BILL ANALYSIS                                                                                                                                                                                                    


          |SENATE RULES COMMITTEE            |                   SB 762|
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                                 THIRD READING

          Bill No:  SB 762
          Author:   Aanestad (R)
          Amended:  5/5/09
          Vote:     21

          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  


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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  

          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  

          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  

          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.

          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  

           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  

          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
          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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