BILL ANALYSIS                                                                                                                                                                                                    

                                                                  SB 762
                                                                  Page  1

          SB 762 (Aanestad)
          As Amended  May 5, 2009
          Majority vote 

           SENATE VOTE  :31-6  
           BUSINESS & PROFESSIONS     9-0                                  
          |Ayes:|Hayashi, Emmerson,        |     |                          |
          |     |Conway, Eng,              |     |                          |
          |     |Hernandez, Nava, Ruskin,  |     |                          |
          |     |Smyth, Hill               |     |                          |
          |     |                          |     |                          |
          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 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  

           EXISTING LAW  :  


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          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. 

          3)Authorizes a city, county, or city and county to levy a  
            business license tax solely for the purposes of revenue or  
            covering the cost of regulation.

           FISCAL EFFECT  :   Unknown.  This bill is keyed non-fiscal. 

           COMMENTS  :   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.  

          In 2003, state and local legislation were introduced 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.  That 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  


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          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  
          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, 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 qualifications 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.    


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          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  
          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  
          practice 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  


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          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,  
          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  
          that the appellate court's decision should be upheld. 

           Analysis Prepared by  :    Joanna Gin / B. & P. / (916) 319-3301 

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