California Attorney General Opinion No. 13-904

TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California KAMALA D. HARRIS Attorney General _________________________ OPINION of KAMALA D. HARRIS Attorney General DIANE EISENBERG Deputy Attorney General : : : : : : : : : : : No. 13-904 September 16, 2015 ________________________________________________________________________ THE HONORABLE LONI HANCOCK, MEMBER OF THE STATE SENATE, has requested an opinion on the following question: Does state law preempt a local ordinance that would require dentists to provide a patient with a Dental Materials Fact Sheet developed by the Dental Board of California, and to obtain from the patient a signed acknowledgment of receipt of the Fact Sheet, prior to every procedure in which dental restorative materials are used? CONCLUSION State law preempts a local ordinance that would require dentists to provide a patient with a Dental Materials Fact Sheet developed by the Dental Board of California, and to obtain from the patient a signed acknowledgment of receipt of the Fact Sheet, prior to every procedure in which dental restorative materials are used. 1 13-904 ANALYSIS In this opinion, we consider whether state law governing the practice of dentistry preempts a local ordinance that would require dentists practicing in that jurisdiction to fulfill obligations that go beyond those imposed by state law in providing patients with written information on the risks and benefits of specified “dental restorative materials,” including those compounds that contain mercury and other metals. We conclude that state law preempts such an ordinance. The Dental Practice Act1 regulates the practice of dentistry2 in California. The Act is administered by the Dental Board of California, which is housed within the Department of Consumer Affairs.3 The Board exercises licensing, regulatory, and disciplinary functions, and its highest priority is the protection of consumers.4 With limited exceptions, a person must hold a valid license or special permit issued by the Board to practice dentistry in the state.5 Under Business and Professions Code section 460, a city or county may not prohibit a properly licensed dentist from engaging in the profession of dentistry, or from engaging in any act or performing any procedure that falls within the professionally recognized scope of dental practice.6 1 Bus. & Prof. Code, §§ 1600-1976. 2 Dentistry is defined as “the diagnosis or treatment, by surgery or other method, of diseases and lesions and the correction of malpositions of the human teeth, alveolar process, gums, jaws, or associated structures.” (Bus. & Prof. Code, § 1625.) 3 Bus. & Prof. Code, § 1601.1, subd. (a). 4 Bus. & Prof. Code, § 1601.2; see also Frankel v. Bd. of Dental Examiners (1996) 46 Cal.App.4th 534, 543 (Board must ensure dentists provide safe and effective services according to professional standards). 5 Bus. & Prof. Code, § 1626; see also Bus. & Prof. Code, §§ 1701-1701.1 (practicing dentistry without license is crime). 6 See Bus. & Prof. Code, § 460, subds. (a), (b)(1). Section 460 provides: (a) No city, county, or city and county shall prohibit a person or group of persons, authorized by one of the agencies in the Department of Consumer Affairs or an entity established pursuant to this code by a license, certificate, or other means to engage in a particular business, from engaging in that business, occupation, or profession or any portion of that business, occupation, or profession. (b)(1) No city, county, or city and county shall prohibit a healing arts professional licensed with the state under Division 2 (commencing with Section 500) or licensed or certified by an entity established pursuant to this 2 13-904 Pursuant to state statute,7 the Dental Board has developed a short publication for consumers called the “Dental Materials Fact Sheet.”8 The Fact Sheet discusses the risks and benefits of materials used for dental repair; most frequently, such materials are used in the restoration—that is, the filling—of teeth. Business and Professions Code section 1648.10 sets forth the categories of information that the Fact Sheet must cover.9 Among the materials covered in the Fact Sheet is dental amalgam, which is a mixture of liquid mercury and an alloy powder consisting of silver, tin, and copper. As to when the Fact Sheet must be distributed to patients, Business and Professions Code section 1648.15 provides: The fact sheet set forth by Section 1648.10 shall be provided by a dentist to every new patient and to patients of record prior to the performance of code from engaging in any act or performing any procedure that falls within the professionally recognized scope of practice of that licensee. (2) This subdivision 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 licensed under Division 2 (commencing with Section 500). (c) This section shall not be construed to prevent a city, county, or city and county from adopting or enforcing any local ordinance governing zoning, business licensing, or reasonable health and safety requirements for establishments or businesses of a healing arts professional licensed under Division 2 (commencing with Section 500) or licensed or certified by an entity established under this code or a person or group of persons described in subdivision (a). (d) Nothing in this section shall prohibit any city, 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. 7 See Bus. & Prof. Code, § 1648.10, subd. (a). Although this provision refers to the “Board of Dental Examiners of California,” Business and Professions Code section 1601.1, subdivision (b) provides that any reference “to the Board of Dental Examiners shall be deemed to refer to the Dental Board of California.” 8 The Fact Sheet is available on the Dental Board’s website at http://www.dbc.ca.gov/formspubs/pub_dmfs_english_webview.pdf, and in a printer- friendly format at http://www.dbc.ca.gov/formspubs/pub_dmfs2004.pdf. 9 Bus. & Prof. Code, § 1648.10. 3 13-904 dental restoration work. The dentist needs to provide the fact sheet to each patient only once pursuant to the previous requirements of this section. An acknowledgment of the receipt of the fact sheet by the patient shall be signed by the patient and a copy of it shall be placed in the patient’s dental record. If updates to the fact sheet are made by the board, the updated fact sheet shall be given to patients in the manner provided above. A dentist shall also provide the fact sheet to the patient upon request.10 A member of the city council of a charter city11 has proposed an ordinance regarding the distribution of the Fact Sheet to patients who undergo procedures, performed within the city, in which dental restorative materials are used. The proposed ordinance includes a statement of purpose declaring that mercury, a component of dental amalgam fillings, is a toxic element that can have deleterious effects on human health and the environment, and for which there is no safe level of exposure.12 The proposed 10 Bus. & Prof. Code, § 1648.15 (emphasis added). This provision applies only to procedures in which dental restorative materials are used. (Bus. & Prof. Code, § 1648.20, subd. (a).) “‘[D]ental restorative materials’ means any structure or device placed into a patient’s mouth with the intent that it remain there for an indefinite period beyond the completion of the dental procedure, including material used for filling cavities in, or rebuilding or repairing the organic structure of, a tooth or teeth, but excluding synthesized structures or devices intended to wholly replace an extracted tooth or teeth, such as implants.” (Bus. & Prof. Code, § 1648.20, subd. (b).) A dentist’s violation of section 1648.15 constitutes unprofessional conduct, which may be cause for discipline by the Board. (See Bus. & Prof. Code, §§ 1680, subd. (n), 1670.) 11 Article 11, section 3, subdivision (a) of the California Constitution authorizes a county or city to adopt a charter for its own government, the provisions of which “are the law of the State and have the force and effect of legislative enactments.” A city that does not adopt a charter is a general law city, which has only those powers expressly conferred upon it by the Legislature, together with such powers as are necessarily incident to those expressly granted, or essential to the objects and purposes of the city. (Irwin v. City of Manhattan Beach (1966) 65 Cal.2d 13, 20; see also Gov. Code, §§ 34100-34102 (classifying cities).) 12 In its statement of purpose, the proposed ordinance further declares that, “While there is legitimate scientific debate over whether dental amalgam is safe,” the City’s policy is to err on the side of health and safety. The Fact Sheet prepared by the Board acknowledges that there is a diversity of opinions about the safety of dental amalgam fillings, and cites a number of sources, such as the Centers for Disease Control and Prevention, the Food and Drug Administration, and the World Health Organization, that suggest that dental amalgam fillings generally do not cause harm to patients. (See Fact Sheet at p. 3.) 4 13-904 ordinance also declares that the ordinance would further the intent of Business and Professions Code sections 1648.10 and 1648.15 by ensuring that patients are informed about dental restorative materials every time they undergo a procedure in which such materials are used. To that end, the proposed ordinance would enact the following provisions: (1) All dental practices within the City must provide the Fact Sheet to patients before every procedure involving the use of dental restorative materials to correct a patient’s oral condition or defect. (2) All dental practices within the City must provide to patients a clear and conspicuous Dental Materials Fact Sheet Rights Statement (Rights Statement) before every procedure involving the use of dental restorative materials to correct a patient’s oral condition or defect. The Rights Statement advises patients of the requirement that dentists provide them with the Fact Sheet prior to each procedure in which dental restorative materials are used so that patients may make informed decisions about such materials and procedures, and also advises patients that they may be entitled to a cash award if they do not receive the Fact Sheet as provided above. (3) A form acknowledging receipt of the Fact Sheet and the Rights Statement shall be signed by a patient (or by a parent or guardian if the patient is a minor) each time the patient receives the Fact Sheet and the Rights Statement, and shall be placed in the patient’s dental records. (4) Any dentist shall be liable to the patient for a civil penalty of $250 if the dentist fails to comply with the provisions of the Ordinance. A patient aggrieved by the dentist’s failure to comply with the provisions of the Ordinance may bring a civil action against the dentist for all appropriate relief, and a patient shall be entitled to reasonable attorneys’ fees and other costs, in addition to any damages. Provisions (1) and (3) outlined above refer to the Fact Sheet generated by the Dental Board. The Rights Statement referred to in provisions (2) and (3) is a separate document that would be generated by the city. The penalties and liabilities referred to in provision (2) and set forth in provision (4) would be imposed solely by the local 5 13-904 government; those penalties are not provided for in the state statutes.13 We are asked whether such an ordinance would be preempted by state law.14 We conclude that it would be preempted. The California Constitution provides that a city or county “may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”15 Generally speaking, if local legislation is in conflict with state law, it is deemed preempted by state law, and is void to the extent of the conflict.16 However, a charter city, such as the city at issue here, has a special status: it may adopt and enforce ordinances that conflict with general state law if the subject matter is a “municipal affair.”17 But, as to matters that are deemed to be of statewide concern, even charter cities remain subordinate to state laws.18 Thus the question here presents two issues: is the proposed ordinance in conflict with state law; and is the subject matter of the proposed ordinance of statewide concern? 13 We have summarized the relevant provisions of the ordinance for the purposes of this opinion. The proposed ordinance also includes requirements for posting of signage in dental offices; those provisions are beyond the scope of this opinion. 14 Before this particular ordinance was proposed, the city considered adopting a resolution that would have required a dentist to obtain written informed consent from a patient before performing any dental amalgam filling procedure. The informed consent statement was to be separate and distinct from the Fact Sheet, and would have described mercury as a neurotoxic substance posing certain risks. The Office of Legislative Counsel was asked whether that resolution, if adopted, would be preempted by state law, and concluded that it would be. (See Ops. Cal. Legis. Counsel, No. 1310377 (Mar. 27, 2013).) 15 Cal. Const., art. XI, § 7. 16 Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897 (Sherwin- Williams); 94 Ops.Cal.Atty.Gen. 39, 41 (2011); see also Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1243 (local ordinance is preempted by state statute to the extent that they conflict). 17 Cal. Const., art. XI, § 5(a); see also American Financial Services Assn. v. City of Oakland (2005) 34 Cal.4th 1239, 1251 (American Financial); Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 704. 18 Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 505 (Committee of Seven Thousand); accord, Jackson v. City of Los Angeles (2003) 111 Cal.App.4th 899, 906. 6 13-904 Conflict with state law As the Supreme Court of California has explained, a conflict between local legislation and state law exists if the local legislation duplicates state law, contradicts state law, or enters an area that is fully occupied, either expressly or impliedly, by state law.19 We believe that the proposed ordinance conflicts with state law in two ways. First, the ordinance expressly contradicts the Dental Practice Act by requiring a dentist to provide the Fact Sheet to a patient before every procedure involving the use of dental restorative materials. If a dentist performs multiple procedures on the same patient, the ordinance would require the dentist to provide the Fact Sheet to that patient multiple times, and would subject the dentist to civil liability for failing to do so. In direct contrast, Business and Professions Code section 1648.15 states that a dentist “needs to provide the fact sheet to each patient only once,”20 absent further requests for it by the patient. Where, as here, an ordinance penalizes or prohibits conduct that state law authorizes, the ordinance conflicts with the state law.21 Further, the proposed ordinance would conflict with the Dental Practice Act by regulating in an area that the state Legislature has impliedly reserved to itself. The intent of the Legislature to preempt local regulation in all or part of a particular field need not be expressly stated; rather, it may be inferred from the scope and purpose of the legislative scheme,22 and “[w]henever the Legislature has seen fit to adopt a general scheme for the regulation of a particular subject, the entire control over whatever phases of the subject are covered by state legislation ceases as far as local legislation is concerned.”23 In this case, the Legislature has assigned responsibility for promulgating the Fact Sheet to the Dental Board,24 specifying both the content that the Fact Sheet must 19 Sherwin-Williams, supra, 4 Cal.4th at pp. 897-898; see also O’Connell v. City of Stockton (2007) 41 Cal.4th 1061, 1068 (local ordinance contradicts state law when it is inimical to or cannot be reconciled with state law). 20 Emphasis added. 21 Bravo Vending v. City of Rancho Mirage (1993) 16 Cal.App.4th 383, 397; see also Ex parte Daniels (1920) 183 Cal. 636, 641-648 (finding contradiction where local legislation sought to fix lower speed limit than that fixed by state law); 66 Ops.Cal.Atty.Gen. 266, 267 (1983) (ordinance contradicts state law by prohibiting what state law allows or allowing what state law prohibits). 22 In re Lane (1962) 58 Cal.2d 99, 102-103; accord, American Financial, supra, 34 Cal.4th at p. 1252, citations omitted. 23 In re Lane, supra, 58 Cal.2d at p. 102. 24 Bus. & Prof. Code, § 1648.10, subds. (a), (c). 7 13-904 cover25 and the requirements for distributing the Fact Sheet.26 We believe that the Legislature has occupied the field in matters related to the Fact Sheet, leaving no room for local governments to implement supplemental rules on the matter.27 Proponents of the ordinance argue that the Dental Practice Act does not occupy the entire field of dentistry, and that the ordinance would be consistent with the Act because it enhances, rather than contradicts, the Act’s existing requirements. In support of their argument, the proponents cite California Veterinary Medical Association v. City of West Hollywood,28 which held that the state Veterinary Medical Practice Act did not fully occupy the entire field of veterinary medicine.29 We are not convinced that the veterinary case is really analogous to this situation, since the Dental Practice Act is approximately three times as long as the Veterinary Medical Practice Act, and substantially more detailed in its regulation of procedures and materials. But we need not resolve the issue whether the Dental Practice Act impliedly occupies the entire field of dentistry, because the question here concerns only the rules relating to the Fact Sheet. Within that specific field, we believe that the Legislature has left no room for supplementary local legislation.30 It is well settled that “a local municipal ordinance is invalid if it attempts to impose additional requirements in a field that is preempted by general law.”31 25 Bus. & Prof. Code, § 1648.10, subds. (a)(1)-(a)(4). 26 Bus. & Prof. Code, § 1648.15. 27 The three indicia of implied state occupation of an area (see Sherwin-Williams, supra, 4 Cal.4th at pp. 897-898) are not always separated by bright lines. Even if one were to conclude that the Legislature has only partially covered matters related to the Fact Sheet, we believe that the operative state provisions are couched in such terms as to preclude additional local action on the subject. 28 California Veterinary Medical Assn. v. City of West Hollywood (2007) 152 Cal.App.4th 536. 29 Id. at pp. 558-560. 30 Even in California Veterinary Medical Association, the court recognized that the Legislature had preempted certain discrete areas impacting the practice of veterinary medicine. (See id. at p. 560.) 31 Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 807; accord, Water Quality Assn. v. County of Santa Barbara (1996) 44 Cal.App.4th 732, 743-745 (where state law impliedly preempted field of regulation of water softeners, local ordinance could not set more stringent standards). 8 13-904 A case that we find more analogous on this point is Tosi v. County of Fresno, concerning state and local measures to combat the theft of recyclable scrap metal.32 The Legislature had enacted a statute requiring recyclers to create sales records and make them available for inspection by certain law enforcement officers, and another statute providing for a delay of the sale of scrap metal under specified circumstances.33 A county then enacted ordinances requiring recyclers to keep records on a separate form approved by the sheriff and to submit those records to the sheriff on a weekly basis, and imposing a mandatory five-day waiting period for the disposal of scrap metal in all circumstances.34 Observing the overlapping provisions, the Court of Appeal noted that the county “apparently determined that the state legislation did not go far enough in regulating the conduct of scrap metal dealers.”35 Because the local legislation sought to more strictly regulate the very conduct that was already regulated by state law, the local legislation impermissibly conflicted with state law.36 We conclude that the ordinance proposed here would conflict with state law both because it directly contradicts a provision of state law and because it adds regulations to a field that is already fully occupied by state law. Matter of statewide concern Charter cities are constitutionally empowered to adopt regulations that conflict with general state laws, provided that the subject of the local regulation is a “municipal affair” rather than one of “statewide concern.” While these terms are not susceptible of comprehensive definition,37 a municipal affair typically affects the local citizens rather than the people of the state generally,38 whereas a statewide concern typically transcends identifiable municipal interests.39 In cases where a subject may be appropriate for both 32 Tosi v. County of Fresno (2008) 161 Cal.App.4th 799 (Tosi). 33 Id. at pp. 806-807; see also Gov. Code, §§ 21600-21610 (state legislative scheme governing sales and purchases of junk). 34 Tosi, supra, 161 Cal.App.4th at pp. 806-807. 35 Id. at p. 806. 36 Id. 37 See Committee of Seven Thousand, supra, 45 Cal.3d at p. 505; California Federal Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 17-18 (California Federal). 38 City of Walnut Creek v. Silveira (1957) 47 Cal.2d 804, 811; 66 Ops.Cal.Atty.Gen., supra, at p. 271; see also 82 Ops.Cal.Atty.Gen. 165, 168 (1999). 39 California Federal, supra, 54 Cal.3d at p. 17; accord, DeVita v. County of Napa (1995) 9 Cal.4th 763, 815. 9 13-904 municipal and state regulation, the matter is one of statewide concern if “the state has a more substantial interest in the subject than the charter city.”40 In determining whether a statewide concern exists, we “look to the subject matter and the intent expressed by the state Legislature,”41 and “give great weight to the purpose of the Legislature in enacting general laws which disclose an intent to preempt the field to the exclusion of local regulation.”42 If there is doubt as to whether a local regulation relates to a municipal or to a state matter, or is of mixed concern to both the locality and the state, the doubt must be resolved in favor of the state.43 We are persuaded that the ordinance proposed here addresses a matter of statewide concern, and hence that adoption of the ordinance is not within the city’s powers. Medical regulation is generally considered to be a matter of statewide concern,44 as are other issues affecting residents statewide that require the application of scientific or technical expertise and judgment.45 Matters in which uniformity is necessary or desirable are also usually deemed to be of statewide concern.46 40 California Federal, supra, 54 Cal.3d at p. 18. 41 Ferrini v. City of San Luis Obispo (1983) 150 Cal.App.3d 239, 246. 42 Bishop v. City of San Jose (1969) 1 Cal.3d 56, 63, superseded on another ground by statute, as stated in Division of Labor Standards Enforcement v. Ericsson Information Systems, Inc. (1990) 221 Cal.App.3d 114, 124, fn. 16; accord, Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296, 316. Some cases declare more unequivocally that the subject matter of a field fully occupied by state law is a statewide concern. (See, e.g., Lancaster v. Municipal Court, supra, 6 Cal.3d at p. 808 [“If the subject matter or field of the legislation has been fully occupied by the state, there is no room for supplementary or complementary legislation, even if the subject is otherwise one properly characterized a ‘municipal affair’”]; City of Santa Monica v. Yarmark (1988) 203 Cal.App.3d 153, 164-166.) 43 Abbott v. City of Los Angeles (1960) 53 Cal.2d 674, 681, criticized on another ground in Bishop v. City of San Jose, supra, 1 Cal.3d at p. 63, fn. 5; accord, Northern California Psychiatric Society v. City of Berkeley (1986) 178 Cal.App.3d 90, 100-101; 73 Ops.Cal.Atty.Gen. 338, 346 (1990). 44 Northern California Psychiatric Society v. City of Berkeley, supra, 178 Cal.App.3d at p. 108. 45 City of Watsonville v. State Dept. of Health Services (2005) 133 Cal.App.4th 875, 887 (City of Watsonville). 46 American Financial, supra, 34 Cal.4th at p. 1252 (intent to preclude local regulation may be signified where subject requires uniform treatment throughout the state); City of Watsonville, supra, 133 Cal.App.4th at p. 887 (one factor making fluoridation of water 10 13-904 The substance and dissemination of the Fact Sheet is indisputably related to dental medical practice, and one that calls for the application of scientific expertise and judgment. It is also a matter in which uniform practices are desirable. Inconsistent rules in different jurisdictions would cause confusion both for dentists and for patients. The same conduct could subject a dentist to liability in one jurisdiction but not another; a patient who receives dental treatment in different jurisdictions might have unwarranted doubts or anxieties about the integrity of a dentist or the quality of the services received; and a dentist whose patients receive dental treatment in different jurisdictions might be subjected to unwarranted complaints of professional misconduct or claims for civil damages.47 Although the city and the state both have an obvious interest in the health and safety of their inhabitants,48 the state’s occupation of the area of the Fact Sheet leaves no room for the city’s proposed ordinance.49 supply a matter of state concern was need for uniform standards for water quality); Isaac v. City of Los Angeles (1998) 66 Cal.App.4th 586, 600 (lien priorities on real property were “a matter of statewide concern because statewide uniformity in lien priority is essential”); 72 Ops.Cal.Atty.Gen. 180, 183 (1989) (having uniform building standards relating to fire and panic safety is a matter of statewide concern). 47 These concerns also arguably fit within the description of the third of the three indicia of implied state occupation of an area (see Sherwin-Williams, supra, 4 Cal.4th at p. 898), because the adverse effect of a multiplicity of local regulations governing the Fact Sheet on the transient citizens of the state could be deemed to outweigh the benefit to the locality. 48 City of Watsonville, supra, 133 Cal.App.4th at p. 887. 49 See American Financial, supra, 34 Cal.4th at p. 1252 (denial of power to local body when state has preempted field is necessary to prevent uncertainty and confusion). The history of Senate Bill 762, which amended Business and Professions Code section 460, also provides strong evidence that the Legislature intended that regulation of dentistry (and other healing arts professions) should be entrusted to state officials, and that such regulation should be uniform throughout the state. Two analyses of the bill recited arguments of organizations supporting it: 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,” and that “without legislation ensuring uniform statewide governance of licensed professions, professional standards will be dissimilar and discordant.” (Assem. Com. on Business and Professions, Analysis of Sen. Bill No. 762 (2009-2010 Reg. Sess.) as amended May 5, 2009, p. 3; Sen. Third Reading, Analysis of Sen. Bill No. 762 (2009-2010 Reg. Sess.) as amended May 5, 2009, p 3.) Two other analyses of the bill included similar statements from the bill’s sponsors and supporters. (See Sen. Com. on Business, Professions, and Economic Development, Analysis of Sen. Bill No. 762 (2009-2010 Reg. Sess.) as introduced, pp. 3-4 (allowing 11 13-904 We conclude that state law preempts a local ordinance that would require dentists to provide a patient with a Dental Materials Fact Sheet developed by the Dental Board of California, and to obtain from the patient a signed acknowledgment of receipt of the Fact Sheet, prior to every procedure in which dental restorative materials are used. ***** local jurisdictions to promulgate their own ‘standards of practice’ would produce public confusion and create an environment of uncertainty for professionals whose practices and clientele often cross city and county boundary lines); Sen. Rules Com., Office of Sen. Floor Analyses, Analysis of Sen. Bill No. 762 (2009-2010 Reg. Sess.) as amended May 5, 2009, p. 8 (same).) 12 13-904