BILL ANALYSIS
AB 2427
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 2427 (Eng)
As Amended August 11, 2008
Majority vote
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|ASSEMBLY: |65-7 |(April 21, |SENATE: |30-3 |(August 18, |
| | |2008) | | |2008) |
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Original Committee Reference: B. & P.
SUMMARY : Restricts local government's ability to prohibit a
healing arts licensee from engaging in any act or performing any
procedure that falls within the professionally recognized scope
of practice of that licensee, and would prohibit construing this
provision to prohibit the enforcement of a local ordinance
effective prior to January 1, 2009, as specified.
The Senate amendments specify that this bill:
1)Does not void local ordinances in effect prior to January 1,
2009.
2)Is limited to healing arts professional licensed under
Division 2 (commencing with Section 500).
3)Does not prohibit any city, county, or city and county from
regulating the time, manner, or place of business operations
of a healing arts professional licensed by an entity within
the Department of Consumer Affairs (DCA).
EXISTING LAW makes it unlawful for a city or county to prohibit
a person, authorized by one of the agencies of DCA to engage in
a particular business, from engaging in that business,
occupation, or profession or any portion thereof.
AS PASSED BY THE ASSEMBLY , this bill restricted a city or county
from prohibiting groups of persons 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 their
business, occupation, profession, or from engaging in any act or
series of acts that fall within the statutory or regulatory
definition of that business, occupation, or profession, as
defined by state law.
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FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : According to the author, "The California legislature,
the DCA, and the boards and bureaus overseen by the Department,
should have the ultimate authority over 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 be subject to
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."
Recently, the City of West Hollywood adopted an ordinance that
would ban veterinarians who practice within the city limits from
declawing domestic cats. The West Hollywood ordinance marks the
first time that a certain city or county has deemed that a
veterinarian shall be prohibited from performing a surgical act
that is authorized under the Veterinary Medicine Practice Act
(VMPA). As a consequence, the California Veterinary Medical
Association (CVMA) entered into a lawsuit against the City of
West Hollywood.
The suit argued that the ordinance was preempted by the VMPA and
Business and Professions Code Section 460 which states: "No
city or county shall prohibit a person, 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. Nothing in this section
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 cost of regulation."
Several key groups such as the DCA, the California Dental
Association, the California Optometric Association, and the
American Veterinary Medical Association (AVMA) joined in support
of CVMA's lawsuit effort by writing amicus letters to the court.
After the Los Angeles County Superior Court struck down the
West Hollywood ordinance, the appellate court reversed the
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decision on a 2-1 vote, and the California Supreme Court chose
not to hear the case.
The appellate court decision read, "Although section 460
prohibits local legislation 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." The court
concluded that Section 460 does not preempt the West Hollywood
anti-declawing ordinance on the basis that: "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, including the owner of the animal, it
is outside the scope of section 460, even as the statute was
interpreted by DCA's legal office [which did not focus on the
cruelty aspect, but rather on the hierarchical structure of
state and local regulation] and by the trial court. Finally, by
its terms section 460 prohibits local governments from imposing
additional licensing conditions or qualification as a
requirement for working within their jurisdiction but does not
preclude local regulation of the manner in which state licensees
actually perform their business or profession." Thus, the court
interpreted section 460 as banning localities from issuing
additional requirements, not from limiting existing ones.
The appellate court's decision raises important questions of law
specifically related to the construction and application of
Business and Professions Code Section 460. This bill seeks to
clarify existing statute by adding the language, "or from
engaging in any act or series of acts that fall within the
statutory or regulatory definition of that business, occupation,
or profession," in order to continue to adequately enforce
statewide standards of professional practice.
It is important to note that this bill does not seek to undo the
West Hollywood ordinance; 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 scope of practice. 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
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that are not medically necessary; and, the ability of
pharmacists to dispense various drugs like emergency
contraception, vaccinations, and psychotropic drugs.
According to the sponsors of the bill, CVMA, "Professional
organizations and the DCA all agree that undermining statewide
uniformity in licensed practice standards will harm professional
practice and professional service."
CDA's amicus letter to the California Supreme Court, states,
"The CDA is specifically concerned that the appellate decision,
if allowed to stand, may adversely affect the health of
Californians by relegating to local municipalities what is
properly the domain of state licensing authorities and the state
legislature. Based on the appellate ruling, a local
municipality could - for reasons based on popular opinion or
otherwise, and without proven and reputable scientific evidence
- arbitrarily determine that a certain medical procedure was no
longer within the scope of practice or a given health care
profession and ban its use. The CDA believes that all decisions
affecting the health of the public should be left to the
discretion of the state licensing authority governing the
relevant profession and the California state legislature. It is
only in this arena where the full analysis and discussion of
scientific evidence related to medical issues comes to light,
and where the public is best protected through the establishment
of uniform laws and regulations that apply to all Californians."
The AVMA amicus letter to the California Supreme Court argues,
"State regulation of veterinary medicine, a system that has well
served the American public and animal patients over 100 years,
will be undermined if cities, villages, and counties get a green
light to chip away at the uniformity of state veterinary
practices acts and the regulations issued by state veterinary
medical boards, as authorized by those statutes."
The DCA's amicus letter to the California Supreme Court, states,
"The concept of statewide professional licensure relies on the
legislative delegation 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."
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Analysis Prepared by : Josefina Ramirez / B. & P. / (916)
319-3301
FN: 0007257