BILL ANALYSIS Ó
AB 836
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Date of Hearing: April 28, 2015
ASSEMBLY COMMITTEE ON ARTS, ENTERTAINMENT, SPORTS, TOURISM, AND
INTERNET MEDIA
Ian Charles Calderon, Chair
AB 836
(Rendon) - As Amended April 15, 2015
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. Specifically, 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:
a) Approved by the Bureau for Private Postsecondary
Education;
b) Approval by the Department of Consumer Affairs; and,
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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,
but not limited to, a payment, loan, advance, donation,
contribution, deposit, or gift money.
5)Defines "tour guide business" to mean a business that provides
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tour guides in California for compensation.
6)Defines "tour guide professional" or "tour guide" to mean a
person who is certified by the Commission pursuant to this
chapter and who 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.
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 eighteen (18) years of age or older;
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b) Must successfully complete the curricula in California
tour guiding and related subjects including tour group
safety and California geography, history, and culture.
Provides that successful completion of a program from an
approved school shall be deemed to satisfy this
requirement;
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 any investigation the
commission deems necessary to establish 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;
h) Committing any act that results in denial of licensure,
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revocation, suspension, restriction, citation, or any other
disciplinary action against an applicant or certificate
holder by a state or territory of the United States. A
certified copy of the decision, order, judgment, or
citation shall be conclusive evidence of these actions;
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 undertaken
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
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guides.
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.
EXISTING LAW:
1)Establishes a nonprofit mutual benefit corporation known at
the California Travel and Tourism Commission. (Government Code
(GC) Section 13995 et seq.)
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
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welfare of the people of California. (GC Section 13395.50-51)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author and supporters' statements of need for legislation:
greater training and oversight of tour guides will increase
safety along with increased enjoyment of the California
tourist experience.
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."
The bill's sponsor, Tour Guide Coalition of California, add in
support, "Currently the tour guide market is completely
unregulated in the State of California. Preserving the quality
of the state's tourism industry is important for economic,
cultural, and health and safety reasons. The direct travel
industry is responsible for $106.4 billion in spending from
visitors, contributes $6.6 billion in state and local taxes,
and supports 917,000 with earnings of $32.3 billion. Nearly 16
million international tourists visit the United State as part
of tour groups and whose experience is deeply influenced by
their tour guide's attitude, commentary and professionalism.
Despite the high volume of tourism, the state of California
does not regulate tour guides. As a result, individuals
without proper training or adequate knowledge about
California's history, culture and special interests can be
hired as guides for tours."
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2)Background: Tourism industry marketing through Visit
California and California Travel and Tourism Commission.
The California Tourism Marketing Act grew out of efforts to
reverse a multi-year decline in California's tourism industry.
During the 1970s, Governor Brown closed the Office of Tourism
and withdrew funding from many tourism promotion efforts.
During Governor Deukmejian's tenure, the Office of Tourism was
reactivated. In February 1993, Governor Wilson created the
Governor's Task Force on Tourism Funding (Executive Order
W-41-93) for the purpose of "investigating various tourism
funding methods and making policy recommendations regarding a
new, "non-tax" method of providing stable financing for
statewide tourism promotion." The Task Force, which was
composed of representatives from various California
businesses, developed the concept that was ultimately enacted
by SB 256 (Johnston) Chapter 871, Statutes of 1995, as the
California Tourism and Marketing Act.
The Act authorized the establishment of a non-profit, public
benefit corporation, Visit California, to oversee the
promotion of California as a premier travel destination. The
statute became operative upon industry wide approval in 1997
and the assessment program was initiated in 1998. In 2001, the
program was renewed by industry referendum with an 84% margin,
while in 2007 it was renewed by a 91% margin. The first full
year of assessment funding occurred during the 1998-99 fiscal
year and between 1998 and 2002, the marketing budget was fully
funded by the Commission and the state at approximately $14
million annually.
Visit California is comprised of 37 Commission members,
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representing each industry segment (Accommodations,
Restaurants and Retail, Attractions and Recreation,
Transportation and Travel Services, and Passenger Car Rental).
The Commission meets three times a year and directs and
approves the marketing plan, expenditures and the overall
strategic course for California tourism. The assessment
program is administered by the Office of Tourism, Tourism
Assessment Program which is housed in GO-Biz.
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.
3)Tour guides are regulated elsewhere, and in some local
jurisdictions in California.
According to information provided by the author, several
regions in the United States have tour guide certification
programs. For example, the San Diego Professional Tour Guide
Association was created 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
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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 to 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
4)Recent anecdotal stories of untrained tour guides posing as
travel experts run the gamut from bad service in California to
theft and physical assaults abroad.
When one searches the internet, there are many stories of
tourists being taken advantage of. In a compilation of Tour
Guide Horror Stories, offered by the author, traveler's bad
experiences in California are detailed, including; a San
Francisco tour guide who steered the tour daily to a Chinese
buffet before taking them to see sites such as "UC Harvard", a
Sacramento resident who states that his family visiting from
China had a tour guide who "made me feel like I was being
conned" by adding extra charges and hidden fees, and "when
some tourist refused to pay the hidden charges or extra
charges they raised their tone and argued with the tourists"
and badgered them into paying; yet another visitor from China
had a frightening experience with a tour bus driver who, "was
speeding all the time, he drove 80 on the freeway and said 55
speed limit was only for trucks." And although the law for
commercial drivers is that they may not consume alcohol for 24
hours before driving, "the bus driver was drunk when he
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drove." She reports that he brought 3 big liter bottles of
beer to the hotel the night before departure. The next morning
the bus driver missed the departure time, and when he finally
arrived all the passengers waiting for him could smell alcohol
on him as he walked by. The trip that day was from San
Francisco to Yosemite, where, "because the bus driver was late
he had to drive very fast to catch the other buses in the tour
group. The road was a crooked tiny road and it was really
scary." In addition to the driver issues, the tour guide did
not explain their destinations at all, just where the
restrooms were at stops. The guide brought his wife along and
to the tourist, "it seems like he is having a vacation and not
us."
The online traveler's aid service iPatrol Travel Advice warns
of "Fake Tour Guides" saying, "When visiting most popular
areas you might come across touts claiming to be tour guides.
If you happen to sign up with one of them, they would take you
to places you don't want to go, bring you over to various
uncles' rug shops, souvenir, jewelry shops and alike where you
will be pressured into buying things. Your so called 'guide'
has an agreement with the shop owner and receives a commission
from anything you buy. In worst case scenarios touts may take
your money for their 'services' and abandon you. According to
iPatrol, "A 'Tout' is any person who solicits a customer in an
importune, typically aggressive or bold manner. An example
would be a person who is always to be found in heavily
touristed areas, who presents himself as a guide (particularly
towards those who do not speak the local language) but
operates on behalf of local bars, restaurants, or hotels,
being paid to direct tourists towards certain establishments."
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The issue of tourist safety has spawned a number of online
websites, including, Tourist Killed: Global monitoring of
tourist deaths, attack, robbery, rip-offs, arrests. This site
details the worst of stories from around the world of fake
tour guides preying on unsuspecting tourists, such as the
following:
This story from Mexico, A woman visiting León,
Guanajuato from Sinaloa was assaulted by 'pirate' guides,
who she hired in the bus station to take her on a tour of
the city and state capital, Correo Guanajuato reports. The
guides' took her through the capital, then forcefully threw
her from their truck in a tunnel and took off with all her
money, travel papers and other effects. 'They took
everything, they left me with nothing,' she told police
afterwards. The attack comes just one week after another
tourist was mugged by a man pretending to be a tour guide."
This story from China, "Shanghaidaily.com reports that a
tour guide who was accused of threatening to kill a
sightseer while brandishing a pointed object in an effort
to force tourists to buy more from a shop was detained
yesterday on suspicion of beating others, Beijing's tourism
administration said. An initial investigation showed the
29-year-old man surnamed Meng doesn't have a tour guide
certificate, and the travel agency called Mingdutengda that
he claimed to work for wasn't registered, Beijing News
reported today."
This from Thailand, "According to bangkokpost.com, two
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tour guides were arrested on Sunday for allegedly stealing
valuables from a tourist in Patpong, Bangkok police. Pol Lt
Col Siam Insuwanno, deputy superintendent of Thung Mahamek
police station, said the two suspects were named as Sommai
Tubtim, 42, and Ritthicha Kongsomboon, 53. The victim,
whose name was withheld, told investigators that he was
attacked by a group of three men after he left a night
entertainment venue in Patpong. The three men stole his
valuables, including an iPhone 5 smartphone, and fled."
1)Policy and Implementation issues raised in Business and
Professions Committee remain largely unaddressed.
This bill comes to the Committee on a double referral after
having been heard in the Business and Professions Committee
April 14, 2015. In that venue, a number of policy and
implementation concerns were raised by the analysis, which
this committee shares, and thus they are detailed below. The
author responds that the bill is a work in progress, and is
working with all stakeholders to make sure that all concerns
are vetted and all ideas for improvement explored.
2)POLICY ISSUES FOR CONSIDERATION
a) 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.
b) Additionally, there is no review process or oversight by
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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.
c) 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.
d) 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
e) 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
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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.
f) 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 infrastructure can be established prior to
program initiation.
REGISTERED SUPPORT / OPPOSITION:
Support
Tour Guide Coalition of California
Numerous individuals
Opposition
There is no opposition on file.
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Analysis Prepared by:Dana Mitchell / A.,E.,S.,T., & I.M. / (916)
319-3450