2022 -- H 7224

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LC003823

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2022

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A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- ADMINISTRATIVE

PROCEDURES

     

     Introduced By: Representatives Place, Filippi, Roberts, and Quattrocchi

     Date Introduced: January 26, 2022

     Referred To: House State Government & Elections

     It is enacted by the General Assembly as follows:

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     SECTION 1. Chapter 42-35 of the General Laws entitled "Administrative Procedures" is

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hereby amended by adding thereto the following sections:

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     42-35-8.1. License and permit issuance.

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     Notwithstanding any other law, in any case in which a license or permit is required prior

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to a person engaging in any constitutionally protected activity, the criteria for the granting or denial

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of that license or permit shall be specified in clear and unambiguous language, and the applicant

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shall be entitled to a review and determination of that permit or license application within thirty

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(30) days or such other time as the legislature shall by law prescribe. The determination of what

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constitutes clear and unambiguous language shall be a judicial question, without deference to the

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legislature or the agency.

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     42-35-8.2. Burden of proof.

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     The burden of proof in agency hearings shall be the preponderance of the evidence.

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Notwithstanding any other law, at a hearing on an agency’s denial of a license or permit or a denial

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of an application or request for modification of a license or permit, the agency has the burden of

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persuasion. At a hearing on an agency action to suspend, revoke, terminate, or modify on its own

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initiative material conditions of a license or permit, the agency has the burden of persuasion. At a

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hearing on an agency’s imposition of fees or penalties or any agency compliance order, the agency

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has the burden of persuasion.

 

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     42-35-8.3. Deposition testimony.

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     On application of a party or the agency and for use as evidence, the hearing officer, referee

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or administrative law judge may permit a deposition to be taken, in the manner and on the terms

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designated by the hearing officer, referee or administrative law judge, of a witness who cannot be

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subpoenaed or who is unable to attend the hearing. Subpoenas for the production of documents

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may be ordered by the hearing officer, referee or administrative law judge if the party seeking the

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discovery demonstrates that the party has reasonable need of the materials being sought. All

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provisions of law compelling a person under subpoena to testify are applicable.

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     42-35-8.4. Motion to disqualify.

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     A party may file a motion with the director of the agency to disqualify the hearing officer,

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referee or an administrative law judge from conducting a hearing for bias, prejudice, personal

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interest, or lack of technical expertise necessary for a hearing.

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     42-35-8.5. Issuance of subpoenas and administration of oaths.

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     The hearing officer, referee or administrative law judge may issue subpoenas to compel

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the attendance of witnesses and the production of documents. The subpoenas shall be served and,

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on application to the superior court, enforced in the manner provided by law for the service and

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enforcement of subpoenas in civil matters. The hearing officer, referee or administrative law judge

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may administer oaths and affirmations to witnesses.

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     SECTION 2. Sections 42-35-9, 42-35-10 and 42-35-15 of the General Laws in Chapter 42-

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35 entitled "Administrative Procedures" are hereby amended to read as follows:

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     42-35-9. Contested cases -- Notice -- Hearing -- Records.

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     (a) In any contested case, all parties shall be afforded an opportunity for a hearing after

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reasonable notice.

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     (b) The notice shall include:

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     (1) A statement of the time, place, and nature of the hearing;

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     (2) A statement of the legal authority and jurisdiction under which the hearing is to be held;

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     (3) A reference to the particular sections of the statutes and rules involved;

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     (4) A short and plain statement of the matters inserted. If the agency or other party is unable

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to state the matters in detail at the time the notice is served, the initial notice may be limited to a

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statement of the issues involved and detailed statement shall be furnished.

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     (c) Opportunity shall be afforded all parties to be represented by counsel or to proceed

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without counsel and to respond and present evidence and argument on all issues involved.

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     (d) Unless precluded by law, informal disposition may be made of any contested case by

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stipulation, agreed settlement, consent order, or default.

 

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     (e) The record in a contested case shall include and a verbatim transcript of any contested

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hearing:

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     (1) All pleadings, motions, intermediate rulings;

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     (2) Evidence received or considered;

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     (3) A statement of matters officially noticed;

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     (4) Questions and offers of proof and rulings thereon;

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     (5) Proposed findings and exceptions;

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     (6) Any decision, opinion, or report by the officer presiding at the hearing;

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     (7) All staff memoranda or data submitted to the hearing officer or members of the agency

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in connection with their consideration of the case.

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     (f) Oral proceedings or any part thereof conducted under the provisions of this chapter shall

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be transcribed on request by any party. Stenotypists occupying positions within the state service as

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hearing reporters for any state agency, who report stenographically the proceedings in

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administrative hearings and the taking of depositions in their capacity as reporters for a state

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agency, shall be paid at the rate established by § 8-5-5 from the requesting party; provided,

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however, the state agency shall not be required to compensate the stenotypists for the transcript

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recorded at the agency's expense.

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     (g) Findings of fact shall be based exclusively on the evidence and matters officially

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noticed.

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     42-35-10. Rules of evidence -- Official notice.

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     In contested cases:

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     (1) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The rules of

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evidence and procedure as applied in civil cases in the superior courts of this state shall be followed;

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but, when necessary to ascertain facts not reasonably susceptible of proof under those rules,

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evidence not admissible under those rules may be submitted (except where precluded by statute) if

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it is of a type commonly relied upon by reasonably prudent men and women in the conduct of their

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affairs. Agencies shall give effect to the rules of privilege recognized by law. Objections to

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evidentiary offers may be made and shall be noted in the record. Subject to these requirements,

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when a hearing will be expedited and the interests of the parties will not be prejudiced substantially,

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any part of the evidence may be received in written form;

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     (2) Documentary evidence may be received in the form of copies or excerpts, if the original

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is not readily available. Upon request, parties shall be given an opportunity to compare the copy

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with the original;

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     (3) A party may conduct cross examinations required for a full and true disclosure of the

 

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facts;

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     (4) Notice may be taken of judicially cognizable facts. In addition, notice may be taken of

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generally recognized technical or scientific facts within the agency's specialized knowledge; but

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parties shall be notified either before or during the hearing, or by reference in preliminary reports

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or otherwise, of the material noticed, including any staff memoranda or data, and they shall be

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afforded an opportunity to contest the material so noticed. The agency's experience, technical

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competence, and specialized knowledge may be utilized in the evaluation of the evidence.

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     42-35-15. Judicial review of contested cases.

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     (a) Any person, including any small business, who has exhausted all administrative

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remedies available to him or her within the agency, and who is aggrieved by a final order in a

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contested case is entitled to judicial review under this chapter. This section does not limit utilization

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of or the scope of judicial review available under other means of review, redress, relief, or trial de

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novo provided by law. Any preliminary, procedural, or intermediate agency act or ruling is

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immediately reviewable in any case in which review of the final agency order would not provide

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an adequate remedy.

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     (b) Proceedings for review are instituted by filing a complaint in the superior court of

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Providence County or in the superior court in the county in which the cause of action arose, or

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where expressly provided by the general laws in the sixth division of the district court or family

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court of Providence County, within thirty (30) days after mailing notice of the final decision of the

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agency or, if a rehearing is requested, within thirty (30) days after the decision thereon; provided,

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however, that any person who is aggrieved by a final order concerning the assessment or

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determination of any tax, interest, or penalty made by the tax administrator must pay the amount

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of the tax, interest, or penalty to the administrator as a prerequisite to the filing of such complaint.

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Copies of the complaint shall be served upon the agency and all other parties of record in the manner

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prescribed by applicable procedural rules within ten (10) days after it is filed in court; provided,

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however, that the time for service may be extended for good cause by order of the court.

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     (c) The filing of the complaint does not itself stay enforcement of the agency order. The

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agency may grant, or the reviewing court may order, a stay upon the appropriate terms.

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     (d) Within thirty (30) days after the service of the complaint, or within further time allowed

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by the court, the agency shall transmit to the reviewing court the original or a certified copy of the

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entire record of the proceeding under review. By stipulation of all parties to the review proceedings,

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the record may be shortened. Any party unreasonably refusing to stipulate to limit the record may

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be taxed by the court for the additional costs. The court may require or permit subsequent

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corrections or additions to the record.

 

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     (e) If, before the date set for the hearing, application is made to the court for leave to present

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additional evidence, and it is shown to the satisfaction of the court that the additional evidence is

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material and that there were good reasons for failure to present it in the proceeding before the

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agency, the court may order that the additional evidence be taken before the agency upon conditions

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determined by the court. The agency may modify its findings and decision by reason of the

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additional evidence and shall file that evidence and any modifications, new findings, or decisions

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with the reviewing court.

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     (f) The review shall be conducted by the court without a jury and shall be confined to the

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record. The court shall decide de novo all relevant questions of law, including the interpretation of

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constitutional, statutory, and regulatory provisions, unless the parties stipulate otherwise. In cases

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of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may

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be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.

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     (g) The court shall not substitute its judgment for that of the agency as to the weight of the

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evidence on questions of fact. The court may affirm the decision of the agency or remand the case

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for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant

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have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

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     (1) In violation of constitutional or statutory provisions;

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     (2) In excess of the statutory authority of the agency;

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     (3) Made upon unlawful procedure;

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     (4) Affected by other error of law;

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     (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the

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whole record; or

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     (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted

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exercise of discretion.

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     SECTION 3. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- ADMINISTRATIVE

PROCEDURES

***

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     This act would provide that the burden of proof in an administrative hearing is by a

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preponderance of the evidence. The act would allow hearing officers to issue subpoenas; authorize

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the use of deposition testimony; and mandate that superior court rules of evidence and procedure

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be utilized. On appeal, issues of law would be decided de novo.

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     This act would take effect upon passage.

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