BILL NUMBER: AB 836 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 6, 2015
INTRODUCED BY Assembly Members Rendon and Low
FEBRUARY 26, 2015
An act to add and repeal Chapter 18 (commencing
with Section 9400) of to Division 3 of
the Business and Professions Code, relating to tour guides.
LEGISLATIVE COUNSEL'S DIGEST
AB 836, as amended, 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,
California Travel and Tourism Commission, as
specified. specified, with certain exceptions.
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,
commission, 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. commission. The bill would also
authorize local governments to establish local tour guide
certification programs and require the com mission to
certify applicants licensed through those programs.
This bill would allow the organization
commission 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.
prohibit unlicensed persons from leading tour groups into state parks
or other state facilities for compensation as part of a multisite
tour.
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. SECTION 1. 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
commission 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 commission pursuant to this chapter.
(c) "Commission" means the California Travel and Tourism
Commission established pursuant to Section 13995.40 of the Government
Code.
(c)
(d) "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 commission
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).
9402. The commission shall establish a tour guide certification
program pursuant to this chapter, and shall provide for the promotion
of certified tour guides to persons or organizations seeking to hire
tour guides in California. The commission may collect fees not to
exceed the reasonable cost of the commission's certification of tour
guides and approval of tour guide schools pursuant to this chapter.
9404. The council commission 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 to work as a tour guide
from any other state whose licensure requirements meet
or exceed those defined within this chapter. city,
county, or city and county in California. The commission
may issue a certificate to an individual applicant who holds a
current and valid registration, certification, or license from
another state, and who demonstrates knowledge of tour group safety
and California geography, history, and culture, as defined by the
commission. If an applicant has received education at a school
that is not an approved school, the council
commission 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 commission 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 a curriculum in California tour
guiding and related subjects totaling a minimum of 24 hours
that includes all of the following: subjects, as
defined by the commission. The curriculum shall include information
on tour guide safety and California geography, history, and culture.
(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.
commission. The successful completion of this examination may
have been accomplished before the date the council
commission is authorized by this chapter to begin issuing
certificates.
(d) All fees required by the council
commission 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. commission. The council
commission may provide for the late renewal of a
certificate.
9410. (a) The council commission
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 commission 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 commission 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
commission to receive factual information as a condition of
taking action, the council commission
may conduct oral interviews of the applicant and others or conduct
any investigation the council commission
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
commission shall require the applicant or the custodian of
records candidate to submit fingerprint images as directed by the
council commission and in a form
consistent with the requirements of this section.
(b) The council commission 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.
commission. The Department of Justice shall provide information
to the council commission pursuant to
subdivision (p) of Section 11105 of the Penal Code.
(d) The Department of Justice and the council
commission 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 commission may
require all its 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. commission.
(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 commission
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
commission deems proper, as authorized by this chapter or the
council's commission's bylaws.
(b) The council commission 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 commission or
copies of those provisions are annually sent to all of the members of
the council. commission.
(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 commission's records.
(2) It is the responsibility of the certificate holder or
applicant to notify the council commission
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
commission 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
commission's possession that is necessary to verify facts
relevant to administering the local ordinance.
(b) The council commission 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
commission 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.
9421. (a) The commission shall maintain an accurate list of
certified tour guides and shall provide the list to tour guide
businesses and other persons or organizations seeking to hire tour
guides in California.
(b) A person who is not certified pursuant to this chapter shall
not lead a tour group in a state park or other state facility for
compensation as part of a multisite tour.
9423. This chapter does not interfere with a person's exercise of
his or her right to freedom of speech provided by the First
Amendment to the Constitution of the United States.
9425. This chapter only applies to tour guides who offer
themselves for hire to take travelers on multisite tours in
California. This chapter does not apply to tour guides who work for a
museum, amusement park, or other organization that invites tourists
to visit its facility.
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.
(b) A city, county, or city and county may establish a tour guide
certification program that applies only to the jurisdiction of that
city, county, or city and county, and may seek the commission's
recognition of its program in order for its certified tour guides to
obtain statewide certification, as provided by the commission.
(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.