BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 762| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 SB 762 Page 2 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 SB 762 Page 3 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 SB 762 Page 4 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 SB 762 Page 5 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 SB 762 Page 6 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. SB 762 Page 7 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 SB 762 Page 8 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 SB 762 Page 9 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 SB 762 Page 10 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 SB 762 Page 11 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 **** END ****