BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 762|
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THIRD READING
Bill No: SB 762
Author: Aanestad (R)
Amended: 5/5/09
Vote: 21
SENATE BUSINESS, PROF. & ECON. DEV. COMMITTEE : 7-3,
4/27/09
AYES: Negrete McLeod, Wyland, Aanestad, Corbett, Correa,
Oropeza, Walters
NOES: Florez, Romero, Yee
SUBJECT : Professions and vocations: healing arts
SOURCE : California Veterinary Medical Association
DIGEST : This bill makes 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 prohibits construing this provision to
prohibit the enforcement of a local ordinance in effect
prior to January 1, 2010, as specified.
ANALYSIS :
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
CONTINUED
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programs within the Department of Consumer Affairs (DCA)
under various licensing acts within the Business and
Professions Code.
2. Requires 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 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)
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 DCA. VMB consists of seven members -- three
public members and four professionals. Members of VMB
hold office for a term of four years.
6. Provides that 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
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in 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 in effect 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.
4. Specifies that nothing in the bill shall be construed to
prevent a local jurisdiction from adopting or enforcing
any local ordinance governing zoning, business
licensing, or reasonable health and safety requirements
for businesses or establishments of a licensed healing
arts professional.
Comments
This bill is similar to last year's AB 2427 (Eng), which
passed out of the Senate with a vote of 30-3, and was one
of an unprecedented number of bills that were vetoed by the
Governor citing that the delay in passing the State Budget
forced him to prioritize bills sent to his desk. And,
given the delay, that he was only signing bills that were
the highest priority for California. He did not believe
the bill met that standard and, therefore, could not sign
it at that time.
The one significant difference in this bill 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
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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.
Background
West Hollywood's Prohibition of Declawing Animals for
Nontherapeutic 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. 03-656. 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
phalanx (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 radial nerve,
hemorrhage, bone chips that prevent healing, painful
re-growth of a deformed claw inside the paw which is not
visible to the eye, necrosis, lameness, and chronic back
and joint pain as shoulder, leg and back muscles weaken?"
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
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attention of the JLSRC by the California Veterinary Medical
Association (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. 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.
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
'aesthetics or convenience,' the procedure itself is a
standard veterinary procedure. It cannot be regulated by
local jurisdictions because it 'is of such a nature that
the adverse effect of a local law on the transient citizens
of the state outweighs the possible benefits to the
municipality.' Such local regulation of veterinary
practice in different jurisdictions would ultimately create
a chaotic and confusing situation where it would be
difficult for licensed veterinarians to know which
veterinary procedures are legal or not depending on the
jurisdiction. ? Such a balkanization of professional
practice ultimately would lead to different standards of
practice throughout the state? [and] will inevitably make
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it very difficult for the Board to enforce the Veterinary
Practice Act."
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.
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.
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California Supreme Court Declined to Review Court of Appeal
Decision . On October 10, 2007, the California Supreme
Court refused to review the decision of the California
Court of Appeal decision of California Veterinary Medical
Association v. City of West Hollywood thus upholding West
Hollywood's ban on nontherapeutic declawing of animals.
Several key groups such as DCA, the California Dental
Association, the California Optometric Association, and the
American Veterinary Medical Association joined in support
of CVMA's lawsuit effort by writing amicus letters to the
Supreme Court.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 5/4/09)
California Veterinary Medical Association (source)
California Association of Marriage and Family Therapists
California Dental Association
California Medical Association
California Optometric Association
California Veterinary Medical Board
OPPOSITION : (Verified 5/4/09)
Born Free USA
California Animal Association
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
ARGUMENTS IN SUPPORT : The CVMA 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 CVMA, the West
Hollywood ordinance marks the first time that a certain
city or county has deemed that a veterinarian shall be
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prohibited from performing a surgical act that is
authorized under the VMP Act. CVMA sued the City of West
Hollywood on the basis that the city had barred
veterinarians (via a city approved ordinance) from
performing a surgical task allowable under the VMP Act and
the West Hollywood's ordinance was in conflict with, and
preempted by, both Section 460 of the Business and
Professions Code and the VMP Act. After the Los Angeles
County Superior Court struck down the ordinance, the
appellate court reversed the decision on a 2-1 vote. The
court ruled that, even though the barred procedures are
part of the practice of veterinary medicine and that
Section 460 prohibits local legislation from imposing
separate and additional licensing requirements or other
qualifications on individuals holding state licenses issued
by agencies of the DCA, it does not preclude otherwise
valid local regulation of the manner in which a business or
profession is performed. Similarly, although West
Hollywood's adoption of an anti-cruelty measure prohibiting
nontherapeutic declawing of animals has an incidental
impact on veterinarians practicing within its city limits,
the ordinance is not preempted by virtue of the state's
regulation of veterinary medicine through the VMP Act or
its implementing regulations. The ordinance was held as a
valid exercise of the city's authority as an anti-cruelty
measure over the practice of declawing of animals by
veterinarians or any other person who authorizes or
performs such procedures.
CVMA 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 CVMA, the California Legislature, DCA, and the boards
and bureaus overseen by 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
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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.
CVMA 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." CVMA 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; and the ability of pharmacists to dispense
various drugs like emergency contraception, vaccinations,
and psychotropic drugs.
CVMA further believes this bill 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.
ARGUMENTS IN OPPOSITION : The City of West Hollywood 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
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declawing of animals and preempt local government authority
from exercising its traditional police power regulatory
authority to incidentally regulate businesses, occupations
or professions licensed by the state. The City 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 the bill [AB 2427] contend that in
the 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 the bill [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 the bill [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
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the State's licensing goals. The bill [AB 2427] "will
create ambiguity in the law and spawn endless litigation
between business and professions and local governments."
JJA:mw 5/4/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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