California Legislature—2015–16 Regular Session

Assembly Bill No. 2138

Introduced by Assembly Members Low and Bonta

February 17, 2016

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 2138, as introduced, Low. Tour guides: regulation.

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

This bill would provide for the certification and regulation of tour guides, as defined, by the California Tour Guide Council and would provide for the creation of the council as a nonprofit organization, as specified. The bill would require applicants for certification to, among other things, be 18 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, among other things, state, advertise, or represent that he or she is a certified tour guide or for a tour guide business to provide tour guiding services in California if those services are not performed by a certified tour guide. The bill would authorize the Public Utilities Commission to enforce these provisions.

This bill would state that this is a matter of statewide concern and would prohibit a city, county, or city and county from enacting an ordinance regulation that conflicts with the requirements of the bill.

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 self-funded, nonprofit statewide oversight and regulatory
program called the California Tour Guide Council to test and
certify tour guide professionals who deliver sightseeing
commentary within the State of California. This program will
enable consumers to identify and benefit from tour guides who are
credible, knowledgeable, and safety-conscious and who, as
unofficial “ambassadors” of our state, will present California’s
assets to visitors in an accurate, unbiased, and insightful manner.
It will require tour guides to pass an examination that tests them
on their knowledge of facts of interest about California, as well as
on safety and security issues related to the tour experience. To
bring added value to the program, the council shall publish an
online directory of all Certified California Tour Guides, available
to both consumers and businesses for reference, and provide other
benefits to tour guides. Finally, certification will bring recognition,
credibility, and a sense of personal achievement to our state’s tour
guides.

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

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

(c) “Council” means the California Tour Guide Council created
pursuant to this chapter, which shall be a nonprofit organization
exempt from income taxation as an organization described in
Section 501(c)(3) of the Internal Revenue Code. It may commence
activities pursuant to this chapter once the council has submitted
an application to the Internal Revenue Service seeking this
exemption.

(d) “Tour guide” means a person who provides sightseeing
commentary, who is certified by the council pursuant to this
chapter, and who practices tour guiding for compensation.
Excluded from this definition are guides who give tours at
museums, state or national parks, attractions, theme parks, private
and government facilities, and similar places of interest and who
are employees of these specific places. Though these tour and
travel-related employees are not required to be certified, they will
be strongly encouraged to apply for certification and take the
examination, as may any qualified resident of the State of
California.

(e) “Tour manager” means a person who manages a group’s
logistics and itinerary-related factors over a multiday tour. Other
industry-accepted titles for a tour manager include tour conductor,
tour courier, tour escort, tour director, or tour leader.

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

9402.  

(a) The California Tour Guide Council is hereby 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 actively working tour guides 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 guides and other tour-related
professionals.

(B) Has sustained a membership of at least 100 dues-paying
individuals in California for the previous three years.

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

(2) Two members who are employees or are independent
contractors employed by a California-based tour operator to give
sightseeing commentary.

(3) One member selected by an accredited public or private high
school, college, or similar institution in California that chooses to
participate in the council and that offers at least one course in its
curriculum that focuses on the tour segment of the travel industry
and the role of a tour guide in the tour process.

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

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

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

(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 three years.

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

(e) 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
of the council prior to issuing certificates.

(f) The board of directors shall establish membership 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 renewal fees for
certificates.

(g) 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).

9406.  

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

(a) The applicant is 18 years of age or older.

(b) The applicant has passed a California tour guide competency
assessment examination whose content will be based primarily on
a California Tour Guide Study Manual created by the council. This
online document will be viewable or downloadable as a PDF file
and will meet generally recognized principles and standards that
are approved by the council. It will focus on California geography,
history, attractions, cultural diversity, significant events, places of
interest, notable persons, environmental issues, and similar topics.
It will also address safe and secure tour operations. It will not cover
best-practice topics such as efficient tour operation and tour-related
routines and practices, how to deliver effective commentary, and
similar content. The examination and study guide will be updated
on a quarterly basis.

(1) The test will be, except as provided in subdivision (b) of
Section 9410, administered online. Each online test will be
composed of questions randomly selected from a large database
of test questions, so that each test will be unique to the applicant
for certification. The exam will focus on California, with a general
state emphasis.

(2) Applicants will be permitted to take the exam no more than
three times per year: one test and two re-tests within 12 months
of having taken the first test. The successful completion of this
examination may have been accomplished before the date the
council is authorized by this chapter to begin issuing certificates.

(c) The applicant must be a United States citizen or legal resident
and must reside in the State of California.

(d) All fees required of the applicant by the council have been
paid, either by the applicant or the employer or a combination of
both.

9408.  

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

9409.  

A certified guide will be given and must wear a
state-issued photo identification badge, visible to the public at all
times, while conducting a sightseeing tour.

9410.  

(a) A school, association, business, or similar institution
that wishes to offer a test-preparation course for potential applicants
for the California Tour Guide Certification Test must first obtain
approval from the council, pay a fee to the council, which shall be
determined by the council, complete an application form provided
by the council, and attach a lesson plan. Applicants to offer a
test-prep course must be one of the following:

(1) A school approved by the Bureau for Private Postsecondary
Education.

(2) A school approved by the Department of Consumer Affairs.

(3) A school accredited 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 not-for-profit institution that employs or educates tour
guides.

(D) A for-profit institution or business that employs or educates
tour guides.

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

(b) Notwithstanding paragraph (1) of subdivision (b) of Section
9406, the council may, under special circumstances, authorize an
organization or business which is approved to give a test-prep
study course, to administer a certification test at the completion
of the course, but only in a “live” setting and with a monitor
authorized by the council in attendance.

(c) 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 satisfied the criteria established by this
chapter.

(d) The council may also authorize any institution within the
categories under subdivision (a) of Section 9410 to offer an
advanced level program of studies to tour guides that have been
certified that addresses topics that the California certification
program does not, such as consumers needs, delivering effective
commentary, cultural factors, and similar topics.

(e) Institutions wishing to offer this advanced program must
first obtain approval from the council, pay a fee to be determined,
complete an application form, attach a lesson plan, and satisfy any
other requirements, as determined by the council. Tour guides who
successfully complete this advanced program shall be awarded the
status of “Master Guide” by the council, which will be displayed
on their identification badge and indicated on the council’s Internet
Web site.

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 full background check 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 full background check.

(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 full background check.

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 ground for discipline
or denial of an application for a certificate if a certificate holder
or applicant commits 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) 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 of the following methods, including any combination of the
following:

(1) Placing the certificate holder on probation.

(2) Suspending the certificate and the right 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 actions 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 and the reason for the suspension.

(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
accordance with subdivision (c) of Section 9416 shall be void and
without effect.

(b) Any denial of 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 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
of 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,”
“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 any tour guide
business to hire tour guides to provide sightseeing in California to
paying customers that is not performed by a certified tour guide
professional.

9424.  

Enforcement of the rules and regulations governing
certified guides shall be administered by the Public Utilities
Commission, which currently issues permits for tour buses.

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 as
tour guides in any city, county, or city and county in the State of
California 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 guided tours 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
and other travel-related business or establishment that uses tour
guides for sightseeing 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 and travel-related businesses or establishments that
use tour guides for sightseeing, 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 or other travel-related
business or establishment subject to subdivision (f) shall be
responsible for the conduct of all of the employees or independent
contractors working for 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 or other
travel-related establishment or business if violations of this chapter
or 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, all cities, counties, and cities and counties, including
charter cities and charter counties shall not enact any ordinance
or regulation that conflicts with or duplicates the requirements
under this chapter.

9440.  

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