California Assembly Bill AB836 Amended / Bill

 BILL NUMBER: AB 836AMENDED BILL TEXT AMENDED IN ASSEMBLY APRIL 6, 2015 INTRODUCED BY Assembly Members Rendon and Low FEBRUARY 26, 2015 An act to add  and repeal  Chapter 18 (commencing with Section 9400)  of  to  Division 3 of the Business and Professions Code, relating to tour guides. LEGISLATIVE COUNSEL'S DIGEST AB 836, as amended, Rendon. Tour guides: regulation. Existing law provides for the licensure and regulation of various professionals, including, but not limited to, advertisers, attorneys, interior designers, barbers, and cosmetologists. This bill would provide for the licensure and regulation of tour guides by the  California Tour Guide Council and provide for the creation of the council as a nonprofit organization,   California Travel and Tourism Commission,  as  specified.   specified, with certain exceptions.  The bill would require applicants for certification, among other things, to be 21 years of age or older, meet specified educational criteria, pay fees required by the  council,   commission,  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.   commission. The bill would also authorize local governments to establish local tour guide certification programs and require the com   mission to certify applicants licensed through those programs.  This bill would allow the  organization  commission  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 state, advertise, or represent that he or she is a certified tour guide, among other things, or for a tour guide business to provide tour guiding in California that is not performed by a tour guide professional to a group of nine or more consumers.   prohibit unlicensed persons from leading tour groups into state parks or other state facilities for compensation as part of a multisite tour.   This bill would prohibit a city, county, or city and county from enacting certain ordinances regulating the practice of tour guiding by a certificate holder, as specified.   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 voluntary certification for the tour guide profession that will enable consumers to easily identify credible, certified tour guides, assure that those certified tour guides have completed sufficient training and education at approved schools, phase in increased education and training standards consistent with other states, assure that the profession of tour guides and practice of tour guiding cannot be used as a subterfuge for disorderly conduct, and provide for a self-funded nonprofit oversight body to approve certification and education requirements for tour guide professionals.   SEC. 2.   SECTION 1.  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) "Approved school" or "approved tour guide school" means a facility that is approved by the  council   commission  and meets minimum standards for training and curriculum in California tour guiding and related subjects and meets any of the following requirements: (1) Approval by the Bureau for Private Postsecondary Education. (2) Approval by the Department of Consumer Affairs. (3) Accreditation by the Accrediting Commission for Senior Colleges and Universities or the Accrediting Commission for Community and Junior Colleges of the Western Association of Schools and Colleges and that is any of the following: (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 for-profit institution. (4) A college or university of the state higher education system, as defined in Section 100850 of the Education Code. (5) A school requiring equal or greater training than the requirements established by this chapter and  is  recognized by the corresponding agency in another state or accredited by an agency recognized by the United States Department of Education. (b) "Certificate" means a valid certificate issued by the  council   commission  pursuant to this chapter.  (c) "Commission" means the California Travel and Tourism Commission established pursuant to Section 13995.40 of the Government Code.   (c)   (d)  "Compensation" means anything of value, including, but not limited to, a payment, loan, advance, donation, contribution, deposit, or gift of money.  (d) "Council" means the California Tour Guide Council created pursuant to this chapter, which shall be a nonprofit organization exempt from taxation under Section 501(c)(3) of Title 26 of the United States Code, and may commence activities pursuant to this chapter once the council has submitted a request to the Internal Revenue Service seeking this exemption.  (e) "Tour guide business" means a business or establishment that provides tour guides in California for compensation. (f) "Tour guide professional" or "tour guide" means a person who is certified by the  council   commission  pursuant to this chapter and who practices tour guiding for compensation.  9402. (a) The California Tour Guide Council shall be 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 members 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 guide professionals. (B) Has sustained a membership of at least 200 dues-paying individuals in California for the last three years. (C) Has bylaws that requires members to comply with a code of ethics. (2) One member collectively selected by each statewide association of private postsecondary schools that chooses to participate in the council and has member schools that have together had at least 500 graduates in each of the previous three years from tour guide programs that meet the approval standards set forth in subdivision (a) of Section 9401. (3) One member selected by the League of California Cities, unless the league chooses not to exercise this right of selection. (4) One member selected by the California State Association of Counties, unless the association chooses not to exercise this right of selection. (5) One member selected by the Director of Consumer Affairs, unless the department chooses not to exercise this right of selection. (6) One member appointed by the Office of the Chancellor of the California Community Colleges, unless that entity chooses not to exercise this right of selection. The person appointed, if any, shall not be part of any tour guide certificate or degree program. (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 four years. (d) (1) The initial board of directors shall establish the council, initiate the request for tax-exempt status from the Internal Revenue Service, and solicit input from the tour guide community concerning the operations of the council. (2) 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 prior to issuing certificates. (e) The board of directors shall establish 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 and renewal fees for certificates. (f) 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).   9402. The commission shall establish a tour guide certification program pursuant to this chapter, and shall provide for the promotion of certified tour guides to persons or organizations seeking to hire tour guides in California. The commission may collect fees not to exceed the reasonable cost of the commission's certification of tour guides and approval of tour guide schools pursuant to this chapter.  9404. The  council   commission  shall issue a certificate to an individual applicant who satisfies the requirements of this chapter or holds a current and valid registration, certification, or license  to work as a tour guide  from any  other state whose licensure requirements meet or exceed those defined within this chapter.   city, county, or   city and county in California. The commission may issue a certificate to an individual applicant who holds a current and valid registration, certification, or license from another state, and who demonstrates knowledge of tour group safety and California geography, history, and culture, as defined by the commission.  If an applicant has received education at a school that is not an approved school, the  council   commission  shall have the discretion to give credit for comparable academic work completed by an applicant in a program outside of California. 9406. In order to obtain certification as a tour guide professional, an applicant shall submit a written application and provide the  council   commission  with satisfactory evidence that he or she or meets all of the following requirements: (a) The applicant is 21 years of age or older. (b) The applicant has successfully completed  the curricula   a curriculum  in California tour guiding and related  subjects totaling a minimum of 24 hours that includes all of the following:   subjects, as defined by the commission. The curriculum shall include information on tour guide safety and California geography, history, and culture.   (1) A minimum of 8 hours as an intern actively engaging in the field in California through a tour guide business approved by the council.   (2) A minimum of 16 hours from approved schools. (c) The applicant has passed a California tour guide competency assessment examination that meets generally recognized principles and standards and that is approved by the  board.   commission.  The successful completion of this examination may have been accomplished before the date the  council   commission  is authorized by this chapter to begin issuing certificates. (d) All fees required by the  council   commission  have been paid. 9408. A certificate issued pursuant to this chapter shall expire after two years unless renewed in a manner prescribed by the  council.   commission.  The  council   commission  may provide for the late renewal of a certificate. 9410. (a) The  council   commission  shall have the responsibility to determine whether the school from which an applicant has obtained the education required by this chapter meets the requirements of this chapter. If the  council   commission  has any reason to question whether or not the applicant received the education that is required by this chapter from the school or schools that the applicant is claiming, the  council   commission  shall investigate the facts to determine whether the applicant received the required education prior to issuing a certificate. (b) For purposes of this section and any other provision of this chapter that authorizes the  council   commission  to receive factual information as a condition of taking action, the  council   commission  may conduct oral interviews of the applicant and others or conduct any investigation the  council   commission  deems necessary to establish that the information received is accurate and satisfies the criteria established by this chapter. 9412. (a) Before issuing a certificate to an applicant, or designating a custodian of records, the  council   commission  shall require the applicant or the custodian of records candidate to submit fingerprint images as directed by the  council   commission  and in a form consistent with the requirements of this section. (b) The  council   commission  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 criminal offender record information 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.   commission.  The Department of Justice shall provide information to the  council   commission  pursuant to subdivision (p) of Section 11105 of the Penal Code. (d) The Department of Justice and the  council   commission  shall charge a fee not to exceed the reasonable cost of processing the request for state and federal level criminal offender record information.  (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 criminal offender record information.  9413. The  council   commission  may require  all   its  employees, volunteers, and  board  members to undergo the background investigation process described in Section 9412. 9415. It is a violation of this chapter and grounds for discipline or denial of an application for a certificate for a certificate holder or applicant to commit 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.   commission.  (f) Committing any fraudulent, dishonest, or corrupt act that is substantially related to the qualifications or duties of a certificate holder. (g) Committing any act punishable as a sexually related crime. (h) Committing any act that results in denial of licensure, revocation, suspension, restriction, citation, or any other disciplinary action against an applicant or certificate holder by another state or territory of the United States, by any other government agency, or by another California health care professional licensing board. A certified copy of the decision, order, judgment, or citation shall be conclusive evidence of these actions. (i) 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   commission  may discipline a certificate holder by any, or a combination, of the following methods: (1) Placing the certificate holder on probation. (2) Suspending the certificate and the rights 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 action as the  council   commission  deems proper, as authorized by this chapter or the  council's   commission's  bylaws. (b) The  council   commission  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.   (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 accord with this section  or subdivision (c) of Section 9416  shall be void and without effect. (b) Any denial or 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 also 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 or bylaws of the  council   commission  or copies of those provisions are annually sent to all of the members of the  council.   commission.  (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   commission's  records. (2) It is the responsibility of the certificate holder or applicant to notify the  council   commission  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   commission  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   commission's  possession that is necessary to verify facts relevant to administering the local ordinance. (b) The  council   commission  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   commission  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" or "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 a tour guide business to provide tour guiding in California that is not performed by a tour guide professional to a group of nine or more consumers.   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.   9421. (a) The commission shall maintain an accurate list of certified tour guides and shall provide the list to tour guide businesses and other persons or organizations seeking to hire tour guides in California. (b) A person who is not certified pursuant to this chapter shall not lead a tour group in a state park or other state facility for compensation as part of a multisite tour.   9423. This chapter does not interfere with a person's exercise of his or her right to freedom of speech provided by the First Amendment to the Constitution of the United States.   9425. This chapter only applies to tour guides who offer themselves for hire to take travelers on multisite tours in California. This chapter does not apply to tour guides who work for a museum, amusement park, or other organization that invites tourists to visit its facility.  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 tour guides in any city, county, or city and county in the state 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 tour guides consistent with the qualifications established by the certificate holder's certification.   (b) A city, county, or city and county may establish a tour guide certification program that applies only to the jurisdiction of that city, county, or city and county, and may seek the commission's recognition of its program in order for its certified tour guides to obtain statewide certification, as provided by the commission.  (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 business or establishment 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 businesses or establishments 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 business or establishment subject to subdivision (f) shall be responsible for the conduct of all of the employees or independent contractors working on the premises of 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 establishment or business if violations of this chapter or a 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, this chapter shall apply to all cities, counties, and cities and counties, including charter cities and charter counties.   9440. This chapter shall remain in effect only until January 1, 2018, and as of that date is repealed.