BILL ANALYSIS
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|Hearing Date:April 27, 2009 |Bill No:SB |
| |762 |
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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.)
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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.
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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,
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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
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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
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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
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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:
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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."
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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
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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
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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
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"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
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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
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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
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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
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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"
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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
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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
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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
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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