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HomeMy WebLinkAbout2010 12 13 Public Hearings 501 Second Reading Ordinance 2010-22 Moratorium Of Pain Management Clinics COMMISSION AGENDA Consent Informational I TEM 501 Public Hearing X Regular December 13, 2010 MGR. /DE Regular Meeting Authorisation 1 3. / REQUEST: The City Attorney requests that the City Commission pass on Second Reading Ordinance No. 2010 -22, which declares a moratorium as to the filing and/or receiving of any application for, or the issuance of, business tax receipts or land use approvals, regarding the operation of "pain management clinics" for two- hundred and seventy (270) days. SYNOPSIS: On October 25, 2010, upon recommendation of the Police Chief, the City Commission directed the City Attorney to prepare an ordinance declaring a temporary moratorium as to the operation of pain management clinics within the City to allow the City time to study the problems associated with pain management clinics and various local regulatory options. On November 15, 2010, the City Commission considered and passed the ordinance on first reading. On December 1, 2010, the City's Land Planning Agency ( "LPA ") recommended approval of the ordinance. On December 7, 2010, subsequent to the City Commission's passage of the ordinance on first reading and LPA hearing, Orange County approved an ordinance establishing a moratorium on the issuance of business tax receipts for new pain management clinics. The Orange County ordinance limits the hours of operation for existing pain management clinics in Orange County to between the hours of 7 a.m. and 9 p.m. each day, and prohibits cash only transactions. Due to the passage of Orange County's ordinance, the City Attomey revised Ordinance No. 2010 -22 to similarly prohibit cash only transactions and to limit hours of operation in the City throughout the moratorium period to prevent any existing clinics within the City from seeking out Orange County patrons by offering unlimited or extended hours of operation or by allowing cash only transactions. CONSIDERATIONS: 1. Several counties and municipalities throughout the State of Florida have established moratoria on pain management clinics in an effort to curb the immediate negative impacts created by such clinics such as illegal prescription drug trafficking and sales of illegal drugs around the clinics, and loitering in areas surrounding the clinics. Currently, both REGULAR MEETING DECEMBER 13, 2010 PUBLIC HEARING AGENDA 1 thM "501" PAGE 2 OF 3 Seminole and Orange counties are also evaluating whether to implement County-wide moratoria on pain management clinics. 2. Pursuant to the direction of the City Commission, the City Attomey has prepared Ordinance 2010 -22 which establishes a two- hundred and seventy (270) day moratorium as to the filing and/or receiving of any application for any and all land use approvals or business tax receipts for pain management clinics in order to permit the City to research the nature and scope of possible measures of mitigation and regulation of pain management clinics within the City. 3. Ordinance 2010 -22 defines a pain management clinic as a clinic required to be registered with the Department of Health pursuant to section 458.3265 or section 459.0137, Florida Statutes, which statutes became effective in October, 2010. These statutes generally define pain management clinics as all privately owned pain - management clinics, facilities, or offices, which advertise in any medium for any type of pain - management services, or employ a physician or an osteopathic physician who is primarily engaged in the treatment of pain by prescribing or dispensing controlled substance medications, unless: a. That clinic is licensed as a facility pursuant to chapter 395; b. The majority of the physicians who provide services in the clinic primarily • provide surgical services; c. The clinic is owned by a publicly held corporation whose shares are traded on a national exchange or on the over - the - counter market and whose total assets at the end of the corporation's most recent fiscal quarter exceeded $50 million; d. The clinic is affiliated with an accredited medical school at which training is provided for medical students, residents, or fellows; e. The clinic does not prescribe or dispense controlled substances for the treatment of pain; or f. The clinic is owned by a corporate entity exempt from federal taxation under 26 U.S.C. § 501(c)(3). 4. Ordinance 2010 -22 makes it unlawful for any person or entity to own or operate a pain management clinic during the time period that the moratorium is in effect. Violators of the ordinance are subject to a maximum penalty of $500.00 per day in accordance with City Code and Florida law. 5. The moratorium does not affect existing businesses currently operating within the City pursuant to a validly issued business tax receipt, provided the business and property are in compliance with all applicable local, county, state and federal laws. Additionally, the REGULAR MEETING DECEMBER 13, 2010 PUBLIC HEARING AGENDA ITEM "501" PAGE 3 OF 3 ordinance authorizes the Community Development Director, or his designee, to renew the business tax receipt of any existing business during the moratorium period upon a finding that the business is in compliance with all applicable local, county, state and federal laws. No new business tax receipts will be issued during the moratorium time period. Applications for business tax receipts received after the date the City Commission directed declaration of the moratorium (October 25, 2010) will be returned to the applicant. No payments of the business tax or funds for pending applications will be accepted during the moratorium period. 6. The Ordinance provides that the City Commission may, by resolution, extend the moratorium for an additional ninety (90) days in order to allow City staff to conclude its review of the problems associated with pain management clinics and the drafting of any associated regulations. 7. On December 1, 2010, the LPA recommended approval of the ordinance. The LPA's approval was made with the stipulation that legitimate medical practices would continue to be permitted to operate pursuant to the ordinance. Legitimate medical practices are exempted from the definition of "pain management clinic" in the ordinance. On December 7, 2010, subsequent to the City Commission and LPA hearings, Orange County, Florida passed an ordinance that imposed a moratorium for business tax receipts for pain management clinics and that additionally prohibited cash only transactions and limited the hours of operation for existing pain management clinics to between the hours of 7 a.m. and 9 p.m. each day. Due to the passage of Orange County's ordinance, the City Attorney revised Ordinance No. 2010 -22 to similarly prohibit cash only transactions and to limit hours of operation in the City throughout the moratorium period to prevent any existing clinics within the City from seeking out Orange County patrons by offering unlimited or extended hours of operation or by allowing cash only transactions. FISCAL IMPACT: There may be a de minimis fiscal impact associated with passage of this Ordinance since the ordinance prohibits the City from accepting payments of the business tax for pain management clinics during the moratorium time period. RECOMMENDATIONS: The City Attorney recommends that the City Commission pass Ordinance 2010 -22 on Second Reading. ATTACHMENTS: 1. Ordinance 2010 -22 • ORDINANCE 2010 -22 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, FLORIDA, DECLARING A MORATORIUM AS TO THE FILING AND /OR RECEIVING OF ANY APPLICATION OR THE ISSUANCE OF BUSINESS TAX RECEIPTS OR LAND USE APPROVALS FOR THE OPERATION OF "PAIN MANAGEMENT CLINICS" FOR TWO - HUNDRED AND SEVENTY (270) DAYS; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS, SEVERABILITY, AND AN EFFECTIVE DATE. WHEREAS, the City is granted the authority, under Section 2(b), Article VIII, of the State Constitution, to exercise any power for municipal purposes, except when expressly prohibited by law; and WHEREAS, there has been a recent proliferation of pain clinics, pain management clinics, and cash only pharmacies throughout the State of Florida; and WHEREAS, the Prescription Drug Monitoring Program set forth in Florida Statutes, Section 893.055, is not required to commence until December 1, 2010, and has not been funded by the State of Florida, and therefore there is a current absence of effective regulation of the dispensing of controlled substances and prescriptions for controlled substances for physicians; and WHEREAS, the U.S. Department of Health and Human Services has released data showing that prescription drug deaths are now the fourth leading cause of death in the United States, after heart disease, cancer and stroke; and WHEREAS, various studies and reports have been conducted concerning the proliferation of pain management clinics in Florida, and in 2008, prescription drugs were attributed to an average of nearly 13.5 deaths per day in Florida; and WHEREAS, the Florida Department of Law Enforcement released the Florida Medical Examiners Commission Report on Drugs Identified in Deceased Persons on December 2, 2010, which report shows the lethal consequences of the diversion and abuse of prescription drugs; and WHEREAS, reports have found that burglaries and robberies in the areas where pain management clinics are located have increased; drug trafficking in prescription drugs and street level sales of prescription drugs have increased; and identity theft and organized criminal activities have increased; and WHEREAS, on -site dispensing of prescription drugs requires additional security measures be in place to assure the public health, safety, and welfare; and WHEREAS, according to a study reported by the New York Times in 2008, while 38 other states have prescription drug monitoring programs that track sales, Florida does not, resulting in, according to federal, state and local law enforcement officials, Florida becoming a source of prescription drugs that are illegally sold across the country; and WHEREAS, Florida Statutes require physicians and other persons dispensing prescription drugs through pain clinics, facilities, or offices, to register with the State Department of Health in order to conduct such businesses; and WHEREAS, several counties and municipalities in Florida have established moratoria on certain new pain management clinics to curb the immediate negative impacts created by these clinics, such as illegal prescription drug trafficking and sales of illegal drugs around the clinics, and loitering in areas surrounding the clinics; and WHEREAS, the negative impacts associates with certain pain management clinics create an urgent situation necessitating immediate investigation into regulation of such clinics in the City; and WHEREAS, the Board of County Commissioners of Orange County, Florida WHEREAS, under its home rule authority, the City can pass additional legislation to further regulate pain management clinics as long as these additional regulations are not preempted in the law and are not inconsistent with the statutory provisions; and WHEREAS, the City believes that by establishing a moratorium for two hundred and seventy (270) days on the issuance of business tax receipts or land use approvals for pain management clinics, the City will have the opportunity to research and study various regulatory options; and WHEREAS, the City Commission finds it is in the best interest of the citizens of the City to minimize and control the adverse effects of pain clinics and thereby protect the health, safety, and welfare of the citizenry; protect the citizens from increased crime; preserve the quality of life and preserve property values by adopting appropriate regulations regulating thereto; and WHEREAS, the City Commission of the City of Winter Springs, Florida, hereby finds this Ordinance to be in the best interests of the public health, safety, and welfare of the citizens of Winter Springs. NOW, THEREFORE, THE CITY COMIVIISSION OF THE CITY OF WINTER SPRINGS HEREBY ORDAINS, AS FOLLOWS: Section 1. Recitals. The foregoing recitals are hereby incorporated herein by this reference. City of Winter Springs Ordinance 2010 -22 Page 2 Section 2. Definition of Pain Management Clinic. For the purposes of this Ordinance, a "pain management clinic" is a clinic required to be registered with the Department of Health pursuant to section 458.3265 or section 459.0137, Florida Statutes. Said clinics are generally defined as: All privately owned pain- management clinics, facilities, or offices, which advertise in any medium for any type of pain - management services, or employ a physician or an osteopathic physician who is primarily engaged in the treatment of pain by prescribing or dispensing controlled substance medications, unless: 1. That clinic is licensed as a facility pursuant to chapter 395; 2. The majority of the physicians who provide services in the clinic primarily provide surgical services; 3. The clinic is owned by a publicly held corporation whose shares are traded on a national exchange or on the over - the - counter market and whose total assets at the end of the corporation's most recent fiscal quarter exceeded $50 million; 4. The clinic is affiliated with an accredited medical school at which training is provided for medical students, residents, or fellows; 5. The clinic does not prescribe or dispense controlled substances for the treatment of pain; or 6. The clinic is owned by a corporate entity exempt from federal taxation under 26 U.S.C. § 501(c)(3). Section 3. Temporary Moratorium Upon the Issuance of Pain Management Clinics. All activities relating to the acceptance, review and action upon applications related to a pain management clinic are temporarily suspended in order for the City of Winter Springs, through its officials and staff, to have adequate time and opportunity to conduct a study or studies and comprehensively analyze the adequacy of application criteria, standards, and other approved processes and procedures related to the issuance of said permits within the City of Winter Springs. Accordingly, there is hereby established and imposed a temporary moratorium on the receipt and/or acting upon applications for any and all land use approvals or business tax receipts related to pain management clinics for a period of two hundred and seventy (270) days from the effective date of this Ordinance m order to permit the City to research the nature and scope of possible measures of mitigation and regulation of pain management clinics. During the time the temporary moratorium is in effect, the City will not accept any applications or act on any pending applications for any land use approvals or business tax receipts for pain management clinics and no pain management clinics shall be permitted within City of Winter Springs Ordinance 2010 -22 Page 3 the City. In addition, the City shall not accept payments of the business tax for pain management clinics and shall return any funds accepted for pending applications during the period of time the moratorium is in effect. It is unlawful for any person or entity to own or operate a pain management clinic in violation of the moratorium enacted by this Ordinance. Any person or entity owning or operating a pain management clinic in violation of this ordinance shall be subject to the maximum penalty of $500.00 per day that the violation occurs in accordance with City Code and Chapter 162, Florida Statutes. Further, any person or entity owning or operating a pain management clinic in violation of this Ordinance is subject to Section 1 -15(b) and (c) of the City Code. Section 4. Existing Businesses: Except as provided in Section 7 of this Ordinance, this moratorium shall not affect any business currently operating within the City pursuant to a validly issued business tax receipt as long as the business and property are in compliance with applicable local, county, state and federal laws. Section 5. New Business Tax Receipts. Applications for business tax receipts for operation of pain management clinics received after the date the City Commission directed this moratorium be enacted (October 25, 2010), shall be returned to the applicant along with any funds accepted for pending applications. Section 6. Renewal of Business Tax Receipts. The Community Development Director, or his or her designee, is authorized to renew the business tax receipt of any existing business affected by this moratorium with a valid business tax receipt in the event such receipt expires before the expiration of this moratorium, upon a finding that the business is in compliance with applicable local, county, state and federal laws. Section 7. No Cash Only. During the moratorium established herein, no pain management clinic in operation as of the effective date of this Ordinance shall limit patient payment options to cash only. Section 8. Hours of Operation. During the moratorium established herein, the hours of operation of a pain management clinic in operation as of the effective date of this Ordinance shall be limited to 7 a.m. to 9 p.m. of the same day. Section 9. Extension of Time. Notwithstanding the time limit on the moratorium herein established, in the event the City Commission finds that additional time is needed for staff to conclude its review of the problems associated with pain management clinics within the City and for the drafting of regulations of those businesses, then the term of this Ordinance may be extended by the City Commission for an additional ninety (90) days by resolution. Section 10. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior inconsistent ordinances and resolutions adopted by the City Commission, or parts of prior ordinances and resolutions in conflict herewith, are hereby repealed to the extent of the conflict. City of Winter Springs Ordinance 2010 -22 Page 4 Section 11. Severability. If any section, subsection, sentence, clause, phrase, word or provision of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this Ordinance. Section 12. Effective Date. This Ordinance shall become effective immediately upon adoption by the City Commission of the City of Winter Springs, Florida, and pursuant to City Charter. ADOPTED by the City Commission of the City of Winter Springs, Florida, in a regular meeting assembled on the 13th day of December, 2010. CHARLES LACEY, Mayor ATTEST: ANDREA LORENZO - LUACES, City Clerk Approved as to legal form and sufficiency for the City of Winter Springs only: ANTHONY A. GARGANESE, City Attorney First Reading: Second Reading: Effective Date: City of Winter Springs Ordinance 2010 -22 Page 5 ORDINANCE 2010 -22 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, FLORIDA, DECLARING A MORATORIUM AS TO THE FILING AND /OR RECEIVING OF ANY APPLICATION OR THE ISSUANCE OF BUSINESS TAX RECEIPTS OR LAND USE APPROVALS FOR THE OPERATION OF "PAIN MANAGEMENT CLINICS" FOR TWO - HUNDRED AND SEVENTY (270) DAYS; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS, SEVERABILITY, AND AN EFFECTIVE DATE. WHEREAS, the City is granted the authority, under Section 2(b), Article VIII, of the State Constitution, to exercise any power for municipal purposes, except when expressly prohibited by law; and WHEREAS, there has been a recent proliferation of pain clinics, pain management clinics, and cash only pharmacies throughout the State of Florida; and WHEREAS, the Prescription Drug Monitoring Program set forth in Florida Statutes, Section 893.055, is not required to commence until December 1, 2010, and has not been funded by the State of Florida, and therefore there is a current absence of effective regulation of the dispensing of controlled substances and prescriptions for controlled substances for physicians; and WHEREAS, the U.S. Department of Health and Human Services has released data showing that prescription drug deaths are now the fourth leading cause of death in the United States, after heart disease, cancer and stroke; and WHEREAS, various studies and reports have been conducted concerning the proliferation of pain management clinics in Florida, and in 2008, prescription drugs were attributed to an average of nearly 13.5 deaths per day in Florida; and WHEREAS, the Florida Department of Law Enforcement released the Florida Medical Examiners Commission Report on Drugs Identified in Deceased Persons on December 2, 2010, which report shows the lethal consequences of the diversion and abuse of prescription drugs; and WHEREAS, reports have found that burglaries and robberies in the areas where pain management clinics are located have increased; drug trafficking in prescription drugs and street level sales of prescription drugs have increased; and identity theft and organized criminal activities have increased; and WHEREAS, on -site dispensing of prescription drugs requires additional security measures be in place to assure the public health, safety, and welfare; and WHEREAS, according to a study reported by the New York Times in 2008, while 38 other states have prescription drug monitoring programs that track sales, Florida does not, resulting in, according to federal, state and local law enforcement officials, Florida becoming a source of prescription drugs that are illegally sold across the country; and WHEREAS, Florida Statutes require physicians and other persons dispensing prescription drugs through pain clinics, facilities, or offices, to register with the State Department of Health in order to conduct such businesses; and WHEREAS, several counties and municipalities in Florida have established moratoria on certain new pain management clinics to curb the immediate negative impacts created by these clinics, such as illegal prescription drug trafficking and sales of illegal drugs around the clinics, and loitering in areas surrounding the clinics; and WHEREAS, the negative impacts associates with certain pain management clinics create an urgent situation necessitating immediate investigation into regulation of such clinics in the City; and WHEREAS, the Board of County Commissioners of Orange County, Florida WHEREAS, under its home rule authority, the City can pass additional legislation to further regulate pain management clinics as long as these additional regulations are not preempted in the law and are not inconsistent with the statutory provisions; and WHEREAS, the City believes that by establishing a moratorium for two hundred and seventy (270) days on the issuance of business tax receipts or land use approvals for pain management clinics, the City will have the opportunity to research and study various regulatory options; and WHEREAS, the City Commission finds it is in the best interest of the citizens of the City to minimize and control the adverse effects of pain clinics and thereby protect the health, safety, and welfare of the citizenry; protect the citizens from increased crime; preserve the quality of life and preserve property values by adopting appropriate regulations regulating thereto; and WHEREAS, the City Commission of the City of Winter Springs, Florida, hereby finds this Ordinance to be in the best interests of the public health, safety, and welfare of the citizens of Winter Springs. NOW, THEREFORE, THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS HEREBY ORDAINS, AS FOLLOWS: Section 1. Recitals. The foregoing recitals are hereby incorporated herein by this reference. City of Winter Springs Ordinance 2010 -22 Page 2 Section 2. Definition of Pain Management Clinic. For the purposes of this Ordinance, a "pain management clinic" is a clinic required to be registered with the Department of Health pursuant to section 458.3265 or section 459.0137, Florida Statutes. Said clinics are generally defined as: All privately owned pain - management clinics, facilities, or offices, which advertise in any medium for any type of pain- management services, or employ a physician or an osteopathic physician who is primarily engaged in the treatment of pain by prescribing or dispensing controlled substance medications, unless: 1. That clinic is licensed as a facility pursuant to chapter 395; 2. The majority of the physicians who provide services in the clinic primarily provide surgical services; 3. The clinic is owned by a publicly held corporation whose shares are traded on a national exchange or on the over - the - counter market and whose total assets at the end of the corporation's most recent fiscal quarter exceeded $50 million; 4. The clinic is affiliated with an accredited medical school at which training is provided for medical students, residents, or fellows; 5. The clinic does not prescribe or dispense controlled substances for the treatment of pain; or 6. The clinic is owned by a corporate entity exempt from federal taxation under 26 U.S.C. § 501(c)(3). Section 3. Temporary Moratorium Upon the Issuance of Pain Management Clinics. All activities relating to the acceptance, review and action upon applications related to a pain management clinic are temporarily suspended in order for the City of Winter Springs, through its officials and staff, to have adequate time and opportunity to conduct a study or studies and comprehensively analyze the adequacy of application criteria, standards, and other approved processes and procedures related to the issuance of said permits within the City of Winter Springs. Accordingly, there is hereby established and imposed a temporary moratorium on the receipt and/or acting upon applications for any and all land use approvals or business tax receipts related to pain management clinics for a period of two hundred and seventy (270) days from the effective date of this Ordinance in order to permit the City to research the nature and scope of possible measures of mitigation and regulation of pain management clinics. During the time the temporary moratorium is in effect, the City will not accept any applications or act on any pending applications for any land use approvals or business tax receipts for pain management clinics and no pain management clinics shall be permitted within City of Winter Springs Ordinance 2010 -22 Page 3 the City. In addition, the City shall not accept payments of the business tax for pain management clinics and shall retum any funds accepted for pending applications during the period of time the moratorium is in effect. It is unlawful for any person or entity to own or operate a pain management clinic in violation of the moratorium enacted by this Ordinance. Any person or entity owning or operating a pain management clinic in violation of this ordinance shall be subject to the maximum penalty of $500.00 per day that the violation occurs in accordance with City Code and Chapter 162, Florida Statutes. Further, any person or entity owning or operating a pain management clinic in violation of this Ordinance is subject to Section 1 -15(b) and (c) of the City Code. Section 4. Existing Businesses: Except as provided in Section 7 of this Ordinance, this moratorium shall not affect any business currently operating within the City pursuant to a validly issued business tax receipt as long as the business and property are in compliance with applicable local, county, state and federal laws. Section 5. New Business Tax Receipts. Applications for business tax receipts for operation of pain management clinics received after the date the City Commission directed this moratorium be enacted (October 25, 2010), shall be returned to the applicant along with any funds accepted for pending applications. Section 6. Renewal of Business Tax Receipts. The Community Development Director, or his or her designee, is authorized to renew the business tax receipt of any existing business affected by this moratorium with a valid business tax receipt in the event such receipt expires before the expiration of this moratorium, upon a finding that the business is in compliance with applicable local, county, state and federal laws. Section 7. No Cash Only. During the moratorium established herein, no pain management clinic in operation as of the effective date of this Ordinance shall limit patient payment options to cash only. Section 8. Hours of Operation. During the moratorium established herein, the hours of operation of a pain management clinic in operation as of the effective date of this Ordinance shall be limited to 7 a.m. to 9 p.m. of the same day. Section 9. Extension of Time. Notwithstanding the time limit on the moratorium herein established, in the event the City Commission finds that additional time is needed for staff to conclude its review of the problems associated with pain management clinics within the City and for the drafting of regulations of those businesses, then the term of this Ordinance may be extended by the City Commission for an additional ninety (90) days by resolution. Section 10. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior inconsistent ordinances and resolutions adopted by the City Commission, or parts of prior ordinances and resolutions in conflict herewith, are hereby repealed to the extent of the conflict. City of Winter Springs Ordinance 2010 -22 Page 4 Section 11. Severability. If any section, subsection, sentence, clause, phrase, word or provision of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this Ordinance. Section 12. Effective Date. This Ordinance shall become effective immediately upon adoption by the City Commission of the City of Winter Springs, Florida, and pursuant to City Charter. ADOPTED by the City Commission of the City of Winter Springs, Florida, in a regular meeting assembled on the 13th day of December, 2010. CH • ' Y ' ayor ATTEST: • W NZO- LUACES, City Clerk Appro ed as to legal form and sufficiency for the City o Winter Springs only: ANTHONY A. GARGANESE, City Attorney First Reading: November 15, 2010 Second Reading: December 13, 2010 Effective Date: December 13, 2010 City of Winter Springs Ordinance 2010 -22 Page 5