California Legislature—2015–16 Regular Session

Assembly Bill No. 836

Introduced by Assembly Members Rendon and Low

February 26, 2015

An act to add and repeal Chapter 18 (commencing with Section 9400) of Division 3 of the Business and Professions Code, relating to tour guides.

LEGISLATIVE COUNSEL’S DIGEST

AB 836, as introduced, Rendon. Tour guides: regulation.

Existing law provides for the licensure and regulation of various professionals, including, but not limited to, advertisers, attorneys, interior designers, barbers, and cosmetologists.

This bill would provide for the licensure and regulation of tour guides by the California Tour Guide Council and provide for the creation of the council as a nonprofit organization, as specified. The bill would require applicants for certification, among other things, to be 21 years of age or older, meet specified educational criteria, pay fees required by the council, and provide fingerprints for submission to the Department of Justice for a criminal background check. The act would require the department to review specified information and provide fitness determinations and other specified information to the council.

This bill would allow the organization to take disciplinary action against certificate holders or applicants, as specified. The bill would make it an unfair business practice for an uncertified person to state, advertise, or represent that he or she is a certified tour guide, among other things, or for a tour guide business to provide tour guiding in California that is not performed by a tour guide professional to a group of nine or more consumers.

This bill would prohibit a city, county, or city and county from enacting certain ordinances regulating the practice of tour guiding by a certificate holder, as specified.

The bill would repeal these provisions on January 1, 2018.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

It is the intent of the Legislature that this act
create a voluntary certification for the tour guide profession that
will enable consumers to easily identify credible, certified tour
guides, assure that those certified tour guides have completed
sufficient training and education at approved schools, phase in
increased education and training standards consistent with other
states, assure that the profession of tour guides and practice of tour
guiding cannot be used as a subterfuge for disorderly conduct, and
provide for a self-funded nonprofit oversight body to approve
certification and education requirements for tour guide
professionals.

SEC. 2.  

Chapter 18 (commencing with Section 9400) is added
to Division 3 of the Business and Professions Code, to read:

 

Chapter  18. California Tour Guide Act

 

9400.  

This chapter shall be known and may be cited as the
California Tour Guide Act.

9401.  

For purposes of this chapter, the following terms have
the following meanings:

(a) “Approved school” or “approved tour guide school” means
a facility that is approved by the council and meets minimum
standards for training and curriculum in California tour guiding
and related subjects and meets any of the following requirements:

(1) Approval by the Bureau for Private Postsecondary Education.

(2) Approval by the Department of Consumer Affairs.

(3) Accreditation by the Accrediting Commission for Senior
Colleges and Universities or the Accrediting Commission for
Community and Junior Colleges of the Western Association of
Schools and Colleges and that is any of the following:

(A) A public institution.

(B) An institution incorporated and lawfully operating as a
nonprofit public benefit corporation pursuant to Part 2
(commencing with Section 5110) of Division 2 of Title 1 of the
Corporations Code, and that is not managed by any entity for profit.

(C) A for-profit institution.

(4) A college or university of the state higher education system,
as defined in Section 100850 of the Education Code.

(5) A school requiring equal or greater training than the
requirements established by this chapter and is recognized by the
corresponding agency in another state or accredited by an agency
recognized by the United States Department of Education.

(b) “Certificate” means a valid certificate issued by the council
pursuant to this chapter.

(c) “Compensation” means anything of value, including, but
not limited to, a payment, loan, advance, donation, contribution,
deposit, or gift of money.

(d) “Council” means the California Tour Guide Council created
pursuant to this chapter, which shall be a nonprofit organization
exempt from taxation under Section 501(c)(3) of Title 26 of the
United States Code, and may commence activities pursuant to this
chapter once the council has submitted a request to the Internal
Revenue Service seeking this exemption.

(e) “Tour guide business” means a business or establishment
that provides tour guides in California for compensation.

(f) “Tour guide professional” or “tour guide” means a person
who is certified by the council pursuant to this chapter and who
practices tour guiding for compensation.

9402.  

(a) The California Tour Guide Council shall be created
and shall have the responsibilities and duties set forth in this
chapter. The council may take any reasonable actions necessary
to carry out the duties and responsibilities set forth in this chapter,
including, but not limited to, hiring staff and entering into contracts.

(b) The council shall be governed by a board of directors
comprised of the following members:

(1) Two members collectively selected by each professional
society, association, or other entity that chooses to participate in
the council and meets all of the following criteria:

(A) Is comprised of tour guide professionals.

(B) Has sustained a membership of at least 200 dues-paying
individuals in California for the last three years.

(C) Has bylaws that requires members to comply with a code
of ethics.

(2) One member collectively selected by each statewide
association of private postsecondary schools that chooses to
participate in the council and has member schools that have
together had at least 500 graduates in each of the previous three
years from tour guide programs that meet the approval standards
set forth in subdivision (a) of Section 9401.

(3) One member selected by the League of California Cities,
unless the league chooses not to exercise this right of selection.

(4) One member selected by the California State Association
of Counties, unless the association chooses not to exercise this
right of selection.

(5) One member selected by the Director of Consumer Affairs,
unless the department chooses not to exercise this right of selection.

(6) One member appointed by the Office of the Chancellor of
the California Community Colleges, unless that entity chooses not
to exercise this right of selection. The person appointed, if any,
shall not be part of any tour guide certificate or degree program.

(7) The council’s bylaws shall establish a process for appointing
other professional directors as determined by the board.

(c) Board member terms shall be for four years.

(d) (1) The initial board of directors shall establish the council,
initiate the request for tax-exempt status from the Internal Revenue
Service, and solicit input from the tour guide community
concerning the operations of the council.

(2) The initial board of directors, in its discretion, may
immediately undertake to issue the certificates authorized by this
chapter after adopting the necessary bylaws or other rules, or may
establish by adoption of bylaws the permanent governing structure
prior to issuing certificates.

(e) The board of directors shall establish fees not to exceed the
reasonable cost of providing services and carrying out the board’s
ongoing duties and responsibilities pursuant to this chapter, and
annually establish the initial and renewal fees for certificates.

(f) The meetings of the council shall be subject to the rules of
the Bagley-Keene Open Meeting Act (Article 9 (commencing with
Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of
the Government Code).

9404.  

The council shall issue a certificate to an individual
applicant who satisfies the requirements of this chapter or holds a
current and valid registration, certification, or license from any
other state whose licensure requirements meet or exceed those
defined within this chapter. If an applicant has received education
at a school that is not an approved school, the council shall have
the discretion to give credit for comparable academic work
completed by an applicant in a program outside of California.

9406.  

In order to obtain certification as a tour guide
professional, an applicant shall submit a written application and
provide the council with satisfactory evidence that he or she or
meets all of the following requirements:

(a) The applicant is 21 years of age or older.

(b) The applicant has successfully completed the curricula in
California tour guiding and related subjects totaling a minimum
of 24 hours that includes all of the following:

(1) A minimum of 8 hours as an intern actively engaging in the
field in California through a tour guide business approved by the
council.

(2) A minimum of 16 hours from approved schools.

(c) The applicant has passed a California tour guide competency
assessment examination that meets generally recognized principles
and standards and that is approved by the board. The successful
completion of this examination may have been accomplished before
the date the council is authorized by this chapter to begin issuing
certificates.

(d) All fees required by the council have been paid.

9408.  

A certificate issued pursuant to this chapter shall expire
after two years unless renewed in a manner prescribed by the
council. The council may provide for the late renewal of a
certificate.

9410.  

(a) The council shall have the responsibility to determine
whether the school from which an applicant has obtained the
education required by this chapter meets the requirements of this
chapter. If the council has any reason to question whether or not
the applicant received the education that is required by this chapter
from the school or schools that the applicant is claiming, the
council shall investigate the facts to determine whether the
applicant received the required education prior to issuing a
certificate.

(b) For purposes of this section and any other provision of this
chapter that authorizes the council to receive factual information
as a condition of taking action, the council may conduct oral
interviews of the applicant and others or conduct any investigation
the council deems necessary to establish that the information
received is accurate and satisfies the criteria established by this
chapter.

9412.  

(a) Before issuing a certificate to an applicant, or
designating a custodian of records, the council shall require the
applicant or the custodian of records candidate to submit fingerprint
images as directed by the council and in a form consistent with
the requirements of this section.

(b) The council shall submit the fingerprint images and related
information to the Department of Justice for the purpose of
obtaining information as to the existence and nature of a record of
state and federal level convictions and of state and federal level
arrests for which the Department of Justice establishes that the
applicant or candidate was released on bail or on his or her own
recognizance pending trial.

(c) Requests for federal level criminal offender record
information received by the Department of Justice pursuant to this
section shall be forwarded to the Federal Bureau of Investigation
by the Department of Justice. The Department of Justice shall
review the information returned from the Federal Bureau of
Investigation, and shall compile and disseminate a fitness
determination regarding the applicant or candidate to the council.
The Department of Justice shall provide information to the council
pursuant to subdivision (p) of Section 11105 of the Penal Code.

(d) The Department of Justice and the council shall charge a
fee not to exceed the reasonable cost of processing the request for
state and federal level criminal offender record information.

(e) The council shall request subsequent arrest notification
service from the Department of Justice, as provided under Section
11105.2 of the Penal Code, for all applicants for certification or
custodian of records candidates for whom fingerprint images and
related information are submitted to conduct a search for state and
federal level criminal offender record information.

9413.  

The council may require all employees, volunteers, and
board members to undergo the background investigation process
described in Section 9412.

9415.  

It is a violation of this chapter and grounds for discipline
or denial of an application for a certificate for a certificate holder
or applicant to commit any of the following acts:

(a) Unprofessional conduct.

(b) Procuring a certificate by fraud, misrepresentation, or
mistake.

(c) Impersonating an applicant or acting as a proxy for an
applicant in any examination referred to in this chapter for the
issuance of a certificate.

(d) Impersonating a certificate holder, or permitting or allowing
a noncertified person to use a certificate.

(e) Violating or attempting to violate, directly or indirectly, or
assisting in or abetting the violation of, or conspiring to violate,
any provision of this chapter or any rule or bylaw adopted by the
council.

(f) Committing any fraudulent, dishonest, or corrupt act that is
substantially related to the qualifications or duties of a certificate
holder.

(g) Committing any act punishable as a sexually related crime.

(h) Committing any act that results in denial of licensure,
revocation, suspension, restriction, citation, or any other
disciplinary action against an applicant or certificate holder by
another state or territory of the United States, by any other
government agency, or by another California health care
professional licensing board. A certified copy of the decision,
order, judgment, or citation shall be conclusive evidence of these
actions.

(i) Being convicted of any felony or misdemeanor that is
substantially related to the qualifications, functions, or duties of a
certificate holder. A record of the conviction shall be conclusive
evidence of the crime.

9416.  

(a) The council may discipline a certificate holder by
any, or a combination, of the following methods:

(1) Placing the certificate holder on probation.

(2) Suspending the certificate and the rights conferred by this
chapter on a certificate holder for a period not to exceed one year.

(3) Revoking the certificate.

(4) Suspending or staying the disciplinary order, or portions of
it, with or without conditions.

(5) Taking other action as the council deems proper, as
authorized by this chapter or the council’s bylaws.

(b) The council may issue an initial certificate on probation,
with specific terms and conditions, to any applicant.

(c) (1) Notwithstanding any other law, if the council receives
notice that a certificate holder has been arrested and charges have
been filed by the appropriate prosecuting agency against the
certificate holder alleging a violation of subdivision (b) of Section
647 of the Penal Code or any other offense described in subdivision
(g) of Section 9415, the council shall take all of the following
actions:

(A) Immediately suspend, on an interim basis, the certificate of
that certificate holder.

(B) Within 10 business days, notify the certificate holder at the
address last filed with the council that the certificate has been
suspended and the reason for the suspension.

(C) Within 10 business days, notify any business that the
council’s records list as employing the certificate holder that the
certificate has been suspended.

(2) Upon notice to the council that the charges described in
paragraph (1) have resulted in a conviction, the suspended
certificate shall become subject to permanent revocation. The
council shall provide notice to the certificate holder within 10
business days that it has evidence of a valid record of conviction
and that the certificate will be revoked unless the certificate holder
provides evidence within 15 days from the mailing date of the
notice that the conviction is either invalid or that the information
is otherwise erroneous.

(3) Upon notice that the charges described in paragraph (1) have
resulted in an acquittal or have otherwise been dismissed prior to
conviction, the council shall immediately reinstate the certificate
and notify the certificate holder and any business that received
notice pursuant to subparagraph (C) of paragraph (1) of the
reinstatement within 10 business days.

9417.  

(a) An applicant for a certificate shall not be denied a
certificate, and a certificate holder shall not be disciplined pursuant
to this chapter, except according to procedures that satisfy the
requirements of this section. Denial or discipline that is not in
accord with this section or subdivision (c) of Section 9416 shall
be void and without effect.

(b) Any denial or discipline shall be decided upon and imposed
in good faith and in a fair and reasonable manner. Any procedure
that conforms to the requirements of subdivision (c) is fair and
reasonable, but a court may also find other procedures to be fair
and reasonable when the full circumstances of the denial or
discipline are considered.

(c) A procedure is fair and reasonable if the procedures specified
in subdivision (c) of Section 9416 are followed or if all of the
following apply:

(1) The provisions of the procedure are set forth in the articles
or bylaws of the council or copies of those provisions are annually
sent to all of the members of the council.

(2) The procedure provides 15 business days prior notice of the
denial or discipline and the reasons for the denial or discipline.

(3) The procedure provides an opportunity for the applicant or
certificate holder to be heard, orally or in writing, not less than
five days before the effective date of the denial or discipline, by
a person or body authorized to decide whether the proposed denial
or discipline should go into effect.

(d) (1) Any notice required under this section may be given by
any method reasonably calculated to provide actual notice. Any
notice given by mail shall be given by first-class or certified mail
sent to the last address of the applicant or certificate holder shown
on the council’s records.

(2) It is the responsibility of the certificate holder or applicant
to notify the council of his or her home address, as well as the
address of any business establishment where he or she regularly
works as a tour guide professional, whether as an employee or as
an independent contractor.

(e) A certificate holder or applicant who is denied or disciplined
shall be liable for any charges, dues, assessments, and fees incurred
by, services or benefits actually rendered to, and obligations arising
from contract or otherwise of, the certificate holder or applicant
before the denial or discipline.

(f) Any action challenging a denial or discipline, including any
claim alleging defective notice, shall be commenced within one
year after the effective date of the denial or discipline. If the action
is successful, the court may order any relief, including
reinstatement, that it finds equitable under the circumstances.

(g) This section governs only the procedures for denial or
discipline decision and not the substantive grounds for the denial
or discipline. Denial or discipline based upon substantive grounds
that violates contractual or other rights of the applicant or certificate
holder, or is otherwise unlawful, is not made valid by compliance
with this section.

9419.  

(a) Upon the request of any law enforcement agency or
any other representative of a local government agency with
responsibility for regulating or administering a local ordinance
relating to California tour guide businesses, the council shall
provide information concerning a certificate holder, including, but
not limited to, any of the following:

(1) The current status of a certificate.

(2) Any history of disciplinary actions taken against the
certificate holder.

(3) The home and work addresses of the certificate holder.

(4) Any other information in the council’s possession that is
necessary to verify facts relevant to administering the local
ordinance.

(b) The council shall accept information provided by any law
enforcement agency or any other representative of a local
government agency with responsibility for regulating or
administering a local ordinance relating to California tour guide
businesses. The council shall have the responsibility to review any
information received and take any actions authorized by this
chapter that are warranted by that information.

9421.  

It is an unfair business practice for a person to hold
himself or herself out or to use the title of “certified tour guide”
or “tour guide professional,” or any other term, such as “licensed,”
“registered,” or “CTG” that implies or suggests that the person is
certified as a tour guide professional, unless that person currently
holds an active and valid certificate issued by the council pursuant
to this chapter.

9423.  

It is an unfair business practice for a tour guide business
to provide tour guiding in California that is not performed by a
tour guide professional to a group of nine or more consumers.

9425.  

The superior court of a county where a person acts as a
tour guide professional in violation of this chapter may, upon a
petition by any person, issue an injunction or other appropriate
order restraining the conduct. A proceeding under this section shall
be governed by Chapter 3 (commencing with Section 525) of Title
7 of Part 2 of the Code of Civil Procedure.

9427.  

(a) Except as otherwise provided in this section, a
certificate holder has the right, consistent with this chapter and the
qualifications established by his or her certification, to perform
tour guides in any city, county, or city and county in the state and
shall not be required to obtain any other license, permit, or other
authorization to engage in that practice.

(b) Notwithstanding any other law, a city, county, or city and
county shall not enact or enforce an ordinance that requires a
certificate holder to obtain any other license, permit, or other
authorization to perform tour guides consistent with the
qualifications established by the certificate holder’s certification.

(c) This section does not preclude a city, county, or city and
county from requiring a tour guide business or establishment to
file copies or provide other evidence of a certificate held by a
person providing tour guide services at the business.

(d) A city, county, or city and county may charge a tour guide
business or establishment a business licensing fee sufficient to
cover the costs of the business licensing activities established by
a local ordinance pursuant to this section.

(e) This section does not prohibit a city, county, or city and
county from adopting land use and zoning requirements applicable
to tour guide businesses or establishments unless those
requirements differ from requirements uniformly applied to other
professional or personal services businesses.

(f) This section does not preclude a city, county, or city and
county from doing any of the following:

(1) Requiring an applicant for a business license to operate a
tour guide business or establishment to fill out an application that
requests relevant information.

(2) Making reasonable investigations into that information.

(3) Denying or restricting a business license if the applicant
provides materially false information.

(g) An owner or operator of a tour guide business or
establishment subject to subdivision (f) shall be responsible for
the conduct of all of the employees or independent contractors
working on the premises of the business.

(h) This section does not preclude a city, county, or city and
county from authorizing the suspension, revocation, or other
restriction of a license or permit issued to a tour guide
establishment or business if violations of this chapter or a local
ordinance occur on the premises of that establishment or business.

9429.  

This chapter does not restrict or limit in any way the
authority of a city, county, or city and county to adopt a local
ordinance governing any person who is not certified pursuant to
this chapter.

9431.  

This chapter does not affect the rights of any person
licensed by the state to practice or perform any functions or services
pursuant to that license.

9433.  

The Legislature finds and declares that due to important
health, safety, and welfare concerns that affect the entire state,
establishing a uniform standard of certification for tour guides
upon which consumers may rely to identify individuals who have
achieved specified levels of education, training, and skill is a matter
of statewide concern and not a municipal affair, as that term is
used in Section 5 of Article XI of the California Constitution.
Therefore, this chapter shall apply to all cities, counties, and cities
and counties, including charter cities and charter counties.

9440.  

This chapter shall remain in effect only until January 1,
2018, and as of that date is repealed.