BILL NUMBER: AB 836 INTRODUCED
BILL TEXT
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.