BILL ANALYSIS
SB 762
Page 1
SENATE THIRD READING
SB 762 (Aanestad)
As Amended May 5, 2009
Majority vote
SENATE VOTE :31-6
BUSINESS & PROFESSIONS 9-0
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|Ayes:|Hayashi, Emmerson, | | |
| |Conway, Eng, | | |
| |Hernandez, Nava, Ruskin, | | |
| |Smyth, Hill | | |
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| | | | |
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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
professional.
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
FN: 0001458