BILL ANALYSIS                                                                                                                                                                                                    







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        |Hearing Date:April 27, 2009    |Bill No:SB                            |
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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