BILL ANALYSIS ---------------------------------------------------------------------- |Hearing Date:April 27, 2009 |Bill No:SB | | |762 | ---------------------------------------------------------------------- SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT Senator Gloria Negrete McLeod, Chair Bill No: SB 762Author:Aanestad As Introduced: February 27, 2009 Fiscal: No SUBJECT: Professions and vocations: healing arts. SUMMARY: Would make it unlawful for a city or county 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, but would prohibit construing this provision to prohibit the enforcement of a local ordinance effective prior to January 1, 2010, as specified. 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. (Section 460 of the Business and Professions Code.) SB 762 Page 2 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 as follows: Three of whom are public members and four are professionals. 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 (VMP Act). This bill: 1)Provides that no city or county shall prohibit a person or group 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 that business, occupation, or profession or any portion thereof. 2)Provides that no city, county, or city and county shall prohibit a healing arts professional licensed with the state under the licensing Division for the Healing Arts within the Business and Professions Code, from engaging in any act or performing any procedure that falls within the professionally recognized scope of practice of that licensee. 3)Provides that prohibition under item #2 above for cities and counties shall not be construed to prohibit the enforcement of a local ordinance effective prior to January 1, 2010, related to any act or procedure that falls within the professionally recognized scope of practice of a healing arts professional. FISCAL EFFECT: This measure has been keyed "nonfiscal" by Legislative Counsel. SB 762 Page 3 COMMENTS: 1.Similar Measure from Last Year: AB 2427 (Eng). This bill is similar to last year's AB 2427, which passed out of this Committee 5 to 0, and was one of an unprecedented number of bills that were vetoed by the Governor citing that the delay in passing the State Budget has forced him to prioritize bills sent to his desk. And, given the delay, that he was only signing bills that are the highest priority for California. He did not believe this bill met that standard and therefore could not sign it at that time. The one significant difference in this measure is that it does not include language which was in last year's AB 2427 to address one of the concerns of the League of Cities regarding local control over so-called "time, place, and manner" restrictions on local businesses. To accommodate this concern language was included in AB 2427 which stated that nothing under Section 490 shall prohibit any city, county, or city and county from regulating the time, manner, or place of business operations of a healing arts professional licensed under the Business and Professions Code. 2.Purpose. The Sponsor of this measure is the California Veterinary Medical Association (CVMA). The Sponsor 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 Sponsor, 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 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, SB 762 Page 4 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 Sponsor 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 this existing statute by specifying under Section 460 that no city or county shall prohibit a licensed health care practitioner from engaging in any act or performing any procedure that falls within their professionally recognized scope of practice. As argued by the Sponsor, 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 in order to continue to adequately enforce statewide standards of professional practice. 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 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 Sponsor states that it is important to note that this bill does not seek to undo the West Hollywood ordinance, and provides language to that effect. They argue that 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 Sponsor 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 SB 762 Page 5 dispense various drugs like emergency contraception, vaccinations, and psychotropic drugs. The Sponsors further 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. 3.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 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 SB 762 Page 6 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 VMB in 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 types 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. 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 SB 762 Page 7 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 about the legal opinion DCA had recently issued, in response to an inquiry by the VMB, as to the permissibility of the ordinance. CVMA 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 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: SB 762 Page 8 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 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 . [underlined for emphasis] 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." SB 762 Page 9 iii) The court concluded that the DCA legal opinion is not entitled to heightened deference. iv) The court reviewed whether the state may have 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's 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 overcome SB 762 Page 10 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) from performing the procedures, which they otherwise might do even though 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 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." 4.California Supreme Court Declined to Review Court of Appeal Decision. On October 10, 2007, the California Supreme Court SB 762 Page 11 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. 5.Similar and Related Legislation. AB 2427 (Eng, 2008) would have made it unlawful for a city or county or city and county 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, but would prohibit construing this provision to prohibit the enforcement of a local ordinance effective prior to January 1, 2009, as specified, or to prohibit local time, manner, or place of business operations regulations. 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. 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. 6.Arguments in Support. CVMA believes that is an untenable situation to allow local jurisdictions to promulgate their own SB 762 Page 12 "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) in a letter to this Committee in support of AB 2427 (Eng), indicated 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 believed that their members are entitled to the security that comes from knowing that state laws governing the practice 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 argued 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 SB 762 Page 13 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 AB 2427 (Eng) argued 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, as indicated. 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. 7.Arguments in Opposition. The City of West Hollywood (City) was strongly opposed to AB 2427 (Eng) which would have effectively overturned the California Court of Appeals decision that upheld the City's ordinance banning the 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 indicated 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 [AB 2427] contend that in the SB 762 Page 14 absence of this legislation, localities may 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 argued 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 stated 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 profession. The City believed that this measure [AB 2427] would 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 argued that the changes this measure [AB 2427] 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 [AB 2427] "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 were also opposed to AB 2427 and indicated 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 did 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 SB 762 Page 15 operation of business and professions, appropriate to address local concerns, as necessary, is a function of local government. This measure [AB 2427] 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 were opposed to AB 2427. These opponents believed that this bill would effectively prevent local governments from enacting animal welfare ordinances they deem necessary to protect animals from inhumane practices. They argued 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, they have the right to prohibit it." A recent letter from the Humane Society Veterinary Medical Association (HSVMA) in opposition to SB 762 restate some of these arguments and argues that as an association of veterinary professionals dedicated to animal protection and the relief of animal suffering, they recognize that communities can have compelling reasons, based on local circumstances and interests, for establishing local regulations regarding the welfare of animals. Furthermore there is precedent, as indicated by HSVMA, for California communities to regulate state-licensed professionals in the interest of animal welfare. For example, in addition to the West Hollywood ordinance, there are local California ordinances that prohibit licensed wildlife control operators from using certain traps and tools, ordinances that prohibit licensed animal exhibitors from using certain animal species or exhibiting in certain jurisdictions. 8.AB 2427 was heard last year by the Senate Local Government Committee. On June 4, 2008, the Senate Local Government SB 762 Page 16 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 stated, "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 in the SLGC analysis was whether the Committee 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." When this Committee heard AB 2427 on June 30, 2008, Legal Counsel for the California Optometric Association (COA) submitted a response to this 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" SB 762 Page 17 issues that were affected by the court's decision. [ It should be noted that no amendments were made to this measure by SLGC regarding the issues raised in their analysis .] Legal Counsel for COA disagreed with the SLGC analysis in regard to the measure being "overly-broad." They argued that this measure [AB 2427] 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 argued that this measure also clarified 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 argued the measure [AB 2427] 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 a 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 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." 9.AB 2427 was amended to deal with vague and overbroad restrictions, incidental regulation of licensed professions and to provide prospective effect of the measure. Four amendments were made to AB 2427 in the Senate both by this Committee and when the measure reached the Senate Floor. The first was to SB 762 Page 18 clarify that the measure only dealt with health care licensees under the Business and Professions Code, not other non-health related trades where counties and cities may have to address both noise ordinances or zoning requirements of certain businesses. The second was to clarify that counties and cities could not prohibit a healing arts licensee from engaging in any act or performing any procedure that falls within their professionally recognized scope of practice [underlined for emphasis]. Prior language stated that counties and cities could not prohibit a licensee from engaging in any act or series of acts related to their business, occupation or profession [underlined for emphasis]. This was considered, as earlier indicated, as too broad and vague a restriction on counties and cities and could encroach on legitimate local regulatory powers regarding that profession. The third amendment dealt with the issue of incidental regulation and allowing cities and counties to regulate the time, manner, or place of business operations of a healing arts professional. The fourth amendment was to assure that the current ordinance in West Hollywood regarding the cat declawing procedure would be preserved and provided that the bill would only have effect after January 1, 2009. 10.Policy Issue : Should local jurisdictions be prohibited from preventing any licensed health care professional from engaging in any act or performing any procedure that falls within the professionally recognized scope of practice of that licensee? Stated another way, are there particular practices or medical procedures 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 SB 762 Page 19 to preempt local jurisdictions from prohibiting any and all acts or any procedure 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 or procedure 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 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. 11.Should this measure be amended to include prior time, place and manner language? One of the amendments taken on the Senate Floor last year for AB 2427 was language that dealt with the issue of incidental regulation and allowing cities and counties SB 762 Page 20 to regulate the time, manner, or place of business operations of a healing arts professional. The language in AB 2427 stated: "Nothing in this subdivision shall prohibit any city, county, or city and county from regulating the time, manner, or place of business operations of a healing arts professional licensed under Division 2 (commencing with Section 500)." It is unclear why this measure does not include this language which was designed to ensure that cities and counties will be able to establish zoning requirements, noise ordinances, safety and health requirements, or provide other incidental regulation of the licensed health care professionals business. SUPPORT AND OPPOSITION: Support: California Veterinary Medical Association (Sponsor) California Association of Marriage and Family Therapists (CAMFT) California Chiropractic Association California Dental Association California Medical Association California Optometric Association Opposition: City of West Hollywood Friends of Auburn/Tahoe Vista/Placer County Animal Shelter Humane Society Veterinary Medical Association Paw Project PawPac Pet Care Foundation San Diego Animal Advocates United Animal Nations Consultant:Bill Gage