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Sunday, January 06, 2008

Wille White -vs- The Court Apartments

Please click onto the COMMENTS for the story.

13 Comments:

Blogger Bob said...

There maybe copy errors.

W. H. Tyrone Terrill, Director
St. Paul Department of Human Rights
Ex rel. Willie White,
Complainants,
OAH No. 8-2111-12468-3
vs. RECOMMENDATION
ON PENDING MOTIONS
The Court Apartments, owned
By James Marty,
Respondent.
The Director of the Department of Human Rights (the Department) of the City of St.
Paul (the City) began this civil enforcement proceeding by issuing a Notice of Hearing and
Complaint on July 27, 1999. The Complaint alleged that the Court Apartments had violated
Chapter 183 of the Saint Paul Legislative Code (the City Code) by committing housing
discrimination against the Complainant Willie White based on his familial status.
A Resolution of the City assigned the undersigned Administrative Law Judge to serve
as Law Officer for and to preside over the hearing. That hearing occurred on August 25 and
September 28, 1999. Subsequently, on November 4, 1999, the Law Officer held a telephone
conference with counsel for the parties to establish a schedule for their post-hearing
submissions. Court Apartments was to file its brief and any proposed findings of fact on or
before November 29, 1999. The City was to file its brief and any proposed findings of fact on
or before December 8, 1999, and Court Apartments was allowed until December 15, 1999, to
file a reply to the City’s brief. The record in this matter closed on December 15, 1999, when
any reply brief from Court Apartments was to have been received.
After the hearing ended, Court Apartments raised three legal issues that are more
appropriately addressed as motions, namely (1 ) a motion to allow it to introduce the Affidavit
of Colleen Wald as evidence in the record of this proceeding; (2) a motion to dismiss this
matter on the ground that Willie White lacked standing to bring his Complaint; and (3) a motion
to dismiss this matter because the Complainants failed to establish a prima facie case at the
hearing.
After considering the briefs of counsel and everything else in the record of this
proceeding and for the reasons explained in the accompanying Memorandum, the Law Officer
respectfully RECOMMENDS that the Panel of Commissioners (the Panel):
(1) DENY Court Apartments’ motion to introduce the Affidavit of Colleen Wald as
evidence in the record of this proceeding;
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(2) DENY Court Apartments’ motion to dispose of this proceeding summarily on the
ground that Willie White lacked standing to maintain it; and
(3) DENY Court Apartments’ motion to dismiss this proceeding on the ground that
the Complainants failed to establish a prima facie case.
Dated this day of January 2000.
JON L. LUNDE
Law Officer
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MEMORANDUM
I. Court Apartments’ Request to Introduce the Affidavit of
Colleen Wald into the Record.
During the hearing counsel for the Court Apartments tendered as evidence Exhibit 12,
which consisted of notes that he had taken of statements made by Colleen Wald, a witness
whom he had interviewed. The City objected to the introduction of Exhibit 12 on the ground
that it represented testimony of a party’s counsel of record and was therefore incompetent,
since counsel are precluded from serving in the dual role of attorney and witness in a
proceeding.[1] The Law Officer first took the matter under advisement,[2] and at the close of
the hearing, after considering the arguments of the parties, the Law Officer sustained the City’s
objection to the introduction of Exhibit 12 and excluded it.[3] After the hearing ended and by
letter dated November 29, 1999, counsel for Court Apartments tendered as evidence an
affidavit by Colleen Wald as a substitute for Exhibit 12. He indicated a belief that the Law
Officer had directed the record to be kept open for the purpose of further addressing the issue
of statements that Ms. Wald may have made.
Ordinarily a hearing record closes when the hearing ends unless the presiding officer
gives an express directive that the record remain open. Here, the hearing record reveals no
request by Court Apartments to keep the hearing record open for any purpose,[4] and the Law
Officer has no recollection of directing the hearing record to be kept open for any period of
time. Neither the hearing transcript nor the Law Officer’s letter reports of discussions
concerning post-hearing briefing issues reveal any directive to keep the record of this
proceeding open. Finally, it is most unlikely that the Law Officer would have directed the
record to be kept open without specifying a date on which it would be closed. In view of all of
this, Court Apartments’ request to introduce the Affidavit of Colleen Wald as evidence in the
record of this proceeding should be denied as being untimely.
II. Willie White Has Standing to Maintain His Complaint.
The Department initiated this proceeding on behalf of Willie White, alleging that Court
Apartments committed housing discrimination against him and his family by evicting them from
their apartment in violation of Section 183.06 of the City Code. During the hearing Court
Apartments raised the issue of whether Willie White ever had standing to file a complaint with
the Department, since he was not specifically named as a lessee on the lease. In Minnesota
state practice, “standing” refers to a party’s capacity to maintain an action.[5] So the Law
Officer will treat the standing issue as a motion by Court Apartments for summary disposition
on the ground that, as a matter of law, Willie White lacks the capacity to bring this action.[6]
Summary disposition is the administrative equivalent of summary judgment in district
court practice. It is appropriate in cases where there is no genuine dispute about the material
facts, and one party must necessarily prevail when the law is applied to those undisputed
facts.[7] When considering motions for summary disposition in administrative proceedings,
presiding officers generally follow the standards and criteria that have emerged in practice
under the Minnesota Rules of Civil Procedure.[8] There, a genuine issue is considered to be
one that is not a sham or frivolous, and a material fact is one whose resolution will affect the
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result or outcome of the case.[9]
The underlying facts that are involved in this motion are not in dispute. On December 1,
1996, Sophia White leased the apartment in question by signing a month-to-month lease with
Court Apartments. No signature of Willie White appeared on the lease.[10] On the other
hand, the evidence established that Willie White is Sophia White’s husband and was so at the
time when the apartment was rented.[11] The evidence further established that Willie and
Sophia White were living together when the apartment was rented and that he moved into it
with her and her two children.[12]
Under Minnesota law, standing (or capacity to bring an action) involves a two-fold
inquiry: (1) has an actual injury been alleged; and (2) does the person alleging the injury have
an interest that is arguably among those to be protected by the law in question.[13] Here,
eviction is clearly an actual (as opposed to theoretical) injury. And the evidence suggests that
Mr. White’s failure to sign the lease was a simple oversight. But even if that was not the case,
it is settled Minnesota law that possession of a leasehold by a family member of the lessee will
be construed to be the possession of the lessee.[14] Willie White was Sophia White’s
husband and was therefore rightfully in possession of the leasehold. In effect, he may stand in
her place, and he had an interest that was protected by Section 183.06 of the City Code. He
therefore has standing to maintain this enforcement proceeding and Court Apartments’ motion
to dispose of this matter summarily for lack of standing should be denied.
III. The City Did Establish a Prima Facie Case.
At the close of the City’s evidence, Court Apartments made a motion to dismiss this
proceeding on the ground that the City had failed to establish a prima facie case. That motion
was analogous to a defendant’s motion for a directed verdict at the close of the plaintiff’s
evidence in district court practice.[15] But since there is no exact administrative analog to that
kind of motion, the Law Officer will also treat this particular motion as a motion for summary
disposition. When requesting that a proceeding be dismissed summarily, the moving party, in
this case Court Apartments, has the initial responsibility of showing that no material fact is in
dispute. In order to successfully resist Court Apartments’ motion for summary disposition, the
City must show that some specific facts are in dispute that bear on the outcome of the case.
[16] If genuine disputes of material fact do exist, this matter must then be submitted to the
Panel of Commissioners to make findings of fact that resolve them. Finally, when considering
a motion for summary disposition, the evidence must be viewed in the light most favorable to
the non-moving party.[17] In other words, here all doubts about the evidence and factual
inferences that can be made from the evidence in the record must be resolved in the City’s
favor and against Court Apartments.[18] Put yet another way, if reasonable people could differ
about the evidence’s meaning under the law, summary disposition should not be granted.[19]
The provisions of the City Code prohibiting discrimination in real estate transactions[20]
are largely restatements of almost identical provisions of the Minnesota Human Rights Act
(MHRA).[21] So, it stands to reason that the City Council intended that ordinance to be
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applied in the same way in which the analogous provisions of the MHRA have been
applied. In considering whether a discriminatory action has occurred under the Minnesota
Human Rights Act, Minnesota courts apply the principles articulated by the U. S. Supreme
Court in McDonnell-Douglas Corp. v. Green.[22] The approach to adjudicating discrimination
claims in the McDonnell-Douglas case consisted of a three-step analysis. The complainant is
first required to establish a prima facie case. Establishing the required prima facie case then
creates a presumption of discrimination prohibited by Minn. Stat. § 363.03. Although the
burden of proof always remains with the complainant, the burden of producing evidence then
shifts to the respondent to present evidence of some legitimate, non-discriminatory reason for
its actions. If the respondent, in turn, comes forward with evidence of legitimate,
nondiscriminatory reasons for the employment actions in question, then the burden of
producing evidence shifts back to the complainant. And the complainant must then prove by a
preponderance of the evidence that the reasons or justification advanced by the respondent
amount to a pretext for intentional discrimination.[23]
What actually constitutes the required prima facie showing may vary from case to case,
depending on the kind of discrimination being alleged and the particular factual pattern and
context.[24] Here, a prima facie case consists of showings (1) that Mr. White was a member of
a class protected by Chapter 183 of the City Code — i.e., a “family”; (2) that Court Apartments
withheld or took an adverse action against a leasehold interest that Mr. White was enjoying —
i.e., evicted him; and (3) that Mr. White’s eviction was “discriminatory” — i.e., amounted to
unequal treatment of Mr. White by reason of his familial status.[25] Another way of framing the
third element of a prima facie case in this context is that the City must establish that Mr. White
was subjected to adverse treatment that similarly situated non-protected group members were
not subjected to. The City clearly established the first two elements of a prima facie case. The
outcome of Court Apartments’ motion for summary disposition therefore turns on whether the
City established the third element.
The City presented evidence that, among other things, Court Apartments (1) restricted
the Whites from barbecuing; (2) criticized what it claimed to be disruptive behavior by their
children; and (3) admitted that it preferred not to have families with children on the third floor.
Addressing the third factor first, in State by Khalifa v. Parkshore Estates, Inc., the Minnesota
Court of Appeals recognized that “separation of families from non-families is desirable and
necessary in certain circumstances,”[26] and therefore held that the MHRA does not prohibit a
landlord from taking the age of children into account in determining where to place tenants
within a building.[27] Although not completely on point, the Khalifa case strongly indicated that
placing families with children in particular areas within an apartment building should be viewed
as a measure designed to avoid excluding families from the building rather than as evidence of
illegal discrimination. The City has correctly pointed out that this case is not about “steering” of
tenants from one floor to another, and that Khalifa cannot therefore be a basis for dismissing
the entire case.[28] But what Khalifa does stand for is that the City cannot rely on evidence
that Court Apartments preferred not to have families with children on the third floor of the
building as evidence of unequal treatment of the Whites by reason of their familial status.
On the other hand, the City has produced evidence that Court Apartments restricted the
Whites from barbecuing, a restriction that does not appear to have been placed on other
tenants. It also produced evidence that a reason why Court Apartments evicted them was
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complaints about the disruptive behavior of their children. That evidence is sufficient to
establish a prima facie case, since in considering Court Apartments’ motion, the Law Officer
and the Panel are obliged to view the evidence in the light most favorable to the City and to
resolve all possible inferences and questions of credibility in the City’s favor.[29] But that does
not mean that the City has proven its case. It simply means that the Law Officer and the Panel
must turn to the second step of the McDonnell-Douglas analysis and decide whether Court
Apartments presented evidence of legitimate, non-discriminatory reasons for restricting the
Whites from barbecuing and for evicting them.[30]
For these reasons, the Law Officer recommends that the Panel deny Court Apartments’
motion for summary disposition based on the City’s failure to establish a prima facie case and
that the Panel proceed to apply the law, as set forth in the accompanying legal instructions, to
the evidence in this case for the purpose of making findings of fact.
J. L. L.
[1] Transcript (Tr.) at pp. 403-04.
[2] Tr. at p. 412.
[3] Tr. at p. 446.
[4] One would have expected such a request to have come soon after the Law Officer sustained the City’s
objection to Exhibit 12, but counsel proceeded immediately thereafter to give their final arguments, and the issue
was never again raised before the hearing concluded. (Id. at pp. 446-64.)
[5] Cochrane v. Tudor Oaks Condominium Project, 529 N.W.2d 429, 432-33 (Minn. App. 1995). In federal
practice, standing may also refer to a court’s authority to hear a case — i.e., subject matter jurisdiction.
[6] This was the approach taken by the court in Cochrane, supra; see also Sundberg v. Abbott, 423 N.W.2d
686 (Minn. App. 1988).
[7] Sauter v. Sauter, 70 N.W.2d 351, 353 (Minn. 1955); Minn. Rule pt. 1400.5500K; Minn. R. Civ. P. 56.03.
[8] Minn. R. Civ. P. 56; compare Minn. Rules, pt. 1400.6600.
[9] Illinois Farmers Insurance Co. v. Tapemark Co., 273 N.W.2d 630, 634 (Minn. 1978); Highland Chateau v.
Minnesota Department of Public Welfare, 356 N.W.2d 804, 808 (Minn. Ct. App. 1984).
[10] Exhibit 3.
[11] Tr. at pp. 17-18 and 100-01.
[12] Id.
[13] Twin Ports Convalescent, Inc. v. State Bd. of Health, 257 N.W.2d 343, 346 (Minn. 1977).
[14] Bagley v. Sternberg, 26 N.W. 602 (Minn. 1886); see also Mercantile State Bank v. Vogt, 226 N.W. 847
(Minn. 1929).
[15] Minn. R. Civ. P. 50.01.
[16] Thiele v. Stitch, 425 N.W.2d 580, 583 (Minn. 1988); Hunt v. IBM Mid America Employees Federal, 384
N.W.2d 853, 855 (Minn. 1986).
[17] Ostendorf v. Kenyon, 347 N.W.2d 834 (Minn. Ct. App. 1984).
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[18] See, e.g., Celotex, 477 U.S. at 325; Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988); Greaton v. Enich,
185 N.W.2d 876, 878 (Minn. 1971); Thompson v. Campbell, 845 F. Supp. 665, 672 (D. Minn. 1994).
[19] Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986).
[20] Section 183.06.
[21] Minn. Stat. § 363.03, subd. 2. (Unless otherwise specified, all references to Minnesota Statutes are to
the 1998 edition.)
[22] 411 U.S. 792, 802-03 (1973). See Hubbard v. United Press International, Inc., 330 N.W.2d 428 (Minn.
1983) and Danz v. Jones, 263 N.W.2d 395, 399 (Minn. 1978).
[23] Id.
[24] Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986).
[25] See Section 183.02(5) of the City Code.
[26] 413 N.W.2d 269, 272 (Minn. App. 1987).
[27] Id.
[28] Memorandum in Opposition to Respondent’s Motion to Dismiss (City’s Memorandum) at pp. 3 and 4.
[29] Ostendorf v. Kenyon, supra.
[30] The law officer notes that what Court Apartments offered in its Memorandum of Law to support its claim
that the City failed to establish a prima facie case was evidence that there were legitimate, non-discriminatory
reasons for what it did. That evidence is germane to the second step of the McDonnell-Douglas analysis but not
to whether the City was able to establish a prima facie case.
STATE OF MINNESOTA Page 7 of 7

8:40 AM  
Anonymous Anonymous said...

OAH case is 1999,W.H.Tyrone Terrill a Civil Rights Lawyer from Mpls,by info and belief Muslin, the point of contention as St. Paul is a SANCTUARY CITY "permits" for protestors at the RNC, Immigration was main topic of the Presidential debates in NH.
People must be aprised of the UNION
that Tryone,Marcia,shari moore, Kessler, Magner, Lippert belong to
with STRANGE: members of all city attorneys?
SPSO is set up for Salary-Grades without the Citizens approval
St. Paul Supervisory Orginazition -
LINK:
http://www.stpaul.gov/depts/laborrelations/schedules/bu09-salaryschedule.pdf

Google Search SPSO GRADE 031
096A DEPUTY DIRECTOR – NEIGHBORHOOD & HSG (U)
10-yr. 15-yr.
(1) (2) (3) (4) (5) (6) (7) (8)
01/06/07 3053.56 3288.54 3445.163 3608.60 3779.82 3960.45 4084.82 4199.24le
Bob you are to be commended, the debates last nite must have Charles Gibson for a Federal Judge
We do have public service blogs

9:43 AM  
Anonymous Anonymous said...

How about the rest of the peoples First Amendment Rights?

How Did
Tyrone Terrill, get to be Director
of -- St. Paul Department of Human Rights?
Homw many complaints have been filed that He and others failed to address?
Is there a list of complaint
filed?

first amendm
City official's complaint about cartoon illustrates ignorance

By Douglas Lee
Lawyer, Ehrmann Gehlbach Badger & Lee
06.18.99
Brazen. Bold. Audacious. Ignorant. Alarming. Incredible.

So many adjectives exist to describe Tyrone Terrill's recent conduct that it's difficult to know where to start.

Terrill is the human rights director for the city of St. Paul, Minn. As such, he enforces the city's anti-discrimination laws, usually in cases involving employment or access to public places. He extended that reach last week, charging the St. Paul Pioneer Press with racial discrimination after the newspaper published an editorial cartoon that offended many African-Americans.

The cartoon commented on the allegations of academic fraud surrounding the University of Minnesota's men's basketball program. Titled "The Plantation," the cartoon depicted several African-Americans playing basketball, with one white spectator saying to another, "Of course, we don't let them learn to read or write."

In his charge, Terrill claims that the newspaper, by publishing the cartoon, "discriminated against African American student-athletes past, present and future in the area of public accommodation on the basis of race… ."

Although Terrill has not clarified his linking of the cartoon to a "public accommodation," it appears he is claiming that the cartoon somehow discriminates against African-American students attending the university.

Terrill's charge also is unusual because it is not based on any formal complaint from a university student or other African-American. Instead, it is a "director's complaint," which Terrill has the authority to file when a person does not want his or her name used or when a discriminatory practice is aimed at a large group. Only 3% of the charges filed each year by Terrill's office are director's complaints.

Although Terrill has conceded that his office never has before charged a newspaper with discrimination because of something the paper published, he told the Pioneer Press that he did not believe the complaint implicated the First Amendment. Rather, he says, the cartoon is comparable to an employee hanging nude centerfolds in the workplace or directing racial epithets at co-workers.

Terrill's comparison, however, ignores at least one critical distinction. The restrictions on employees' free-speech rights cited by Terrill are constitutional only in the limited context of the workplace. Outside the workplace and the employer-employee relationship, people are generally free to display centerfolds and use racial epithets. Terrill cannot use employment laws to punish non-employment speech.

Terrill's charge not only involves the First Amendment, it targets it. The cartoon, regardless of whether it is effective, clever or in good taste, is pure political speech, which traditionally has been afforded the most constitutional protection. The cartoon also clearly expresses an opinion through hyperbole, which is another category of speech that courts have vigorously protected. If Terrill and other bureaucrats like him can charge newspapers and other media with discrimination every time a minority is offended (or even potentially offended) by a published opinion, the First Amendment quickly will be stripped of its meaning.

Terrill's obliviousness to the First Amendment is also evident in his description of possible ways to resolve the charge. He told the Pioneer Press that his primary goal in these cases was to ensure that the discrimination was not repeated. In the case of the newspaper, he suggested, one resolution would be to establish an outside committee to review all cartoons before they are published.

Needless to say, the newspaper intends to forcefully resist the charge, which has already generated a firestorm of controversy. St. Paul Deputy Mayor Susan Kimberly met with Terrill shortly after he filed the complaint and, after that meeting, she conceded to the Pioneer Press that the charge is "a stretch." Kimberly also suggested that the newspaper's formal response to the complaint, which is due at the end of June, might persuade Terrill to drop the matter.

Let's hope so. And let's also hope that, in the process, Terrill learns a valuable lesson about the First Amendment.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.

Related
Analysis/Commentary summary page
View the latest analysis and commentary throughout the First Amendment Center Online.

entcenter.org: commentary

Posted by a Caring St.Paul Person.

10:05 AM  
Anonymous Anonymous said...

Just an other way to screw the landlord over.

I have three complainantd filed against me. All them were drop by
Tyrone terrill. And that the tenant was wrong. They try that because I was started eviction process.

I have been told by housing judge that If the wife rent the place and the husband is not on the lease. He will be consider a guest
and not allow to live in place.

And has no rights to file anything. That was in 1996. That is why when you fill out ud? unlawful detainer. You put tenants on the form and add" at el."

That stand for all other persons
that lives in the unit or place.

Its like like legal aid try to help to wille white. But not being
involed in the bullshit.

Just an other case of the city trying to mess with a landlord.

We will change law when we want too.

That is how the city do things.
If you do not stand up and get in their face. They will mess with you.

Leslie K. Lucht

11:20 AM  
Anonymous Anonymous said...

Maybe Tyrone should take a look at what the city is doing to the low income tenants with their criminal inspectors.

12:08 PM  
Anonymous Anonymous said...

Tyrone Terrill thought the Easter Bunny was a religious symbol two years ago and complained to Kathy Lantry. Kathy Lantry then banned the Easter Bunny from City Hall and we were the laughing stock of the nation.

12:27 PM  
Anonymous Anonymous said...

So, black people are filing discrimination charges, except its against the interests of the landlords.

Hmmm, so the landlords are fighting for their tenants? But, their tenants are filing discrimination charges against them. Chuck, Eric, and others seem to be right.

I know Tyrone Terrill and he is not a friend of Chris Coleman or Randy Kelly. He did not care at all for Andy Dawkins and would throw a party is Kathy Lantry was not counci president.

He can only be removed by both recommendation of mayor, a majority of the council and the Human Rights 15 member commission. Good position for a department head to be in as he can tell the city leadership to go and screw themselves and take up the concerns of individuals without kow-towing to politics. And, he does. Of course the knife cuts on two sides and he goes overboard or waste time on some issues but the vast majority are done in the vein of how the job was supposed to be.

Human Rights go through literally hundreds of charges every year - most of the charges being advised to have no merit. A few dozen make it to step two for an investigation. ie-a cop pulling over a person of color is not a crime and would be dismissed without further evidence.

Kick him around but it appears that he has the independence you complain that others do not. He is not a union member and does not go to DFL events.

2:10 PM  
Anonymous Anonymous said...

I think Tyrone is one of the fairest people in the city government. If you have not done anything wrong, Tyrone is about the only place in the city where you are going to get a fair shake. I wish he was council president and maybe this "witch hunt" for landlords would stop.

3:05 PM  
Anonymous Anonymous said...

To 2:10

Are you stupid or what?

Where did you ever get the idea that the landlords are foighting for the tenants?

The landlords are suing because they and their civil rights were violated and the reason the city did it was to effectivly remove the blacks from the neighborhoods in question.

3:10 PM  
Anonymous Anonymous said...

Hey Repke.....guess what? According to a little birdie I know, your favorite city is on the eve of getting smothered with more lawsuits concerning the city's criminal inspectors actions. You think that little birdie has any credibility Chuck?

8:19 PM  
Anonymous Anonymous said...

OK, so why would anyone think that a bunch more silly law suits accomplish anything? The issue that people have a problem with are basic police powers that the government has over property matters.

WE THE PEOPLE (the government) have the right to be assure of the basic health, safety and welfare of all properties. The court makes those rulings over and over again.

It is no big deal, and the City has plenty of attornies. Job security for lawyers....

JMONTOMEPPOF

Chuck Repke

8:05 AM  
Blogger Nancy Lazaryan said...

This comment has been removed by the author.

9:53 AM  
Anonymous Anonymous said...

WE (the other people) also have the right to have our constitutional rights protected. The city's police powers do not give them a blank check to break the law, they are supposed to be upholding it.

12:37 PM  

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