                                    







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          |Hearing Date:June 23, 2008     |Bill No:AB                |
          |                               |2427                      |
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               SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC  
                                     DEVELOPMENT
                          Senator Mark Ridley-Thomas, Chair

                          Bill No:        AB 2427Author:Eng
                   As Introduced:  February 21, 2008   Fiscal: No

          
          SUBJECT:    Professions and vocations.
          
          SUMMARY:  Provides that no city or county shall prohibit  
          any person licensed by one of the agencies within the  
          Department of Consumer Affairs from engaging in any act or  
          series of acts that fall within the statutory or regulatory  
          definition of that business, occupation, or profession.

          Existing law:

          1)Provides for the licensing and regulation of more than  
            2.4 million professionals in more than 255 professions  
            and 100 businesses by some 
          40 boards, bureaus, and other programs within the  
            Department of Consumer Affairs (DCA) under various  
            licensing acts within the Business and Professions Code.

          2)Requires the DCA's boards and bureaus to license,  
            register, or certify practitioners, to assure that the  
            licensed professional meets the minimum qualifications  
            for licensure, investigate and resolve complaints between  
            consumers and licensed professionals, and discipline  
            licensees for violation of any laws or their licensing  
            acts, including those who may practice outside of their  
            scope of practice or are involved in unlicensed activity.

          3)Provides that no city or county shall  prohibit  a person,  
            authorized by one of the agencies in the DCA 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.   





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            (Section 460 of the Business and Professions Code.)

          4)Provides, however, that nothing 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 costs of regulation.  (Section 460 of the  
            Business and Professions Code.)

          5)Provides for the licensing and regulation of  
            approximately 11,600 veterinarians and 3,700 registered  
            veterinary technicians by the Veterinary Medical Board  
            (VMB) in the DCA;  the VMB consists of seven members,  
            three of whom are public members, and members of the VMB  
            hold office for a term of four years.


          6)Provides that the VMB has authority to adopt, amend, or  
            repeal such rules and regulations as are reasonably  
            necessary to carry into effect the provisions of the  
            Veterinary Medicine Practice Act ( VMPAct).

          This bill:  Provides that no city or county shall prohibit  
          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 that business,  
          occupation, or 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  .


          FISCAL EFFECT:  Legislative Counsel has keyed this bill as  
          non-fiscal.

          COMMENTS:
          
          1.Purpose.  The Sponsor of this measure is the  California  
            Veterinary Medical Association  (CVMA).  The Author  
            indicates that in 2003, the City of West Hollywood  
            adopted an ordinance that would ban veterinarians who  
            practice within the city limits from declawing domestic  
            cats.  According to the Author, the West Hollywood  
            ordinance marks the first time that a certain city or  
            county has deemed that a veterinarian shall be prohibited  





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            from performing a surgical act that is authorized under  
            the VMP Act.  The CVMA sued the City of West Hollywood on  
            the basis that the city had barred veterinarians (via a  
            city approved ordinance) from performing a surgical task  
            allowable under the VMP Act and the West Hollywood's  
            ordinance was in conflict with, and preempted by, both  
            Section 460 of the Business and Professions Code and the  
            VMP Act.  After the Los Angeles County Superior Court  
            struck down the ordinance, the appellate court reversed  
            the decision on a 2-1 vote.  The court ruled that, even  
            though the barred procedures are part of the practice of  
            veterinary medicine and that Section 460 prohibits local  
            legislation from 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.  Similarly, although West  
            Hollywood's adoption of an anti-cruelty measure  
            prohibiting nontherapeutic declawing of animals has an  
            incidental impact on veterinarians practicing within its  
            city limits, the ordinance is not preempted by virtue of  
            the state's regulation of veterinary medicine through the  
            VMP Act or its implementing regulations.  The ordinance  
            was held as a valid exercise of the city's authority as  
            an anti-cruelty measure over the practice of declawing of  
            animals by veterinarians or any other person who  
            authorizes or performs such procedures.     

          The Author believes that the appellate court's decision  
            raises important questions of law specifically related to  
            the construction and application of Section 460.  This  
            bill seeks to clarify existing statute by adding the  
            language, "or from engaging in any act or series of acts  
            that falls within the statutory or regulatory definition  
            of that business, occupation, or profession," in order to  
            continue to adequately enforce statewide standards of  
            professional practice. As argued by the Author, the  
            California Legislature, the DCA, and the boards and  
            bureaus overseen by the DCA, should have 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 subject to  





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            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.

          The Author states that it is important to note that this  
            bill does not seek to undo the West Hollywood ordinance,  
            as 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."  The Author  
            notes that some examples of professions and acts that  
            could be affected by local government bans on specific  
            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; the ability  
            of pharmacists to dispense various drugs like emergency  
            contraception, vaccinations, and psychotropic drugs.

          The Sponsors believe this measure is necessary because it  
            is critical that only educated, trained professionals  
            working in conjunction with the Legislature and  
            California professional boards and bureaus, define  
            policies relative to permissible practice standards,  
            including those standards pertaining to highly complex  
            human and animal medical procedures.  Local jurisdictions  
            that promulgate their own "standards of practice" will  
            produce major public confusion, creating an environment  
            of uncertainty for professionals whose practices and  
            clientele often cross city/county boundary lines, and  
            undermine statewide uniformity in licensed practice  
            standards and harm professional practice and professional  
            service.           

          2.Background.  

             a)   West Hollywood's Prohibition of Declawing Animals  
               for Nontherapetic Purposes.  On April 21, 2003, the  
               City of West Hollywood, finding that onychectomy  
               (declawing) and flexor tendonectomy procedures cause  
               "unnecessary pain, anguish and permanent disability,  
               to animals adopted Ordinance No. 03-657.  The  





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               ordinance prohibits any person "licensed professional  
               or otherwise," from performing or causing either  
               procedure to be performed "by any means on any animal  
               within the city, except when necessary for a  
               therapeutic purpose," as defined.

             In detailed findings supporting the adoption of the  
               ordinance, West Hollywood recited the basis for its  
               conclusion that the practice of animal declawing is  
               cruel and inhumane unless necessary for a therapeutic  
               purpose:  "Contrary to most people's understanding,  
               declawing consists of amputating not just the claws  
               but the whole phalznx (up to the joint), including  
               bones, ligaments, and tendons. . . .Declawing is not a  
               simple cosmetic procedure akin to a manicure or a  
               pedicure.  On the contrary, to remove a claw, the  
               bone, nerve, joint capsule, collateral ligaments, and  
               the extensor and flexor tendons must all be amputated.  
                Thus, declawing is not a 'simple,' single surgery but  
               ten separate, painful amputations of the third phalanx  
               up to the last joint of each toe.  In human terms,  
               this is akin to cutting of the last joint of each  
               finger.  ?Complications can include excruciating pain,  
               damage to the radia nerve, hemorrhage, bone chips that  
               prevent healing, painful re-growth of a deformed claw  
               inside the paw which is not visible to the eye,  
               necrosis, lameness, and chronic back and joint pain as  
               shoulder, leg and back muscles weaken. . ."

             b)   Request for Opinion from the DCA Legal Office.   
               During review of the review of the VMB n 2003-2004 by  
               the Joint Legislative Sunset Review Committee (JLSRC),  
                it was brought to the attention of the JLSRC by the  
               CVMA that at least one city, City of West Hollywood,  
               and others were considering ordinances that would  
               strictly prohibit veterinarians from performing  
               certain procedures, such as cat declawing in their  
               city.  CVMA indicated to the JLSRC that these type of  
               ordinances challenge the state-defined VMP Act, and  
               also creates an unfair business practice environment  
               for those practicing in the jurisdiction affected.   
               The JLSRC adopted a recommendation on June 7, 2004  
               that the VMB review whether local cities or counties  
               can or should be prevented from passing local rules,  
               regulations or ordinances regarding the practice of  
               veterinary medicine within their jurisdictions.





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             The VMB shortly thereafter requested an opinion from the  
               DCA Legal Office and inquired whether the VMP Act  
               "supersedes" or preempts a local ordinance,  
               specifically whether a local ordinance that imposes a  
               ban on the "declawing" of domestic cats preempted by  
               the State's licensing law that regulated the practice  
               of veterinary medicine?  In response, the DCA Legal  
               Office issued its Legal Opinion No. 04-04, dated  
               December 1, 2004, in the form of a memorandum to the  
               Executive Officer of the VMB concluding the ordinance  
               is preempted.  In the view of the DCA Legal Office,  
               under Section 460, "a city cannot prohibit a licensed  
               veterinarian from practicing any aspect of the  
               veterinary medical work that falls within the  
               perimeter of the state license."  In addition, the  
               memorandum reasoned, "regardless of whether or not the  
               decision to declaw is based on medical 'therapeutic  
               purpose' or reasons of 'aethetics or convenience,' the  
               procedure itself is a standard veterinary procedure.   
               It cannot be regulated by local jurisdictions because  
               it 'is of such a nature that the adverse effect of a  
               local law on the transient citizens of the state  
               outweighs the possible benefits to the municipality.'  
               Such local regulation of veterinary practice in  
               different jurisdictions would ultimately create a  
               chaotic and confusing situation where it would be  
               difficult for licensed veterinarians to know which  
               veterinary procedures are legal or not depending on  
               the jurisdiction. . .  Such a balkanization of  
               professional practice ultimately would lead to  
               different standards of practice throughout the state.  
               . . [and] will inevitably make it very difficult for  
               the Board to enforce the Veterinary Practice Act."    

             c)   The CVMA Complaint for Declaratory and Injunctive  
               Relief and Summary Judgment.  On January 11, 2005,  
               legal representation for CVMA informed the City of  
               West Hollywood the DCA has recently issued, in  
               response to an inquiry by the VMB, an opinion as to  
               the permissibility of the ordinance.  They indicated  
               that the opinion stated in no uncertain terms that the  
               ordinance is preempted by California law pertaining to  
               licensing of veterinarians and regulation of the  
               practice of veterinary medicine, and that in light of  
               the DCA's opinion the CVMA requests the City promptly  





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               rescind the ordinance and refrain from further  
               enforcement thereof pending such rescission.

             The CVMA failed to win the City of West Hollywood's  
               voluntary acquiescence in its opposition to  
               restrictions on licensed veterinarians' ability to  
               perform the declawing procedures, and on March 7,  
               2005, the CVMA filed a complaint for declaratory and  
               permanent injunctive relief, alleging West Hollywood's  
               ordinance is in conflict with and preempted by both  
               Section 460 and the VMP Act.   The trial court agreed,  
               finding that as a matter of law that declawing  
               procedures are surgical procedures on an animal and  
               performing such procedures was preempted by Section  
               460 and granted CVMA declaratory and injunctive  
               relief.  The court declined to rule on the issue of  
               whether there was also preemption by virtue of the VMP  
               Act because such a ruling was unnecessary.  Summary  
               judgment was granted in favor of the CVMA on December  
               16, 2005, and West Hollywood was ordered to rescind  
               its ordinance and was prohibited from further  
               enforcement of its ban on nontherapeutic declawing  
               procedures.

             d)   Appellate Court Decision in California Veterinary  
               Medical Association v. City of West Hollywood.   On  
               June 22, 2007, the Second Appellate District Court of  
               Appeals reversed the trial court's decision and found  
               that the state law does not preempt or otherwise  
               prohibit the City of Hollywood from enforcing an  
               ordinance to prevent animal cruelty and impose a ban  
               on the practice of declawing any animal within the  
               city.  The court made several findings and conclusions  
               of law as follows:
             
               i)     Regarding the state regulation and the practice  
                 of veterinary medicine, the court found that neither  
                 the VMP Act nor any of its implementing regulations  
                 purports to specify the manner in which a  
                 veterinarian must practice his or her profession;  
                 and, unlike enforcement of the Act's provisions  
                 regulating sanitation and hygiene of the offices  
                 where veterinary medicine is practiced [in which the  
                 Legislature has expressly preempted], the  
                 Legislature has not expressly stated its intention  
                 to completely occupy the field or preempt local  





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                 legislation that may incidentally restrict certain  
                 veterinary medical procedures.
               
               ii)    Regarding general principles of preemption, the  
                 court found that the California Constitution  
                 reserves to a county or city the right to "make and  
                 enforce within its limits all local policy,  
                 sanitary, and other ordinances not in conflict with  
                 general laws and that if otherwise valid local  
                 legislation conflicts with state law, it is  
                 preempted by such law and is void."  A prohibited  
                 conflict exists if the local ordinance duplicates or  
                 contradicts general law or "enters an area expressly  
                 or impliedly fully occupied by general law and that  
                 local legislation enters an area that is "fully  
                 occupied" by general law when the Legislature has  
                 expressly manifested its intent to "fully occupy"  
                 the area or impliedly done so in light of several  
                 different factors.  Accordingly, the court concluded  
                 that although nontherapeutic declawing "is a  
                 standard veterinary procedure," the scope of Section  
                 460 was not intended to expressly preempt a local  
                 jurisdiction from regulation of the occupation  
                 itself; that Section 460 was intended to only  
                 preempt local licensing requirements and  
                 qualifications necessary to engage in the particular  
                 practice.  The court pointed out that when the  
                 measure enacting Section 460 was being considered  
                 for signature by the Governor in 1967, the  
                 Department of Professional and Vocational Standards  
                 (now the DCA) explained that the bill was a response  
                 to "attempt by a city or cities to require  
                 accountants and architects to meet local  
                 requirements as a condition of engaging in certain  
                 types of work authorized by their State licenses.   
                 The court concluded by saying that "state preemption  
                 of licensing activity does not limit the right of  
                 local governments to exercise their police powers to  
                 ensure 'the quality and character" of the licensees'  
                 work.  That is simply what West Hollywood has done  
                 with Ordinance No. 03-656."
               
               iii)   The court concluded that the DCA legal opinion  
                 is not entitled to heightened deference.
               
               iv)    The court reviewed whether the state may have  





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                 intended to "expressly preempt" the practice of  
                 veterinarian medicine pursuant to the VMP Act and  
                 found that "the VMP Act does not preempt the West  
                 Hollywood Anti-declawing ordinance since neither the  
                 VMP Act nor the regulations adopted by the Board  
                 mandate or expressly approve those procedures.   
                 Accordingly, the ordinance does not directly  
                 conflict with or contradict the VMPA.  Similarly,  
                 because the VMP Act and related regulations do not  
                 prohibit nontherapeutic declawing procedures, West  
                 Hollywood's ordinance is not coextensive with, and  
                 plainly does not duplicate, state law, and athough  
                 the VMP Act specifically preempts enforcement of  
                 sanitation and hygiene requirements developed for  
                 the premises where veterinarians practice,  the  
                 Legislature has not expressly declared its intention  
                 to fully occupy the field of regulating the practice  
                 of veterinary medicine  ." [underlined for emphasis] 

               The court then reviewed whether the state may have  
                 impliedly intended to fully occupy the field of  
                 regulating the practice of veterinary medicine under  
                 the VMP Act.  The court stated, "the only standard  
                 of practice set by the VMP Act is the minimal  
                 requirement that '[t]he delivery of veterinary care  
                 shall be provided in a competent and humane manner'  
                 and 'performed in a manner consistent with current  
                 veterinary medical practice in this state.'  Those  
                 commendable objectives hardly constitute the type of  
                 extensive regulation of the practice of veterinarian  
                 medicine that would support an inference the subject  
                 has become either exclusively a matter of state  
                 concern or one in which the state interest is so  
                 paramount it will not tolerate additional local  
                 action."

               The court further stated that another test for finding  
                 implied preemption is the adverse effect a local  
                 ordinance may have on the transient citizens of the  
                 state and whether it outweighs the possible benefit  
                 to the locality.  The court found that because  
                 nontherapeutic declawing is by its very definition  
                 nonemegency procedures, "any negative impact on  
                 transient citizens is difficult to imagine" and that  
                 "this speculative fear of 'fragmented localization'  
                 is, [in the court's view] wholly insufficient to  





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                 overcome West Hollywood's significant interest in  
                 exercising its police power to set minimum standards  
                 for the humane treatment of animals within its  
                 borders."

               The court concluded by stating that "the purpose and  
                 scope of the VMP Act appears to regulate the  
                 education, licensing and discipline of veterinarians  
                 and registered veterinary technicians; to establish  
                 and enforce sanitary standards for the premises at  
                 which veterinary medicine is practiced; and to  
                                                     prohibit the unauthorized practice of veterinary  
                 medicine by unlicensed individuals.  The Legislature  
                 has no doubt preempted discrete areas impacting the  
                 practice of veterinary medicine (most clearly  
                 licensing and enforcement of sanitary standards),  
                 but not the entire field." 
               
               v)     The court further states that even if they were  
                 to find that the VMP Act fully occupies the field of  
                 regulating veterinary medicine, it would not be  
                 determinative of the validity of West Hollywood's  
                 ordinance.  "By its terms, the ordinance is a  
                 general measure to prevent animal cruelty - an area  
                 concededly not preempted by the state -  not  
                 regulation of the practice of veterinary medicine  ."   
                 [underlined for emphasis]   The court went on to  
                 state, "To be sure, one effect of the ordinance is  
                 to prevent veterinarians in West Hollywood from  
                 performing declawing procedures unless medically  
                 necessary; but the ordinance also prohibits animal  
                 owners and their employees (breeders, for example)  
                 form performing the procedures, which they otherwise  
                 might do even thought not licensed as a  
                 veterinarian, and makes it a criminal offense for  
                 the owner ('the animal guardian') to order the  
                 procedure."   

               The court concluded by stating that, "West Hollywood's  
                 ordinance prohibiting onychectomy and flexor  
                 tendonectomy procedures has a valid principal  
                 purpose plainly within the city's police power - the  
                 prevention of animal cruelty - and only a secondary  
                 or incidental effect on a field arguably preempted  
                 by the state.  Because this incidental restriction  
                 of a particular form of surgical procedure to  





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                 therapeutic purposes does not materially interfere  
                 with any legislative purpose expressed in the VMP  
                 Act, West Hollywood's ordinance is not preempted by  
                 state law "

             e)   California Supreme Court Declined to Review Court  
               of Appeal Decision.  On October 10, 2007, the  
               California Supreme Court refused to review the  
               decision of the California Court of Appeal decision of  
               California Veterinary Medical Association v. City of  
               West Hollywood thus upholding West Hollywood's ban on  
               nontherapeutic declawing of animals. 

             Several key groups such as the DCA, the  California  
               Dental Association  (CDA), the  California Optometric  
               Association  (COA), and the  American Veterinary Medical  
               Association  joined in support of CVMA's lawsuit effort  
               by writing amicus letters to the Supreme Court.    

          3.Related Legislation.   AB 395  (Koretz, 2003) would have  
            prohibited licensed veterinarians from performing or  
            arranging surgical declawing, onychectomies and  
            tendonectomies on any domestic or exotic cat. This  
            measure was held in the Assembly Business and Professions  
            Committee.

           AB 1857  (Koretz) Chapter 876, Statutes of 2004, makes it a  
            misdemeanor punishable by imprisonment in a county jail  
            for a period not to exceed one year, by a fine of  
            $10,000, or by both, to declaw any cat that is a member  
            of an exotic or native wild cat species, as defined.

           SB 1548  (Figueroa) Chapter 467, Statutes of 2004, initially  
            included language which would have made it a misdemeanor  
            for any person to crop ears of any dog, or to procure the  
            cropping of a dog's ears within the state of California,  
            except for the treatment of disease or injury of the dog,  
            as defined.  Defined ear cropping as the surgical  
            alteration of the pinna that is performed for the purpose  
            of manipulating the ears of any dog for cosmetic  
            procedures so the ears heal pointed.  This language was  
            removed from the measure in Assembly Appropriations  
            because of major opposition from breeders.   However, the  
            CVMA was in support of this language.    
          
          4.Arguments in Support.    CVMA  believes that is an  





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            untenable situation to allow local jurisdictions to  
            promulgate their own "standards of practice" which will  
            result in a confusing patchwork quilt of conflicting  
            local standards.  The CVMA notes that this bill is not  
            about defining whether or not the practice of, in this  
            instance the declawing of cats, is appropriate or not  
            appropriate in the court of public opinion.  Rather, the  
            so-called "West Hollywood" case has wide-ranging  
            potential ramifications for  all  professions regulated by  
            the DCA.  If allowed to stand, the CVMA argues, without  
            legislative remedy, the appellate court interpretation of  
            Section 460 would allow a county or city to  
            hypothetically ban elective cosmetic surgery, mercury in  
            dental fillings, fertility procedures, etc.  CVMA states  
            that this measure will still allow a city or county to  
            establish their own parameters in promulgating a  
            compatible ordinance, such as controlling noise ordinance  
            abatement for a leaf blower during certain hours of the  
            day.

          The  California Dental Association  (CDA) believes strongly  
            that regulation of the DCA licensees should rest  
            exclusively with state government and that relegating to  
            local governments what is the domain of state licensing  
            authorities and the state legislature could have a  
            significant negative impact on the health of  
            Californians.  "Decisions that ultimately affect the  
            health of the public should be left to the discretion of  
            the state licensing authority governing the relevant  
            profession, along with the legislature."  It is only in  
            those arenas, as argued by DCA, that the full analysis  
            and discussion of scientific evidence related to these  
            professions comes to light and where the public is best  
            protected through the establishment of uniform laws and  
            regulations that apply to all Californians.

          The  California Optometric Association  (COA) indicates that  
            they fully supported CVMA to get the California Supreme  
            Court to review the decision of the Appeals Court  
            overturning the CVMA's successful motion for summary  
            judgment in CVMA v. City of West Hollywood.  The decision  
            of the Appeals Court, as argued by COA, strikes at the  
            very heart of the practice of all state-regulated,  
            learned professions, including optometry.  COA believes  
            that their members are entitled to the security that  
            comes from knowing that state laws governing the practice  





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            of their professions will be recognized and enforced  
            uniformly throughout the state and that their licenses to  
            practice their healing art cannot be endangered by  
            shifting political winds in one jurisdiction.  COA argues  
            that if a city or county governing body decided to outlaw  
            an optometric procedure because it inflicts temporary  
            pain on a patient, every resident of that jurisdiction  
            would risk being deprived of a technology or treatment  
            available to every other resident outside the  
            jurisdiction.  "The implications for the profession's  
            standard of care and enforcement would be troubling, and  
            substantial."

          Other proponents of this measure argue similarly that the  
            California Legislature and various professional licensing  
            boards regulate the professional standards and scope of  
            practice of a variety of professions, and that it is  
            essential for the protection of the consumer that only  
            properly trained and educated professionals, fluent in  
            the licensees' expertise, have the ability to modify  
            policies defining the licensees' scope of practice.   
            Allowing the scope of practices of California licensees  
            to be dictated or modified by local municipalities causes  
            non-uniform legal precedent and inconsistent standards of  
            practice.  This is inherently unfair to California  
            consumers who are entitled to the same kinds of consumer  
            protections and knowledge of the scope of licensure no  
            matter where they live within the state.

          Although the DCA has not submitted a letter of support on  
            this measure they did submit an Amicus Letter to the  
            California Supreme Court.  In the letter they stated  
            that, "The concept of statewide professional licensure  
            relies on the legislative declaration of authority to  
            state agencies which possess the necessary expertise to  
            regulate the conduct of the 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.  
               
          5.Arguments in Opposition.  The  City of West Hollywood   
            (City) strongly opposes this measure which would  
            effectively overturn the California Court of Appeals  
            decision that upheld the City's ordinance banning the  





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            declawing of animals and preempt local government  
            authority from exercising its traditional police power  
            regulatory authority to incidentally regulate businesses,  
            occupations or professions licensed by the state.  The  
            City indicates that the Court of Appeals decision was  
            very narrow and has limited application to regulating  
            business and professions in local jurisdictions.  "The  
            decision has no bearing whatsoever on other state  
            licensed professions or occupations, particularly where  
            the State has made clear an intention to preempt local  
            regulation."  According to the City, the supporters of  
            this measure contend that in the absence of this  
            legislation, localities my exercise unbridled discretion  
            in the regulation of licensed professionals, creating a  
            patchwork quilt of regulation around the State, and  
            states that "nothing could be further from the truth."   
            The City further argues that local governments are  
            extremely limited in their ability to regulate licensed  
            professionals, and the scope of local regulatory powers  
            largely depends on the specific regulatory scheme  
            governing each separate category of professionals and  
            occupations.  The City further states that the Court in  
            the West Hollywood case concluded that neither Section  
            460 nor the VMP Act preempt the West Hollywood  
            anti-clawing ordinance 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."  Therefore, the ordinance does  
            not restrict the state license or scope of practice of  
            veterinarians.  The Appeals Court further stated that  
            Section 460 prohibits a local agency from imposing  
            additional licensing requirements or qualifications on  
            state-licensed professions and occupations, and it does  
            not prohibit local governments from incidentally  
            regulating certain aspects of the manner in which  
            professionals actually perform their business or  
            professions.  The City believes that this measure will  
            prevent local governments from enacting  any  legislation  
            that would affect  any  aspect of the manner by which any  
            state-licensed professional or occupation conducts its  
            work, that it is unnecessarily broad and overreaching.   
            The City argues that the changes this measure makes to  
            Section 460 will have the effect of precluding local  
            regulation of any aspect of the work of any  
            state-licensed occupation, even if the purpose of the  
            local legislation is different than the State's licensing  





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            goals.  This measure "will create ambiguity in the law  
            and spawn endless litigation between business and  
            professions and local governments." 

          The  California State Association of Counties  , the  League of  
            California Cities  ,  the  California Contract Cities  
            Association  , and the  California Municipal Revenue & Tax  
            Association  are opposed to this measure and indicate that  
            they are extremely concerned that this measure, as  
            drafted, would inappropriately and very broadly preempt  
            the enforcement of local police powers.  While these  
            opponents respect the authority of the DCA to confer  
            licenses on individuals deemed fit and qualified to  
            engage in certain professions and occupations, they do  
            not believe the authority to determine fitness and  
            qualifications through a licensing process should be  
            unassailable.  Cities and counties regard the authority  
            and responsibility to regulate the operation of business  
            and professions, appropriate to address local concerns,  
            as necessary, is a function of local government.  This  
            measure would inhibit the imposition of legitimate local  
            regulatory controls on the time, place and manner or  
            business conduct.  "Regrettably, the sweeping prohibition  
            and preemption contemplated in AB 2427 are, in our view,  
            unworkable."     

          Numerous animal welfare groups are opposed to this measure.  
             These opponents believe that this bill will effectively  
            prevent local governments from enacting animal welfare  
            ordinances they deem necessary to protect animals from  
            inhumane practices.  They argue that while the state has  
            long held the authority to establish fundamental  
            statewide regulatory policies over agencies licensed by  
            the DCA, local jurisdictions also have had the  
            flexibility to fine-tune those restrictions to  
            effectively address local issues.  Every county and city  
            has particular interests that are not shared by the rest  
            of the state.  The coastal communities have specific  
            interests including marine life, whereas the inland areas  
            and mountainous regions have wildlife as well as other  
            concerns.  "If the citizens of a city or county are  
            harmed by a practice in their community, surely they have  
            the right to legislate a prohibition of that activity.   
            If the citizens of West Hollywood or any other community  
            in California suffer emotional distress as a result of  
            this controversial practice existing in their community,  





          AB 2427
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            they have the right to prohibit it. " 

          6.This Measure was heard by the Senate Local Government  
            Committee (first).  On June 4, 2008, the Senate Local  
            Government Committee (SLGC) reviewed this bill.  It  
            passed out of the Committee by a vote of 4 to 0.  The  
            SLGC's analysis raised three issues.  The first was a  
            discussion of how the language in this bill is an attempt  
            to "restore 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."  The second issue raised was whether the  
            prohibition proposed in this measure goes "too far" and  
            encroaches on legitimate local regulatory powers.  The  
            analysis stated that "AB 2427's overly broad response to  
            the CVMA v. West Hollywood decision unnecessarily erodes  
            local government's home rule powers."  The analysis  
            further states,  "in attempting to establish the state's  
            exclusive authority to regulate licensed 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 third issue raised by the SLGC analysis is whether  
            the SLGC may want 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  
            regulations without invalidating current statutes that  
            allow for local regulation in other professional fields.

          Legal Counsel for the COA submitted a response to this  





                                                                    AB 2427
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            Committee regarding the assertions by the SLGC that the  
            bill goes "too far," and "unnecessarily erodes local  
            governments' home rule powers" by "prohibit[ing] local  
            regulations that are permissible under current law."    
            And that a "narrower response" should be considered - one  
            that specifically addresses itself to veterinary "scope  
            of practice" issues that were affected by the court's  
            decision.  [It should be noted that no amendments were  
            made to this measure regarding the issues raised in the  
            SLGC's analysis.}

          Legal Counsel for COA disagrees with the SLGC analysis in  
            regard to the measure being "overly-broad."  They argue  
            that this measure clarifies the intent of Section 460, to  
            maintain uniformity in the permissible scope of practice  
            for professionals licensed by DCA agencies and to clarify  
            that the Legislature intended Section 460 to broadly  
            preclude municipal prohibitions on licensed activities.   
            Legal Counsel for COA also argues that this measure also  
            clarifies existing language of Section 460 regarding the  
            Appeals Court limited characterization of the scope and  
            effect of Section 460, under which the statute was read  
            to only prohibit a city or county from erecting  
            additional prerequisites to a licensed individual's  
            ability to practice within a given jurisdiction.  COA  
            Legal Counsel argues the measure does  not  preclude any  
            local regulation of any practices that fall within the  
            definition of a statewide occupation; instead, it only  
            prevents a city or county from prohibiting such  
            practices, and only then when the practice is recognized  
            part of a profession licensed by an agency within the  
            DCA.  "Under AB 2427, cities and counties remain free to  
            enact laws that incidentally regulate licensed  
            professions; they simply may not enact ordinances or  
            similar measures that bar professionally-recognized acts.  
             For example, a city would be perfectly within its rights  
            to enact a noise ordinance that incidentally regulates  
            the hours within which a licensed contractor my conduct  
            noise producing activities, but it would not be able to  
            prohibit those activities.  Thus, the outright ban  
            enacted by the City of West Hollywood (prohibiting  
            "non-therapeutic" declawing procedures) would be  
            impermissible.  COA Legal Counsel goes on to argue  
            against a "narrower response" as suggested in the SLGC's  
            analysis, that the narrowing proposed by the SLGC would  
            have the unusual effect to creating two sets of  





          AB 2427
          Page 18



            preemption laws; one for veterinarians and one for  
            licensed professions.  "The whole point of AB 2427 is to  
            clarify the Section 460 - a statute that applies across  
            the board to all licensed professions overseen by the DCA  
            - does not permit municipal bans on  
            professionally-recognized activities."  

           7.Policy Issue  :  Should local governments be prohibited  
            from preventing any person licensed under the DCA from  
            engaging in any act or series of acts that fall within  
            the statutory or regulatory definition of that business,  
            occupation, or profession?  

          The SLGC appears correct in its analysis of the language in  
            this measure, that it may be go "too far" and encroaches  
            on legitimate local regulatory powers and is an "overly  
            broad" response to the CVMA v. West Hollywood decision in  
            that it unnecessarily erodes local government's home rule  
            powers and that  "in attempting to establish the state's  
            exclusive authority to regulate licensed 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."  Although Legal Counsel for COA argues that the  
            measure clarifies the intent of Section 460, to maintain  
            uniformity in the permissible  scope of practice  for  
            professionals licensed by DCA agencies and to clarify  
            that the legislature intended Section 460 to broadly  
            preclude municipal prohibitions on licensed activities,  
            the language of this measure includes "any act or series  
            of acts" that fall within the statutory or regulatory  
            definition of that 
          "business, occupation, or profession."  This would tend to  
            include many licensed activities which may currently be  
            regulated by local jurisdictions and would also create  
            some confusion about which activities of licensed  
            professionals may be regulated by local jurisdictions.   
            Certainly those that deal with local code enforcement  
            provisions regarding the businesses of the profession,  
            especially those that may be for public health and safety  
            purposes.

          As indicated and stated by the City of Hollywood, this  
            measure will prevent local governments from enacting  any   
            legislation that would effect  any  aspect of the manner by  





                                                                    AB 2427
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            which any state-licensed professional or occupation  
            conducts its work, that it is unnecessarily broad and  
                                                                            overreaching.  The City argues that the changes this  
            measure makes to Section 460 will have the effect of  
            precluding local regulation of any aspect of the work of  
            any state-licensed occupation, even if the purpose of the  
            local legislation is different than the State's licensing  
            goals.  This measure "will create ambiguity in the law  
            and spawn endless litigation between business and  
            professions and local governments."    
          
           8.Policy Issue  :  Should local jurisdictions be prohibited  
            from preventing any person licensed under the DCA from  
            engaging in any act or series of acts that fall under  
            their scope of practice?  Stated another way, are there  
            particular practices which local jurisdictions should be  
            able to regulate even though they are considered as an  
            accepted practice of the profession?
          The Appeals Court agreed that the practice of  
            nontherapeutic declawing is a standard veterinary  
            procedure, however it further stated that the scope of  
            Section 460 was not intended to expressly preempt a local  
            jurisdiction from regulation of the occupation itself;  
            that Section 460 was intended to only preempt local  
            licensing requirements and qualifications necessary to  
            engage in the particular practice.  The Appeals Court  
            found that the Legislature has not expressly or by  
            implication declared its intention to fully occupy the  
            field of regulating the practice of veterinary medicine.   
            "The Legislature has no doubt preempted discrete areas  
            impacting the practice of veterinary medicine (most  
            clearly licensing and enforcement of sanitary standards),  
            but not the entire field." 

          This measure will clarify that it is the intent of the  
            Legislature to preempt local jurisdictions from  
            prohibiting  any  and  all   acts  or  series of acts  that would  
            be considered as legitimate and lawful under the licensed  
            professions scope of practice.  This leaves open the  
            question of whether or not there may be  circumstances in  
            which local jurisdictions should have the authority to  
            prohibit a practice which, even though it has been  
            recognized as permissible procedure or treatment provided  
            by the professional, is one which the Legislature or the  
            state licensing board has not addressed.  An example of  
            this is recent legislation which attempted to prohibit  





          AB 2427
          Page 20



            any person from cropping the ears of any dog, or to  
            procure the cropping of a dog's ear within the State of  
            California, except for the treatment of disease or injury  
            of the dog.
          This measure,  SB 1548  (Figueroa, 2004) included language  
            prohibiting the cropping of a dog's ear and was deleted  
            from the bill in Assembly Appropriations because of  
            intense opposition from the American Kennel Club and dog  
            breeders.  This was in spite of the fact that the  
            American Veterinary Medical Association and the CVMA  
            agreed that such a procedure was medically unnecessary  
            and can cause pain and distress in the dog and supported  
            this language in the bill.   Should local jurisdictions  
            now be prevented from prohibiting such a procedure  
            because the Legislature or the board has been unable to  
            act  ?  

          It should be recognized that this measure will have broad  
            implications in other areas of medical practice that have  
            been called into question.  There may be questionable  
            cosmetic procedures which have the potential for harm to  
            patients which are provided in particular settings not  
            currently regulated by the state such as Medical spas.   
            The increasing popularity of cosmetic procedures or  
            treatments, and the lucrative business they offer have  
            given rise to a new model of providing cosmetic services  
            outside the traditional physician settings and into malls  
            and local spas.  Medical spas, or popularly known as  
            "medispas," are increasingly becoming the destination for  
            various cosmetic procedures or treatments which may be  
            legitimate or not.  This measure may call into question  
            any restriction placed by local jurisdictions on any of  
            the practices performed in these settings because they  
            are being performed by health care practitioners, whether  
            legitimate or otherwise.  
          
           9.Policy Issue  :  Is it the intent of the Author and Sponsor  
            that this measure be prospective only?  It has been  
            indicated to this Committee that the Author does not  
            intend for this measure to have retroactive effect and  
            thus eliminate the ability of the City of West Hollywood  
            to enforce its current ordinance prohibiting the  
            declawing of domestic cats.  Would recommend the  
            following amendment to assure that this measure only has  
            a prospective effect:






                                                                    AB 2427
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           "This section shall not prohibit the enforcement of a local  
            ordinance effective prior to January 1, 2009."  
           

          SUPPORT AND OPPOSITION:
          
           Support:  

          California Veterinary Medicine Association (Sponsor)
          American Federation of State, County, and Municipal Employees
          American Nurses Association/California
          American Society of Landscape Architects 
          California Association of Marriage and Family Therapists
          California Dental Association
          California Hospital Association
          California Optometric Association
           

          Opposition:  

          Action for Animals
          Animal Legal Defense Fund
          Animal Protection Institute
          Animal Switchboard
          Association of Veterinarians for Animal Rights
          Born Free USA
          California Animal Association
          California Contract Cities Association
          California Federation for Animal Legislation
          California Municipal Revenue & Tax Association
          California State Association of Counties 
          City of West Hollywood
          Give A Dog A Home
          League of California Cities
          People for the Ethical Treatment of Animals
          San Diego Animal Advocates
          The Humane Society of the United States
          The Human Society Veterinary Medical Association
          The League of Humane Voters
          The Paw Project
          United Animal Nations 
          Numerous Individuals



          Consultant: Bill Gage





          AB 2427
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