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‘Its a Breath of Fresh Air’ - The Irish Smoking Ban in Hospitality Premises: Legal Experience to Date
Marc McDonald is a lecturer in hospitality and tourism
law in the Faculty of Tourism and Food in the Dublin Institute of
Technology
For text with foot notes click here.
Introduction
Although starting from a small base, there is a growing
trend toward the introduction of smoking bans in hospitlaity
establishments . This trend is likely to accelerate following the
adoption of Article 8 of the World Health Organisation Framework
Convention on Tobacco Control . Such bans are designed to protect the
public and workers from the dangers of passive smoking. The scientific
evidence that passive smoking is a significant cause of ill health is
convincing and widely disseminated . Lawmakers are responding to the
health challenge by increasingly moving from segregated smoking laws to
outright bans .
The Irish government appears to be the first in Europe
to introduce an outright smoking ban in hospitality premises . Set out
in s. 47 of the Public Health (Tobacco) Act 2002 as amended , the ban
came into force on 29th of March 2004 . The ban is not limited to
hospitality premises, but these are the focus on the present article.
The hospitality industry certainly felt the most put upon by the
smoking ban and has been the most vociferous in opposing it because of
widespread fears of significant drop-off in business as a result of the
ban . Indeed for most of 2003 an intense media campaign waged around
the economic, business, social, political and legal implications of the
ban.
Once the hospitality industry realised that the
political battle could not be won, attention moved to the legal front.
Groups representing hospitality industry interests issued threats of
court challenges to the ban , though they were generally careful not to
itemize the exact grounds of a legal challenge. In turn these provoked
a determination by the responsible government minister, the Minister
for Health and Children (Health), finally fully supported by the entire
cabinet, to absolutely ensure, so far as was possible, that any
challenge would be unlikely to succeed . In anticipating a possible
legal challenge the Irish Minister was not acting in uncharted waters.
In the US where many, mainly unsuccessful, court challenges have been
brought against local smoking bans, the types of legal argument used
were well rehearsed and, with some modifications, largely though not
entirely applicable in an Irish context.
The Irish smoking ban does not affect only Irish
residents. It also affects tourists visiting Ireland and may even in
its own way provoke ‘tobacco tourism’ whereby non-smokers are attracted
to Ireland, while Irish smoker’s holiday and leisure elsewhere . The
cross-border element triggers potential issues of European Community
law, which however in central aspects are not dissimilar to national
ones.
This article will try to do three things. Firstly, it
will attempt to outline the legal issues involved in the jostling that
went on between the Minister for Health and the hospitality industry
over the nature and extent of the ban and any court challenge to it. In
telling the story three versions of the key provision dealing with the
smoking ban – s.47 of the Public Health (Tobacco) Act 2002 - will,
unfortunately, be encountered. In the course of this the likelihood of
a legal challenge to the ban now succeeding will be discussed. Although
the trade bodies representing hospitality interests finally decided not
to challenge the ban before its introduction, and some sections of the
hospitality industry, particularly hoteliers and restaurateurs, are
getting on with adapting to the new environment, there is still
considerable anger among publicans , and a post-introduction court
challenge could still be brought.
Secondly, this article will explore possible legal
issues arising under European Community law relating to Community
competence regarding smoking bans, the ability of the cross-border
visitor to exercise common market tourist freedoms and the protection
of foreign tourists against holidaymaker disappointment associated with
the smoking ban. Thirdly, now that the ban is in force, some comments
will be offered on its scope, the defence to it and its enforcement.
The main headings used are
• Copper-fastening the Smoking Ban against Legal Challenge
• The Smoking Ban and Tourists
• Post-Introduction Legal Issues
Copper-fastening the Smoking Ban against Legal Challenge
Originally, the Minister for Health intended that the
smoking ban would be contained in delegated legislation. Thus, the
first version of s. 47 of the Public Health (Tobacco) Act 2002 - stated
‘The Minister may, by regulations, prohibit or restrict
the smoking of tobacco products in …. (f) all or part of a licensed
premises, registered club, or place of work …’
This provided two possible grounds of legal attack by the hospitality industry on the smoking ban focusing on:
• the constitutionality of restricting hospitality
operators rights when the restriction would be likely to have
significantly adverse financial consequences
• the use of delegated legislation to implement the ban.
Constitutionality of the Ban
One suspects the Minister for Health was never too
concerned about the first ground of attack. Although hospitality
operators (and especially publicans) tend to lay great stress on their
constitutional rights, these are often bloated claims, because it is
basic law when legislating that law makers can restrict constitutional
rights in accordance with the common good. The protection of public
health is a clear aspect of the common good. In seeking to protect both
workers and non-smoking customers from the health risks of inhaling
tobacco smoke, the smoking ban is clearly a rational attempt at
protecting the common good.
The ban must, however, also be proportionate, that is,
no less restrictive means should be available to achieve the desired
object and also the means chosen must be capable of achieving the
object . The ban will force smokers onto the footpath and, as an
alternative, ventilation can take much dangerous smoke material out of
the atmosphere. The option of segregating smokers into smoking rooms
also exists, as does limiting the ban to places where more vulnerable
persons are present, such as those under 18.
However, this line of argument would probably not get
far because lawmakers are allowed a margin of discretion in making
policy choices and the courts, bound as they are by the constitutional
doctrine of separation of powers, have to respect this. While a judge
might think he/she would have done it differently, maybe gone for
ventilation, it seems unlikely it could be said the policy choice of
the ban is beyond the margin of discretion or rational choice, if only
for the obvious point that no other option appears capable of
delivering the same amount of protection for public health as a ban
would. It is also significant, in criminal law terms, that the ban does
not impose strict liability. An offence is only committed (discussed in
the third part of the article) if the hospitality operator fails to
make reasonable efforts to prevent a customer smoking.
The Constitutionality of the Exemptions
The ban allows exemptions for
hotel/guesthouse/B&B/hostel etc bedrooms, for open and for partly
open spaces in licensed premises. Whenever legislation creates
exemptions, the resulting distinctions can become the target of a legal
challenge. Do the exemptions in the smoking ban create invidious
discrimination as between those who will benefit from them and those
who will not?
Before addressing this question, it is worth briefly
noting that the ban does not differentiate between, say, restaurants
and public houses, although had it done so, even this might not have
formed the basis for a successful legal challenge. A recent decision of
the Supreme Court of the US state of Georgia upheld a law which
effectively differentiated between bars and restaurants as regards
Sunday liquor sales on the basis that the distinction was in
furtherance of a rational policy objective. That decision reemphasized
the key point that the courts do not have to agree with or approve of
the differentiation. Only that it is underpinned by some rational
basis. If a smoking ban only applied to restaurants and not to public
houses (depending of course on how each was defined), it might
therefore still have been lawful, although from a political point it
would have been a r risky distinction since it would almost certainly
have provoked a court challenge.
To some in the hospitality industry the exemptions
certainly seem unfair because, if they do not benefit from them, they
suffer competitively as against those who do. All the same, this would
be unlikely to translate into a successful legal challenge, although it
remains an area which any challenge would surely explore, because the
legal issue is not unfairness as such, but the rationality of the
lawmaker’s choice in adopting a proportionate means of advancing the
relevant public policy.
From this perspective, the hotel etc. bedroom exemption
appears straightforward. The exclusion is presumably based on the fact
that it would be simply disproportionate to attempt to intervene in
couple/family relationships to protect the non-smoker or employee from
a reduced risk of smoke when a hotel bedroom is, in public health
terms, quite a different place from a bar. It seems doubtful if the
bedroom exclusion is based on notions of privacy since various laws
already permit police entry into hotel bedrooms.
The exclusion of uncovered enclosed areas and
covered/partly enclosed areas in, on or just outside licensed premises
(e.g. beer gardens or tables/chairs on the footpath in front of
hospitality premises) is more troublesome, but may still just pass
muster. It is based, one assumes, on the ability of the natural air
currents to remove tobacco smoke sufficiently quickly to reduce health
risks associated with passive smoking. There are, of course, windless
days but not enough, one supposes, to disturb the logic underpinning
the exemption. The licensed premises that can offer an enclosed
uncovered smoking area will, of course, gain a competitive advantage
over the one that cannot and there will be every competitive reason to
exploit this advantage. But those who cannot use an uncovered enclosed
area can potentially avail of the third exemption - partly enclosed
covered outdoor areas - which appears directed at, say, facilitating
customers sitting at tables on the footpath in front of the pub
(presumably authorised by a planning licence) to smoke.
Again this will not suit everyone. However, there is
nothing new or apparently unlawful, in basing legislative distinctions
on facilities that some premises have and others do not. For example,
in liquor licensing law important distinctions are based on whether a
premises has a dance floor and a dance hall licence. For this reason,
it would be difficult to conclude that the uncovered and partly
enclosed exemptions lie beyond the margin of legislative discretion.
Delegated Legislation
As noted earlier, the smoking ban was originally meant
to be contained in delegated delegation. This offered potential for a
variety of grounds of legal attack on the ban. These included:
• whether the Oireachtas (Parliament) surpassed its
remit in delegating the power to make the ban to the Minister (to be
discussed)
• whether the purpose for which the delegated power
could be used is clear and whether the purpose of the delegated
lawmaker (the Minister) in making the ban conformed with the purposes
for which the delegated power could be used, or as it can be also put,
whether the ban was within the intendment of the enabling legislation
(to be discussed)
• whether the delegated law allowed exemptions and, if
it did, whether these created invidious discrimination among those
affected (already discussed)
• whether the requisite procedural fairness was observed
in the circumstances leading up to the choice of the ban as the
Minister’s policy (to be discussed).
The purpose
The first version of s. 47 did not explicitly spell out
the purpose for which the power to create the ban could be used. This
was probably not considered a problem because it was obvious from a
variety of other sources within the Act that that the purpose of any
exercise of the s. 47 power would be to promote public health .
Nevertheless, there must have been some concern about a challenge on
this ground since, the second version of s.47 - contained in s.15 of
the Public Health (Tobacco) (Amendment) Bill 2003 as initiated in
August 2003 - clearly spelt it out by inserting the following at the
start of the provision ‘For the purpose of reducing the risk to and
protecting the health of persons, the Minister may, by regulations ….’
Consultation
Perhaps the most promising line of attack for those
opposed to the ban on smoking in licensed premises concerned the
fairness of the consultation process leading up to the introduction of
the ban. Although there does not seem to be any case exactly in point,
and some dicta seem opposed to the idea , this is a developing area of
law and general principles do point towards a consultation requirement
for the following reasons. The delegated lawmaker must always take due
account of the economic, social and other impacts of its proposals.
Under Irish law the concept of constitutional justice and also the
constitutional right to far procedures require that the more dramatic
the potential impacts the greater the care that must be taken in making
the choices permitted by the primary legislation. Arguably a central
feature of this must lie in consulting those most likely to be affected
so that they have the opportunity to influence the final choice. How
otherwise is the delegated lawmaker to be able to fairly gauge the
impacts? Accordingly, if the delegated lawmaker makes up its mind on
the choice before the consultation takes place it risks a successful
challenge to the delegated law. The consultation should not be about
seeking ways to help the industry adapt to the new regime, at least not
initially, but to enable the industry to influence what that might be.
Thus, if the hospitality industry could have gathered convincing
evidence to show, say, that the Minster made his mind up and announced
the ban before providing a proper consultation, the challenge might
succeed.
In the Canadian province of British Columbia (BC), which
has a rich history of legal challenges to smoking bans , the first
attempt to bring in an equivalent state-wide ban foundered on defects
in the consultation requirement which was express in the BC
legislation. While the Irish Public Health (Tobacco) Act 2002 does not
include an express consultation requirement - and one suspects is quite
deliberate in this - Irish law still probably requires appropriate
consultation.
It remains to be seen whether a proper consultation did
indeed take place, and this would require a close scrutiny of the
statements and acts of the Minister for Health and his spokespersons
over a period. An important point to note is that the consultation
probably does not have to mean that every detail of the eventual
proposal has been subject to prior consultation with affected parties.
The eventual shape of any proposal will emerge from revisions arising
out of the consultation, and, unless an endless sequence of reflection
and consultation is to be required, some leeway must be allowed for
details or features that grow, so to speak, out of the consultation
process.
Thus, the consultation ground was at least there to be
argued for. However, the killer blow from the hospitality industry
viewpoint is that its no longer relevant because, in March of this
year, only weeks before the ban was due to become law, the Minister
quietly changed tack, dropped the idea of introducing the ban by means
of delegated legislation and opted instead to do so in the (now
formerly parent) 2002 Act, creating in the process a third version of
s. 47. The reason he did this, one assumes, is that the same
requirement of consultation does not apply with primary legislation.
Thus, he seems to have foreclosed on another possible ground of legal
challenge.
Surrendering lawmaking power
The remaining possible weakness in using delegated
legislation to introduce the smoking ban has also been addressed by
transferring the ban from delegated to primary legislation. In some
recent cases the Supreme Court has restated the need for the Parliament
not to give up or surrender its constitutional power to make laws, and
that delegated laws must only deal with the details of principles and
policies contained in primary legislation. The more impactful the laws
made by the delegated lawmaker the greater the risk that too much law
making power had been delegated. Under the first and second versions of
s. 47 the smoking ban, and where it would and would not apply, would
not actually have been contained in primary legislation. This meant
that critical choices regarding a hugely impactful measure – the scope
and limits of the ban and any exemptions – would have been left to the
delegated lawmaker. There may have been a concern that this surpassed
what was constitutionally permissible and that a challenge based on
this might succeed.
Much delegated law is however created in this fashion.
But the key point is that in the heightened atmosphere of the political
as well as legal imperative of avoiding even the prospect of the ban
being declared invalid, and a lengthy delay before its reintroduction
the correct way, no chances were taken. The change was therefore made
and another ground of potential attack closed off.
The Smoking Ban and Tourists
The smoking ban will affect the holiday enjoyment of
tourists visiting Ireland. Bars particularly form part of the
attractions of Ireland for many foreign visitors. Tourist smokers who
find they cannot enjoy the convivial atmosphere of an Irish pub may
feel aggrieved that they have lost part of the holiday enjoyment they
expected and may attempt to seek redress. This in turn raises two
issues:
• The legal competence of Ireland to introduce a smoking ban under European Community law
• The impact of the smoking ban on common market freedoms.
The legal competence of Ireland to introduce a smoking ban under European Community Law
Although the European Community is concerned about the
effects of tobacco smoking , there is is no common approach to the
introduction of a common mandatory smoking ban in the Community and it
seems unlikely there will be one . Quite aside from the political
difficulty of securing agreement on such a ban, though its probable
legal basis (Article 95 and Article 152) seems clear enough, it is not
clear whether divergent national laws dealing with smoking bans in
hospitality premises would sufficiently threaten the internal market in
a real sense so as to render a common rule legally justifiable. The
momentum for introducing smoking bans therefore rests with member
states. They remain free to enact bans so long as these respect
Community law and no claim that Ireland broke Community law can arise
in this respect.
The impact of the smoking ban on common market freedoms and consumer protection
The likelihood is that national smoking bans will be
found to respect Community law since any distortions thereby caused
(between states with and without smoking bans) to the common market -
be it to the sellers of cigarettes or to cross-border tourists wishing
to smoke in hospitality establishments– seem justifiable on the basis
that bans are a proportionate means of advancing an important public
policy – protection of public health against the dangers of passive
smoking . Further, and using reasoning similar to that used in the
constitutional analysis described earlier, the specific exemptions to
the ban seem also likely to satisfy the proportionality tests used
under Community law to assess the validity of the technical means used
to achieve policy goals.
It is in the area of consumer protection and the loss of
holiday enjoyment arising from the ban that a specific legal issue,
possibly based on domestic principles of fault liability, may arise.
If, say, a French package holiday maker/cigarette smoker is denied the
convivial experience of Irish bars and restaurants because of the
smoking ban, it is conceivable that this could provoke a claim for
compensation for denial of holiday enjoyment against the tour operator.
Given a few obvious enough facts - the well known role of,
particularly, the pub and liquor in tourists expectations of Ireland,
and the role of both Irish and foreign tour operator marketing in
reinforcing this, given also the significant percentage of smokers
among any group of foreign adult holiday makers - it is possible to
foresee a court deciding that a tour operator who failed to warn a
consumer about the Irish smoking ban before the package was booked,
failed to exercise the appropriate degree of professional care and so
could be liable for damages.
Post-Introduction Legal Issues
Now that the ban is in force, it is unlikely to be the
end of the legal disputes. The focus will switch to challenging
attempts to enforce the ban. Already people in the hospitality industry
have said they will remain neutral as regards enforcement. But, as the
British Colombian (BC) experience shows , this is not an option open to
the hospitality industry. In BC an attempt to strike down a
‘permitting’ offence (where the onus rested on the prosecution to prove
the necessary allowing) because it made the licensee liable for the act
of a customer, failed. While the Irish ban is tighter than the BC one
in that under Irish law the onus rests on the licensee, in effect, to
prove no permitting, permitting offences are a familiar feature of
liquor licensing law. For this reason any challenge based on the
‘unfairness’ of punishing a licensee for the act of a customer, no
matter where the burden of proof lies, is unlikely to get very far.
The legal issues likely to be raised in future concern:
• The scope of the ban
• The scope of the defence
• Enforcement
The Scope of the Ban
At the margins, that is, outside of the typical smoking
scenario, the scope of the ban is somewhat unclear and can be expected
to figure in court cases. Firstly, note how the ban is expressed.
Section 47 does not say ‘the presence of tobacco smoke. is prohibited’.
Rather it says ‘smoking … is prohibited’ and goes on to say a) that a
person who smokes commits an offence and b) that a person in charge
when a person smokes also commits an offence, subject to the defense
just mentioned. In both instances the offence needs a person who
smokes. In other words, the presence of smoke does not mean an offence
has been committed. It needs a person in the relevant place to do the
smoking first. If that person cannot be identified or the smoke comes,
say, from outside, it is hard to see how an offence has been committed.
While identifying culprits it is a standard challenge in law
enforcement, the second possibility is unique to the smoking ban.
Assuming many licensed premises seek to take advantage of the outdoor
exemptions where smoking is allowed, one will frequently encounter
places where outdoor smoking is allowed near indoor places. Since the
ban imposes no minimum distance between an outdoor smoking area and an
indoor non-smoking area, it is possible in our climate to imagine much
smoke being blown from one to the other, even assuming there are
intervening doors. Not alone will this result in indoor customers being
exposed to smoke while no offence under public health law is apparently
committed, but it will also provide a convenient smokescreen (pardon
the pun) for indoor smokers to claim the smoke came from outside and
make enforcement of the indoor ban more problematic. Workplace law can
still apply so that the employer’s obligation to take reasonable steps
to protect employees from tobacco smoke, however generated, will still
kick in, but it may mean that smokers near the door might not be able
to be successfully prosecuted.
A second area where dispute can be anticipated concerns
the outdoor exemptions and particularly the exemption which requires,
where a covered outdoor area is used for smoking, that no more than 50%
of the perimeter consist of walls/similar structures (including
windows, doors, or any means of access or exit). Since there will be an
economic imperative for many publicans to create such outdoor spaces,
the meaning of ‘similar structures’ will undoubtedly be tested and,
indeed, a new science may develop around the precise calculation of the
50%.
The Scope of the Defence
As noted earlier, s. 47 (4) of the 2002 Act provides a
defence to a hospitality operator to prove that all ‘reasonable
efforts’ were taken to prevent a person from smoking. A term like
‘reasonable’ invites defendants to test it’s meaning and it will
probably take a few cases to adequately do so. Reasonable will require
a focus on the variable circumstances of each case. If one adapts the
reasoning used in personal injuries claims on the issue of whether
reasonable care was taken to avoid the accident, a court will have to
balance the results of the following questions – how probable was the
smoking? How extensive would the smoking be? How practicable were the
suggested prevention measures and how much would they cost? All of this
requires a focus, not only on the individual premises, but also on the
individual customer who is smoking, that is, among other variables, how
inveterate and aggressive a smoker the person is? how valued a customer
the person is? how much opposition can be expected to requests to stop
the smoking? The obvious claim for the hospitality operator to raise is
to say he/she did make reasonable efforts – he/she asked the person to
stop smoking or such like – and, out of respect for a valued customer
or the contingency of the situation, was waiting for compliance and was
then going to ratchet up his/her efforts in proportion to the
non-compliance, when in walked the law enforcer. Timing seems likely to
be a critical issue at least initially – how long should the
licensee/manager etc wait? For example, one can foresee a court being
asked to adjudicate on whether a reasonable effort has been made where
a customer is let finish a cigarette because of a promise from the
smoker not to smoke another. Reasonable efforts to stop smoking may
indeed imply acceptance that some smoking will occur for which no
offence under s.47 of the 2002 Act will be committed. How the courts
deal with this may have quite a bearing on the overall effect of the
ban.
The state has tried its hand at identifying what
‘reasonable efforts’ means. In guidance notes produced for the licensed
trade , a list of actions constituting ‘recommended minimum reasonable
efforts’ is provided. These include developing a smoke-free policy,
displaying appropriate signs, removing ashtrays/providing external
stubbing bins, requesting customers to stop smoking and even refusing
service to anyone who smokes. Using force is not recommended; rather
call the police when violence is threatened.
Should reasonable efforts go as far as refusing service
or indeed entry to a person likely to smoke? Could it be claimed, when
dealing with an inveterate smoker who refuses to stop smoking, that the
very allowing of entry amounted to a failure to make reasonable
efforts? Hospitality operators are likely to claim this should not be
done for fear of an objection to renewal of the liquor licence for
refusing to admit or serve a customer. To this one would expect a court
to reply that a bona fide refusal due to compliance with a legal
requirement is lawful, but it will cause unease over how far
‘reasonable efforts’ extends. Taking it further too, one can readily
imagine nightclub bouncers, always in search of half-decent reasons to
refuse entry, latching onto ‘likelihood to smoke’ as a new cover excuse
for their often arbitrary and probably illegal refusals of entry.
Enforcement
Naturally opposition to the smoking ban has noted the
small number of enforcement personnel relative to the large number of
establishments to be monitored, though the deterrence effect of
publicized prosecutions may be significant. Prosecution cannot now
involve imprisonment. Prior to the ban coming into force, the option of
imprisonment as a penalty on conviction existed. The initial law
proposed a maximum penalty of €1,900 and/or 3 months imprisonment.
However out of a desire to avoid creating martyrs among those opposed
to the ban, publicans in particular , the Minster decided to drop the
imprisonment option and instead increased the maximum fine to € 3,000 .
Still, imprisonment cannot be ruled out in a worst case scenario
because it might be possible to apply for an injunction to force
compliance with the ban and, if not observed, to seek committal to
prison for contempt of court.
Besides prosecutions, objecting to the renewal of a
liquor license is another enforcement avenue. Unlike some US laws, the
Irish law does not explicitly state that a licence can be refused
renewal due to non-compliance with the smoking ban. However, this is
cold comfort for hospitality operators since non-observance probably
falls within the widely phrased grounds of refusal anyway. Initially
some judges may perhaps be reluctance to refuse renewal either because
a) refusal might seem disproportionate, or b) of a preference to have
smoking ban issues dealt with under smoking ban law. However, the
danger will still be there that a judge could in the right case deem it
appropriate to refuse renewal for non-compliance and one imagines this
would have a dramatic impact on compliance. Further, renewal refusal
can also relate to the behaviour of smokers forced out onto the
footpath. The possibility of threats to public order and safety arising
from the behaviour of irritable smokers was one of the arguments
advanced by opponents of the ban. Now that the ban is in force,
hospitality operators will have to stop complaining about this since,
in doing so, they are implicitly admitting that the conduct of their
own premises amounts to a public nuisance, which would, in fact, be a
reason for refusing renewal of their liquor licences.
Conclusion
Threats by hospitality operators of a legal challenge to
the Irish smoking ban forced the Minister for Health into being
exceptionally cautious in ensuring that the ban would be
challenge-proof. This principally involved allowing some exemptions to
the ban and in introducing the ban by means of primary and not
delegated legislation, as was originally intended. So far, the strategy
appears successful and legal challenges whether based on the Irish
Constitution or European Community law seem likely to fail. It may be
that the threats of court challenges by hospitality operators have, in
fact, backfired on them.
But while the ban has not so far been challenged, its
introduction will herald a different type of legal dispute. Hospitality
operators can be expected to try to undermine the ban by fighting
individual prosecutions in the courts. The legal issue most likely to
cause difficulty for enforcers concerns what amounts to ‘reasonable
efforts’ to stop customers smoking.
Nor can the possibility of a renewed political campaign
to change the ban be ruled out. Over the early months of its operation,
one can expect close monitoring of the ban to gauge its financial
effects. If these are bad enough, court challenges seem likely to
follow even if, on the preceding analysis, it is unlikely they will
succeed.
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