HomeMy WebLinkAboutCRPS-10-004 - Public Meeting - Repeal & Replace c508 Alternative Massage CentresREPORT
REPORT TO:
Councillor B. Vrbanovic, Chair and Members of the Finance
and Corporate Services Committee
DATE OF MEETING:
January 11, 2010
SUBMITTED BY:
R. Gosse, Director of Legislated Services/City Clerk
PREPARED BY:
Patricia Harris, Manager of Licensing
WARD(S) INVOLVED:
DATE OF REPORT: January 4, 2010
REPORT NO.: CRPS-10-004
SUBJECT:
PUBLIC MEETING - REPEAL AND REPLACE CHAPTER 508
OF THE MUNICIPAL CODE ( ALTERNATIVE MASSAGE
CENTRES)
RECOMMENDATION:
That Chapter 508 (Alternative Massage Centres) of the Municipal Code be repealed and
replaced based on the proposed by-law attached to Corporate Services Report CRPS-10-004.
BACKGROUND:
In June of 2008, City Council passed By-law 2008-116 (Chapter 508 of the Municipal Code)
which allowed for the licensing of alternative massage centres. Alternative massage includes
the kneading, manipulating, rubbing, massaging, touching, or stimulating of a person’s body or
part thereof, but does not include services designed to appeal to erotic or sexual appetites or
inclinations. Since the passing of the by-law it has come to the attention of staff that there are
changes that are required to allow for more efficient enforcement of the by-law.
REPORT:
The intent of Chapter 508 (Alternative Massage Centres) is to licence and regulate “holistic”
massage parlours and the services provided in order to ensure health and safety and consumer
protection. In 2008 several additional requirements were included in Chapter 508. These
included:
Access into the alternative massage centre must be kept unlocked and accessible
during the hours of operation so that any person enforcing this by-law may enter without
delay
There shall be no locks on the door of any room where an attendant provides services
An alternative massage parlour can only be open only between the hours of 9 a.m. to 8
p.m.
Over the past year during inspections, it came to light that further refinement and clarification is
required for the benefit of both the owner/operator and City Staff. Therefore, changes have
been made to certain areas of the by-law.
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The most significant changes are to the definition portion of the by-law.
Alternative massage centre has been further defined to include publicly and privately
funded post-secondary institutions licensed pursuant to this by-law.
Lingerie has been specifically defined for clarification purposes for both the operator of
the premises and enforcement staff
Operator has been further defined to include the licensee, designated manager(s),
designated supervisor(s) and any person who is working alone in the alternative
massage centre when it is open to patrons or the public.
There had been difficulties with the previous by-law in determining whether the person in the
alternative massage centre was the operator and was in charge of the premises. The change to
the definition should aid enforcement staff in ensuring that all regulations of the by-law are met.
The new by-law also specifically exempts accredited publicly funded colleges, privately funded
post-secondary institutions from paying a licence fee when offering a formal course of education
and training in alternative massage.
Finally, there are various text and housekeeping changes made throughout the by-law.
FINANCIAL IMPLICATIONS:
None
COMMUNICATIONS:
A Public Notice was placed in The Record on January 4, 2010 and on the City of Kitchener’s
website advising that this by-law would be considered on January 11, 2010. All Alternative
Massage Centres currently licensed have also been informed of this meeting.
ACKNOWLEDGED BY:
Troy Speck, General Manager of Corporate Services
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BY-LAW NUMBER
OF THE
CORPORATION OF THE CITY OF KITCHENER
(Being a by-law to repeal and replace Chapter 508 of
The City of Kitchener Municipal Code with respect to
Alternative Massage Centres).
WHEREAS it is deemed expedient to exercise the powers conferred on
Council by the Municipal Act, 2001, S.O. 2001, c. 25;
AND WHEREAS Council has determined that those holding themselves
out as complementary health care providers should have a minimum level of
educational and training qualifications to protect consumers purchasing their
services;
AND WHEREAS Council has determined that consumers should be
protected from unknowingly entering a Class D Adult Entertainment Parlour as
set out in Chapter 502 of The City of Kitchener Municipal Code or a common
bawdy house as defined in the Criminal Code R.S. 1985, c. C-85 when seeking
alternative massage;
AND WHEREAS Council has determined that certain restrictions on
behaviour of both consumers and attendants reduces transmission of disease
that would have an adverse effect on the health of both consumers and
attendants;
AND WHEREAS Council has determined that the ability to ensure
operators of alternative massage centres meet certain minimum standards with
respect to fire and building safety protects consumers and attendants and
contributes to their safety;
AND WHEREAS Council has determined that licensing owners of
alternative massage centres that are not provincially regulated protects
consumers, as there is a record of licence holders and the ability to require legal
and honest operation of such businesses and to hold the licensees responsible
when the business is not conducted in accordance with the law or with integrity;
AND WHEREAS Council has determined that the ability to add conditions
to, suspend, revoke, or refuse licences encourages licensees and operators of
alternative massage centres to comply with the by-law requirements;
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AND WHEREAS notice of a public meeting was given by advertisement in
a local newspaper on January 4, 2010;
AND WHEREAS a public meeting was held on January 11, 2010 to allow
any person attending to make representations with respect to this by-law;
NOW THEREFORE Council enacts as follows:
Definitions
1. In this Chapter:
“alternative massage” includes the kneading, manipulating, rubbing, massaging,
touching, or stimulating by any means, of a person’s body or part thereof but
does not include services designed to appeal to erotic or sexual appetites or
inclinations and does not include medical or therapeutic treatment performed or
offered by persons otherwise duly qualified, licensed, or registered to do so
under the laws of the Province of Ontario.
“alternative massage centre” means any premises or part thereof in which
alternative massage is provided for hire or gain or respecting which a licence has
been granted. However, in the case of a publicly or privately funded post-
secondary institution licensed pursuant to this Chapter, an “alternative massage
centre” shall mean the portion of the premises identified pursuant to section 14 of
this Chapter during the class times specified thereon provided alternative
massage is not provided or offered outside of the specified hours or location or
provided to patrons for hire or gain.
“attendant” means an individual who provides or offers to provide alternative
massage or other services in an alternative massage centre and shall include
any person who works in an alternative massage centre when it is open to
patrons or the public, when patrons or the public can enter, or when alternative
massage or other services are provided, available, or offered in the alternative
massage centre.
“complementary health care centre” means an alternative massage centre in
which all of the attendants providing alternative massage are complementary
health care providers.
“complementary health care organization” means an association, organization, or
institution that: has at least 35 members who pay dues to it; has been in
existence for two or more years prior to the date of application by the person
seeking to be licensed as a complementary health care centre; and has been
demonstrated to be established for the purpose and with the continuing intent of
ensuring the safe and proper provision of one or more kinds of alternative
massage through:
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(a) the admission to membership of persons qualified to provide such
alternative massage;
(b) the promulgation and enforcement of a code of ethics respecting
the provision of such alternative massage;
(c) maintaining, providing, and recognizing measurable standards for
practices and procedures in the provision of such alternative
massage;
(d) the communication of information relating to such alternative
massage; and
(e) involvement in ongoing research, development, and education
relating to the safe and proper provision of such alternative
massage.
“complementary health care provider” means a person who:
(a) has successfully completed one or more formal courses of
education and training in the provision of a particular type of
complementary health care;
(b) is a member in good standing of a complementary health care
organization at the time of application and remains a member in
good standing for the period for which the licence is in force; and
(c) has demonstrated acceptance and practice of the procedures,
practices, and ethics of the complementary health care organization
of which the individual is a member.
“formal course of education and training” means any course involving teaching,
demonstration, or supervised practice, offered or recognized by a complementary
health care organization as qualifying the individual, in accordance with the
procedures, practices, and ethics of such organization, to provide safe and
proper alternative massage of the kind which is the subject matter of the area of
interest and jurisdiction of the organization and of the course.
‘licence” when used in the provisions of Chapter 500, Chapter 501, and this
Chapter for the purposes of this Chapter only shall mean a licence to operate an
alternative massage centre or a complementary health care centre, issued by the
Manager of Licensing pursuant to this Chapter.
“licensee” shall mean the individual or business to which a licence has been
issued.
“lingerie” shall include but not be limited to:
(a) any bra, underwear, or teddy;
(b) any garment that an officer reasonably believes to have a sexual
connotation such that it would be inappropriate attire for employees
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in a health care setting such as a registered massage therapist’s
office, a doctor’s office, or a hospital; and
(c) any garment that an officer reasonably believes to have the
appearance of lingerie.
“Municipal Act, 2001” shall mean the Municipal Act, 2001, S.O. 2001, c. 25.
“officer” shall include a municipal law enforcement officer, a by-law officer, and a
member of the Waterloo Regional Police Services.
“operator” means a person who, alone or with others, operates, manages, runs,
or controls an alternative massage parlour and “operate(s)” shall have a
corresponding meaning. “Operator” shall specifically include the alternative
massage parlour’s licensee, designated manager(s), designated supervisor(s),
and any person who is working alone in the alternative massage centre when it is
open to patrons or the public, when patrons or the public can enter, or when
alternative massage or other services are provided, available, or offered in the
alternative massage centre.
“services designed to appeal to erotic or sexual appetites or inclinations” shall
include:
(a) services of which a principal feature or characteristic is the nudity or
partial nudity of any person; and
(b) services in respect of which the word “nude”, “naked”, “topless”,
“bottomless”, “sexy”, “sensual”, or any other word, picture, symbol,
or representation having like meaning or implication is used in any
advertisement.
General Provisions
2. The provisions of Chapter 500 of The City of Kitchener Municipal Code
shall apply to this Chapter. In the event of any conflict, the provisions of
this Chapter shall apply.
3. The provisions of Chapter 501 of The City of Kitchener Municipal Code
shall apply to this Chapter and the fees for a licence under this Chapter
shall be as set out therein.
4. The provisions of Schedule “A” hereto shall form a portion of this Chapter.
5. The provisions of this Chapter apply to any trade, occupation, calling, or
business described herein that is carried on either wholly or partly within
the City even if the business is being carried on from a location outside the
City.
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6. No person shall operate or permit to be operated an alternative massage
centre unless a valid licence hasbeen issued respecting the alternative
massage centre.
7. An applicant for a licence with respect to a complementary health care
centre is exempt from the requirement of paying a licence fee under this
Chapter. All other provisions of this Chapter will apply to complementary
health care centres.
8. Attendants, operators, and licensees at a complementary health care
centre must comply with all requirements of this Chapter unless
specifically exempted therefrom.
9. (1) An accredited publicly funded college or post-secondary institution,
and a privately funded post-secondary institution offering a formal
course of education and training is exempt from the requirement of
paying a licence fee under this Chapter for such formal course of
education and training but shall comply with all other provisions of
this Chapter.
(2) Notwithstanding section 9(1) above, if alternative massage is
provided or offered outside of the hours or location specified
pursuant to section 14, or provided to patrons for hire or gain, the
requirement to pay a licence fee will apply.
10. No person shall operate an alternative massage centre at a location where
a business licensed under Chapter 502 of The City of Kitchener Municipal
Code is operating.
11. Every licensee shall ensure that the licensee’s current licence number is
included in every advertisement for the alternative massage centre.
12. During the hours of operation of the alternative massage centre, as
provided to the Manager of Licensing pursuant to section 14, every
operator and attendant shall ensure that the principal means of access
into the alternative massage centre is kept unlocked and accessible so
that any person enforcing this Chapter may enter without hindrance or
delay.
13. Every licensee shall ensure that there are no locks or locking mechanisms
on the door of any room where an attendant provides services or is likely
to provide services given the physical set-up of the room, and that there is
unencumbered access to and egress from such a room at all times.
14. (1) In addition to complying with the requirements set out in Chapter
501, every person other than a corporation who applies for a
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licence or renewal of licence to operate an alternative massage
centre shall provide the following information to the Manager of
Licensing and operate in accordance with such information:
(a) a list of all services offered or provided in, upon, or at the
alternative massage centre and the fees charged for each
service;
(b) the hours of operation of the alternative massage centre;
(c) a list of all individuals designated to act as a manager or
supervisor of the alternative massage centre when the
licensee is not physically present in the alternative massage
centre or written confirmation that no other individuals are
designated to act as manager or supervisor of the alternative
massage centre; and
(d) in the case of a publicly or privately funded post-secondary
institution shall provide a curriculum outline and the times
and specific locations of alternative massage classes
including room numbers if applicable.
(2) In addition to complying with the requirements set out in Chapter
501, every corporation that applies for a licence or renewal of
licence to operate an alternative massage centre shall provide the
following information to the Manager of Licensing and shall operate
in accordance with such information:
(a) a list of all services offered or provided in, upon, or at the
alternative massage centre and the fees charged for each
service;
(b) the hours of operation of the alternative massage centre;
(c) a list of all individuals designated to act as a manager or
supervisor of the alternative massage centre; and
(d) in the case of a publicly or privately funded post-secondary
institution, shall provide a curriculum outline and the times
and specific locations of alternative massage classes
including room numbers if applicable.
15. Every licensee of an alternative massage centre may, upon giving forty-
eight hours’ notice in writing to the Manager of Licensing, change:
(a) the services provided at the alternative massage centre;
(b) the fees charged for such services;
(c) the hours of operation of the alternative massage centre;
(d) the individual(s) designated to act as a manager or supervisor of
the alternative massage centre; and
(e) where applicable, the curriculum outline and the times and specific
locations of alternative massage classes.
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provided that any such change is in accordance with all of the provisions
of this Chapter.
16. Every operator shall ensure that no charge, demand, or request for
payment for any services offered or performed in the alternative massage
centre takes place, except in accordance with the list provided to the
Manager of Licensing pursuant to section 14.
17. Every licensee shall post a copy of the list of services and fees referred to
in section 14 and every operator shall ensure that such list remains posted
in a conspicuous place in the interior of the alternative massage centre so
that it is plainly visible to any person upon entering the alternative
massage centre.
18. Where the licensee is an individual, the licensee shall ensure that at least
one person who is designated as a manager or supervisor of the
alternative massage centre pursuant to section 14(1)(c) is present at all
times that the alternative massage centre is open and the licensee is
absent from the alternative massage centre.
19. Where the licensee is a corporation, the licensee shall ensure that at least
one person who is designated as a manager or supervisor of the
alternative massage centre on the list provided to the Manager of
Licensing pursuant to section 14(2)(c) is present at all times that the
alternative massage centre is open.
20. Every operator shall ensure that the alternative massage centre is not
open to patrons or the public, that patrons or the public can not enter the
alternative massage centre, and that no alternative massage or other
services are provided, available, or offered in the alternative massage
centre unless it is both;
(a) between the hours of 9:00 am and 8:00 pm; and
(b) during the hours submitted to the Manager of Licensing pursuant to
section 14 of this Chapter.
21. (1) Every operator shall ensure that no person or attendant performs
alternative massage on an attendant in an alternative massage
centre.
(2) Section 21(1) shall not apply where:
(a) an attendant in a complementary health care centre
performs alternative massage on another attendant for the
purpose of maintaining credentials with a complementary
health care organization when no patrons are present; or
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(b) when a student or teacher at a privately or publicly funded
post-secondary institution performs alternative massage on
another student or teacher for the purpose of instruction
when no patrons are present.
22. Every operator shall ensure that no attendant is present in the alternative
massage centre while nude, topless, bottomless, or wearing lingerie
visible to another person.
23. No attendant shall be in an alternative massage centre while nude,
topless, bottomless, or wearing lingerie that is visible to another person.
24. Every operator shall ensure that no attendant in an alternative massage
centre provides alternative massage to a person or has any physical
contact with a person whose genital, perineal, and anal areas are not
covered.
25. No attendant in an alternative massage centre shall provide alternative
massage to a person or have any physical contact with a person whose
genital, perineal, and anal areas are not covered.
26. Every operator shall ensure that no attendant in an alternative massage
centre touches the genital, perineal, or anal area of any person.
27. No attendant in an alternative massage centre shall touch the genital,
perineal, or anal area of any person.
28. Every operator shall ensure that no condoms, or sexual or erotic devices
or materials are present in the alternative massage centre.
29. Every operator shall ensure that the alternative massage centre is not
open to patrons or the public unless a valid licence for the alternative
massage centre is posted in a conspicuous place that would be readily
visible to members of the public or patrons entering the alternative
massage centre.
30. Every licence issued pursuant to this Chapter applies only with respect to
the specified location.
31. No person shall violate any condition placed on a licence.
32. No person shall operate or permit to be operated an alternative massage
centre while the applicable licence is suspended or revoked.
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Enforcement
33. Every person who contravenes any provision of this Chapter and every
director or officer of a corporation who concurs in such contravention by a
corporation is guilty of an offence and is liable, upon conviction, to a fine
for each offence, not exceeding:
(a) on a first offence under this Chapter, twenty-five thousand dollars
($25,000);
(b) on a second offence under this Chapter, fifty thousand dollars
($50,000); and
(c) on a third or subsequent offence under this Chapter, one hundred
thousand dollars ($100,000).
34. The fine amounts in section 33 are exclusive of costs and are recoverable
under the Provincial Offences Act.
35. In addition to powers of entry set out in Chapter 500, the City including
any agent or representative thereof, may conduct an inspection:
(a) of any premises to which any provisions of this Chapter apply, at
any reasonable time including all times when services are or
appear to be offered or performed therein; and
(b) of any premises other than a complementary health care centre to
which any provisions of this Chapter apply and at which body-rubs
are being conducted, at any time of the night or day.
36. An inspection of any premises to which any provisions of this Chapter
apply may be conducted to determine whether or not the following are
being complied with:
(a) any by-law under the Municipal Act, 2001, including this Chapter;
(b) a direction or order of the City made under the Municipal Act, 2001
or made under a by-law of the municipality passed under the
Municipal Act, 2001;
(c) a condition of a licence issued under a by-law of the municipality
passed under the Municipal Act, 2001;
(d) an order made under section 431 of the Municipal Act, 2001.
37. For the purposes of an inspection of any premises to which any provisions
of this Chapter apply, the City including any agent or representative
thereof may:
(a) require the production for inspection of documents or things
relevant to the inspection;
(b) inspect documents or things relevant to the inspection;
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(c) require information from any person concerning a matter related to
the inspection; and
(d) alone or in conjunction with a person possessing special or expert
knowledge, make examination or take tests, samples, or
photographs necessary for the purposes of the inspection.
38. Council of the City hereby authorizes the Waterloo Regional Police
Services or any officer thereof to act as agent for the City for the purpose
of enforcing this Chapter.
39. It is hereby declared that each and every of the foregoing sections of this
Chapter is severable and that, if any provisions of this Chapter should for
any reason be declared invalid by any court, it is the intention and desire
of Council that each and every of the then remaining provisions hereof
shall remain in full force and effect.
40. By-law 2008-48, by-law 2008-116, by-law 2008-126 and the contents of
Chapter 508 are hereby repealed as of January 18, 2010 and this by-law
comes into force and effect on January 18, 2010.
41. The Clerk of the City is hereby directed to make this by-law a part of The
City of Kitchener Municipal Code by adding it to the Concordance and
arranging and numbering it as Chapter 508 so as to fit within the scheme
of the Code.
PASSED at the Council Chambers in the City of Kitchener this day
of , A.D. 2010.
_____________________________________
Mayor
_____________________________________
Clerk
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Schedule “A”
Definitions
1. For the purposes of this Schedule “A”,
“City Council” shall mean Council of The Corporation of the City of Kitchener and
“Council” shall include both City Council and a Licensing Committee that has been
constituted by City Council.
2. Upon receipt of a complete licence application the Manager of Licensing shall
either issue or renew a licence hereunder or shall refer the matter to Council.
3. Save as otherwise provided herein, every licence issued or renewed pursuant to
this Chapter shall be issued in the name of City Council by the Manager of
Licensing.
4. The Manager of Licensing shall not process an application where that application
is incomplete. An application will be deemed incomplete where:
(a) required information has not been provided on the application form;
(b) information or documentation required by the Manager of Licensing as
part of the application process has not been provided;
(c) the prescribed licence fee is unpaid; or
(d) the Manager of Licensing has received an unsatisfactory report regarding
an investigation carried out pursuant to Chapter 500 of the City of
Kitchener Municipal Code or any other by-law of the City and the
conditions causing the report to be unsatisfactory have not been
remedied.
5. Where the Manager of Licensing receives an incomplete application, the
Manager of Licensing shall, where an address or other contact information has
been provided, notify the applicant that the application is incomplete and of the
steps required to complete the application.
6. Where the Manager of Licensing decides an application is incomplete, the
applicant shall have the right to appeal that decision to Council.
7. If the Manager of Licensing is unable to determine whether an application is
incomplete, he/she may refer the matter to Council for consideration.
8. The Manager of Licensing may refer an application or a licence to Council where:
(a) the applicant or licensee does not meet the requirements of this Chapter
or any other applicable law or by-law;
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(b) there are reasonable grounds for belief that an application or other
document provided to the Manager of Licensing by or on behalf of an
applicant or licensee contains a false statement or provides false
information;
(c) the past or present conduct of any person, including the officers, directors,
employees, or agents of a corporation, affords reasonable cause to
believe that the person will not carry on or engage in the business in
accordance with the law or with honesty and integrity;
(d) without limiting the generality of section 7(c), any person, including the
officers, directors, employees, or agents of a corporation, has contravened
this Chapter or any other by-law or federal or provincial statute or
regulation while engaged in or conducting the business;
(e) any special conditions placed on a former or current licence of the
applicant or licensee under this Chapter have not been met; or
(f) the provisions of this Chapter provide grounds not to issue or renew in the
circumstances.
9. When any matter has been referred or appealed to Council, the applicant or
licensee shall be given reasonable notice of the time and place of the hearing
and shall be invited to make submissions.
10. When any matter has been referred or appealed to Council, after due
consideration of the application or licence and after Council has heard such
representations as the applicant or licensee and staff may care to make, Council
may direct that the licence be issued or renewed, or may refuse, suspend,
revoke, or add conditions to a licence where:
(a) the applicant or licensee does not meet the requirements of this Chapter
or any other applicable law or by-law;
(b) information or documentation required by the Manager of Licensing as
part of the application process has not been provided;
(c) the application is incomplete or the prescribed licence fee is unpaid;
(d) the Manager of Licensing receives an unfavourable report regarding an
investigation carried out pursuant to Chapter 500 of The City of Kitchener
Municipal Code or any other by-law of the City.
(e) there are reasonable grounds for belief that an application or other
document provided to the Manager of Licensing by or on behalf of an
applicant or licensee contains a false statement or provides false
information;
(f) the past or present conduct of any person, including the officers, directors,
employees, or agents of a corporation, affords reasonable cause to
believe that the person will not carry on or engage in the business in
accordance with the law or with honesty and integrity;
(g) without limiting the generality of Section 9(f), any person, including the
officers, directors, employees or agents of a corporation, has contravened
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this Chapter of any other by-law or federal or provincial statute or
regulation while engaged in or conducting the business;
(h) any special conditions placed on a former or current licence of the
applicant or licensee under this Chapter have not been met;
(i) the provisions of this Chapter provide grounds not to issue or renew in the
circumstances; or
(j) the applicant or licensee has consented to the refusal, suspension,
revocation, or adding of conditions to the licence.
10. A decision of Council under section 9 shall be final.
11. Where a licensee is convicted of an offence under any federal or provincial Act,
any regulation made thereunder, of any by-law of the City in relation to or during
the carrying on of the trade, calling, business, or occupation licensed hereunder,
the licence may be suspended forthwith by Council until such time as the matter
can be heard and finally determined by Council.
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