BILL NUMBER: AB 2138 INTRODUCED
BILL TEXT
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.