Senate Bill 1698c1

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    Florida Senate - 1999                           CS for SB 1698

    By the Committee on Banking and Insurance; and Senator Klein





    311-1862-99

  1                      A bill to be entitled

  2         An act relating to funeral and cemetery

  3         services; amending s. 497.003, F.S.; revising

  4         terminology relating to cemeteries owned by a

  5         religious institution; amending s. 497.005,

  6         F.S.; defining the term "religious

  7         institution"; amending s. 497.103, F.S.;

  8         authorizing the Department of Banking and

  9         Finance and the Board of Funeral and Cemetery

10         Services to adopt rules to allow for electronic

11         submission of applications, documents, and fees

12         and to provide for certification of compliance

13         in lieu of submission of documents; eliminating

14         a reference to an examination fee; amending ss.

15         497.117, 497.131, F.S.; revising terminology

16         designating a trust fund; amending s. 497.213,

17         F.S.; increasing annual license fees for

18         certain cemeteries; amending s. 497.245, F.S.;

19         eliminating reference to annual examination

20         fees; amending ss. 497.341, 497.405, F.S.;

21         revising terminology relating to cemeteries

22         owned by a religious institution; amending s.

23         497.407, F.S.; providing initial application

24         and renewal fees for a certificate of authority

25         to sell a preneed contract; revising

26         terminology designating a trust fund; amending

27         s. 497.431, F.S.; eliminating the fee charged

28         to examine the business of any person writing

29         preneed contracts and any guaranteeing

30         organization; revising the expenses the person

31         or organization being examined is responsible

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  1         for paying in connection with an examination;

  2         amending s. 497.435, F.S.; revising terminology

  3         designating a trust fund; amending s. 497.439,

  4         F.S.; providing for submission of an

  5         application for registration as a preneed sales

  6         agent, with application fee, in a form

  7         prescribed by department rule; requiring the

  8         department and the board to conduct a review of

  9         ch. 497, F.S., the Florida Funeral and Cemetery

10         Services Act, and to hold public workshops and

11         produce preliminary and final reports thereon;

12         authorizing the department to contract with

13         consultants for certain services related to

14         such review; providing an appropriation;

15         providing effective dates.

16

17  Be It Enacted by the Legislature of the State of Florida:

18

19         Section 1.  Subsections (1), (4), and (5) of section

20  497.003, Florida Statutes, are amended to read:

21         497.003  Cemeteries; exemption; investigation and

22  mediation.--

23         (1)  The provisions of this chapter relating to

24  cemeteries and all rules adopted pursuant thereto shall apply

25  to all cemeteries except for:

26         (a)  Religious institution Church cemeteries of less

27  than 5 acres which provide only single-level ground burial.

28         (b)  County and municipal cemeteries.

29         (c)  Community and nonprofit association cemeteries

30  which provide only single-level ground burial and do not sell

31  burial spaces or burial merchandise.

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  1         (d)  Cemeteries owned and operated or dedicated by a

  2  religious institution churches prior to June 23, 1976.

  3         (e)  Cemeteries beneficially owned and operated since

  4  July 1, 1915, by a fraternal organization or its corporate

  5  agent.

  6         (f)  A columbarium consisting of less than one-half

  7  acre which is owned by and immediately contiguous to an

  8  existing religious institution church facility and is subject

  9  to local government zoning.  The religious institution church

10  establishing such a columbarium shall ensure that the

11  columbarium is perpetually kept and maintained in a manner

12  consistent with the intent of this chapter.  If the religious

13  institution church relocates, the religious institution church

14  shall relocate all of the urns and remains placed in the

15  columbarium which were placed therein during its use by the

16  religious institution church.

17         (g)  Family cemeteries of less than 2 acres which do

18  not sell burial spaces or burial merchandise.

19         (h)  A mausoleum consisting of 2 acres or less which is

20  owned by and immediately contiguous to an existing religious

21  institution church or synagogue facility and is subject to

22  local government zoning.  The religious institution church or

23  synagogue establishing such a mausoleum must ensure that the

24  mausoleum is kept and maintained in a manner consistent with

25  the intent of this chapter and limit its availability to

26  members of the religious institution church or synagogue.  The

27  religious institution church or synagogue establishing such a

28  mausoleum must have been incorporated for at least 25 years

29  and must have sufficient funds in an endowment fund to cover

30  the costs of construction of the mausoleum.

31

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  1         (4)  Any religious-institution-owned church-owned

  2  cemetery that is exempt under paragraph (1)(d), is located in

  3  a county with a population of at least 1.3 million persons on

  4  July 1, 1996, and was selling merchandise and services to the

  5  religious institution's church's members prior to October 1,

  6  1993, may establish one additional exempt cemetery in such

  7  county after December 31, 2020, without establishing need

  8  under s. 497.201.

  9         (5)  Any religious-institution-owned church-owned

10  cemetery exempt under subsection (1), except those cemeteries

11  qualifying under paragraph (1)(d), which becomes affiliated

12  with a commercial enterprise must meet the requirements of s.

13  497.201.

14         Section 2.  Present subsections (31), (32), and (33) of

15  section 497.005, Florida Statutes, 1998 Supplement, are

16  renumbered as subsections (32), (33), and (34), respectively,

17  and a new subsection (31) is added to that section to read:

18         497.005  Definitions.--As used in this chapter:

19         (31)  "Religious institution" means an organization

20  formed solely for religious purposes which has qualified for

21  exemption from federal income tax as an exempt organization

22  under the provisions of s. 501(c)(3) of the Internal Revenue

23  Code of 1986, as amended.

24         Section 3.  Subsections (1) and (4) of section 497.103,

25  Florida Statutes, 1998 Supplement, are amended to read:

26         497.103  Rulemaking authority of board and

27  department.--

28         (1)  The board has authority to adopt rules pursuant to

29  ss. 120.536(1) and 120.54 to implement provisions of this

30  chapter conferring duties upon it.  The department may adopt

31  rules pursuant to ss. 120.536(1) and 120.54 to administer

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  1  provisions of this chapter conferring duties upon it. The

  2  board or the department may also adopt rules to allow for the

  3  electronic submission of any applications, documents, or fees

  4  required by this chapter. The board or the department may

  5  adopt rules to authorize the board or the department to accept

  6  certification of compliance with certain requirements of this

  7  chapter in lieu of requiring submission of the documents.

  8         (4)  The department shall examine the financial affairs

  9  of any cemetery company and any preneed sales

10  certificateholder and charge an examination fee as prescribed

11  in s. 497.431.

12         Section 4.  Subsection (1) of section 497.117, Florida

13  Statutes, is amended to read:

14         497.117  Legal and investigative services.--

15         (1)  The Department of Legal Affairs shall provide

16  legal services to the board within the Department of Banking

17  and Finance, but the primary responsibility of the Department

18  of Legal Affairs shall be to represent the interests of the

19  citizens of the state by vigorously counseling the board with

20  respect to its obligations under the laws of the state.

21  Subject to the prior approval of the Attorney General, the

22  board may retain independent legal counsel to provide legal

23  advice to the board on a specific matter. Fees and costs of

24  such counsel shall be paid from the Regulatory Trust Fund of

25  the Department of Banking and Finance.

26         Section 5.  Subsection (4) of section 497.131, Florida

27  Statutes, is amended to read:

28         497.131  Disciplinary proceedings.--

29         (4)  The determination as to whether probable cause

30  exists shall be made by majority vote of the probable cause

31  panel of the board. The board shall provide, by rule, that the

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  1  determination of probable cause shall be made by a panel of

  2  its members or by the department. The board may provide, by

  3  rule, for multiple probable cause panels composed of at least

  4  two members. The board may provide, by rule, that one or more

  5  members of the panel or panels may be a former board member.

  6  The length of term or repetition of service of any such former

  7  board member on a probable cause panel may vary according to

  8  the direction of the board when authorized by board rule. Any

  9  probable cause panel must include one of the board's former or

10  present consumer members, if one is available, willing to

11  serve, and is authorized to do so by the board chair. Any

12  probable cause panel must include a present board member. Any

13  probable cause panel must include a former or present

14  professional board member. However, any former professional

15  board member serving on the probable cause panel must hold an

16  active valid license for that profession. All probable cause

17  proceedings conducted pursuant to the provisions of this

18  section are exempt from the provisions of s. 286.011 and s.

19  24(b), Art. I of the State Constitution. The probable cause

20  panel may make a reasonable request, and upon such request the

21  department shall provide such additional investigative

22  information as is necessary to the determination of probable

23  cause. A request for additional investigative information

24  shall be made within 15 days from the date of receipt by the

25  probable cause panel of the investigative report of the

26  department. The probable cause panel shall make its

27  determination of probable cause within 30 days after receipt

28  by it of the final investigative report of the department. The

29  Comptroller may grant extensions of the 15-day and the 30-day

30  time limits. If the probable cause panel does not find

31  probable cause within the 30-day time limit, as may be

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  1  extended, or if the probable cause panel finds no probable

  2  cause, the department may determine, within 10 days after the

  3  panel fails to determine probable cause or 10 days after the

  4  time limit has elapsed, that probable cause exists. If the

  5  probable cause panel finds that probable cause exists, it

  6  shall direct the department to file a formal complaint against

  7  the licensee. The department shall follow the directions of

  8  the probable cause panel regarding the filing of a formal

  9  complaint. If directed to do so, the department shall file a

10  formal complaint against the subject of the investigation and

11  prosecute that complaint pursuant to the provisions of chapter

12  120. However, the department may decide not to prosecute the

13  complaint if it finds that probable cause had been

14  improvidently found by the panel. In such cases, the

15  department shall refer the matter to the board. The board may

16  then file a formal complaint and prosecute the complaint

17  pursuant to the provisions of chapter 120. The department

18  shall also refer to the board any investigation or

19  disciplinary proceeding not before the Division of

20  Administrative Hearings pursuant to chapter 120 or otherwise

21  completed by the department within 1 year after the filing of

22  a complaint. A probable cause panel or the board may retain

23  independent legal counsel, employ investigators, and continue

24  the investigation as it deems necessary; all costs thereof

25  shall be paid from the department's Regulatory Trust Fund. All

26  proceedings of the probable cause panel shall be exempt from

27  the provisions of s. 120.525.

28         Section 6.  Subsection (1) of section 497.213, Florida

29  Statutes, is amended to read:

30         497.213  Annual license fees.--

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  1         (1)  The department shall collect from each cemetery

  2  company operating under the provisions of this chapter an

  3  annual license fee as follows:

  4         (a)  For a cemetery with less than $25,000 annual gross

  5  sales....................................................$250.

  6         (b)  For a cemetery with at least $25,000 but less than

  7  $100,000 annual gross sales..............................$350.

  8         (c)  For a cemetery with annual gross sales of at least

  9  $100,000 but less than $250,000..........................$600.

10         (d)  For a cemetery with annual gross sales of at least

11  $250,000 but less than $500,000..........................$900.

12         (e)  For a cemetery with annual gross sales of at least

13  $500,000 but less than $750,000........................$1,350.

14         (f)  For a cemetery with annual gross sales of at least

15  $750,000 but less than $1,000,000...............$2,250 $1,750.

16         (g)  For a cemetery with annual gross sales of at least

17  $1,000,000 but less than $5,000,000 or more.....$3,250 $2,650.

18         (h)  For a cemetery with annual gross sales of

19  $5,000,000 or more.....................................$4,900.

20         Section 7.  Subsection (2) of section 497.245, Florida

21  Statutes, is amended to read:

22         497.245  Care and maintenance trust fund, percentage of

23  payments for burial rights to be deposited.--

24         (2)  Deposits to the care and maintenance trust fund

25  shall be made by the cemetery company not later than 30 days

26  following the close of the calendar month in which any payment

27  was received; however, when such payments are received in

28  installments, the percentage of the installment payment placed

29  in trust must be identical to the percentage which the payment

30  received bears to the total cost for the burial rights.  Trust

31  income may be used to pay for all usual and customary services

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  1  for the operation of a trust account, including, but not

  2  limited to:  reasonable trustee and custodian fees, investment

  3  adviser fees, allocation fees, and taxes, and annual

  4  examination fees. If the net income is not sufficient to pay

  5  the fees and other expenses, the fees and other expenses shall

  6  be paid by the cemetery company.  Capital gains taxes shall be

  7  paid from the corpus.

  8         Section 8.  Subsection (1) of section 497.341, Florida

  9  Statutes, is amended to read:

10         497.341  Burial without regard to race or color.--

11         (1)  No cemetery company or other legal entity

12  conducting or maintaining any public or private cemetery may

13  deny burial space to any person because of race or color.  A

14  cemetery company or other entity operating any cemetery may

15  designate parts of cemeteries or burial grounds for the

16  specific use of persons whose religious code requires

17  isolation. Religious institution Church cemeteries may limit

18  burials to church members of the religious institution and

19  their families.

20         Section 9.  Subsection (4) of section 497.405, Florida

21  Statutes, is amended to read:

22         497.405  Certificate of authority required.--

23         (4)  The provisions of this section do not apply to

24  religious-institution-owned church-owned cemeteries exempt

25  under s. 497.003(1)(d), in counties with a population of at

26  least 960,000 persons on July 1, 1996, with respect to the

27  sale to the religious institution's church's members and their

28  families of interment rights, mausoleums, crypts, cremation

29  niches, vaults, liners, urns, memorials, vases, foundations,

30  memorial bases, floral arrangements, monuments, markers,

31  engraving, and the opening and closing of interment rights,

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  1  mausoleums, crypts and cremation niches, if such cemeteries

  2  have engaged in the sale of preneed contracts prior to October

  3  1, 1993, and maintain a positive net worth at the end of each

  4  fiscal year of the cemetery.

  5         Section 10.  Subsections (4), (9), and (12) of section

  6  497.407, Florida Statutes, are amended to read:

  7         497.407  Certificate of authority; annual statement;

  8  renewal; transfer.--

  9         (4)(a)  An application to the board for an initial

10  certificate of authority shall be accompanied by an

11  application fee of $500. Thereafter, each annual application

12  for renewal of a certificate of authority shall be accompanied

13  by the appropriate fee as follows:

14         1.  For a certificateholder with no preneed contract

15  sales during the immediately preceding year..............$300.

16         2.  For a certificateholder with at least 1 but fewer

17  than 50 preneed contract sales during the immediately

18  preceding year...........................................$400.

19         3.  For a certificateholder with at least 50 but fewer

20  than 250 preneed contract sales during the immediately

21  preceding year...........................................$500.

22         4.  For a certificateholder with at least 250 but fewer

23  than 1,000 preneed contract sales during the immediately

24  preceding year...........................................$850.

25         5.  For a certificateholder with at least 1,000 but

26  fewer than 2,500 preneed contract sales during the immediately

27  preceding year.........................................$1,500.

28         6.  For a certificateholder with at least 2,500 but

29  fewer than 5,000 preneed contract sales during the immediately

30  preceding year.........................................$2,500.

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  1         7.  For a certificateholder with at least 5,000 but

  2  fewer than 15,000 preneed contract sales during the

  3  immediately preceding year.............................$6,000.

  4         8.  For a certificateholder with at least 15,000 but

  5  fewer than 30,000 preneed contract sales during the

  6  immediately preceding year............................$12,500.

  7         9.  For a certificateholder with 30,000 preneed

  8  contract sales or more................................$18,500.

  9         (b)  The fee payable to the department for issuance of

10  the original certificate of authority and each annual renewal

11  thereof shall be set by the board at an amount not to exceed

12  $500 and shall accompany each application for an original

13  certificate and, thereafter, each annual statement. Any person

14  or entity that is part of a common business enterprise that

15  has a certificate of authority issued pursuant to this section

16  and elects to operate under a name other than that of the

17  common business enterprise shall submit an application on a

18  form adopted by the board to become a branch registrant. Upon

19  the approval of the board that such entity qualifies to sell

20  preneed contracts under this chapter except for the

21  requirements of subparagraph (2)(c)1. and if the

22  certificateholder meets the requirements of such subparagraph,

23  a branch registration shall be issued. Each branch registrant

24  may operate under the certificate of authority of the common

25  business enterprise upon the payment of a fee established by

26  the board not to exceed $150 $100 accompanying the application

27  on April 1 annually. The fee shall be payable to the

28  department's Regulatory Trust Fund under the Division of

29  Finance.

30         (9)  In addition to any other penalty that may be

31  provided for under this chapter, the board may levy a fine not

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  1  to exceed $50 a day for each day the certificateholder fails

  2  to file its annual statement, and the board may levy a fine

  3  not to exceed $50 a day for each day the certificateholder

  4  fails to file the statement of activities of the trust. Upon

  5  notice to the certificateholder by the board that the

  6  certificateholder has failed to file the annual statement or

  7  the statement of activities of the trust, the

  8  certificateholder's authority to sell preneed contracts shall

  9  cease while such default continues. The board shall deposit

10  all sums collected under this section to the credit of the

11  department's Regulatory Trust Fund under the Division of

12  Finance.

13         (12)  Each certificateholder shall pay to the

14  department's Regulatory Trust Fund under the Division of

15  Finance an amount established by the board not to exceed $10

16  $5 for each preneed contract entered into. This amount must be

17  paid within 60 days after the end of each quarter. These funds

18  must be used to defray the cost of the board and the

19  department in administering the provisions of this chapter.

20         Section 11.  Section 497.431, Florida Statutes, is

21  amended to read:

22         497.431  Examinations and investigations.--The

23  department shall, as often as it may deem necessary but at

24  least once every 3 years, examine the business of any person

25  writing preneed contracts and any guaranteeing organization

26  existing under this chapter to the extent applicable. The

27  examination shall be at the expense of the person or

28  organization examined as provided in this section and shall be

29  made by the designated representatives or examiners

30  representative or examiner of the department. The written

31  report of each such examination, when completed, shall be

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  1  filed in the office of the board and, when so filed, shall

  2  constitute a public record. Any such person or organization

  3  being examined shall produce, upon request, all records of the

  4  company or organization. The designated representative of the

  5  board may at any time examine the records and affairs of any

  6  such person or organization, whether in connection with a

  7  formal examination or not. The board may waive the examination

  8  requirements of this section if the certificateholder or

  9  guaranteeing organization submits audited financial

10  statements. The department may charge an examination fee

11  prescribed by rule, but such fee may not exceed $300 per

12  8-hour day for each examiner. Such examination fee shall be

13  calculated on an hourly basis and shall be rounded to the

14  nearest hour. The person or organization examined For

15  out-of-state travel, the licensee shall also pay the travel

16  expense and per diem subsistence allowance provided for state

17  employees under s. 112.061 for out-of-state travel incurred by

18  department representatives or examiners in connection with an

19  examination. The department shall be entitled to recover the

20  reasonable and justifiable costs of investigation if the

21  investigation results in judicial or administrative

22  disciplinary action.

23         Section 12.  Subsection (3) of section 497.435, Florida

24  Statutes, is amended to read:

25         497.435  Administrative fine in lieu of revocation or

26  suspension of certificate of authority.--

27         (3)  The fine shall be deposited into the department's

28  Regulatory Trust Fund under the Division of Finance.

29         Section 13.  Subsection (7) of section 497.439, Florida

30  Statutes, is amended to read:

31         497.439  Preneed sales agents.--

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  1         (7)  An application for registration as a preneed sales

  2  agent shall be submitted to the department with an application

  3  fee of $100 by certified mail, return receipt requested, by

  4  the certificateholder in on a form that has been prescribed by

  5  department rule and approved by the board. Such application

  6  and shall contain, at a minimum, the following:

  7         (a)  The name, address, social security number, and

  8  date of birth of the applicant and such other information as

  9  the board may reasonably require of the applicant.

10         (b)  The name, address, and license number of the

11  sponsoring certificateholder.

12         (c)  A representation, signed by the applicant, that

13  the applicant meets the requirements set forth in subsection

14  (6).

15         (d)  A representation, signed by the certificateholder,

16  that the applicant is authorized to offer, sell, and sign

17  preneed contracts on behalf of the certificateholder, and that

18  the certificateholder has trained the applicant in the

19  provisions of this chapter relating to preneed sales as

20  determined by the board, the provisions of the

21  certificateholder's preneed contract, and the nature of the

22  merchandise, services, or burial rights sold by the

23  certificateholder.

24         (e)  A statement indicating whether the applicant has

25  any type of working relationship with any other

26  certificateholder or insurance company.

27         Section 14.  (1)  The Department of Banking and Finance

28  and the Board of Funeral and Cemetery Services shall conduct a

29  review of chapter 497, Florida Statutes, the Florida Funeral

30  and Cemetery Services Act, the scope of which shall be

31  determined by the department and the board. In conducting

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  1  their review, the department and the board shall hold at least

  2  two public workshops prior to April 1, 2000, in order to

  3  receive public comment.

  4         (2)  The department and the board shall produce a

  5  preliminary report on or before April 1, 2000, and a final

  6  report by August 15, 2000, detailing their findings and

  7  recommendations. The department and the board shall hold at

  8  least one public workshop between the date the preliminary

  9  report is issued and August 15, 2000, to solicit public

10  testimony concerning the preliminary draft. A copy of the

11  final report shall be presented to the President and the

12  Minority Leader of the Senate, the Speaker and the Minority

13  Leader of the House of Representatives, the Governor, and the

14  Office of Program Policy Analysis and Government

15  Accountability.

16         (3)  The department is authorized to contract with such

17  consultants as are necessary to ascertain the costs of

18  perpetual care and maintenance for new and existing

19  cemeteries, assess the impact on such costs of eliminating the

20  need requirement contained in chapter 497, Florida Statutes,

21  and recommend ways to minimize any negative impact on such

22  costs caused by eliminating the need requirement.

23         (4)  This section shall take effect upon this act's

24  becoming a law.

25         Section 15.  There is appropriated $115,000 for fiscal

26  year 1999-2000 to the Department of Banking and Finance from

27  the department's Regulatory Trust Fund for the purpose of

28  carrying out the provisions of this act.

29         Section 16.  Except as otherwise provided in this act,

30  this act shall take effect July 1, 1999.

31

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 1698

  3

  4  Revises the definition of "religious institution" as an
    organization formed for religious purposes which has qualified
  5  as an exempt organization under s. 501(c)(3) of the IRS code.

  6  Allows the Board of Funeral and Cemetery Services (board) or
    the Department of Banking and Finance (department) to adopt
  7  rules to allow for electronic submission of any applications,
    documents, or fees. Authorizes the board or department to
  8  accept a certification of compliance in lieu of requiring the
    actual documents.
  9
    Requires a $500 initial application fee for a certificate of
10  authority for preneed sales and revises the annual renewal fee
    schedule based on the number of preneed contracts sold in the
11  previous year.

12  Deletes the requirement that preneed sales agents submit their
    application fees via certified mail.
13
    Revises the bill's provisions directing the board and the
14  department to conduct a review of chapter 497, extending the
    time for the final report and requiring a broader scope of
15  review. The committee substitute also authorizes the
    department to contract with consultants to conduct an
16  actuarial study to ascertain the costs of perpetual care and
    maintenance for new and existing cemeteries, assess the impact
17  on such costs of eliminating the need requirement contained in
    chapter 497, and recommend ways to minimize negative impact on
18  the costs caused by eliminating the need requirement.

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