BILL ANALYSIS Ó
AB 2138
Page 1
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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