Monday, June 25, 2007
Page 3
Appeals Court Upholds West Hollywood’s Ban on Declawing of Animals
By a MetNews Staff Writer
Local bans on the practice of animal declawing do not conflict with state regulations governing the veterinary profession in California, the Court of Appeal for this district held Friday.
Div. Seven reversed a ruling by since-retired Los Angeles Superior Court Judge James A. Bascue invalidating an anti-declawing ordinance adopted by the City of West Hollywood in 2003.
The municipal ordinance, based on findings that declawing procedures cause “unnecessary pain, anguish and permanent disability to animals,” prohibits any person, “licensed professional or otherwise,” from performing declawing procedures unless they were necessary for a “therapeutic purpose.”
The California Veterinary Medical Association, a nonprofit statewide organization with a membership of over 4,800 veterinarians, sued the city in March 2005 seeking the ban’s rescission on the ground that it was an inappropriate restriction on recognized veterinary medical procedures.
CVMA alleged the ban conflicted with, and was thus preempted by, both Business and Professions Code Sec. 460—which bars cities and counties from prohibiting certain individuals licensed by the state from engaging in their business or profession “or any portion thereof”—and the Veterinary Medical Practice Act. It relied in part on a Dec. 2004 legal opinion issued by the Department of Consumer Affairs’ legal office, which concluded the ban was preempted by state law.
Bascue granted summary judgment in CVMA’s favor, declaring the West Hollywood ordinance invalid and enjoining its further enforcement on the ground that it was preempted by Sec. 460. He did not rule on the issue of preemption under the VMPA.
Bascue found as a matter of law that declawing procedures are surgical operations on an animal and performing such procedures are part of the practice of veterinary medicine. Therefore, he concluded, the anti-declawing measure was preempted by Sec. 460.
The judge denied the city’s cross-motion for summary judgment.
Div. Seven directed Bascue to enter a new order denying CVMA’s summary judgment motion and granting the city’s motion.
The panel concluded that while Sec. 460 prohibits local legislation imposing separate additional licensing requirements or other qualifications on individuals holding state licenses issued by the Veterinary Medical Board, it does not preclude local regulation of the manner in which a business or profession is performed.
Writing for Div. Seven, Presiding Justice Perluss explained:
“The first sentence of section 460 is directed solely to local legislation that purports to prohibit individuals from engaging in a licensed occupation, not to regulation of the occupation itself. The second sentence of section 460 expressly authorizes the collection of a business license tax by cities and counties ‘for the purpose of covering the cost of regulation,’ plainly anticipating (and thus permitting) local regulation of state-licensed businesses.”
He went on to say the city’s anti-declawing ordinance does not directly conflict with or contradict the VMPA, because neither the act nor its related regulations mandate, expressly approve of, or prohibit declawing procedures. Nor is it impliedly preempted by the act, the justice reasoned.
“[F]ar from a comprehensive scheme to control all matters related to the practice of veterinary medicine, as the CVMA contends, the purpose and scope of the VMPA appears to be [to] regulate the education, licensing and discipline of veterinarians and registered veterinary technicians; to establish and enforce sanitary standards for the premises at which veterinary medicine is practiced; and to prohibit the unauthorized practice of veterinary medicine by unlicensed individuals,” he wrote.
Justice Earl Johnson Jr. concurred in the opinion.
Dissenting, Justice Fred Woods said the ban was preempted by 2004 legislation concerning declawing by veterinarians.
“[T]he State Legislature has addressed a statewide concern and has decided that non-therapeutic ‘declawing’ of wild or exotic cats is prohibited but the procedure is permissible with respect to domestic or tame cats,” he said.
Counsel on appeal were Sacramento attorney Daniel L. Baxter, of Wilke, Fleury, Hoffelt, Gould & Birney, for the plaintiff; and City Attorney Michael Jenkins and Orly Degani, of Eisenberg, Raizman, Thurston & Wong in Los Angeles, for the defendant.
The Association of Veterinarians for Animal Rights, Animal Legal Defense Fund, the Paw Project, and the City and County of San Francisco submitted amicus briefs on behalf of West Hollywood.
The case is California Veterinary Medical Association v. City of West Hollywood, B188723.
Copyright 2007, Metropolitan News Company