BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
SB 1142 (Moorlach)
Version: April 13, 2016
Hearing Date: April 26, 2016
Fiscal: No
Urgency: No
NR
SUBJECT
Disability access
DESCRIPTION
This bill would prohibit a construction-related accessibility
claim for statutory damages from being initiated in a legal
proceeding against a defendant unless the defendant has: 1) been
served with a demand letter specifying each alleged violation of
a construction-related accessibility standard; and 2) the
alleged violations have not been corrected within 120 days of
service. This bill would provide that a defendant is not liable
for statutory damages, costs, or plaintiff's attorney's fees for
an alleged violation that is corrected within 120 days of
service of a demand letter.
This bill would provide that when there is a conflict or
difference between the federal Americans with Disabilities Act
(ADA) and any state law, standard, or regulation relating to the
access of individuals with disabilities to any place to which
the general public is invited, the ADA shall control.
BACKGROUND
Since 1969, persons with disabilities have enjoyed protection
under Civil Code
Sections 54 and 54.1, which entitle individuals with
disabilities and medical conditions to full and free access to
and use of roadways, sidewalks, buildings and facilities open to
the public, hospitals and medical facilities, and housing. After
Congress enacted the Americans with Disabilities Act (ADA) in
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1990, the state made a violation of the ADA also a violation of
Section 54 or 54.1. The state protections provided to disabled
persons are comparatively higher than those provided under the
ADA and are independent of the ADA. Additionally, under the
Unruh Civil Rights Act, all persons, regardless of sex, race,
color, religion, ancestry, national origin, disability or
medical condition, are entitled to the full and equal
accommodations, advantages, facilities, privileges, or services
in all business establishments of every kind whatsoever. (Civil
Code Sec. 51.) A violation of the ADA also constitutes a
violation of Section 51.
In 2003 and 2005, several bills were introduced after multiple
lawsuits were filed in state court by a few plaintiffs and
attorneys against business owners and operators for allegedly
technical violations of the state's access or ADA regulations.
(SB 69 (Oller, 2003), AB 209 (Leslie, 2003), AB 20 (Leslie,
2005), SB 855 (Poochigian, 2005).) Three of those bills would
have required a plaintiff to undertake prelitigation steps prior
to the filing of a complaint, including providing notice to the
owner of the property or business of the alleged violations, and
provided a specified time period for the owner or business to
cure the violations. One bill, (AB 20, Leslie, 2005) would have
precluded an action for damages for a de minimus violation,
allowing only injunctive relief and attorney's fees. All of
those bills failed passage in the Judiciary Committees of their
respective houses. In 2008, two bills were introduced relating
to disability access. AB 2533 (Keene, 2008) and SB 1766
(McClintock, 2008) would have both imposed prelitigation hurdles
on plaintiffs claiming violations of construction-related
disability access laws. Both of these bills failed in the
Judiciary Committees of their respective houses. In 2011, SB
783 (Dutton, 2011) would have established notice requirements
for an aggrieved party to follow before he or she can bring a
disability access suit and given the business owner a 120-day
time period to remedy the violation. That bill failed passage
in this Committee.
Alternatively, SB 1608 (Corbett et al., Ch. 549, Stats. 2008),
which took effect January 1, 2009, did not create any
pre-litigation hurdles for a person with a disability but
instead, among other things, provided for an early evaluation of
a filed complaint if the defendant is a qualified defendant who
had the identified place of public accommodation inspected and
determined to meet applicable physical access standards by a
state Certified Access Specialist (CASp) prior to the filing of
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the complaint. In 2012, Senators Steinberg and Dutton authored
SB 1186 (Ch. 383, Stats. 2012) which sought to comprehensively
address continued issues with disability litigation.
Ultimately, the bipartisan effort was viewed as a compromise
that hoped to end the abusive litigation tactics of some
attorneys, protect the rights of disabled persons, and promote
compliance with state and federal access laws. SB 1186 created
a number of protections for small businesses and defendants who
had, prior to a claim being filed, sought out a CASp inspection.
These protections included reduced minimum statutory damages,
early evaluation conferences, and mandatory stays of court
proceedings while the violations were corrected. That bill also
prevented the stacking of multiple claims to increase damages,
banned pre-litigation demands for money, and increased data
collection regarding alleged access violations.
Last year a number of bills were introduced to further combat
perceived issues with disability litigation. AB 1521 (Committee
on Judiciary, Ch. 755, Stats. 2015) created a new class of
plaintiff, a "high frequency litigant," upon which it imposed
additional costs and procedural burdens. Two bills, one which
created a tax credit for certain access expenditures to
businesses, and the other that would have provided funding to
the Commission on Disability Access, were vetoed by the Governor
who stated that such legislation is more appropriately
considered in the annual budget process (SB 251 (Roth) and AB
1342 (Steinorth); see Prior Legislation below). This bill,
seeking to further address concerns of the business community,
would require plaintiffs to serve a demand letter on a business,
and then give the business 120 days to correct any violations
prior to being able to file a suit for statutory damages.
CHANGES TO EXISTING LAW
Existing federal law , the Americans with Disabilities Act (ADA),
provides that no individual shall be discriminated against on
the basis of disability in the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any
person who owns, leases, or leases to, or operates a place of
public accommodation. (42 U.S.C. Sec. 12182.)
Existing law , the Unruh Civil Rights Act, declares that all
persons, regardless of sex, race, color, religion, ancestry,
national origin, disability or medical condition, are entitled
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to the full and equal accommodations, advantages, facilities,
privileges, or services in all business establishments of every
kind whatsoever, and entitles persons to $4000 minimum statutory
damages for violations of Unruh. (Civ. Code Sec. 51 et seq.)
Existing law provides that individuals with disabilities or
medical conditions have the same right as the general public to
the full and free use of the streets, highways, sidewalks,
walkways, public buildings, medical facilities, including
hospitals, clinics and physicians' offices, public facilities
and other public places. It also provides that a violation of
an individual's rights under the ADA constitutes a violation of
state law. (Civ. Code Secs. 54, 54.1.)
Existing law provides that a violation of the ADA also
constitutes a violation of Sections 54 or 54.1, and entitles a
prevailing party to recover reasonable attorney's fees. (Civ.
Code Sec. 55.)
Existing law requires the State Architect to establish the
Certified Access Specialist Program (CASp) and develop the
specified criteria to have a person qualify as a certified
access specialist. (Gov. Code Sec. 4459.5; Civ. Code Sec.
55.52.)
Existing law prohibits a demand letter from including a request
or demand for money or an offer or agreement to accept money,
unless the claim involves a physical injury and special damages,
and provides that a violation of this provision constitutes
cause for attorney discipline. (Civ. Code Sec. 55.31.)
Existing law requires a demand letter alleging a
construction-related accessibility claim or noncompliance to
state facts sufficient to allow the defendant to identify the
basis for the claim, including a plain language explanation of
the specific barriers the individual encountered, the way in
which the barrier was entered, and the date or dates of each
particular occasion on which the individual encountered the
barrier. (Civ. Code Sec. 55.31(a).)
Existing law provides that certain qualified defendants may move
for a 90-day stay and early evaluation conference. Defendants
who do not qualify for an early evaluation conference pursuant
to these provisions, or who forgoe those provisions, may request
a mandatory evaluation conference, as specified. (Civ. Code
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Secs. 55.45 and 55.545.)
Existing law reduces a defendant's minimum liability for
statutory damages in a construction-related accessibility claim
against a place of public accommodation to $1,000 for each
unintentional offense if the defendant has had a CASp
inspection, or occupies a building constructed after 2008, and
corrected all construction-related violations that are the basis
of the claim within 60 days of being served with the complaint.
(Civ. Code Sec. 55.56(f)(1).)
Existing law reduces a defendant's minimum liability for
statutory damages to $2,000 for each unintentional offense if
the defendant has corrected all construction-related violations
that are the basis of the claim within 30 days of being served
with the complaint and the defendant is a small business,
defined as less than $3.5 million in gross receipts and 25 or
fewer employees, on average, over the past three years. (Civ.
Code Sec. 55.56(f)(2).)
This bill would prohibit a construction-related accessibility
claim for statutory damages from being initiated against a
defendant unless:
the defendant has been served with a demand letter
specifying each alleged violation of a construction-related
accessibility standard; and
the alleged violations have not been corrected within
120 days of service.
This bill would provide that a defendant is not liable for
statutory damages, costs, or plaintiff's attorney's fees for an
alleged violation that is corrected within 120 days of service
of a demand letter alleging the violation.
This bill would provide, when there is a conflict or difference
between the ADA and any state law, standard, or regulation
relating to the access of individuals with disabilities to any
place to which the general public is invited, the ADA shall
control.
COMMENT
1.Stated need for the bill
According to the author:
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Across the state, businesses are being targeted for failing to
be in compliance with the ever-changing disability access
guidelines, resulting in lawsuits that cost the business
thousands, and put money in the pockets of serial plaintiffs
and trial attorneys. ? Because California law provides that
the plaintiff is entitled to minimum damages that can start as
high as $4,000 per violation, triple the damages, and may be
awarded attorney's fees, mom-and-pop businesses are finding
themselves fixing a $10 mirror, but owing tens of thousands of
dollars to the plaintiff's attorneys for their fees. ?
Additionally, because California has implemented its own
version of the ADA, the Construction-Related Accessibility
Standards Compliance Act, there is often confusion as to which
standards a business is supposed to adhere to. A plaintiff can
sue under a cause of action that is not provided for in the
ADA, but is under California law.
2.Removes incentives for businesses to proactively comply with
access laws
Existing law provides certain protections to businesses who
actively seek out a Certified Access sSpecialist (CASp)
inspection prior to being sued for construction-related
accessibility violations. These businesses are entitled to a
90-day stay and an early evaluation conference. They also
qualify for reduced minimum statutory damages of $1000 per
violation if the violations are corrected within 60 days. In
addition, existing law extends similar protections to small
businesses that have not had a CASp inspection, in that they
qualify for minimum statutory damages of $2000 per violation if
the violations are cured within 30 days.
This bill would instead give all businesses approximately four
months to correct any identified access violations before being
vulnerable to a law suit. If the identified violations are
corrected within 120 days, businesses would be immune from any
costs, fees, or damages. Under existing law, damages function
as a penalty against business owners who have failed to make
their property comply with accessibility laws. The potential
threat of these penalties creates an incentive for business
owners to make their buildings accessible because it protects
them from liability. Thus, by eliminating a plaintiff's ability
to file suit and be awarded damages, this bill would also
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eliminate a powerful incentive for business owners to
proactively make improvements to their properties. Businesses
would instead have financial reasons to wait until being served
a demand letter to fix accessibility violations, which is
exactly the practice the Legislature sought to curb with SB 1608
and SB 1186 (see Background). Staff further notes that by
allowing all potential defendants 120 days to correct any
violations, this bill eliminates any benefit for businesses that
have proactively taken action, through a CASp inspection, to
comply with access laws and make their businesses accessible. In
opposition, Disability Rights California writes:
Increasing the time period to 120 days to correct violations
is unjustified. Since the enactment of SB 1186 in 2012 which
allowed for a reduction in damages and a specific time period
to correct construction-related barriers, there is no evidence
to suggest that the current time periods to fix problems are
not workable or insufficient.
Rather than encouraging businesses to wait and see if they are
caught, this bill should provide incentives to businesses to
comply, such as stronger lease provisions to ensure landlords
have buildings inspected and brought into compliance before
they are leased. SB 1186 (Steinberg, 2012) requires leases to
state whether they have been inspected for accessibility. This
would ensure small businesses are not the unwitting recipients
of demand letters and lawsuits.
3.Creates an unprecedented pre-litigation procedural hurdle for
disabled persons
Under existing law, if an individual's civil rights or liberties
are violated, he or she has a right to seek recourse in a court
of law by filing a complaint. While there are situations where
a plaintiff is required to take some preliminary steps before
commencing an action or proceeding, those situations generally
relate to contract and quasi-contract actions,
beneficiary-trustee lawsuits against third parties, and to cases
of professional malpractice (Witkin, California Procedure 4th
Ed., Vol. 3, 198 et seq.). Further, existing law does create
demand letter requirements with regard to access suits, but it
does not require that a demand letter be sent to a potential
defendant prior to commencing litigation. Instead, to curb
abusive practices by some actors, existing law outlines the
permissible contents of a demand letter, including a prohibition
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on demands for money. This bill, by requiring that potential
plaintiffs serve a pre-litigation demand letter on business,
would create an unprecedented pre-litigation hurdle for persons
with disabilities who are seeking to enforce their civil rights.
In opposition, the California Association of Public Authorities
writes, "no other protected class is required to follow
additional procedural and legal hurdles before they can enforce
their civil rights. This is a policy the state of California
should not endorse or promote. Furthermore, litigation of
access violations is the only means available to people with
disabilities to compel compliance by businesses. Without the
ability to recover attorney's fees, costs, and civil rights
(statutory) damages, the majority of people with disabilities
would not be able to enforce their civil rights and ensure
compliance."
4. Awards of attorney's fees, costs, and statutory damages would
be eliminated
Under existing law, persons who are deterred from accessing a
business, are entitled to, at the very least, minimum statutory
damages ranging from $1000 per violation to $4000 per violation,
depending on the type of business. In addition, persons who are
able to demonstrate some type of harm, may be entitled to
"actual" damages, although actual damages in access suites are
rarely present because they are very difficult to ascertain
except in situations involving, for example, hospitals and
clinics when the plaintiff needed medical attention. Thus, the
law provides for the minimum of $1,000 in statutory damages so
that businesses are deterred from ignoring access standards with
regard to their establishments.
While the proponents argue that this bill is necessary to curb
"needless payments of overly burdensome attorney's fees," this
bill would in fact also curb meritorious claims by disabled
plaintiffs. Other laws relating to the exercise of civil rights
(such as access to senior housing, gender discrimination,
discrimination by business establishments based on specified
characteristics) provide for similar recovery of actual damages,
attorney's fees and costs, and minimum statutory damages.
Denying disabled persons the ability to seek the same recovery
under civil rights laws would single out their claims for less
favorable treatment. The disabled community asserts that after
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over 40 years of state and 20 years of federal law guaranteeing
full and equal access, compliance by businesses across the state
leaves much to be desired. Further, staff notes that the value
of attorney's fees and costs, as well as the minimum $1,000 in
statutory damages, to plaintiffs seeking redress is immeasurable
because without the court's ability to make this award, many
plaintiffs could not afford to file suit to compel compliance.
5.Federal law provides minimum protections upon which state law
may expand
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|The Supremacy Clause of the United States Constitution (Article |
|VI, Clause 2) establishes that the Constitution, federal laws |
|made pursuant to it, and treaties made under its authority, |
|constitute the supreme law of the land. However, unless |
|Congress intended a federal law to "occupy the field," federal |
|law generally provides the base-level of protections persons |
|must be afforded, and states are free to build upon those |
|protections as long as state law does not conflict with the |
|federal law. Over time, subsidiary rules have been created to |
|determine when there is a genuine conflict between a state and |
|federal law, or whether federal law has "preempted" the state |
|law. Modern doctrine generally holds that preemption occurs |
|whenever it is intended by Congress, when it is literally |
|impossible to comply with both state and federal law, or when a |
|state law "stands as an obstacle to the accomplishment and |
|execution of the full purposes and objectives of Congress." |
|Hines v. Davidowitz, 312 U.S. 52 (1941). |
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This bill would provide that when there is a conflict or
difference between the ADA and any state law, that the ADA
should control. This requirement would, as a practical matter,
nullify any state laws, standards, or regulations that are above
what is required by the ADA. Not only could this result in the
elimination of important protections that disabled Californians
are entitled to, it could arguably eliminate updates to building
standards that have made California standards easier to follow
for businesses and contractors than the ADA. Arguably, this
goes against our current notions of how state and federal law
should interact, as articulated by Justice Brannan in a 1977
article:
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[M]ore and more state courts are construing state
constitutional counterparts of provisions of the Bill of
Rights as guaranteeing citizens of their states even more
protection than the federal provisions, even those identically
phrased. This is surely an important and highly significant
development for our constitutional jurisprudence and for our
concept of federalism. ? Federalism need not be a
mean-spirited doctrine that serves only to limit the scope of
human liberty. (Brennan, State Constitutions and the
Protection of Individual Rights, 90 Harv. L. Rev. 489, 495,
503 (1977).)
Staff further notes that applying the ADA when there is any
"difference" between federal and California law, as required
under this bill, would also apply to remedies, and would
therefore arguably limit a plaintiff's ability to recover
anything other than injunctive relief and attorney's fees.
6. Legislative findings and declarations are not based on
empirical data regarding these lawsuits
This bill contains legislative findings and declarations without
empirical data supporting those findings. For example, the bill
states:
"[O]ppressive lawsuits are needlessly decreasing or limiting
access to public facilities since funds that could have been
used to create greater accessibility are being taken by some
attorneys for their excessive fees through unnecessary
litigation."
While prior to SB 1186 (Steinberg, Ch. 383, Stats. 2012), there
was very little information regarding access suits in
California, that bill included a number of data collection
requirements so that the California Commission on Disability
Access, the Legislature, and others could better understand the
allegedly predatory practices of a few litigants and attorneys.
Accordingly, the California Commission on Disability access has
compiled data indicating that from January 2014 until January
2015, less than one percent of small businesses, and a far
smaller percentage of all businesses, were sued in 2014 for
violations of construction-related accessibility standards.
However, of the 5,392 access-related complaints filed between
September 2012 and October 2014, 54 percent of the cases were
filed by two law firms, and 14 plaintiffs were involved in 46
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percent of the cases. Relying on these numbers, the business
community continues to argue that an alarming number of
construction-related accessibility lawsuits are being filed by a
small number of law firms in California.
The author and the proponents of this bill have not alleged that
disabled plaintiffs and their attorneys are bringing
unmeritorious claims, but instead that the fees charged by the
attorneys are too high. However, as a matter of practice, civil
laws, including the ADA and Unruh, are enforced through private
actions. The ability to seek relief when access has been denied
due to a construction-related access violation is the right of a
disabled person in the same way that a woman who has been passed
over for a promotion because of her gender or a minority who was
refused service based on his race, has the right to sue the
person who discriminated against them.
In opposition, Consumer Attorneys of California (CAOC) write,
"CAOC understands that there have been some suits in this area
that have not passed the smell test, but SB 1142 is not the
answer. Instead, CAOC has been working with the California
Chamber of Commerce in good faith to find a solution to a
problem plaguing many California communities: how to make
buildings more accessible for people with disabilities while at
the same time stopping the abusive practices of some attorneys
who are filing multiple lawsuits against mostly small businesses
and seeking fees, not compliance. Consumer Attorneys wants to
encourage compliance and stop, once and for all, the attorneys
who are taking advantage of our law."
Support : California Apartment Association; California Chamber
of Commerce; California Retailers Association; Civil Justice
Association of California; CSAC Excess Insurance Authority
Opposition : California Association of Public Authorities;
Consumer Attorneys of California; Disability Rights California;
Tenants Together; Western Center on Law & Poverty
HISTORY
Source : Author
Related Pending Legislation :
SB 269 (Roth, 2016) is substantially similar to SB 251 (see
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below), with the exception of the tax credit, which the author
removed to address the Governor's concerns.
AB 54 (Olsen, 2015) would require that demand letters and
complaints are sent to the Commission on Disability Access in a
standard format specified by the Commission. This bill is
currently in the Senate Judiciary Committee.
Prior Legislation :
AB 52 (Gray, 2015) would have provided that the defendant's
maximum liability for statutory damages in a
construction-related accessibility claim against a place of
public accommodation is $1,000 for each offense if the defendant
has corrected all construction-related violations within 180
days of being served with the complaint. This bill was never
heard in the Assembly Judiciary Committee.
AB 1230 (Gomez, Ch. 787, Stats. 2015) establishes the California
Americans with Disabilities Act Small Business Compliance
Finance Act to provide loans to assist small businesses to
finance the costs of projects that alter or retrofit existing
small business facilities to comply with the federal Americans
with Disabilities Act.
AB 1342 (Steinorth, 2015) would have provided additional revenue
to the California Commission on Disability Access. This bill
was vetoed by Governor Brown who stated that it was "something
more appropriately addressed in the annual budget process."
AB 1468 (Baker, 2015) would have provided that a public entity's
possession of a close out letter from the State Architect
certifying that the buildings, facilities, and other places meet
the applicable construction-related accessibility standards of
the federal Americans with Disabilities Act, serves as
presumptive evidence of compliance with the federal Americans
with Disabilities Act. This bill was never heard in the
Assembly Judiciary Committee. See Background; Comments 2, 4, and
6.
AB 1521 (Committee on Judiciary, Ch. 755, Stats. 2015) See
Background.
SB 67 (Galgiani, 2015) would have limited recovery against a
small business for construction-related accessibility claims to
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injunctive relief and reasonable attorney's fees, and would
allow businesses who have undergone a CASp inspection 120 days
to correct violations in order to qualify for reduced statutory
minimum damages. This bill was never heard in the Senate
Judiciary Committee.
SB 251 (Roth, 2015) would have made various changes to access
laws, including: exempting a defendant from liability for
minimum statutory damages if corrections were made within 120
days of receiving a CASp report; requiring the State Architect
to publish a list of CASp inspected businesses; and providing a
tax credit for elibible access expenditures, as specified. This
bill was vetoed by Governor Brown who argued that tax credits
are more appropriately addressed in the annual budget process.
SB 1186 (Steinberg and Dutton, Ch. 383, Stats. 2012) reduced
statutory damages and provided litigation protections for
specified defendants who timely correct construction-related
accessibility violations of the Unruh Civil Rights Act. That
bill also banned prelitigation "demands for money" and created
rules for demand letters and complaints in claims involving
construction-related accessibility violations.
AB 2282 (Berryhill, 2012) would have authorized an aggrieved
person to bring a disability access suit only if: (1) the person
has suffered an injury in fact; (2) the injury in fact was
caused by the violation; and (3) the violation is redressable,
was held under submission in the Senate Appropriations
Committee.
AB 1878 (Gaines, 2011) which is substantially similar to SB 1163
but applies to "microbusinesses," defined by the bill, failed
passage in the Assembly Judiciary Committee.
SB 1163 (Walters, 2012) would have established notice
requirements for an aggrieved party to follow before he or she
can bring a disability access suit and would have given the
business owner a 120-day time period to remedy the violation.
If the property owner cured the violation, this bill would have
prohibited the plaintiff from receiving any damages or
attorney's fees, except for special damages. This bill failed
passage in this Committee.
SB 783 (Dutton, 2011), which was identical to SB 1163, failed
passage in this Committee.
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SB 384 (Evans, Ch. 419, Stats. 2011) clarified that attorneys
who file complaints or send demand letters related to disability
access violations must provide a written notice of legal rights
and obligations whether or not the attorney intends to file an
action in state or federal court.
SB 209 (Corbett & Harman, Ch. 569, Stats. 2009) required a CASp
inspection report, to remain confidential rather than be under
seal and subject to protective order.
SB 1608 (Corbett et al., Ch. 549, Stats. 2008) See Background;
Comment 6.
SB 1766 (McClintock, 2008) See Background.
AB 2533 (Keene, 2008) See Background.
SB 855 (Poochigian, 2005) See Background.
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