Report Title:

Locksmith; Licensing

 

Description:

Requires licensure for and regulation of locksmiths.

 


HOUSE OF REPRESENTATIVES

H.B. NO.

344

TWENTY-FIFTH LEGISLATURE, 2009

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT


 

 

relating to locksmiths.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  The legislature finds that in order to protect the public from the abuse and misuse of locksmithing supplies, manuals, or equipment resulting in violation of public safety and security, locksmiths need to be licensed and regulated by the State.  Locksmiths operate in the public trust to secure and protect property and persons and have the knowledge and tools to bypass or neutralize security devices.  Locksmiths need to be trained in the applicable laws pertinent to the profession such as the Americans with Disabilities Act, building codes, and fire and safety codes, as well as training in proper installation and maintenance of security devices for the public well-being.  The laws of this State currently do not protect its citizens from the unscrupulous use and abuse of the tools and knowledge of the locksmithing profession by untrained persons or persons who have criminal intent.  Accordingly, the purpose of this Act is to provide for the necessary licensure of and regulation of locksmiths.

     SECTION 2.  The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

locksmith licensing act

     §   -1  Title.  This chapter shall be known and may be cited as "The Locksmith Licensing Act of 2009".

     §   -2  Definitions.  For the purposes of this chapter, the following terms shall have the following meanings, unless the context indicates otherwise:

     "Board" means the board of locksmiths.

     "Building permit" means a permit issued by the appropriate county with regard to permitting of building construction, remodeling, and other physical changes to property.

     "Codebook" means a compilation, in any form, of key codes.

     "Department" means the department of commerce and consumer affairs.

     "Director" means the director of commerce and consumer affairs.

     "Emergency" means a life-threatening situation involving a person.

     "Hearing" means an administrative hearing conducted pursuant to chapter 91.

     "Inspection" means a periodic examination by the department of the activities and premises of locksmiths to ascertain if the locksmith is carrying out the profession in a manner consistent with the public health, safety, and welfare.

     "Key duplication machine" means any device that is capable of copying or reproducing keys.

     "License" or "licensure" refers to the issuance of a license by the department to a person possessing the necessary character and minimum skills to engage in the practice of the locksmith profession.

     "Licensee" refers to a locksmith licensed under this chapter.

     "Locksmith" means a natural person who performs locksmith and access control services to the public for compensation and who has received a license pursuant to this chapter.

     "Locksmithing tool" means any tool that is designed, or intended by the user to be used, to open a mechanical or electrical locking device by a means other than that which is intended by the manufacturer of such device for normal operation.

     "Locksmith services" or "locksmithing services" means:

     (1)  Servicing, installing, repairing, rebuilding, rekeying, repinning, or adjusting locks, mechanical or electronic security devices, safes, vaults, or safe deposit boxes; or

     (2)  Operating a mechanical or electrical security device, safe, or vault by a means other than those intended by the manufacturer of the locking devices, safes, or vaults.

     "Organization" means any entity other than a natural person, including but not limited to a corporation, partnership, sole proprietorship, or association.

     "Photo identification card" means a document with a photograph of the licensee on its face issued by the board as proof that a license has been granted.

     "Safe-opening tool" means any tool that is designed, or intended by the user to be used, to open a safe, vault, safe deposit box, or similar object by means other than that which is intended by the manufacturer of the safe, vault, safe deposit box, or similar object for normal opening.

     §   -3  Board of locksmiths.  (a)  The board of locksmiths is established in the department of commerce and consumer affairs in order to license and regulate the locksmith profession.  The board shall consist of nine members appointed by the governor as follows:

     (1)  Six locksmiths; and

     (2)  Three public members.

     Of the occupational members, all shall have at least five years experience in the locksmith profession and be currently engaged in that profession.  The members of the board shall be residents of this State and shall represent the various geographic areas of this State.

     (b)  The terms of the board members shall be four years.  Of those members first appointed, three shall be appointed to four-year terms, three for three-year terms, and three for two-year terms.  Any vacancy occurring other than by expiration of the member's term shall be filled for the unexpired term by appointment by the governor.  No member shall serve more than two successive full terms.

     (c)  A public member of the board shall be a person who:

     (1)  Is not by training or experience a locksmith;

     (2)  Is not a spouse, parent, child, or sibling of a locksmith; and

     (3)  Has no direct or indirect financial interest, except as a consumer, in the locksmith profession.

     (d)  The board shall annually elect from its membership a chairperson and vice-chairperson.  Five members of the board shall constitute a quorum.

     (e)  The powers and duties of the board shall be as follows:

     (1)  To establish the qualification for licensure to ensure competence and integrity to engage in the profession;

     (2)  To examine, or cause to be examined, the qualification of each applicant for licensure including, when necessary, the preparation, administration, and grading of examinations;

     (3)  To license qualified applicants regulated by the board;

     (4)  To levy and collect fees for licensure and renewal that are sufficient to cover all expenses for the administration and operation of the board and a proportionate share of the expenses of the department.  Fees collected under this paragraph shall be deposited into the compliance resolution fund under section 26‑9(o);

     (5)  To adopt rules in accordance with chapter 91 to ensure continued competency, to prevent deceptive or misleading practices by locksmiths, and to effectively administer the regulatory system administered by the board;

     (6)  To receive complaints concerning the conduct of any person whose activities are regulated by the board and to take appropriate disciplinary action if warranted;

     (7)  To ensure that inspections are conducted relating to the operations of licensees to ensure competency and lawful compliance;

     (8)  To revoke, suspend, or refuse to renew a certificate or license for just cause as enumerated in the rules of the board; and

     (9)  To promulgate canons of ethics under which the professional activities of person regulated shall be conducted.

     §   -4  Monetary penalty.  Any person who violates this chapter or any rule adopted thereunder shall be subject to a monetary penalty.  Monetary penalties imposed by the board shall not exceed $         for each violation.  Moneys collected under this paragraph shall be deposited into the compliance resolution fund under section 26-9(o).

     §   -5  Recovery of cost after grant of formal fact-finding.  After a formal fact-finding, wherein a sanction is imposed to fine, suspend, revoke, or deny the renewal of a license or registration, the board may assess the holder thereof the cost of conducting the fact-finding when the board has final authority to grant a license or registration, unless the board determines that the offense is inadvertent or was done in a good faith belief that the act did not violate the law.  The cost shall be limited to the reasonable hourly rate for the hearings officer and the actual cost of recording the proceedings.

     §   -6  Adoption of rules and standards.  (a)  The board shall adopt rules and standards for the training and licensing of locksmiths.  The board shall examine and license locksmiths and may establish classifications of training and licensing.

     (b)  Locksmith competency standards and any changes thereto shall be established by rule after a public hearing and consultation with licensed locksmiths who are knowledgeable regarding locksmithing services.

     §   -7  Prohibited activities.  (a)  No person shall act as, or offer to act as, a locksmith unless the person holds a license to practice locksmithing that has not expired or been revoked or suspended.

     (b)  No business entity shall provide or offer the services of a locksmith unless those services are to be provided by an officer or employee of that entity who holds a license to practice locksmithing that has not expired or been revoked or suspended.

     (c)  It shall be a misdemeanor for any person not licensed under this chapter to advertise that the person is in the locksmith business or to hold oneself out to the public as a locksmith.

     (d)  It shall be unlawful for any person to obtain ownership or possession of locksmithing tools, safe-opening tools, manuals, or codebooks, either in person or through an intermediary or through mail order or other remote-procurement methods, unless the person holds a license under this chapter that has not expired, been revoked, or been suspended.  It shall be unlawful for any organization to obtain ownership or possession of locksmithing tools, safe-opening tools, manuals, or codebooks by means of an employee, officer, or other person who violates this subsection.

     (e)  Nothing in this section shall prohibit the emergency opening services by members of police departments, fire departments, or other government agencies within the scope of their official duties, nor shall sales representatives who are not licensed be prohibited from making bona fide sales demonstrations to locksmiths.

     (f)  No apprentice locksmith may have registered employees working under the apprentice's supervision.

     (g)  Nothing in this section shall prohibit the acquisition or use of any key duplication machine or key blanks.

     (h)  Nothing in this section shall prohibit the performance of servicing, installing, repairing, or rebuilding of automotive locks by automotive service dealers, lock manufacturers, or manufacturers agents.

     (i)  Nothing in this section shall prohibit the installation of locks or locking devices by building trades personnel on projects that require a building permit.

     (j)  It shall be unlawful for any person to have in the person's possession any locksmithing tools, implements, or outfits with intent to commit burglary, robbery, or larceny.  The possession of locksmithing tools, implements, or outfits by any person other than a bona fide dealer, licensed locksmith, automotive repossessor, locking device manufacturer, or manufacturer's agent, who has a reasonable need to possess locksmithing tools for demonstration, testing, and research purposes shall be prima facie evidence of an intent to commit burglary, robbery, or larceny.

     (k)  It shall be unlawful for any person or business entity to engage in any of the following acts:

     (1)  Making use of any designation provided by statute or rule to denote a standard of professional or occupational competence without being duly licensed;

     (2)  Making use of any title, words, letters, or abbreviations that may reasonably be confused with a designation provided by statute or rule to denote a standard of professional or occupational competence without being duly licensed;

     (3)  Materially misrepresenting facts in an application for licensure or registration; or

     (4)  Wilfully refusing to furnish the board with information or records required or requested pursuant to this chapter or any implementing rules.

     (l)  Any person who engages in any unlawful act enumerated in this section shall be guilty of a misdemeanor.  Any subsequent violation within a thirty-six month period shall constitute a class C felony.

     (m)  The department may institute proceedings to enjoin any person, partnership, corporation, or any other entity from engaging in any unlawful act enumerated in this section.  The proceedings shall be brought in the name of the State in the circuit court of the circuit in which the unlawful act occurred or in which the defendant resides.

     §   -8  Licensure.  (a)  The board of locksmiths may issue licenses to practice locksmithing to all qualified individuals.

     (b)  No person shall engage in performing locksmithing  services in this State without having obtained a license to practice locksmithing from the board of locksmiths.  The license shall not be transferred or assigned and is valid only with respect to the person to whom it is issued.  No license shall be granted if the applicant has an unpardoned felony in the applicant's criminal record or has had any prior license to practice locksmithing revoked for fraud, misrepresentation, or any other act that would constitute a violation of this chapter.

     (c)  The term of each license shall be no longer than        years, with all licenses expiring on their anniversary unless sooner renewed or revoked.

     (d)  No licensee shall perform locksmithing services unless the licensee shall have available a photo identification card.

     (e)  Every licensee shall display at the licensee's place of business and in a manner easily readable by the general public the license of the licensee.

     (f)  Every licensee shall indicate the license number of the licensee in any and all advertising for locksmithing services to be performed by the licensee.

     (g)  Any applicant for licensure who provides documentation that the applicant has been practicing as a locksmith for at least two consecutive years immediately preceding the date of application and is still engaged in the profession shall be exempt from the examination requirements of this chapter, provided that the applicant applies for licensure prior to            1, 2009.

     (h)  A nonresident of this State may be licensed as a locksmith by meeting one of the following requirements:

     (1)  Receiving a license under this chapter; or

     (2)  Holding a valid license to practice locksmithing in another state with which reciprocity has been established by the board.

     (i)  For nonresident licensees, service of process shall be made upon the director.  The director shall then notify or cause to be notified by certified mail, the nonresident licensee named in a service, at the licensee's address of record.

     §   -9  Qualifications for licensure.  (a)  An applicant for a license shall:

     (1)  Be at least eighteen years of age;

     (2)  Comply with the competency requirements as established by the board;

     (3)  Pay a license fee as established by the board through rules;

     (4)  Comply with the insurance requirements of this chapter;

     (5)  Not have been convicted in any jurisdiction of a crime which reflects unfavorably on the fitness of the applicant to engage in the profession, unless the conviction has been annulled or expunged by court order or for which a pardon has been granted; and

     (6)  Complete all application requirements pursuant to board rule.

     (b)  The board shall be authorized to evaluate the competency of applicants for locksmith licenses.  The board may either develop and administer an examination to evaluate competency or rely on an examination developed and administered by a recognized professional locksmith association.

     (c)  The board may waive examination requirements for any person who has been issued a license to practice locksmithing within the past three years from another state that the board has determined requires proof of competency standards equivalent to those required in this State; provided that the license is applied for within three months of the effective date of this chapter.

     (d)  Any person applying for a license under this chapter who does not otherwise qualify shall serve an apprenticeship under a licensee or under the board for a period of two years and shall:

     (1)  Complete thirty-two hours of continuing education per year of board-approved classes; and

     (2)  Identify oneself as an "apprentice locksmith" in any advertising.

     (e)  Each applicant shall be required to provide information, including fingerprints of the applicant and such other information as the board may require, to investigate the character, competency, and integrity of the applicant.  The board shall conduct such investigation of the applicant's background, character, competency, and integrity as it deems appropriate, and shall request, in accordance with section 846‑2.7, criminal history records of the applicant from each jurisdiction in which the application form indicates the applicant lived for any substantial period of time.  The Hawaii criminal justice data center shall provide such information on request to the director of commerce and consumer affairs.

     (f)  The form of application, photo identification card, and method to obtain and renew photographs shall be established by the board through rules.

     §   -10  Employee requirements.  (a)  All employees of a licensee who perform locksmithing services shall be registered with the board.

     (b)  No person shall be a registered employee of a licensee unless the person:

     (1)  Is a citizen or legal resident alien;

     (2)  Has not been determined by the board to be unfit by reason of conviction of a felony or misdemeanor offense in this State or any another state or convicted of any crime related to the practice of locksmithing.  The department shall adopt rules for procedures by which those circumstances shall be determined and that afford the applicant due process of law; and

     (3)  Has not had an employee registration refused, suspended, or revoked under this chapter.

     (c)  No person may be employed by a licensee until the person has executed and furnished to the licensee, on forms approved by the board, a verified statement to be known as an "employee's statement" setting forth:

     (1)  The person's full name, date of birth, and residence address;

     (2)  The name of the country of which the person is a citizen; and if the person is not a citizen of the United States, proof that the person is a legal resident alien;

     (3)  The business or occupation engaged in for the five years immediately before the date of the execution of the statement, the place where the business or occupation was engaged in, and the names of employers, if any;

     (4)  That the person has not had a license or employee registration refused, revoked, or suspended under this chapter;

     (5)  Any conviction for a felony relating to locksmithing;

     (6)  Any other information as may be required by the board that attests to the good character, competency, and integrity of the person executing the statement.

     (d)  Each licensee shall submit to the board, with the applicable fees, on fingerprint cards furnished by the board, two complete sets of fingerprints that are verified to be those of the applicant.

     (e)  The employer, with the written authorization of the employee, shall conduct a criminal history record check of all new employees employed in a locksmith capacity directly through the Hawaii criminal justice data center upon certification to the board that the signature on the authorization is authentic.

     (f)  Each licensee shall maintain a record of each registered employee.  The record shall contain the following information:

     (1)  A photograph taken within ten days of the date that the employee begins employment with the licensee.  The photograph shall be replaced with a current photograph every three calendar years;

     (2)  The employee's statement; and

     (3)  A record of all board-approved classes taken by the employee together with the dates.  Each employee must take a minimum of sixteen hours of continuing education courses per year.

     (g)  A duly authorized representative of the department shall be allowed complete access to all records to be kept pursuant to this section upon three days advance notice in writing provided to the licensee.

     §   -11  License expiration and renewal.  (a)  Any license granted pursuant to this chapter shall expire at the end of its term unless renewed pursuant to rules established by the board.

     (b)  In order to be eligible for license renewal, all individuals licensed under this chapter must complete a minimum of sixteen hours of continuing education per year in classes approved by the board.

     (c)  An affirmative vote by a majority of all board members shall be required to suspend or revoke a license or to impose a sanction on a license; provided that an affirmative vote of a majority of a quorum of the board shall be sufficient for summary suspension or its equivalent.  A board member shall disqualify oneself and withdraw from any case in which the board member cannot accord fair and impartial consideration.

     §   -12  Licensee requirements with regard to employees.  (a)  No licensee may employ any person who performs locksmithing services unless the licensee:

     (1)  Submits to the board the name, address, date of birth, and such other information sufficient to identify the person, as the board shall require by rule, including fingerprint cards and fees;

     (2)  Exercises due diligence to ensure that the person is qualified under the requirements of this chapter to be a registered employee of a licensee; and

     (3)  Maintains for any month in which an employee was hired or terminated, a roster of all employees who were either hired or terminated the previous month and submits the roster to the board by the tenth of the month.

     (b)  The licensee shall maintain each roster for at least twenty-four months.  The licensee shall not be required to submit a roster for any month during which no employee was hired or terminated.  Failure to maintain and submit the specified rosters is grounds for discipline under this chapter.

     (c)  Failure of a licensee to notify the board when a new employee is hired and to submit fingerprint cards and fees required before scheduling the person for work is a violation of this chapter.  Violations are subject to a fine of up to $           or other disciplinary action.

     (d)  If information is discovered affecting the registration of a person whose fingerprints were submitted under this section, the board shall so notify the licensee that submitted the fingerprints on behalf of that person.

     (e)  Every licensee shall furnish an employee identification card to each of its registered employees based upon a card format established by the board.  The employee identification card shall contain a recent photograph of the employee, the employee's name, the name and license number of the licensee, the employee's personal description, the signature of the employee, the date of issuance, and an employee identification card number that shall be the licensee's license number followed by a unique suffix for each employee.

     (f)  No licensee may issue an employee identification card to any person who is not employed by the licensee in accordance with this section or falsely state or represent that a person is or has been in the employ of the licensee.  It shall be a violation for an applicant for registered employment to file with the board the fingerprints of a person other than oneself, or for a licensee to fail to exercise diligence in resubmitting replacement fingerprints for those employees who have had original fingerprint submissions returned as unclassified.

     (g)  Every licensee shall make a reasonable effort to obtain the identification card of every employee who terminates employment with the licensee.

     §   -13  List of locksmiths.  The department shall maintain a list of the names and addresses of all locksmiths licensed under this chapter.  The lists shall also be mailed by the department to any person upon request and payment of appropriate fees.

     §   -14  Insurance.  A licensee shall maintain an insurance policy sufficient for the purpose of paying claims or judgments for damages that may occur as a result of any negligence by the licensee or the licensee's employees.

     §   -15  Customer identification.  (a)  Any licensee who knowingly and wilfully opens any residential or commercial establishment for another by any method, whether or not for compensation, shall make a reasonable attempt to obtain correct information regarding the street address of the resident or commercial establishment and the signature of the person for whom the residence or commercial establishment was opened on a work order form.  The licensee shall obtain from the person requesting entry to the resident or commercial property the requestor's name, address, telephone number, date of birth, and driver's license or other identification number.  A copy of each work order shall be retained for one year.  It shall include the name and license number of the licensee performing the service and shall be available for inspection by the director during business hours or submitted to the director upon request.

     (b)  Any licensee who opens a motor vehicle registered under chapter 286 for another by any method, whether or not for compensation, shall attempt to obtain information regarding the name, address, telephone number, and driver's license number or other identification of the person requesting the entrance, as well as the registration or identification number of the vehicle for which entrance is requested.  The information, together with the date the service was performed and the signature of the person requesting entrance, shall be set forth on a work order.  A copy of each work order form shall be retained for one year and include the name and license number of the licensee performing the service and shall be available for inspection by the director during business hours or submitted to the director upon request."

     SECTION 3.  Section 846-2.7, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  Criminal history record checks may be conducted by:

     (1)  The department of health on operators of adult foster homes or developmental disabilities domiciliary homes and their employees, as provided by section 333F-22;

     (2)  The department of health on prospective employees, persons seeking to serve as providers, or subcontractors in positions that place them in direct contact with clients when providing non-witnessed direct mental health services as provided by section 321-171.5;

     (3)  The department of health on all applicants for licensure for, operators for, and prospective employees, and volunteers at one or more of the following:  skilled nursing facility, intermediate care facility, adult residential care home, expanded adult residential care home, assisted living facility, home health agency, hospice, adult day health center, special treatment facility, therapeutic living program, intermediate care facility for the mentally retarded, hospital, rural health center and rehabilitation agency, and, in the case of any of the above-related facilities operating in a private residence, on any adult living in the facility other than the client as provided by section 321-15.2;

     (4)  The department of education on employees, prospective employees, and teacher trainees in any public school in positions that necessitate close proximity to children as provided by section 302A-601.5;

     (5)  The counties on employees and prospective employees who may be in positions that place them in close proximity to children in recreation or child care programs and services;

     (6)  The county liquor commissions on applicants for liquor licenses as provided by section 281-53.5;

     (7)  The department of human services on operators and employees of child caring institutions, child placing organizations, and foster boarding homes as provided by section 346-17;

     (8)  The department of human services on prospective adoptive parents as established under section 346-19.7;

     (9)  The department of human services on applicants to operate child care facilities, prospective employees of the applicant, and new employees of the provider after registration or licensure as provided by section 346-154;

    (10)  The department of human services on persons exempt pursuant to section 346-152 to be eligible to provide child care and receive child care subsidies as provided by section 346-152.5;

    (11)  The department of human services on operators and employees of home and community-based case management agencies and operators and other adults, except for adults in care, residing in foster family homes as provided by section 346-335;

    (12)  The department of human services on staff members of the Hawaii youth correctional facility as provided by section 352-5.5;

    (13)  The department of human services on employees, prospective employees, and volunteers of contracted providers and subcontractors in positions that place them in close proximity to youth when providing services on behalf of the office or the Hawaii youth correctional facility as provided by section 352D-4.3;

    (14)  The judiciary on employees and applicants at detention and shelter facilities as provided by section 571-34;

    (15)  The department of public safety on employees and prospective employees who are directly involved with the treatment and care of persons committed to a correctional facility or who possess police powers including the power of arrest as provided by section 353C-5;

    (16)  The department of commerce and consumer affairs on applicants for private detective or private guard licensure as provided by section 463-9;

    (17)  Private schools and designated organizations on employees and prospective employees who may be in positions that necessitate close proximity to children; provided that private schools and designated organizations receive only indications of the states from which the national criminal history record information was provided as provided by section 302C‑1;

    (18)  The public library system on employees and prospective employees whose positions place them in close proximity to children as provided by section 302A-601.5;

    (19)  The State or any of its branches, political subdivisions, or agencies on applicants and employees holding a position that has the same type of contact with children, vulnerable adults, or persons committed to a correctional facility as other public employees who hold positions that are authorized by law to require criminal history record checks as a condition of employment as provided by section 78-2.7;

    (20)  The department of human services on licensed adult day care center operators, employees, new employees, subcontracted service providers and their employees, and adult volunteers as provided by section 346-97;

    (21)  The department of human services on purchase of service contracted and subcontracted service providers and their employees serving clients of the adult and community care services branch, as provided by section 346-97;

    (22)  The department of human services on foster grandparent program, retired and senior volunteer program, senior companion program, and respite companion program participants as provided by section 346-97;

    (23)  The department of human services on contracted and subcontracted service providers and their current and prospective employees that provide home and community-based services under Section 1915(c) of the Social Security Act (Title 42 United States Code Section 1396n(c)), or under any other applicable section or sections of the Social Security Act for the purposes of providing home and community-based services, as provided by section 346-97;

    (24)  The department of commerce and consumer affairs on proposed directors and executive officers of a bank, savings bank, savings and loan association, trust company, and depository financial services loan company as provided by section 412:3-201;

    (25)  The department of commerce and consumer affairs on proposed directors and executive officers of a nondepository financial services loan company as provided by section 412:3-301;

    (26)  The department of commerce and consumer affairs on the original chartering applicants and proposed executive officers of a credit union as provided by section 412:10-103;

[]](27)[]] The department of commerce and consumer affairs on:

         (A)  Each principal of every non-corporate applicant for a money transmitter license; and

         (B)  The executive officers, key shareholders, and managers in charge of a money transmitter's activities of every corporate applicant for a money transmitter license,

          as provided by section 489D-9; [and]

    (28)  The department of commerce and consumer affairs on applicants for licensure as a locksmith as provided by section    -9; and

[[(28)]] (29)  Any other organization, entity, or the State, its branches, political subdivisions, or agencies as may be authorized by state law."

     SECTION 4.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

     SECTION 5.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 6.  This Act shall take effect upon its approval.

 

INTRODUCED BY:

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