BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2138


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          Date of Hearing:  April 19, 2016


                   ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS


                                  Rudy Salas, Chair


          AB 2138  
          (Low and Bonta) - As Introduced February 17, 2016


          NOTE: 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:  Establishes the California Tour Guide Act (Act) and  
          provides for the examination, certification, and regulation of  
          tour guides by the California Travel and Tourism Council, as  
          specified.  


          EXISTING LAW:


          1)Establishes the sellers of travel registration program which  
            provides for the regulation of advertising, sales, and  
            business practices of sellers of travel by the office of the  
            Attorney General, Consumer Law Section (OAG) and establishes  
            civil and criminal penalties for violations of the program.   
            (Business and Professions Code (BPC) §§ 17550-17550.30)
          2)Defines "seller of travel" as a person who sells, provides,  
            furnishes, contracts for, arranges, or advertises that he or  
            she can or may arrange, or has arranged, wholesale or retail,  








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            either of the following:  


             a)   Air or sea transportation either separately or in  
               conjunction with other travel services.
             b)   Land or water vessel transportation, other than sea  
               carriage, either separately or in conjunction with other  
               travel services if the total charge to the passenger  
               exceeds three hundred dollars ($300).  (BPC § 17550.1)


          3)Specifies that to "advertise" is to make a representation in  
            the solicitation of air or sea transportation, and includes  
            communication with other members of the same partnership,  
            corporation, joint venture, association, organization, group,  
            or other entity.  (BPC § 17550.2)
          4)Defines "travel services" as including lodging, surface  
            transportation, transfers, tours, meals, guides, baggage  
            transfer, sightseeing, recreational activities, vehicle  
            rental, or other travel-related services, however denominated,  
            including, but not limited to, travel certificates,  
            registration fees, and processing fees.  "Travel services"  
            does not include travel services rendered by providers of  
            lodging such as a hotel, motel, or similar lodging  
            establishment where the provider of lodging supplies only that  
            service.  (BPC § 17550.9)


          5)Requires, not less than 10 days prior to doing business in  
            this state, a seller of travel to apply for registration with  
            the OAG, as specified.  Provides that a seller of travel shall  
            be deemed to do business in this state if the seller of travel  
            solicits business from locations in this state or solicits  
            prospective purchasers who are located in this state.  (BPC §  
            17550.20)


          6)Establishes the Public Utilities Commission (PUC) and grants  
            the commission the authority to establish and enforce a system  








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            for regulating public utilities, which include private  
            corporations and persons that own, operate, control, or manage  
            a line, plant, or system for the transportation of people or  
            property.  (California Constitution Article XII, §§ 1 - 9)


          THIS BILL:


          7)Establishes the Act.


          8)Defines "certificate" as a valid certificate issued by the  
            Council pursuant to this chapter.


          9)Defines "compensation" as anything of value, including, but  
            not limited to, a payment, loan, advance, donation,  
            contribution, deposit, or gift of money.


          10)Defines "Council" as the California Tour Guide Council, a  
            nonprofit organization exempt from income taxation as an  
            organization described in Section 501(c)(3) of the Internal  
            Revenue Code.  Authorizes the Council to commence activities  
            pursuant to the Act once the Council has submitted an  
            application to the Internal Revenue Service seeking the  
            exemption.


          11)Defines "tour guide" as 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.  










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          12)Provides that although the 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.


          13)Defines "tour manager" as 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.


          14)Defines "tour operator" or "tour guide business" as a  
            business or establishment that provides or employs tour guides  
            in California for compensation.


          15)Establishes the California Tour Guide Council (Council) and  
            declares that it shall have the responsibilities and duties  
            set forth in the Act.  


          16)Authorizes the Council to take any reasonable actions  
            necessary to carry out the duties and responsibilities under  
            the Act, including hiring staff and entering into contracts.


          17)Provides that the Council shall be governed by a board of  
            directors comprised of the following members:


             a)   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:
               i)     Is comprised of tour guides and other tour-related  
                 professionals.








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


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


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


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


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


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


             g)   The Council's bylaws shall establish a process for  
               appointing other professional directors as determined by  
               the board.










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          18)Specifies that board member terms shall be for three years.
          19)Requires the initial board of directors to 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.


          20)Authorizes the initial board of directors to 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.


          21)Requires the board of directors to 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.


          22)Provides that 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).


          23)Requires an applicant, in order to obtain certification as a  
            tour guide professional, to 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. 


             c)   "The applicant must be a United States citizen or legal  








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               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.


          24)Specifies that the California tour guide competency  
            assessment examination will be based primarily on a California  
            Tour Guide Study Manual created by the Council, which must  
            meet the following: 
             a)   The 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. 
             b)   It will focus on California geography, history,  
               attractions, cultural diversity, significant events, places  
               of interest, notable persons, environmental issues, and  
               similar topics. 


             c)   It will address safe and secure tour operations. 


             d)   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. 


          25)Specifies that the examination and study guide will be  
            updated on a quarterly basis.
          26)Specifies that the test will be administered online, as  
            specified.  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.










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          27)Specifies that 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.


          28)Specifies that any certificate issued pursuant to the Act  
            shall expire after two years unless renewed in a manner  
            prescribed by the Council.  Authorizes the Council to, "in  
            some cases, provide for the late renewal of a certificate."


          29)Specifies that 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.


          30)Requires 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, to 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:


             a)   A school approved by the Bureau for Private  
               Postsecondary Education.
             b)   A school approved by the DCA.


             c)   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:








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               i)     A public institution.
               ii)An institution incorporated and lawfully operating as a  
                 nonprofit public benefit corporation, as specified, and  
                 that is not managed by any entity for profit.


               iii)A not-for-profit institution that employs or educates  
                 tour guides.


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


               v)     A college or university of the state higher  
                 education system, as defined in Education Code § 100850.


          31)Authorizes the Council, under special circumstances, to  
            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.
          32)Authorizes the Council, for purposes of receiving factual  
            information as a condition of taking action, to 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 the Act.


          33)Authorizes the Council to authorize any institution within  
            the specified categories to offer an advanced level program of  
            study that addresses topics that the California certification  
            program does not, such as consumer needs, delivering effective  
            commentary, cultural factors, and similar topics.








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          34)Provides that institutions wishing to offer the 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.


          35)Specifies that, 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, as  
            specified.


          36)Requires the Council to submit the fingerprint images and  
            related information to the Department of Justice (DOJ) 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 DOJ  
            establishes that the applicant or candidate was released on  
            bail or on his or her own recognizance pending trial.


          37)Requires the DOJ to forward requests for a federal level full  
            background check received by the DOJ to the Federal Bureau of  
            Investigation (FBI).  The DOJ shall review the information  
            returned from the FBI and shall compile and disseminate a  
            fitness determination regarding the applicant or candidate to  
            the Council.  The DOJ shall provide information to the Council  
            pursuant to Penal Code § 11105(p).


          38)Provides that the DOJ and the Council shall charge a fee not  








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            to exceed the reasonable cost of processing the request for  
            state and federal level full background check.


          39)Requires the Council to request subsequent arrest  
            notification service from the DOJ, as provided under Penal  
            Code § 11105.2, 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.


          40)Authorizes the Council to require all employees, volunteers,  
            and board members to undergo the background investigation  
            process, as specified.


          41)Declares that it is a violation of the Act and grounds 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,  








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               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.


          42)Authorizes the Council to discipline a certificate holder by  
            any of the following methods, including any combination of the  
            following:
             a)   Placing the certificate holder on probation.
             b)   Suspending the certificate and the right conferred by  
               this chapter on a certificate holder for a period not to  
               exceed one year.


             c)   Revoking the certificate.


             d)   Suspending or staying the disciplinary order, or  
               portions of it, with or without conditions.


             e)   Taking other actions as the Council deems proper, as  
               authorized by this chapter or the Council's bylaws.










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          43)Authorizes the Council to issue an initial certificate on  
            probation, with specific terms and conditions, to any  
            applicant.
          44)Specifies that, 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 Penal Code §  
            647(b), as specified, 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.


          45)Specifies that, upon notice to the Council that the specified  
            charges 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.
          46)Specifies that, upon notice that the specified charges 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 of the reinstatement within 10  








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            business days.


          47)Specifies that an applicant for a certificate shall not be  
            denied a certificate, and a certificate holder shall not be  
            disciplined pursuant to the Act, except according to  
            procedures that satisfy the following conditions:


             a)   Any denial of discipline shall be decided upon and  
               imposed in good faith and in a fair and reasonable manner.   

               i)     A procedure is fair and reasonable if the procedures  
                 specified in § 9416 of the Act 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.


             b)   A court has determined the procedures to be fair and  
               reasonable when the full circumstances of the denial or  
               discipline are considered.
          48)Specifies that any notice required under Act for denials or  
            discipline 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  








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            address of the applicant or certificate holder shown on the  
            Council's records.
          49)Specifies that it is the responsibility of the certificate  
            holder or applicant to notify the Council of the applicant's  
            home address, as well as the address of any business  
            establishment where the applicant regularly works as a tour  
            guide professional, whether as an employee or as an  
            independent contractor.


          50)Specifies that 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.


          51)Requires any action challenging a denial or discipline,  
            including any claim alleging defective notice, to 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.


          52)Provides that the specified procedures for denial or  
            discipline govern only the procedure 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 the  
            specified procedures.


          53)Requires the Council, 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,  








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            to provide information concerning a certificate holder,  
            including, but not limited to, any of the following:


             a)   The current status of a certificate.
             b)   Any history of disciplinary actions taken against the  
               certificate holder.


             c)   The home and work addresses of the certificate holder.


             d)   Any other information in the Council's possession that  
               is necessary to verify facts relevant to administering the  
               local ordinance.


          54)Requires the Council to 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 the Act that are warranted by the information.
          55)Provides that it is an unfair business practice to hold  
            oneself out as 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 the person currently holds an active and valid  
            certificate issued by the Council pursuant to the Act.


          56)Declares that 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.










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          57)Specifies that enforcement of the rules and regulations  
            governing certified guides shall be administered by the PUC.


          58)Authorizes the superior court of a county where a person acts  
            as a tour guide professional in violation of the Act to, upon  
            a petition by any person, issue an injunction or other  
            appropriate order restraining the conduct, as specified.  


          59)Declares that, except as otherwise specified under the Act, 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.


          60)Prohibits, notwithstanding any other law, a city, county, or  
            city and county from enacting or enforcing 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.


          61)Provides that a city, county, or city and county is not  
            precluded 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.


          62)Specifies that 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 as  








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            specified.


          63)Provides that a city, county, or city and county is not  
            prohibited 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.


          64)Provides that a city, county, or city and county is not  
            precluded from doing any of the following:


             a)   Requiring an applicant for a business license to operate  
               a tour guide business or establishment to fill out an  
               application that requests relevant information.
             b)   Making reasonable investigations into the information.


             c)   Denying or restricting a business license if the  
               applicant provides materially false information.


          65)Specifies that an owner or operator of a tour guide or other  
            travel-related business or establishment subject to local  
            business licensing requirements shall be responsible for the  
            conduct of all of the employees or independent contractors  
            working for the business.
          66)Provides that a city, county, or city and county is not  
            precluded 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 the Act or local ordinance occur on the premises  
            of that establishment or business.


          67)Provides that the Act does not restrict or limit in any way  








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            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.


          68)Provides that the Act does not affect the rights of any  
            person licensed by the state to practice or perform any  
            functions or services pursuant to that license.


          69)Declares that 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 the Act.


          70)Specifies that the Act shall remain in effect only until  
            January 1, 2018, and as of that date is repealed.


          FISCAL EFFECT:  Unknown.  This bill is keyed fiscal by the  
          Legislative Counsel.


          COMMENTS:


          Purpose.  This bill is sponsored by the author.  According to  
          the author, the "tourism industry has allowed many types of  
          businesses to thrive, from travel agents to tour operators, tour  
          guides to bus drivers.  However, there are growing concerns  








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          about businesses, in this case, sellers of travel, who sell or  
          promote a particular service or good to foreign visitors.  The  
          problem arises when a visitor arrives, and is given something  
          less than what was expected and what was paid for.  To keep  
          businesses accountable, under the state's seller of travel law,  
          this bill [as proposed to be amended] clarifies that any  
          California based seller of travel is deemed to do business in  
          California, regardless of the geographic location of the visitor  
          in this country or abroad." 


          Background.   According to the author, there have been reports  
          about travel companies in Southern California making  
          misrepresentations about their travel offerings.  Specifically,  
          the reports describe companies that promote travel packages to  
          visitors from other countries, such as China, to visit  
          California.  For example, one anecdote describes a situation  
          where a travel agent sold a package that was advertised as  
          including a stay at a five-star hotel and a trip to Disneyland,  
          among other things, but what it actually included was a  
          three-star hotel and a drive-by in front of Disneyland.   
          Therefore, this bill seeks to regulate the travel and tour  
          companies to protect consumers from the misrepresentations.


          Regulation of Sellers of Travel.  Existing law requires sellers  
          of travel to register with the OAG and establishes procedures  
          and civil and criminal penalties to protect consumers against  
          misrepresentations and harmful business practices (BPC §§  
          17550-17550.30).  The law includes, among others, a person who  
          wishes to sell, provide, arrange, or advertise specified travel  
          packages.  However, existing law specifies that "a seller of  
          travel shall be deemed to do business in this state if the  
          seller of travel solicits business from locations in this state  
          or solicits prospective purchasers who are located in this  
          state" (BPC § 17550.20).  Because the law does not include  
          business from locations out of the country, the OAG may need  
          additional authority to regulate the companies that do so.









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          Tour Guide Examinations and Free Speech.  Since 2014, a series  
          of lawsuits have been filed in several Federal courts  
          challenging tour guide examinations as infringing on the freedom  
          of speech.  The plaintiffs argue, among other things, that  
          requiring tour guides to answer general questions from a tour  
          guide manual is an unconstitutional suppression of free speech,  
          particularly where the questions are drawn from a general tour  
          guide manual and do not relate to the specific tours the  
          plaintiffs wish to provide.  


          The defendants argue that examinations and certification are not  
          aimed at suppressing free speech.  They state that the intent is  
          to protect consumers by guaranteeing the tour guide is  
          sufficiently knowledgeable to provide the paid services. 


          However, there currently is a circuit split and the U.S. Supreme  
          Court has not weighed in, so the case law is not settled.  In  
          2014, the Fifth Circuit Court of Appeals upheld a New Orleans  
          law with little discussion of free speech (Kagan v. City of New  
          Orleans, 753 F.3d 560 (5th Cir. 2014)).  Later that year, the  
          D.C. Circuit 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 (Edwards v. District of Columbia, 755 F.3d 996 (D.C. Cir.  
          2014)).  


          A similar suit was filed in the District Court for the Southern  
          District of Georgia, but Savannah's City Council voted to repeal  
          the challenged ordinance before the court's decision was  
          delivered.  Currently, a suit is pending against the City of  
          Charleston in the South Carolina District Court (Billups et al  
          v. Charleston, 2:2016cv00264 (D.S.C. 2016)).


          Other States.  Several cities and states have tour guide  








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          certification programs with varying requirements.  New York City  
          has a voluntary program that includes 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.  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.  As  
          a result of the noted lawsuit, the District of Columbia no  
          longer requires an examination.  


          


          Current Related Legislation.  AB 1715 (Holden) of the current  
          legislative session establishes the Behavior Analyst Act, which  
          provides for the licensure, registration, and regulation of  
          behavior analysts and assistant behavior analysts, and requires  
          the California Board of Psychology, until January 1, 2022, to  
          administer and enforce the Act.  STATUS: This bill is pending in  
          the Assembly Committee on Appropriations. 


          AB 2790 (Nazarian) of the current legislative session  
          establishes the Taxicab Commission within the Department of  
          Consumer Affairs to license and regulate taxicab drivers.   
          STATUS: This bill is pending in the Assembly Committee on  
          Transportation.


          Prior Related Legislation.  AB 836 (Rendon) of 2015 would have  
          established the California Tour Guide Act and provided for the  
          certification and regulation of tour guides by the California  
          Travel and Tourism Commission, as specified.  NOTE: This bill  
          was held in the Assembly Committee on Appropriations.  








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          POLICY ISSUES FOR CONSIDERATION:


          Need for Licensure.  In July 2015, the U.S. Department of the  
          Treasury's Office of Economic Policy, the White House's Council  
          of Economic Advisers, and the U.S. Department of Labor issued a  
          report entitled: Occupational Licensing: A Framework for  
          Policymakers.  According to the report, the purpose of  
          occupational licensing is to protect consumers from harm by  
          establishing minimum competency standards.  Therefore, the  
          report recommended that when determining whether an occupation  
          should be licensed, states should weigh the benefits to the  
          public against the burden on the potential licensees.  


          Here, the described harm to consumers is normally regulated  
          through the sellers of travel registration program.  However,  
          the OAG may lack the authority to regulate the specific practice  
          of soliciting visitors from other countries.  Therefore, it may  
          not be necessary to create a new certification scheme if the  
          OAG's authority can be expanded to include the sellers of travel  
          that offer packages to visitors from out of state.  Using the  
          registration program would also avoid any potential  
          constitutional free speech issues. 


          AMENDMENTS: 


          To expand the OAG's authority to include the sellers of travel  
          that offer packages to visitors from out of state, the author  
          should make the following amendment:


          Strike the current language and insert:










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          Section 17550.20 of the Business and Professions Code is amended  
          to read:


          (a) Not less than 10 days prior to doing business in this state,  
          a seller of travel shall apply for registration with the office  
          of the Attorney General by filing with the Consumer Law Section  
          the information required by Section 17550.21 and a filing fee of  
          one hundred dollars ($100) for each location from which the  
          seller of travel conducts business. A late fee of five dollars  
          ($5) per day, up to a maximum of five hundred dollars ($500),  
          shall be paid for each day after the time specified by this  
          section until the filing fee and the information required by  
          Section 17550.21 are received.  No registration shall be issued  
          or approved until the late fee, and the filing and late fees for  
          each year the seller of travel operated without being  
          registered, have been paid. A seller of travel shall be deemed  
          to do business in this state if the seller of travel solicits  
          business from locations in this state  regardless of the  
          geographic location of the prospective purchaser including  
          persons located outside of this state or the country,  or  
          solicits prospective purchasers who are located in this state.


          REGISTERED SUPPORT:  


          None on file.


          REGISTERED OPPOSITION:  


          None on file.




          Analysis Prepared by:Vincent Chee / B. & P. / (916) 319-3301








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