Hello genericon-ga:
As you're about to learn, the role of LP is really surveillance. In
many cases, the police are called in right away. Because of fear of
lawsuits, stores can't risk holding suspects on-site for any real
length of time. Nor does it usually fall to LP to handle negotiations,
although increasingly, stores are opting to pursue civil fines, rather
than prosecute in the criminal courts.
UNDERSTANDING ILLINOIS THEFT LAWS:
First, it's important to understand the actual statutes, so I checked
shoplifting laws in Illinois.
On January 9, 2003, the governor's office announced that Illinois's
1961 criminal code was being updated:
http://www.illinois.gov/PressReleases/ShowPressRelease.cfm?SubjectID=1&RecNum=1998
Illinois Felony & Misdemeanor Defense:
http://www.weblocator.com/attorney/il/law/felonmisdem.html
(I'm not certain if this is from the 2003 revision, or from the
original 1961 code):
"Under the law, many crimes are misdemeanors on the first offense, but
become felonies on the second offense. This means that, for example,
retail theft of property *valued at less than $150 is a misdemeanor
the first time*. If a person already has been convicted of retail
theft (shoplifting) and is arrested again for a similar action, the
person will be charged with felony retail theft. Misdemeanors carry a
maximum punishment of a fine and less than one year of incarceration.
Crimes for which a person may be punished by more than one year in
jail or in prison are categorized in Illinois as felonies."
So, the $140 item will be a misdemeanor (unless this is a repeat
offense), and it appears the $300 item is going to be a felony, even
if it's the accused's very first offense.
The Deerfield (about 20 miles from Chicago) IL, Police Department has
a very instructive guide on proper procedure for detaining a
shoplifting suspect:
"Illinois Law Regarding Retail Theft"
http://www.deerfield-il.org/police/Retail.htm
"To detain a shoplifter, you must have probable cause.
Presumption
- If any person:
1.) Conceals upon his person or among his belongings, unpurchased
merchandise displayed, stored, or offered for sale; and
2.) Removes that merchandise beyond the last known point for receiving payment.
Detention [Here's the part of interest to us!]
Any merchant who has reasonable grounds to believe that a person has
committed retail theft may detain such a person (*in a reasonable
manor [sic] for reasonable time*) for all or any of the following
purposes:
1.) To request identification.
2.) To verify identification.
3.) To make reasonable inquiry as to whether such as person has
unpurchased merchandise in his possession; and to make reasonable
investigation of the ownership of such merchandise.
4.) To inform a police officer of the detention of the person and
surrender that person to the custody of the police officer.
5.) In the case of a minor, to inform a police officer, parent, or
guardian of this detention and to surrender custody of minor to such
person."
So, the key passages here are "make reasonable inquiry" . . . "to make
reasonable investigation of the ownership of such merchandise" . . .
."
But what IS a reasonable manner and what IS a reasonable length of
time? It's crucial to pin down those issues, as failure of LP
personnel to follow the code will undermine the store's case -- the
case might even be dismissed if the accused's rights have been
violated.
And, also note that LP is expected to contact the police and, if the
suspect is a juvenile, the suspect's parents, in a timely fashion. But
again, what, precisely, is meant by "reasonable"? An hour? Three
hours?
The Chicago law firm of Connelly Roberts & McGivney LL provides this
very instructive information about defending a person who's been
accused of shoplifting. or in aid of a client who is suing for
unlawful arrest:
http://www.crmlaw.com/articles/torts.htm
What this paper makes clear is, LPS and store management simply can't
detain a suspect involuntarily. As soon as a suspect indicates that he
or she isn't willing to be detained at the store, or willing to talk
to LPS and store management; the police must be notified. (See
citations of court cases at that page; you can look up those cases by
copying & pasting the titles into a search engine, should you care to
read any of those court decisions.)
Connelly Roberts & McGivney's page also notes "The Illinois Retail
Theft Act Provides an Affirmative Defense to Merchants Accused of
False Arrest/Imprisonment:
'The Illinois Retail Theft Act 720 ILCS 5/16A-5 et seq. states:
Any merchant who has reasonable grounds to believe that a person has
committed retail theft may detain such person, on or off the premises
of a retail mercantile establishment, in a reasonable manner and for a
reasonable length of time for all or any of the following purposes:
In request identification;
To verify such identification;
To make reasonable inquiry as to whether such person has in his
possession unpurchased merchandise and, to make reasonable
investigation of the ownership of such merchandise;
To inform a peace officer of the detention of the person and surrender
that person to the custody of a peace officer;. . . ."
But again, we're still stuck with define "reasonable.' "
Also see: from Crime Frameset:
http://www.dss.mil/nf/adr/crime/crimeF.htm
"Since the late 1980s, most states have developed a new and far more
effective procedure for dealing with shoplifting. Store owners
themselves in 43 states can now impose civil fines on shoplifters. The
fines range from $40 to three times "actual damages," depending on the
state. Without ever going into the criminal court system, the store
owner may impose the fine and turn over collection to a lawyer or
collection agency. In the case of a juvenile, the store owner may
collect from the shoplifter's parent. If the fine is not paid, the
store owner can then sue in civil court."
THE ROLE OF LOSS PREVENTION STAFF:
For insights and scenarios into how LP should properly handle alleged
shoplifting at either the misdemeanor (under $150) or felony level, I
went to an expert:
The site "In God We Trust, All Others We Watch," features a round-up
of real-life, Chicago-area LPS encounters with shoplifters:
http://chicagolp.8m.com/
(Please note the site's caveat "No Material At This Site Should Be
Taken As Legal Advice.")
See "The Six Step Rule" at that site, which also pertains to Illinois
shoplifting laws:
http://chicagolp.8m.com/training_main.html
I e-mailed Jeff, the site's maintainer. Jeff, who has an Associates
Degree in Criminal Justice, has worked in several different types of
retail operations. (Jeff asked me not to use his last name as he is
actively working in LP, and he often receives e-mails -- via his Web
site -- from (apparent) shoplifters using various ruses in an effort
to obtain details that might help them in committing theft.)
Here's my interview with Jeff:
Nancy: "We would like to know if LP and store management are more
likely to offer the shoplifter a chance to settle the matter by civil
demand, rather than via the criminal courts. (I understand that, in
many states, retailers are now more apt to impose civil fines on
shoplifters, rather than pursue the matter in criminal court. That is
the law in Illinois, correct?)
Jeff: Yes, that is indeed the law in Illinois. Civil Demand was
created to help stores recover some of the losses that they accrue by
apprehending shoplifters (such as, paying for all of the security
devices that you see in the stores including sensormatic gates at the
doors and all of the equipment needed to deactivate them, sensormatic
tags, security cameras, and even payroll for security personnel to
watch the customers. In addition it helps offset some of the loss
that is caused by the shoplifters that don't get caught.)
In Illinois, the law states that stores can impose a Civil Demand
amount of not less than $100.00 and not more than $1,000.00 per
shoplifting incident. Also, Civil Demand can be imposed WHETHER OR
NOT THE SHOPLIFTER
IS ARRESTED/PROSECUTED. This means that basically, making the Civil
Recovery in this state is 'extra'. Whether or not the shoplifter is
arrested actually holds no bearing on the Civil Demand matter.
Nancy: I would also think it would be store management, along with the
store's corporate counsel, that would handle any negotiations, not
LPS.
Jeff: I have never worked for a company where it is the job of the LPS
to collect Civil Demand. That is a separate job in and of itself.
All of the companies that I have been involved with follow this
procedure: When the shoplifter is in custody (of the store), L.P.
will simply hand them a small typed form with the company head on it
that:
1) Explains the Civil Demand Laws to the person
2) Informs them that they may be contacted by a company representative
requesting them to make payment.
Then once all is said and done, I will fax in all of the shoplifter's
information to corporate.
It would be extremely difficult for the LPS that apprehended the
shoplifter to then be required to call them back later and request
money from them. Also, it kind of creates a conflict especially if the
apprehension became physical. The Corporate office usually takes over
from that point and they will contact the shoplifter and request a
said amount of money. I have been told by shoplifters that I have
apprehended that they are usually charged $200.00. Then if they
refuse to make payment, the company can take them to court and sue
them for Civil Demand and also Attorney's fees and court
costs. As you can see, expecting an LPS to handle all of this would
be inappropriate.
Nancy: Generally, are Illinois retailers more likely to try to settle
the matter with an apprehended shoplifter; or more likely to expect LP
personnel to immediately call the police?
Jeff: This is actually a difficult question to answer and the reason
is, because it comes down to company policy and also what kind of
dollar amount we are looking at. I worked for a company that
prosecuted ALL shoplifters except for minors (they were turned over to
the parents) and sometimes expecting mothers and senior citizens
depending on their health. However, the most inexpensive piece of
merchandise that the store sold was probably $20.00.
However, now I work for a grocery/ drug store and I deal with "nickel
and dime cases" on a regular basis. If I was to prosecute every one
of those shoplifters, I would start to upset the Police and the
Criminal Courts because they don't want to be bothered with
prosecuting those kinds of low dollar cases when they could be going
after the professional thieves.
In this company, I am authorized to make a decision as to whether or
not I want to prosecute based on: the age of the shoplifter, the
amount stolen, whether I am dealing with a repeat offender, if this
person is likely to shoplift again, and other factors of the case.
The only thing that prosecuting a shoplifter does for a company is to
get the word out on the street that your store is a tough store to
steal from and if you do steal from here, you go to jail. But in most
cases, the way I handle it (and the way my company handles it) is as
follows: I tell the shoplifter that we are letting them go today. I
tell them also that they are banned from the property indefinitely and
if they are seen on the property, for any reason, they will be
prosecuted for Criminal Trespass. Then you add the shoplifters name
to a data base of some kind, and if they are caught stealing again,
you double-prosecute them for Retail Theft and Criminal Trespass.
Nancy: I understand that, under the Illinois Retail Theft Act, LPS may
detain a suspect for a "reasonable" amount of time, and make
"reasonable inquiry," but 'reasonable' seems quite murky! What IS a
reasonable length of time for detaining a suspect??? An hour? 15
minutes??
Jeff: Very true....'reasonable' is a very loose word. The reason is,
because it depends on the situation at hand. If everything goes well
and I decide to cut the shoplifter loose, all they have to do is give
me their identification so that I can copy the information onto my
paperwork. In a perfect scenario, this will take me 15-20 minutes and
the shoplifter is out
the door. However, most shoplifting situations are not the 'perfect scenario'.
If the shoplifter doesn't want to cooperate, that takes time. If the
shoplifter pretends to cooperate and then you find out that you have
received a fake alias, that takes time. If you arrest the shoplifter,
you have to wait until the police arrive (and as an LPS, the amount of
time that takes is obviously beyond your control), that takes time.
At my last job, if I called the police, they would generally be there
in 2 minutes. However, in the area I work in now (a rough area where
there are lots of
gang problems and violent crimes occurring), it is not uncommon for a
shoplifting call to be placed on hold for an hour to an hour and a
half. So I have to spend that time sitting with the shoplifter,
waiting for the police.
That is why they use the word 'reasonable'. If a person feels that
they have been detained for an unreasonable amount of time, then
that's what we have the courts for (to look at the facts of the case
and determine whether the shoplifter was held for an unreasonable
amount of time).
Nancy: Along the same lines, what the heck constitutes a 'reasonable
inquiry' or negotiation with a shoplifting suspect?
Jeff: There are very little "negotiations" that go on in a shoplifting
apprehension. I either say 'yes, they are going to jail' or 'no, I am
cutting them loose'. If you start negotiating with the shoplifter,
you are dealing with bribery.
The 2 main things that must be avoided at all costs by an apprehending
LP agent are 'threats and promises' that are made to shoplifters.
This is also another reason why Civil Demand should not be handled at
the time of the apprehension. If the shoplifter feels that they have
to pay the store money in order to be released, this could backfire
big time in civil court. We do not threaten shoplifters for any
reason and we also do not make any promises.
Once I announce that a shoplifter is going to jail, that's it. This is
the end of the negotiations. It doesn't matter if they fight, yell or
cry....they are going to jail, end of story. That is the best way to
handle it because that way you are not exposing yourself to possible
injustices.
Nancy: Also, does the dollar amount of the stolen merchandise play a
role? That is, if a shoplifter has taken more than $150 worth of
merchandise (so it's no longer at misdemeanor level), is the store
more likely to pursue criminal
prosecution?
Jeff: In Illinois, if a shoplifter has taken merchandise with a retail
value of $150.00 or more AND has a previous theft conviction, they can
be held for a felony. However, the store has no way of knowing
whether a shoplifter has a
previous theft conviction. So therefore, to answer your question, it
plays no role. Whether a case goes felony or misdemeanor is completely
up to the State's Attorney and what they want to prosecute the
offender for. It could
also meet all of the above requirements and still the State's Attorney
can choose not to prosecute the shoplifter with a felony.
Regarding the store's role, and whether or not a shoplifter actually
gets arrested, I can guarantee you that in any case, if a shoplifter
is caught in my store with $150.00 worth of merchandise that they are
getting arrested.
I would also like to make a suggestion to your client: I had the
pleasure of reading an extremely good book on the legal aspects of
Loss Prevention. The name of the book is 'Shoplifters vs. Retailers-
The Rights of Both' and the author is Charles Sennewald (a security
expert). [New Century Press; 1 edition; March 17, 2000.] The book is
very easy reading. They may want to check it out."
I'm very grateful to Jeff for his expert insights!
You can find the book Jeff mentioned at Amazon.com:
http://www.amazon.com/exec/obidos/tg/detail/-/1890035181/qid=1085154778/sr=1-1/ref=sr_1_1/103-1854269-4123023?v=glance&s=books
And, at Barnes & Noble.com:
http://search.barnesandnoble.com/booksearch/results.asp?WRD=Shoplifters+vs%2E+Retailers&userid=bsq14RPO0N&cds2Pid=946
OTHER RESOURCES:
Directory:
Google's Directory On Loss Prevention contains many resources that may be of
interest and assistance to you:
http://directory.google.com/Top/Business/Retail_Trade/Loss_Prevention/
Earlier this week I contacted the Illinois Retail Merchants Association (IRMA):
http://www.illinoiscleanair.org/irma.htm
http://www.irma.org/
to inquire if Illinois merchants and their LPS are more likely to try
and settle shoplifting incidents with payment for stolen items and/or
fines, rather than pursue the matter in court. (This was just before
my interview with Jeff.) I've not yet received a reply from IRMA. If I
do, I'll post that as an Answer Clarification.
Btw, IRMA does have an online,"4-12 IRMA Loss Prevention Manual:
Shoplifting & Civil Recovery manual" (you'll see a link to it at the
above URLs), but you have to be a member of the organization to access
it.
Search Strings:
Illinois loss prevention procedure shoplifting
"Illinois AND shoplifting"
"Illinois shoplifting laws
Illinois shoplifting misdemeanor
revised AND "Illinois criminal code" AND shoplifting OR theft
"Loss Prevention" AND procedure AND shoplifting OR theft AND Illinois
Illinois loss prevention procedure shoplifting
Chicago AND percentage AND shoplifting AND prosecuted
Illinois AND "loss prevention" AND retail
I hope my research is of help to you. Should you require
clarification, please post a "Request For Clarification," PRIOR to
rating my answer.
Best Regards,
nancylynn-ga
Google Answers Researcher |
Clarification of Answer by
nancylynn-ga
on
24 May 2004 19:18 PDT
I put your three follow-up questions to both Jeff, the LP officer
who's already helped us out, and to an Illinois criminal defense
attorney.
In a nutshell: Yes, under $150 is a misdemeanor on a shoplifting
charge, IF it's the first offense; a store agreeing to an out-of-court
settlement is *highly* unlikely; and LP may use reasonable force to
detain a shoplifting suspect.
Here's the long version:
1. Misdemeanor/Felony:
Des Planes, Illinois, attorney Steven H. Fagan, P.C., Esq., of Fagan,
Fagan & Davis:
http://www.MyAttorneysOnline.com
kindly came to my rescue on this matter.
I asked him your question "Clearly, any valued item is a felony on the
second offense, but is the correct amount $150 or $300? for the first
offense?:
Mr. Fagan replied:
"The correct amount is the actual value of the item or items taken.
"An amount under $150 is a misdemeanor so long as the defendant has
not been previously convicted of Retail Theft. But a second arrest
for someone already convicted of retail theft of any amount is a
felony.
"Let the State's Attorney worry about whether to charge with felony
status if the amount is under $150.00. It's their job to determine
the offender's background, and once they've brought in the police and
State's Attorney, the store likely has little or no say what level of
charges will be brought in this situation.
"That means an offender who tries to take a pack of cigarettes could
be felony eligible, so if LP wants to exercise discretion, the time to
do it is before signing any complaints. Likewise, if the actual
amount of the items taken is $151.00, the store has discretion to
assess the value down $1.00, as 99% of the time, when charging, the
police will look to
the retailer to set the value."
Btw, I now know why you'd found the $300 amount significant and asked
about it in your original question. It IS confusing.
At http://www.weblocator.com/attorney/il/law/felonmisdem.html
where I'd quoted to you the passage re: $150 as a misdemeanor, right under that is:
"Crimes Causing Harm to Property
Theft, burglary, and robbery are felonies in Illinois unless the value
of the property taken is under $300."
That IS confusing. But wait, it gets even more confusing (just what we
need), thanks to the revision (which went into effect on August 6,
2003) to the 1961 Illinois Criminal Code. I have a feeling that while
you were researching this matter, you found this information and
that's why you were curious about the $300 amount.
As I noted in my answer, the "Illinois Compiled Statutes Criminal
Offenses Criminal Code of 1961 720 ILCS 5" was revised in 2003. During
my renewed search I found Illinois bill "SBO265," which, according to
the Illinois's General Assembly site went into effect in August of
2003:
http://www.legis.state.il.us/legislation/BillStatus.asp?DocTypeID=SB&DocNum=265&GAID=3&SessionID=3&LegID=1868#actions
(The Webmaster for the Illinois General Assembly replied to my e-mail
and assured me the bill did indeed become law on August 6, 2003.0"
Senate Bill 265 which was signed into law and became effective
8-6-2003. "When a Public
Act number is assigned to a bill such as this 93-520 that means it
became law. The floor actions mean that the bill was given to the
Governor on 6-6-2003 and he had 60 days to sign it which he failed to
do and when that happens, a bill automatically becomes law."
Here's a link to the revised code:
http://www.legis.state.il.us/legislation/fulltext.asp?DocName=&SessionId=3&GA=93&DocTypeId=SB&DocNum=265&GAID=3&LegID=1868
(1) Theft of property not from the person and not
4 exceeding $300 in value is a Class A misdemeanor.
5 (1.1) Theft of property not from the person and not
6 exceeding $300 in value is a Class 4 felony if the theft
7 was committed in a school or place of worship.
8 (2) A person who has been convicted of theft of
9 property not from the person and not exceeding $300 in
10 value who has been previously convicted of any type of
11 theft, robbery, armed robbery, burglary, residential
12 burglary, possession of burglary tools, home invasion,
13 forgery, a violation of Section 4-103, 4-103.1, 4-103.2,
14 or 4-103.3 of the Illinois Vehicle Code relating to the
15 possession of a stolen or converted motor vehicle, or a
16 violation of Section 8 of the Illinois Credit Card and
17 Debit Card Act is guilty of a Class 4 felony. When a
18 person has any such prior conviction, the information or
19 indictment charging that person shall state such prior
20 conviction so as to give notice of the State's intention
21 to treat the charge as a felony. "
After taking an aspirin I went back and looked at what I'd quoted to
you in my answer:
http://www.weblocator.com/attorney/il/law/felonmisdem.html
"Under the law, many crimes are misdemeanors on the first offense, but
become felonies on the second offense. This means that, for example,
retail theft of property *valued at less than $150 is a misdemeanor
the first time*. If a person already has been convicted of retail
theft (shoplifting) and is arrested again for a similar action, the
person will be charged with felony retail theft. . . ."
Again, small wonder you wondered about a $300 amount.
This couldn't be more bewildering to a non-lawyer, but here's all that
matters: Mr. Fagan has confirmed for us that a stolen item valued at
under $150 is a misdemeanor if this is the culprit's first shoplifting
offense.
2. "Civil Demand does not seem to be an out-of-court settlement. Once
a person has been arrested in an 'open-and-shut' case, is it possible
for the corporation that pressed charges to accept an out-of-court
settlement in exchange for dropping criminal charges?"
I put that question to both Jeff, the LP officer, and to Mr. Fagan.
Jeff replied: "We would never drop Criminal Charges for any reason.
That is an excellent way to get sued . . . If you arrest somebody and
then later drop the charges, they can turn around and sue you since
you could not prove your case."
Mr. Fagan replied:
"As far as any Civil demand, negotiation at the point of detention
would be much more than foolish, and possibly criminal.
"A settlement in Illinois cannot take place without the existence of a
dispute. The retail establishment's legal department would usually
create this situation by notifying the accused shoplifter of their
intention to collect the amount authorized under Illinois statute to
which you referred in your earlier answers [in the answer I'd posted
for you here]. The accused shoplifter could then send in a payment to
settle the matter, or force a lawsuit.
"For the LP personnel to engage in negotiation for anything other that
return of the merchandise (in the less common case where the
merchandise was not recovered) might be construed as 'intimidation,'
Illinois' term for extortion, a serious criminal charge. The retail
establishment can decline to prosecute up front, when they have the
most control, but once they get the police involved, things become
more complicated.
"The police have discretion of their own to decide whether to charge.
Once charged by the police, the prosecutor has discretion of their own
to decide whether to prosecute and how to proceed. The LP court
liaison or witness can try to influence the decisions of the police
and prosecutor, but by no means has the final say."
So dropping charges and agreeing to accept an out-of-court settlement
from the shoplifter is pretty much out of the question.
3. Use Of Force:
I did fail to address the use of force as specifically as you'd
requested -- my apologies. I basically intertwined "detain" with
"force" and while those things are certainly related, they are still
separate issues!
Mr. Fagan wrote me: LP can use reasonable force to detain. Reasonable
is defined by the circumstances. A good LP department will attempt to
define procedures for various circumstances to the extent possible,
and train their personnel accordingly. That doesn't mean that a
particular procedure is always reasonable just because it is defined,
but would at least be of some help in guarding against possible
lawsuits. Reasonable force is just enough to get the job done, and no
more. That's not a legal definition, just a reasonable one."
Jeff replied:
"In Loss Prevention we tell the shoplifter to stop and if they refuse
to, we have the right to tackle them or hold them down. That word
'reasonable' again creates a little confusion. Obviously we cannot
start punching a shoplifter or seriously injuring them unless they are
attempting to cause us death or great bodily harm. At which point, we
have the right to defend ourselves just like any other citizen.
"We can use force to hold a shoplifter and if the shoplifter hits us
or causes us any bodily harm, we can charge them with 'aggravated
battery (Illinois #15) on a merchant detaining a shoplifter." So
basically it is the same charge as hitting a police officer; it is a
felony."
I also asked Jeff can LP use handcuffs?
Jeff: "Yes we can, and I never leave home without them. I have
personally never handcuffed anybody myself, but I always have them and
I have received the proper training, should the need arise."
I also asked him are LP allowed to be armed with guns?
Jeff: "They can be armed, but it is extremely risky. The company I
work for now does have a few armed guards left, but they have not
armed anybody new since the early 90's.
"All of the agents who currently carry are 'Grandfathered in'. It
requires a lot of training and licensing from the State (including
range qualification every year). Plus, overall, it is not a good idea
because there are too many agents that are likely to use force for
unnecessary reasons.
"The main thing about all of this (use of force, handcuffing, etc.) is
that it depends on what the company wants their L.P. team to do. Just
because the law says that WE CAN USE FORCE and WE CAN HANDCUFF does
not mean that we have to.
"In fact, because of all of the lawsuits that are out there on L.P.
teams, a large majority of companies have adapted a "no touch/no
pursuit" policy, meaning just that.
"A Loss Prevention Agent can invite the shoplifter back into the store
and if they fight or flight, then the matter is turned over to the
police--END OF STORY.
"Although my company still authorizes the use of force and
handcuffing, we are not allowed to pursue shoplifters in the parking
lot due to liabilities that could occur if either security or the
shoplifter were hit by a car.
"Also for safety reasons if there might be an accomplice waiting in
the lot. So basically it is up to the company as to how much power
they want to give their L.P. agents. With power comes responsibility,
and that requires training."
Btw, I stumbled upon this site, which may be of interest to you:
Shoplifting Alternatives:
http://www.shopliftersalternative.org/
At left, see the menu and select either "How SA Works In The Courts"
or "How SA Works For Retailers."
You'll have to fill out an online form there with your name, address,
and company information in order to access materials about shoplifting
court cases.
I hope this clarification is satisfactory.
This was a very interesting matter to research -- despite all that
bewildering legalese!
Regards,
nancylynn-ga
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