BILL ANALYSIS
SB 762
Page 1
Date of Hearing: June 16, 2009
ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
Mary Hayashi, Chair
SB 762 (Aanestad) - As Amended: May 5, 2009
SENATE VOTE : 31-6
SUBJECT : Professions and vocations: healing arts.
SUMMARY : Prohibits cities or counties from restricting any
person from performing a procedure that falls within the scope
of practice of a person licensed by the state Department of
Consumer Affairs (DCA). Specifically, this bill :
1)Makes it unlawful for a city, county, or city and county to
prohibit a licensed healing arts professional from engaging in
any act or performing any procedure that falls within the
licensee's professionally recognized scope of practice.
2)Authorizes the enforcement of a local ordinance in effect
prior to January 1, 2010, related to any act or procedure that
falls within the a licensed healing arts professional's
recognized scope of practice.
3)Authorizes a city, county, or city and county to adopt or
enforce any local ordinance governing zoning, business
licensing, or reasonable health and safety requirements for
establishments or businesses of a licensed healing arts
professional.
EXISTING LAW :
1)Authorizes DCA to regulate and license practitioners of the
healing arts professions.
2)Makes it unlawful for a city and county to prohibit a person,
authorized by one of the DCA agencies to engage in a
particular business, from engaging in that business,
occupation, or profession.
SB 762
Page 2
3)Authorizes a city, county, or city and county to levy a
business license tax solely the purposes of revenue or
covering the cost of regulation.
FISCAL EFFECT : Unknown. This bill is keyed non-fiscal.
COMMENTS :
Purpose of the bill . According to the author's office, "SB 762
by Senator Aanestad would amend Section 460 of the Business and
Professions Code (BPC). This measure seeks to codify that the
California Legislature, the DCA, and the boards and bureaus
overseen by the DCA, should have ultimate authority over medical
scope of practice issues for healing arts licentiates. This
measure will ensure there is a statewide uniformity of standards
for medical professionals." The author's office contends that
this measure only pertains to licensed healing arts
professionals as defined in Division 2 of the BPC, and is
narrowly drafted so that it addresses scope of practice of those
professionals.
Background . In 2003, state and local legislation were
reintroduced to prohibit veterinarians from declawing cats. AB
395 (Koretz) of 2003 would have prohibited veterinarians from
performing or arranging surgical declawing, onychectomies, and
tendonectomies on any domestic or exotic cat. This bill died in
the Assembly Business and Professions Committee. Around the
same time, the City of West Hollywood adopted an ordinance
prohibiting veterinarians who practice within the city limits
from declawing domestic cats. The West Hollywood ordinance
marked 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 Veterinary Medicine
Practice Act (VMPA). Consequently, the California Veterinary
Medical Association (CVMA) sued the City of West Hollywood.
In the lawsuit, CVMA v. City of West Hollywood, the plaintiffs
argued that the ordinance was preempted by the VMPA and BPC
Section 460 which states: "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. Nothing in this section
shall prohibit any city or county or city and county from
levying a business license tax solely for revenue purposes nor
SB 762
Page 3
any city or county from levying a license tax solely for the
purpose of covering the cost of regulation."
DCA, California Dental Association (CDA), California Optometric
Association (COA), and American Veterinary Medical Association
(AVMA) joined in support of CVMA's legal effort by writing
amicus letters to the court. After the Los Angeles County
Superior Court struck down the West Hollywood ordinance, the
appellate court reversed the decision on a 2-1 vote, and the
California Supreme Court chose not to hear the case.
Even though the appellate court agreed that the barred
procedures were part of the practice of veterinary medicine, the
court ruled that BPC Section 460 only prevents municipalities
from imposing additional prerequisites to a licensed
professional's ability to practice within a given jurisdiction.
The appellate court decision read, "Although Section 460
prohibits local legislation 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." The court
concluded that BPC Section 460 does not preempt the West
Hollywood anti-declawing ordinance on the basis that: "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, including the owner of the animal, it
is outside the scope of Section 460, even as the statute was
interpreted by DCA's legal office [which did not focus on the
cruelty aspect, but rather on the hierarchical structure of
state and local regulation] and by the trial court. Finally, by
its terms Section 460 prohibits local governments from imposing
additional licensing conditions or qualification as a
requirement for working within their jurisdiction but does not
preclude local regulation of the manner in which state licensees
actually perform their business or profession." Thus, the court
interpreted BPC Section 460 as banning localities from issuing
additional requirements, not from limiting existing ones.
CDA's amicus letter to the California Supreme Court, states,
"The CDA is specifically concerned that the appellate decision,
if allowed to stand, may adversely affect the health of
Californians by relegating to local municipalities what is
properly the domain of state licensing authorities and the state
legislature. Based on the appellate ruling, a local
SB 762
Page 4
municipality could - for reasons based on popular opinion or
otherwise, and without proven and reputable scientific evidence
- arbitrarily determine that a certain medical procedure was no
longer within the scope of practice or a given health care
profession and ban its use. The CDA believes that all decisions
affecting the health of the public should be left to the
discretion of the state licensing authority governing the
relevant profession and the California State Legislature. It is
only in this arena where the full analysis and discussion of
scientific evidence related to medical issues comes to light,
and where the public is best protected through the establishment
of uniform laws and regulations that apply to all Californians."
AVMA's amicus letter to the California Supreme Court notes,
"State regulation of veterinary medicine, a system that has well
served the American public and animal patients over 100 years,
will be undermined if cities, villages, and counties get a green
light to chip away at the uniformity of state veterinary
practices acts and the regulations issued by state veterinary
medical boards, as authorized by those statutes."
DCA's amicus letter to the California Supreme Court, states,
"The concept of statewide professional licensure relies on the
legislative delegation 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 CVMB."
It is important to note that this bill does not seek to undo the
West Hollywood ordinance and includes a grandfathering clause
that preserves the City of West Hollywood's 2003 anti-declawing
ordinance. This bill addresses the important issue that is
raised by the ability of local municipalities to ban specific
practices of professions regulated by DCA and asserts that it is
critical to have statewide oversight and ultimate authority over
professional businesses, occupations, or professions. 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,
SB 762
Page 5
the ability of pharmacists to dispense various drugs like
emergency contraception, vaccinations, and psychotropic drugs.
Supporters, who include organizations representing professions
regulated by DCA, believe that the legislature and the healing
arts boards and bureaus should have the ultimate authority over
medical scope of practice issues based on their education,
training, and expertise. They argue that without legislation
ensuring uniform statewide governance of licensed professions,
professional standards will be dissimilar and discordant.
Opponents, who include animal rights organizations and the City
of West Hollywood, believe that local jurisdictions have the
right to make specific decisions relating to professions and the
appellate court's decision should be upheld.
Support . According to the sponsor, "SB 762 attempts to clarify
[BPC] Section 460, and is specifically very narrowly written to
only apply to the healing arts professionals under Division 2 of
the BPC, and their scope of practice. Clearly, it is not in the
best interest of medical professionals nor the consumer public
to have a patchwork quilt of medical standards from city to city
or county or county."
According to the CVMB, "State licensing boards were created to
develop, maintain, and enforce state laws governing these
professions and to provide California consumers with assurance
of a consistent, single state agency to handle complaints
against a person licensed by the State of California."
According to the California Medical Association, "This bill
would ensure that physicians are allowed to perform to the full
extent of their practice without interference from local
political pressure."
According to the COA, "We believe that our 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 arts cannot be endangered by
shifting political winds in one jurisdiction. Arguing by
analogy, 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
deprived of a technology or treatment available to every other
SB 762
Page 6
resident outside that jurisdiction. The implications for the
profession's standard of care and enforcement would be
troubling, and substantial."
Oppose . According to the City of West Hollywood, "If adopted,
SB 762 will preempt local government's authority to exercise
their police powers to regulate certain professional practices
in their jurisdictions, a right validated in 2007 by the
California Court of Appeals. The Court of Appeals decision
recognized that local agencies often have different interests
than the State when regulating the same occupation, and
validates the fact that state law and local law can operate
side-by-side harmoniously.
"The Court of Appeals decision is very narrow and has limited
application to regulating business and professions in local
jurisdictions. The decision has no bearing on other state
licensed professions or occupations, particularly where the
State has made clear an intention to preempt local regulation.
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."
According to The Paw Project, "Under existing California law,
cities and counties can regulate licensed professions and
occupations, in a limited manner and in limited circumstances,
in order to advance local interests. Court decisions in the
past have allowed local governments to exercise police powers
that respond to changing local social conditions and values.
The CVMA-sponsored bill was introduced to circumvent a decision
by the California courts upholding the right of a city to ban
non-therapeutic surgery on animals - surgery that is illegal in
many other countries and that is considered unethical by
professional veterinary organizations in other countries."
According to United Animal Nations, "While it is clear that the
state has long held the authority to establish fundamental
statewide regulatory policies over agencies licensed by the DCA,
local jurisdictions also have the flexibility to fine-tune those
restrictions to effectively address local issues. Continuing to
allow the state and local jurisdictions their respective roles
is vital to effective long-term management as well as to the
best interests of consumers."
SB 762
Page 7
Prior Legislation . AB 2427 (Eng) of 2008 was an identical bill
that the Governor vetoed. The Governor vetoed a substantial
number of bills that year with the same message that, due to the
delay in passing the 2008-09 State Budget, he would only sign
bills that were "the highest priority for California." AB 2427
was vetoed for this reason. This bill also included a time,
place, and manner clause to reaffirm that local jurisdictions
have the ability to make city planning decisions related to
businesses.
AB 395 (Koretz) of 2003 would have prohibited licensed
veterinarians from performing or arranging surgical declawing,
onychectomies and tendonectomies on any domestic or exotic cat.
This bill died in Assembly Business and Professions Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Veterinary Medical Association (CVMA) (sponsor)
California Association of Marriage and Family Therapists (CAMFT)
California Dental Association (CDA)
California Medical Association (CMA)
California Optometric Association (COA)
California Veterinary Medical Board (CVMB)
Opposition
Born Free USA
California Animal Association (CAA)
City of West Hollywood
League of Humane Voters
The Paw Project
United Animal Nations
Analysis Prepared by : Joanna Gin / B. & P. / (916) 319-3301