South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Port Elsewhere II vs. SCDLLLR

AGENCY:
South Carolina Department of Labor, Licensing and Regulation

PARTIES:
Appellant:
Port Elsewhere II

Respondent:
South Carolina Department of Labor, Licensing and Regulation, State Board of Funeral Service
 
DOCKET NUMBER:
05-ALJ-11-0201-AP

APPEARANCES:
For Appellant:
John D. Hawkins, Esquire
Andrea M. Hawkins, Esquire

For Respondent:
M. Kent Lesesne, Esquire
 

ORDERS:

ORDER

STATEMENT OF THE CASE

The above-captioned matter is before this Court pursuant to S.C. Code Ann. § 40-19-160 (2001) and S.C. Code Ann. § 1-23-600(D) (Supp. 2005) for an administrative appeal. In this matter, Appellant Port Elsewhere II, a corporation licensed to retail funeral merchandise at four locations in South Carolina, appeals the May 18, 2005 Final Order issued by Respondent South Carolina Department of Labor, Licensing and Regulation, State Board of Funeral Service (Board), in which the Board revoked Appellant’s four retail sales outlet permits. By an Order dated June 10, 2005, this Court stayed the Board’s Final Order from taking effect during the pendancy of this appeal. After timely notice to the parties, oral arguments in this matter were held on January 24, 2006, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the briefs filed and arguments made by the parties in this matter and upon the record on appeal, I find that the Board’s May 18, 2005 Final Order revoking Appellant’s four retail sales outlet permits must be reversed.

BACKGROUND

Appellant Port Elsewhere II is a Delaware corporation that sells caskets to the general public at retail at four locations in South Carolina. Each of these four retail outlets is located at a cemetery and is separately licensed by the Board with a retail sales outlet permit.[1] The retail sales outlet permits for these locations are numbered 654, 655, 656, and 657, and the locations operate under the name “Funeral Merchandise.” At these locations, Appellant sells caskets and cemetery plots, but does not offer or perform funerals, embalming of dead bodies, cremation, or other funeral services.

As noted above, Appellant sells its caskets at retail. Under Appellant’s sales practices, a casket may be purchased with a lump-sum payment or pursuant to an installment contract. In either event, upon payment of the full purchase price, the purchaser is the owner of the casket and may either take immediate delivery of the casket by taking the casket into his or her possession or allow Appellant to store the casket in its warehouse to be delivered upon the purchaser’s demand. When a customer allows Appellant to store a casket, Appellant has the customer execute a warehouse receipt that identifies the casket to be stored and indicates that the customer is the owner of the casket. However, Appellant also reserves the right, in its sales contract, to substitute a comparable casket for the casket purchased if “the exact merchandise set forth in [the] Contract . . . [is] not available at the time of need and delivery.” (R. at 393.)

In November 2004, an examiner for the State Board of Financial Institutions inspected Appellant’s five cemetery locations in South Carolina.[2] As a result of his investigation, the examiner found that Appellant had 222 caskets in its inventory (although Appellant’s records indicated that it was storing 232 caskets) and that Appellant had actually delivered 27 caskets to customers, 26 of which were delivered to funeral homes for burials and one of which was delivered to a customer’s residence. Also, in late 2004, an eighty-five-year-old gentleman who had purchased a casket from Appellant at its Graceland Cemetery location was involved in a dispute with Appellant. Specifically, the customer, who had been assisted in making his purchase by his daughter, complained that Appellant had misrepresented that the casket he purchased was a government-issued veterans’ casket, when, in fact, it was not such a casket. Based upon this misunderstanding, the customer sought to have the contract for the sale of the casket cancelled, but Appellant refused to cancel the contract and refund the purchase price.

The Board’s enforcement action against Appellant began in March 2004, when it ordered Appellant to cease and desist from making any “preneed” sales of funeral merchandise under its retail sales outlet permits.[3] Subsequent enforcement investigations led to the issuance of formal complaints against Appellant in October 2004 and January 2005, in which the Board alleged that Appellant had engaged in unlicensed preneed sales of funeral merchandise and committed other related violations at its four permitted retail sales outlets. An independent panel appointed by the Board conducted a hearing on the complaints on February 17, 2005, and, by an Panel Report dated April 13, 2005, found that Appellant had violated (1) S.C. Code Ann. § 40-19-110(1) (2001) by making misrepresentations or committing fraud in its sales contracts; (2) S.C. Code Ann. § 40-19-110(7) by aiding or abetting in the unlicensed practice of funeral service through its sales at the Graceland Cemetery; and (3) S.C. Code Ann. § 40-19-110(12), (15) (2001 & Supp. 2005) and S.C. Code Ann. § 40-19-290(E) (Supp. 2005) by selling funeral merchandise on a preneed basis without complying with the requirements for such sales. Based upon these violations, the panel recommended that Appellant’s four retail sales outlet permits be revoked. The full Board took up the Panel Report at a hearing on May 5, 2005, and, by a Final Order dated May 18, 2005, the Board adopted the panel’s findings without changes and ordered the revocation of Appellant’s permits. This appeal followed.

STANDARD OF REVIEW

This Court’s review of a final decision in a contested case decided by a professional or occupational licensing board within the South Carolina Department of Labor, Licensing and Regulation is governed by the provisions of S.C. Code Ann. § 1-23-380(A) (2005). See S.C. Code Ann. §§ 1-23-380(B) (2005), 1-23-600(D) (Supp. 2005). Under the standard of review laid out in Section 1-23-380, this Court “shall not substitute its judgment for that of the [Board] as to the weight of the evidence on questions of fact.” S.C. Code Ann. § 1-23-380(A)(6) (2005). However, this tribunal

may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the [Board];

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or

(f) arbitrary and capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Id.; see also Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). Substantial evidence, as referenced in Section 1-23-380(A)(6)(e), is relevant evidence that, considering the record as a whole, a reasonable mind would accept to support the Board’s decision. See, e.g., Daisy Outdoor Adver. Co. v. S.C. Dep’t of Transp., 353 S.C. 113, 117, 572 S.E.2d 462, 464 (Ct. App. 2002). It exists when, if the case were presented to a jury, the court would refuse to direct a verdict because the evidence raises questions of fact for the jury. Id. Substantial evidence is more than a mere scintilla of evidence, but is something less than the weight of the evidence. Id. Furthermore, the possibility of drawing two inconsistent conclusions from the evidence does not prevent this tribunal from concluding that substantial evidence supports the Board’s findings. Id.

DISCUSSION

Appellant raises a number of grounds for its appeal of the Board’s Final Order in this matter. These grounds for appeal can generally be resolved into three broad categories: (1) claims related to the facial validity of certain aspects of the statutory retail sales outlet permitting scheme, (2) claims related to the Board’s jurisdiction and composition in this disciplinary matter, and (3) claims related directly to the merits of the Board’s disciplinary findings themselves. Each of these claims will be addressed in turn.

The Facial Validity of the Retail Sales Outlet Permitting Scheme

Appellant raises several challenges to the facial validity of certain aspects of South Carolina’s retail sales outlet permitting scheme. In particular, Appellant contends that the statutes regulating the preneed sale of funeral merchandise are unconstitutionally vague under both the state and federal constitutions, that certain requirements for sales of funeral merchandise were enacted in legislation that violated the “one subject” rule of the South Carolina Constitution, and that the entire retail sales outlet permitting scheme is an unlawful restraint upon free trade that should be preempted by the Sherman Anti-trust Act. However, as the South Carolina Supreme Court has made abundantly clear, this Court, as an executive branch agency, cannot consider such facial challenges to the validity of statutes or regulations and must follow the law as written. See Video Gaming Consultants, Inc. v. S.C. Dep’t of Revenue, 342 S.C. 34, 38, 535 S.E.2d 642, 644 (2000); Great Games, Inc. v. S.C. Dep’t of Revenue, 339 S.C. 79, 85, 529 S.E.2d 6, 9 (2000). Therefore, this Court cannot address Appellant’s challenges to the facial validity of the retail sales outlet permitting scheme.

The Jurisdiction and Composition of the Board

Appellant also asserts several challenges related to the Board’s authority to consider whether Appellant had violated its permits by engaging in the preneed sale of funeral merchandise and the Board’s authority to revoke Appellant’s permits for any such violations. For the reasons discussed below, I find that these challenges cannot be sustained.

Appellant first argues that the Board does not have subject-matter jurisdiction to consider violations related to preneed sales of funeral merchandise by retail sales outlets, because such jurisdiction is vested with the State Board of Financial Institutions, and that, even if it could consider such violations, the Board does not have statutory authority to revoke Appellant’s retail sales outlet permits. These arguments must fail. The State Board of Funeral Service was created to administer the provisions of Chapter 19 of Title 40, which regulates the practice of funeral service, see S.C. Code Ann. §§ 40-19-5 et seq. (2001 & Supp. 2005). In carrying out the provisions of Chapter 19, the Board, like the other regulatory boards governed by Title 40, is specifically authorized to, among other things, determine the eligibility of applicants for the permits and licenses it administers, establish criteria for the issuance of such permits and licenses, conduct hearings on alleged violations of its practice act, and discipline permittees and licensees found to be in violation of the practice act. See S.C. Code Ann. §§ 40-19-70 (2001), 40-1-70 (2001). The Board’s jurisdiction in this respect extends to the actions committed or omitted by current or former holders of the permits and licenses authorized under Chapter 19 for the entire period of licensure. See S.C. Code Ann. §§ 40-19-115 (2001), 40-1-115 (2001).

In the case at hand, there is no question that the sale of funeral merchandise, including caskets, constitutes the practice of funeral service that falls squarely within the regulatory authority of the Board, see S.C. Code Ann. § 40-19-20(12), (18) (Supp. 2005), and it is clear that the Board is the entity responsible for considering applications for and issuing retail sales outlet permits, which allow the sale of funeral merchandise by establishments other than funeral homes, see S.C. Code Ann. §§ 40-19-265(C) (Supp. 2005), 40-19-270(A) (Supp. 2005); see also 40-19-20(19) (Supp. 2005). In short, the Board has jurisdiction to regulate Appellant’s activities under its retail sales outlet permits. Therefore, while the State Board of Financial Institutions does have narrow regulatory authority to enforce the provisions of Title 7 of Chapter 32, which provide the technical requirements for “preneed funeral contracts,” see S.C. Code Ann. §§ 32-7-110 (Supp. 2005), 40-19-290(E) (Supp. 2005), the Board of Funeral Service retains concurrent jurisdiction to discipline the persons it licenses to practice funeral service, even where such violations are related to preneed sales of funeral services. See, e.g., S.C. Code Ann. § 32-7-50(A)(1) (Supp. 2005) (requiring, in Chapter 7 of Title 32, that the Board of Funeral Service revoke the license of a funeral home or funeral director that accepts funds for a preneed funeral contract without a license or that fails to put such funds in trust); S.C. Code Ann. § 40-19-110(12) (2001) (specifically authorizing the Board of Funeral Service to discipline a funeral service licensee for “violating applicable state laws relating to the prearrangement or prefinancing of a funeral”). That is, while the Board of Funeral Service does not have authority to directly enforce the technical requirements for preneed funeral contracts, the Board does have jurisdiction to sanction a person it has licensed under its practice act where that licensee has violated the basic terms of its funeral service license by engaging in preneed sales. See S.C. Code Ann. § 40-19-20(19) (Supp. 2005) (prohibiting retail sales outlets from “offer[ing] or execut[ing] preneed funeral contracts, except as authorized by Chapter 7, Title 32”).

Further, in exercising this disciplinary jurisdiction, the Board is authorized to revoke the permit of a retail sales outlet for a violation of the provisions of Chapter 19 of Title 40 or the provisions of its permit. Section 40-19-110 specifically authorizes the Board to suspend or revoke a funeral service license for a violation of its provisions. See S.C. Code Ann. § 40-19-110 (2001).[4] And, the catch-all sanction provision of Chapter 19 of Title 40 empowers the Board to discipline a licensee by imposing any of the sanctions available under Section 40-1-120, which allows for the permanent revocation of a license, among other sanctions. See S.C. Code Ann. §§ 40-19-120 (2001), 40-1-120 (2001).

Appellant secondly argues that, even if it had jurisdiction over this matter, the Board should have recused itself from hearing Appellant’s violation matter because the Board was demonstrably prejudiced and biased against Appellant. Appellant contends that, in issuing a cease and desist order against Appellant and conducting other preliminary enforcement matters, the Board had already reached a conclusion regarding Appellant’s alleged violations prior to the hearing. And, in particular, Appellant notes that, at a March 30, 2005 Board meeting, a certain Board member, Larry Strom, stated that he had “always been against the retail casket stores.” I find, however, that the Board properly removed any taint in these proceedings by appointing an independent panel to hear Appellant’s case.

Basic principles of due process entitle a person involved in a dispute with an administrative agency to an adjudication of the dispute by a fair, impartial, and unbiased administrative body. See S.C. Const. art. I, § 22; Ross v. Med. Univ. of S.C., 328 S.C. 51, 492 S.E.2d 62 (1997); Garris v. Governing Bd. of S.C. Reinsurance Facility, 333 S.C. 432, 511 S.E.2d 48 (1998). In the instant case, in order to avoid the appearance of any such taint, the Board impaneled an independent panel, on which no Board members sat, to conduct the hearing regarding Appellant’s alleged violations. (R. at 2.) Upon receiving the panel’s report, the Board adopted the panel’s recommendations without reservation (R. at 178) and the Board’s Final Order revoking Appellant’s permits restated the panel’s findings and conclusions without change (R. at 3-5, 6-9). Moreover, Mr. Strom, the Board member that had previously stated his opposition to retail sales outlets generally, did not participate in the Board’s consideration of the panel report. Therefore, I find that Appellant’s case was heard by a fair, impartial, and unbiased administrative body and that any taint of the Board was removed by the constitution of an independent panel to hear Appellant’s case. I further conclude that the mere fact that the Board retained authority to approve the panel’s report does not re-establish any taint that may have been present in the first instance.

The Merits of Appellant’s Alleged Violations

Reaching the merits of the alleged violations, Appellant further contends that the Board’s decision in this matter is clearly erroneous in light of the reliable, probative, and substantial evidence in the record. I agree. The Board found that Appellant had made misrepresentations or committed fraud in its retail sales contracts, had committed unlicensed retail sales at its Graceland Cemetery location, and had conducted preneed sales of funeral merchandise on unapproved contracts and without properly placing the proceeds from such sales in trust. There is no substantial evidence in the record to support the Board’s conclusion on each of these allegations.

The record does not substantially support the contention that Appellant made misrepresentations or committed fraud in its sales contracts, such that it violated Section 40-19-110. See S.C. Code Ann. § 40-19-110(1) (2001) (prohibiting a funeral service licensee from “making misrepresentations or committing fraud while engaging in the practice of funeral service”). Section 40-19-110(1) seems to encompass the legal concepts of negligent misrepresentation and fraud. See, e.g., Armstrong v. Collins, 366 S.C. 204, 220, 621 S.E.2d 368, 376 (Ct. App. 2005) (stating that the “key difference between fraud and negligent misrepresentation is that ‘fraud requires the conveyance of a known falsity, while negligent misrepresentation is predicated upon transmission of a negligently made false statement’”). In order to sustain a claim for either negligent misrepresentation or fraud, one must demonstrate that a false representation has been made. See, e.g., id. at 218-19, 621 S.E.2d at 375. The record in the case at hand does not support a finding that Appellant made such a false representation such that it made a negligent misrepresentation or committed fraud. Appellant’s sales contracts, while no clearer than any other commercial contracts, do not on their face contain any misrepresentations. And, outside of the ambiguous evidence presented regarding a single transaction between Appellant and one dissatisfied customer, there is nothing in the record to demonstrate that, as actually used, these contracts have been the source of false statements that would support a finding of negligent misrepresentation or fraud. Upon reviewing the record presented in this matter, I find that the Board’s determination that Appellant made negligent misrepresentations or committed fraud in its retail sales of caskets is not supported by substantial evidence, but is founded more on surmise and speculation regarding Appellant’s sales practices. Accordingly, that determination must be reversed. See, e.g., Coleman v. Palmetto State Life Ins. Co., 241 S.C. 384, 128 S.E.2d 699 (1962) (holding that a factual finding may not rest upon surmise or speculation, but must be based upon probative evidence); see also S.C. Code Ann. § 1-23-320(i) (2005) (requiring that findings of fact in administrative proceedings be “based exclusively on the evidence and on matters officially noticed”).

The record also does not substantiate the Board’s finding that Appellant engaged in or abetted the unlicensed sale of funeral merchandise at its Graceland Cemetery location in Greenville. While the evidence in the record clearly establishes that Appellant engaged in the sale of caskets at its Graceland Cemetery location in 2004, no evidence was produced to establish that Appellant did not have a permit to engage in such sales at that location, and Appellant has not conceded that it did not have a permit for the Graceland location. This evidentiary point is largely a technical one, but nonetheless a crucial one, and is a point that could have readily been established by testimony from a custodian of records or other Board official confirming that no permit had been issued to Appellant for retail sales at the Graceland Cemetery. However, as the record stands, there is no evidence to demonstrate that Appellant committed unlicensed retail sales of caskets at the Graceland location. In sum, because the Board bore the burden of proof at the panel hearing of this administrative enforcement matter, it was required to present sufficient evidence to support a finding that Appellant committed the violation alleged in all particulars. The Board failed to do so on this point, and its decision on this violation must be overturned.

Lastly, the record does not contain substantial evidence to support the Board’s conclusion that Appellant engaged in preneed sales of funeral merchandise in violation of certain statutory provisions governing such sales. As noted above, a “preneed funeral contract” is defined by Section 32-7-10 as

a contract, which has for its purpose the furnishing or performance of funeral services, or the furnishing or delivery of personal property, merchandise, [or] services of any nature in connection with the final disposition of a dead human body, to be furnished or delivered at a time determinable by the death of the person whose body is to be disposed of, but does not mean the furnishing of a cemetery lot, crypt, niche, mausoleum, grave marker or monument.

S.C. Code Ann. § 32-7-10(3) (1991) (emphasis added). That is, as specifically defined by statute, a “preneed” sale of funeral merchandise would be a sale of such merchandise under terms that provide for the delivery of the merchandise at the death of the person for whom the merchandise is intended to be used. Id. Put conversely, any sale of funeral merchandise that provides for the delivery of the merchandise at a time unrelated to the death of the individual in question would not, by definition, be a “preneed” sale of funeral merchandise. Thus, while the Board would seek to read the definition of “preneed” more broadly to include nearly any sale of funeral merchandise not intended for immediate use, the more limited definition provided by the relevant statute is the controlling definition for “preneed” sales of funeral merchandise in this matter.[5]

The record in the instant case does not support a finding that Appellant sells its caskets to be delivered at a time determinable by the death of the person who is to use the casket. Rather, under the plain terms of Appellant’s sales documents—its sales contract, its delivery acknowledgement, and its warehouse receipt—the person purchasing the casket takes legal delivery of the casket upon the payment of the full purchase price of the casket. This delivery may be actual, with the purchaser taking actual, immediate possession of the casket, or constructive, with the casket remaining in the possession of Appellant but with all incidents of ownership passing to the purchaser; in either event, the casket has been legally delivered to the purchaser. See, e.g., Lakeview Gardens, Inc. v. State ex rel. Schneider, 557 P.2d 1286, 1290-91 (Kan. 1976) (holding that the sale of a casket is not a preneed sale where the casket is delivered to the purchaser at the time the sales contract is executed, even though the casket is subsequently stored by the seller, because “[t]here may be a completed delivery although the goods remain in the possession of the seller if the seller’s possession is as an agent or at the request of the buyer under an agreement to store or care for the property, and nothing further remains to be done by either party to complete the sale”). Courts have consistently held that, under similar regulatory schemes, the sale of funeral merchandise is not a preneed sale if the merchandise is delivered upon payment of the purchase price, rather than upon the death of an individual. See, e.g., Gracelawn Memorial Park v. State, 424 A.2d 36, 38 (Del. Super. Ct. 1980) (holding, under a definition of “preneed burial contracts” identical to that in S.C. Code Ann. § 32-7-10(3), that where a sale of a burial vault provided for delivery of the vault within a reasonable time after final payment—and not at a time determined by the death of the person who would use the vault—the sale was not a preneed sale and its proceeds need not be put in trust).

In sum, on the face of its sales documents, Appellant delivers its caskets to purchasers upon payment of the purchase price, and not upon a time determinable by the death of the person for whom the casket is intended, and the Board has not shown, with substantial evidence, that Appellant’s actual delivery practices deviate from its sales documents. Therefore, there is no evidence in the record to support the Board’s finding that Appellant has engaged in preneed sales of funeral merchandise. And, accordingly, the Board’s conclusion that Appellant has impermissibly engaged in preneed sales and failed to satisfy the requirements for such sales must, too, be overturned.

In conclusion, while this Court cannot consider Appellant’s facial challenges to the retail sales outlet regulatory scheme and rejects Appellant’s challenges to the jurisdiction and composition of the Board with regard to this disciplinary matter, the Court agrees with Appellant that the Board’s ultimate conclusions on the merits of the alleged violations are not supported by substantial evidence in the record as a whole and must be reversed.

ORDER

For the reasons set forth above,

IT IS HEREBY ORDERED that the Board’s May 18, 2005 Final Order revoking Appellant’s four retail sales outlet permits is REVERSED and Appellant shall retain its permits.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

1205 Pendleton Street, Suite 224

Columbia, South Carolina 29201-3731

February 10, 2006

Columbia, South Carolina



[1] These cemetery locations are Spring Hill Memorial Garden in Chesnee, South Carolina; Good Shepard Memorial Park in Boiling Springs, South Carolina; Whispering Pines Garden in Moncks Corner, South Carolina; and Forrest Lawn Cemetery in Laurens, South Carolina.

[2] These five locations include Appellant’s four cemetery locations noted above and the Graceland Cemetery in Greenville, South Carolina, at which Appellant also conducts some retail sales.

[3] A “preneed” sale of funeral services or merchandise is a sale that “has for its purpose the furnishing or performance of funeral services, or the furnishing or delivery of personal property, merchandise, [or] services of any nature in connection with the final disposition of a dead human body, to be furnished or delivered at a time determinable by the death of the person whose body is to be disposed of.” S.C. Code Ann. § 32-7-10(3) (1991) (emphasis added). Retail sales outlets are generally precluded from making such preneed sales. See S.C. Code Ann. § 40-19-20(19) (Supp. 2005).

[4] While Appellant is correct that Section 40-19-110 only references funeral directors and embalmers in its preamble, it is apparent that the provisions of that section apply broadly to all persons licensed by the Board to engage in funeral service, including retail sales outlet permittees. Many of the provisions refer generally to the “practice of funeral service” and several provisions specifically pertain to sales of funeral merchandise apart from the disposal of dead bodies. See, e.g., S.C. Code Ann. § 40-19-110(3) (Supp. 2005) (prohibiting the solicitation of “dead human bodies or soliciting the sale of funeral merchandise by a licensee or an agent, assistant, or employee of a licensee or of any establishment licensed or permitted under this chapter”) (emphasis added).

[5] At the hearing of this matter before the panel, the Board presented testimony of a state legislator to assist in interpreting the meaning of a “preneed funeral contract.” However, it is well settled that resort cannot be had to the opinions of legislators or others involved in the enactment of a law for the purpose of ascertaining the intent of the legislature. See Med. Univ. of S.C. v. Arnaud, 360 S.C. 615, 620 n.5, 602 S.E.2d 747, 749 n.5 (2004). Rather, where, as here, a “statute’s language is plain and unambiguous, and conveys a clear and definite meaning, the rules of statutory interpretation are not needed and the Court has no right to impose another meaning.” Eagle Container Co. v. County of Newberry, 366 S.C. 611, ___, 622 S.E.2d 733, 738 (Ct. App. 2005). In short, the words of the statute must be given their plain and ordinary meaning without resorting to subtle or forced construction to limit or expand the statute’s operation. Id.


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