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,
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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
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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
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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
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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
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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:
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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
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