BILL ANALYSIS Ó
AB 836
Page 1
Date of Hearing: April 14, 2015
ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
Susan Bonilla, Chair
AB 836
(Rendon and Low) - As Amended April 6, 2015
NOTE: Double Referral: This bill is double referred, and if
passed by this Committee, it will be referred to the Assembly
Committee on Arts, Entertainment, Sports, Tourism, and Internet
Media.
SUBJECT: Tour guides: regulation.
SUMMARY: Creates a voluntary certification program for tour
guides under the California Travel and Tourism Commission
(Commission) and requires tour guides providing tours to
multiple sites in California to have adequate training and
knowledge and pass a criminal background check. Requires the
Commission to provide a list of certified tour guides to
individuals seeking to hire a tour guide in California upon
request.
EXISTING LAW
1)Establishes a nonprofit mutual benefit corporation known at
the California Travel and Tourism Commission. (Government Code
(GC) Section 13995 et seq.)
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2)Requires the Commission to consist of thirty-seven members -
twelve professional members appointed by the Governor,
twenty-four elected members representing various aspects of
the industry, and the Director of the Governor's Office of
Business and Economic Development as the chairperson. (GC
Section 13995.40)
3)Defines the purpose of the Commission is to market and promote
travel and tourism to and within California in order to expand
and strengthen the travel and tourism industry in the state by
utilizing generic promotional methods and techniques which
will mutually benefit travel and tourism businesses of all
sizes and categories. (GC Section 13395.1)
4)Declares the marketing of California tourism affects the
public interest and gives the Director and the Commission the
authority to exercise the police powers of this state for the
purpose of protecting the health, peace, safety, and general
welfare of the people of California. (GC Section 13395.50-51).
THIS BILL
1) Defines "approved school" or "approved tour guide school" to
mean a facility that is approved by the Commission and meets
minimum standards for training and curriculum in California
tour guiding and related subjects and meets any of the
following requirements:
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a) Approved by the Bureau for Private Postsecondary
Education;
b) Approval by the Department of Consumer Affairs; and,
c) 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:
i) A public institution;
ii) An institution incorporated and lawfully operating
as a nonprofit public benefit corporation, as specified,
and is not managed by any entity for profit;
iii) A college or university of the state higher
education system as specified; and,
iv) A school requiring equal or greater training than
required and recognized by the United States Department
of Education.
2)Defines a "certificate" to mean a valid certificate issued by
the Commission.
3)Defines "Commission" to mean the California Travel and Tourism
Commission.
4)Defines "Compensation" to mean anything of value, including,
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but not limited to, a payment, loan, advance, donation,
contribution, deposit, or gift money.
5)Defines "tour guide business" to mean a business or
establishment that provides compensation for tour guides in
California.
6)Defines "tour guide professional" or "tour guide" to mean a
person who is certified by the Commission and practices tour
guiding for compensation.
7)Requires the Commission to establish a tour guide
certification program and provide for the promotion of
certified tour guides to persons or organizations seeking to
hire tour guides in California.
8)Authorizes the Commission to collect fees to cover the cost of
the program and to approve tour guide schools.
9)Gives the Commission authority to issue certifications to
individuals who hold a current and valid registration,
certification, or license to work as a tour guide from any
California city, county, or city and county.
10)Authorizes the Commission to certify individuals from other
states who hold a current and valid registration,
certification, or license and who demonstrate knowledge of
tour group safety and California geography, history, and
culture, as specified, and provides discretion to the
Commission to give credit towards the academic requirements
for individuals attending non-approved schools.
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11)Requires an applicant for certification as a tour guide to
submit an application to the Commission and provide evidence
that he or she meets the following:
a) Be twenty-one (21) years of age or older;
b) Must successfully complete the curricula in California
tour guiding and related subjects including tour group
safety and California geography, history, and culture;
c) Pass a California tour guide competency examination that
is approved by the Commission; and,
d) Pay fees required by the Commission.
12)States that a tour guide certificate expires in two years
unless renewed.
13)Requires the Commission to determine whether the school from
which an applicant received his or her training meets the
academic requirements for certification, as specified.
14)Allows the Commission to conduct oral interviews of the
applicant in making a determination that the information
received by an applicant is accurate.
15) Requires an applicant to submit fingerprints for a criminal
background check conducted by the Department of Justice and
the Federal Bureau of Investigation, as specified, and
authorizes the DOJ and the Commission to charge a fee not to
exceed the reasonable cost of processing the request.
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16)Permits the Commission to require its own employees,
volunteers, and members to undergo a background investigation
process similar to an applicant.
17)States the grounds for discipline, certificate revocation, or
denial of an application are as follows:
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;
d) Impersonating a certificate holder, or permitting a
noncertified person to use a certificate;
e) Violating or attempting to violate any provision of this
act or any rule or bylaw adopted by the 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;
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h) Committing any act resulting in sanctioning of any other
license by any other state, or by any other government
agency, or of a license issued by a California health care
professional board; and,
i) Being convicted of a felony or misdemeanor that is
substantially related to the qualifications or duties of a
certificate holder.
18) Authorizes the Commission to discipline a certificate holder
by probation, suspension, revocation, or suspending or staying
the disciplinary order with or without conditions, or taking
any other action as the Commission deems proper.
19)Voids a certificate denial or discipline not conducted as
required by the Act.
20)Requires any denial or discipline to be decided and imposed
in good faith and in a fair and reasonable manner. Establishes
the method for which a disciplinary action must be undertaking
including providing reasonable notice and the opportunity to
be heard.
21)Requires the Commission to provide background information
relating to a certificate holder to law enforcement or to a
local agency responsible for regulating or administering a
local ordinance relating to tour guiding as specified.
22)Requires the Commission to maintain an accurate list of
certified tour guides and provide the list to tour guide
businesses and other organizations seeking to hire tour
guides.
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23)Prevents a non-certified person from taking a tour group into
state parks and other state facilities for compensation as
part of a multisite tour.
24)Expresses that this Act will not interfere with a person's
exercise of the right to freedom of speech.
25)Specifies that the Act applies only to tour guides for hire
that show travelers more than one sight in California and
excludes tour guides that work for a museum, amusement park,
or other organization that invites tourists to visit its
facility.
26)Provides that a certificate holder can perform tour guides in
any city or county and is not required to obtain any other
certification, license, permit, or authorization to engage in
that practice.
27)Allows a city or a county to establish its own program within
its jurisdiction and seek approval from the Commission for its
tour guides to obtain state certification.
28)States that a city, county, or city and county may require 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.
29)States that a city, county, or city and county may charge a
tour guide business or establishment a business licensing fee
as specified.
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30)Provides that a city or a county may adopt rules relating to
business practices, land use, and zoning relating to the
practice of tour guiding.
FISCAL EFFECT: Unknown. This bill is keyed fiscal by the
Legislative Counsel.
COMMENTS
1)Purpose. This bill is sponsored by Tour Guide Coalition of
California . According to the author, "Every year, California
attracts millions of tourists from all around the world. Many
come on or take organized tours with tour guides. In order
for these tour passengers to get the most out of their visit
and return to the Golden State, it is necessary to ensure that
their tour guides have knowledge of California's history,
culture and sights, as well as knowledge of safe tour guiding
practices."
2)Background. Anecdotal stories of bus boys serving as
impromptu tour guides to unsuspecting tourists and potential
safety concerns for wary visitors run the risk of creating a
negative experience for travelers to California. Considering
that travel and tourism plays a valuable role in California's
economy, the formation of a tour guide certification program
would attempted to curtail this potential of harm to tourists
and the damage to the reputation of reputable tour guides.
According to the California Travel Association, the travel
industry generated $106.4 billion in revenue from visitors and
contributes to $6.6 billion in state and local taxes in 2012.
The revenue stream is predicted to grow to over $135.6 million
by 2016. In 2013, California hosted nearly 16 million
international visitors and it is forecasted to grow at over 5%
per year through 2016. To support this volume of visitors,
the travel and tourism industry maintains over 950,000 jobs.
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Tour Guide Regulations. Presently, the State of California
does not have a tour guide certification program. Therefore,
any individual regardless of training or adequate and accurate
knowledge about California's history, culture, and special
interests can be hired as a tour guide. Tour guides operate in
various venues throughout California including local
attractions, wine tours, historical buildings, and museums.
Tour guides can be work independently or with a tour guide
company. Regardless of the location or manner of employment,
there are currently no standards relating to tour safety or
management of groups of people. No system exists to shield
tourists from unqualified persons or criminal elements
operating as tour guides.
The Commission. The California Travel and Tourism Commission
is a California non-profit mutual benefit corporation
established in accordance with the California Tourism
Marketing Act. It was designed to work with the Office of
Tourism to be the official state representative of California
tourism. The primary mission of the Commission is to promote
travel to and within California.
The Commission consists of thirty-seven members chosen from
industry representatives with the Director of the Governor's
Office of Business and Economic Development serving as the
Chairperson. The Commission meets at least three times a year
and is authorized to establish various committees to assist in
marketing and to advise the regional needs of travel and
tourism throughout California.
Other Cities, Counties, and States. Several regions in the
United States have tour guide certification programs without
consistency in qualifications or requirements. For example,
the San Diego Professional Tour Guide Association was created
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to enhance the visitor's overall experience while in San
Diego. Consistent with this mission, it has a voluntary
certification program that consists of a written examination,
an oral presentation, and two ride-a-long training tours. The
association provides standard rates for various set tours
which are serviced by its certified tour guides. In New York
City, a voluntary program exists that requires a written test
and a criminal declaration. The State of Hawaii issues a
certification to tour guides that have completed an approved
eight-hour tour guide course. In New Orleans, certified tour
guides must provide a criminal background check with no felony
convictions within five years, pass a drug test, be eighteen
years or older, and successfully complete the written tour
guide examination. Only certified tour guides may provide
tours in New Orleans or risk a misdemeanor charge. In the
District of Columbia, a licensed tour guide is required pay
the required fees, pass a criminal background check, be
eighteen years or older, and be fluent in English. The
District of Columbia regulations restrict the practice of tour
guiding to only licensed persons. While consistency lacks
among the programs, the overarching principle is to provide
for tour guides that demonstrate baseline knowledge of the
regional history and culture that acts to enhance the
experience of its visitors
Legal Battles Relating to Tour Guide Laws. A series of
lawsuits have been filed in the last few years challenging
tour guide regulations as infringing on the freedom of speech.
Currently, a local ordinance in Savannah, Georgia is waiting
to be heard in the Federal district court on similar grounds.
Previous litigation resulted in the New Orleans' law being
upheld by the Fifth Circuit Court of Appeals. The DC Court of
Appeals found otherwise and held that the District of
Columbia's tour guide laws requiring the passage of a tour
guide examination interfered with a person's freedom of
speech. Despite the split in the circuit courts, the United
States Supreme Court denied review.
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Tour Guide Schools in California. Presently, there are
approximately four tour guide schools in California. The
types of schools range from online programs, to an intense
one-week to two-week courses, to an associated degree in
travel and tourism. There is presently no standardization in
tour guide school curricula.
State Parks. This bill requires that a tour guide for hire
leading a group on a tour of multiple sites in California to
be certified before being allowed to take his or her group
into state parks and state facilities. There are dozens of
state parks and state buildings, such as the Capitol and the
State Archives. It is unclear how often tour guides for hire
access the parks and buildings.
POLICY ISSUES FOR CONSIDERATION
1)This bill will not prevent persons from operating as tour
guides or holding themselves out as tour guides or operating
tour guide businesses except as discussed above in regards to
state parks and structures. Further, this bill does not offer
title protection for certified tour guides so there are no
limitations on a person calling himself or herself a certified
tour guide.
2)Additionally, there is no review process or oversight by the
State as required by every board and bureau under the
Department of Consumer Affairs. Unlike the boards and bureaus
which have a sunset date that triggers their review, the
Commission does not have a sunset date leaving the process for
obtaining and regulating the tour guide certification program
unchecked.
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3)Another consideration is the weight that is afforded to a
license or certification endorsed by the State and what effect
the creation of more licenses or certifications has on the
diminution of the value of current licensees or certificate
holders.
4)The author should consider whether the placement in the
Business and Professions Code (BPC) is the proper section to
place this proposed legislation. Considering that the
California Tourism Marketing Act which created the California
Travel and Tourism Commission is codified in the Government
Code, the author may want to work with Legislative Counsel to
assure that the language is correctly placed. Further, its
placement within the BPC might be reconsidered since section
9400 sits amidst five repealed chapters.
IMPLEMENTATION ISSUES
Upon discussion with the Commission, two major concerns were
raised. The first concern involves start-up costs related to
the formation and administration of the tour guide examination.
While the Commission seems well poised to assist in the
formation of the examination, its concerns over cost and
administration remain an issue. The Commission is established
primarily as a marketing agency and has never been charged with
examination administration. Additionally, as a marketing
agency, the Commission has never had a regulatory function.
While the subject matter is within the expertise of the
Commission, this would be a departure from the Commission's core
mission and would likely require restructuring of the
organization from its current form.
Considering this new regulatory scheme and the need for the
development of a new examination and administration program, the
author may consider a delayed implementation so that the
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infrastructure can be established prior to program initiation.
SUGGESTED COMMITTEE AMENDMENTS
On page 3, line 39, strike "or establishment"
On page 6, line 1, strike "21" and insert "18"
On page 6, line 7, insert "Successful completion of a program
from an approved school satisfies this requirement."
On page 8, line 17, strike "another" and insert "a"
On page 8, line 17-19, strike "by any other government agency,
or by another California health care professional licensing
board."
REGISTERED SUPPORT / OPPOSITION:
Support
Tour Guide Coalition of California (sponsor)
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Opposition
None on file.
Analysis Prepared by:Christian Jagusch / B. & P. / (916)
319-3301