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HomeMy WebLinkAbout2012 06 06 Public Hearing 500 - Ordinance 2011-09 Pain Management ClinicsPLANNING &ZONING BOARD AGENDA ITEM 500 June 6, 2012 Meeting Consent Information Public Hearing x Regular Mgr. / Dept REQUEST: On behalf of the Police Department and Community Development Department, the City Attorney requests the Planning & Zoning Board/Local Planning Agency hold a public hearing for the approval of Ordinance 2012 -09, which provides zoning and locational requirements for pain management clinics as defined by City Code. SYNOPSIS: The City of Winter Springs established a moratorium through the adoption of Ordinance 2012 -03, which prohibited the opening of new pain management clinics while new regulations were being studied and proposed to combat the adverse secondary effects and impacts created by pain management clinics. These effects include the trafficking and sales of illegal drugs around the clinics, loitering by customers while waiting in long lines to receive drugs, and loitering in the areas surrounding the clinics. Ordinance 2012 -09 proposes to permit pain management clinics in the I -1 (Light Industrial) zoning district subject to certain locational requirements, and to prohibit pain management clinics as a home occupation. Relatedly, the proposed Ordinance prohibits "pill mills," as defined in the Ordinance. CONSIDERATIONS APPLICABLE LAW &, PUBLIC POLICY Home Rule Powers Florida Statutes City of Winter Springs Comprehensive Plan City of Winter Springs Code of Ordinances, Chapter 20 -259, Section 20452 DISCUSSION: The City Commission was previously made aware of the problem of "pill mills" by the Police Chief and various newspaper articles that discussed the proliferation of pain management clinics in Florida. The proliferation of these clinics in Florida caused drug traffickers to visit these clinics for the purpose of distributing pills to users in other states where specific types of medication are difficult to obtain, and are widely abused. Illegal narcotic activity and increased crime statistics June d, 2012 Planning & Zoning Board, Item 500 Page 2 of 3 that are associated with pain management clinics is significant. If not regulated, it has been determined that pain management clinics could pose a detrimental effect on the economic well- being of winter Springs and could seriously impede future development and redevelopment efforts that are planned by the City. In addition, pain management clinics could pose negative effects on the safety and well -being of the citizens of the City via the adverse secondary effects they create such as the trafficking and sale of illegal drugs around the clinics, loitering by customers while waiting in long lines to receive drugs, and loitering in the areas surrounding the clinics. Ordinance 2012 -09 proposes to amend Section 20 -259, the list of permitted uses in the I -1 (Light Industrial) zoning district to permit pain management clinics, as defined therein, provided the clinic complies with the following locationai restrictions; (a) Shall not be co-located on the same property as a pharmacy. (b) Shall not be operated within 1,000 feet of any pre - existing pharmacy, school, day care center, or residential unit unless a variance is granted pursuant to section 20 -32 of the City Code. In addition, Ordinance 2012 -09 proposes to amend Section 20452, Horne Occupations and Home Offices by prohibiting pain management clinics as a home occupation. Further, the proposed Ordinance prohibits "pill mills," as defined therein. The statutory definition of "pain management clinics" set forth in the Florida Statutes is attached to this agenda item. The City Attorney's Office is also working with staff to finalize a companion ordinance proving for additional operational regulations that will apply to pain management clinics. That Ordinance will be presented to the City Commission in conjunction with this zoning Ordinance. Orange County is conducting a public hearing on the County's proposed pain management clinic ordinance on June 5th. As a result, new information may become available after this agenda item is distributed to the P & Z Board that will be discussed by the City Attorney's office at the meeting. FISCAL IMPACT: There is no fiscal impact resulting from the adoption of this Ordinance except for legal advertising required by Florida law. COMMUNICATION EFFORTS; The Meeting Agenda and this Agenda Item have been forwarded to the Planning and Zoning Board members and are available on the City's website, LaserFiche, and the City's Server. The Agenda has been forwarded to the Mayor and City Commission; City Manager; and City Attomey /Staff. Additionally, the Meeting Agenda has been sent to media/press representatives, all Homeowner's Associations on file with the City, all individuals who have requested Agenda information, Department Directors; and also posted outside City Hall; posted inside City Hall with additional copies available for the general public. This public hearing was advertised in the Orlando Sentinel on May 27, 2012. June 6,2012 Planning & Zoning Board, Item 500 Page 3 of 3 RECOMMENDATION: The City Attorney, Police Department, and Community Development Department recommend that the Planning & Zoning Board forward a recommendation of approval to the City Conunission for Ordinance 2012-09. ATTACHMENTS: A. ordinance 2012 -49 B. Excerpt of Section 458.3265, Florida Statutes (Definition of pain management clinic). ORDINANCE NO. 2012-09 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, SEMINOLE COUNTY, .FLORIDA; PROVIDING ZONING AND LOCATIONAL REQUIREMENTS FOR PAIN MANAGEMENT CLINICS AS DEFINED BY CITY CORE; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTION , INCORPORATION INTO THE CODE, SEVERABILITY, AND AN EFFECTIVE DATE. WHEREAS, the City is granted the authority, under § 2(b), A.A. VIII of the State Constitution, to exercise any power for municipal purposes, except when expressly prohibited by law; and WHEREAS, the City Commission has previously been made aware of the problem of "pill mills" by the Winter Springs Police Chief and various newspaper articles describing the proliferation of pain management clinics in Florida, and the "pipeline" trafficking of drugs from Florida pain clinics to users from other states such as Georgia, North Carolina, Tennessee, Kentucky, and Ohio; and WHEREAS, the threat of illegal narcotic activity and increased crime associated with pain management clinics is significant and could undermine the economic health of the City of Winter Springs' and impede future development and redevelopment efforts planned by the City in furtherance of the goals, policies, and objectives set forth in the City's Comprehensive Plan; and WHEREAS, the threat of illegal narcotic activity and increased crime associated with pain management clinics will negatively affect the safety and well -being of the citizens, residents, and businesses of the City of Winter Springs; and WHEREAS, in Chapter 2009 -198, Laws of Florida, the Legislature recognized that pharmaceutical drug diversion hurts the State of Florida significantly in terms of lost lives, increased crime, in human misery from addiction, ballooning health care costs, and Medicare fraud; and WHEREAS, the United States Department of Health and Human Services has released data showing prescription drug deaths are now the 4th leading cause of death in the United States; and WHEREAS, as a result of the serious problems associated with the illegal, inappropriate, and abusive use of prescription drugs, the Florida Legislature has enacted the Prescription Drug Monitoring Program Act set forth in section 893.055, Florida Statutes, which requires pharmacies, dispensing health care practitioners and other persons dispensing controlled substances through City of Winter Springs Ordinance No. 2012 -09 Page l of 6 pain management clinics to register with the State of Florida Department of Health in order to conduct such business; and WHEREAS, in 2010 in order to combat the proliferation of pain management clinics illegally and inappropriately dealing in prescription drugs, the Florida Legislature further required pain management clinics (as defined by Florida Statutes) to duly register with the State of Florida Department of Health and comply with certain defined registration and operational requirements; and WHEREAS, the Florida Legislature in 2011 also amended the local nuisance abatement board statute, section 893.138, Florida Statutes, to expressly authorize local governments to declare certain pain management clinics (as defined by Florida Statutes) as public nuisances, which have been used on more than two (2) occasions within a six -month period as a site of a statutory violation relating to assault and battery, burglary, theft, robbery by sudden snatching, and the unlawful distribution of controlled substances; and WHEREAS, pursuant to Chapter 2011 -141, Laws of Florida, Section 28, the Florida Legislature declared a public health emergency regarding certain identified dispensing practitioners with large inventories of controlled substances listed in Schedule II or Schedule III as provided in section 893.03, Florida Statutes, and found (in part) as a basis of said emergency that: (1) prescription drug overdose has been declared a public health epidemic by the United States Centers for Disease Control and Prevention; (2) prescription drug abuse results in an average of seven deaths in Florida each day; (3) physicians in Florida purchase more than 85% of the oxycodone purchased by all practitioners in the United States in 2006; (4) physicians in Florida purchase more than 93% of the methadone purchased by all practitioners in the United States in 2006; (5) some physicians in Florida dispense medically unjustifiable amounts of controlled substances to addicts and to people who intend to illegally sell the drugs; (6) it is likely that the same physicians that purchase and dispense medically unjustifiable amounts of drugs will not legally dispose of the remaining inventory in accordance with required state procedures; and (7) the actions of some dispensing practitioners may result in substantial injury to the public health; and WHEREAS, while new regulations were being studied and adopted to combat the adverse secondary effects and impacts created by pain management clinics, such as illegal prescription drug trafficking and sales of illegal drugs around the clinics, loitering by pain clinic customers while waiting in long lines to receive drugs, and loitering in the area surrounding the clinics, many counties and municipalities in the State of Florida, including the City of winter Springs through the adoption of Ordinance No. 2012 -03, have established moratoriums prohibiting the opening of new pain management clinics; and WHEREAS, Such adverse Secondary effects and impacts associated with certain pain management clinics creates a compelling and substantial governmental interest necessitating the City to adopt regulations for such clinics from the standpoint of regulating the operation of such City of Winter Springs Ordinance No. 2012 -09 Page 2 of 6 clinics, as well as regulating the future location of such clinics within the City of Winter Springs; and WHEREAS, the City Commission has reviewed and considered the findings and recommendations of the Prescription Drug Task Force, created by Orange County, Florida, Mayor Theresa Jacobs, which was presented to the City of Orlando Commission on November 14, 2011, and hereby finds that the City of Winter Springs' adoption (in principle) of the Task Force's land use and zoning recommendations will provide a comprehensive local land use approach to addressing the adverse secondary effects related to the illegal, inappropriate, and non - medical use of prescription drugs and the proliferation of pain management clinics; and WHEREAS, with the adoption of this zoning ordinance and the associated regulatory ordinance, the City Commission intends to lift the moratorium imposed by Ordinance No. 2012 -03, and impose these zoning regulations and related substantive regulations on pain management clinics and pharmacies in the City of Winter Springs; 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 fully incorporated herein by reference as legislative findings of the City Commission of Winter Springs. Section 2. Repeal of Moratorium ordinance. The moratorium ordinance against pain management clinics implemented by ordinance No. 2012 -03 shall be repealed upon this Ordinance and ordinance No. 2012 -10 becoming effective. Section 3. Code Amendment to Industrial zoning District. The list of permitted uses in the I- I Light Industrial District set forth in the City of Winter Springs Code of ordinances is hereby amended as follows (underlined type indicates additions and type indicates deletions, while asterisks (* * *) indicate a deletion from the ordinance of text existing in section 20 -259. It is intended that the text in section 20 -259 denoted by the asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this ordinance ); 20.259 Uses Permitted Q1) Pain Management Clinics are clinics that are registered with the State - pursuant to section 458.3265 or section 459.0 137 Florida Statutes. and that also prescribe or dispense dangerous City of Winter Springs Ordinance No. 2012 -09 Page .3 of 6 drugs, rovided said clinic com lies with all of followin locational restrictions: a Shall not be co- located on the same Rroperty as a vharmagL. (b) Shall not be operated within 1,000 feet of any Rre- existing uharmacy, school, day care center, or residential unit unless a variance is granted pursuant to section 20 -32 of the City Code. For RurDOses of this subsection 0 U., the term ""dangerous drug shall mean a controlled substance. sRecifically an a ioid anal esic or o fate analgesic, listed in Schedule 11 and Schedule III in section 893.03, Florida Statutes. This subsection shall not be construed as authorizing a "pill mill" which is prohibited by section 20 -420, City Cade. Section 4. Code Amendment to Supplemental Zoning District Regulations. Chapter 20, Article V, Supplemental District Regulations, are hereby amended to create a new section 20 -420 as follows (underlined type indicates additions and type indicates deletions, while asterisks (* * *)'indicate a deletion from the Ordinance of text existing in Chapter 20, Article V. It is intended that the text in Chapter 20, Article V denoted by the asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of Us ordinance): Chapter 20 Supplemental District Regulations Secs. 20 -420 1- 20430. Reserved. Sec. 20 -420. Pill Mills Pill mills are strictlY Rrohibited. For of this section a pill mill is any doctor's office clinic or health care facility that routinely colludes in Rrescribing and disl2ensing of controlled substances in violation of federal law or Florida Statutes and regulations, or any pain manalzement clinic whatever its title including but not limited to a "wellness center," "urgent care facifi " or `idetox center " that fails to register with the State of Florida as re uired by section 458.3265 or section 459.0137, Florida Statutes. Section 5. Code Amendment to Home Occupation Prohibitions. Section 20 -452 Home occupations or home offices, winter Springs Code is hereby amended as follows ( underlined type indicates additions and type indicates deletions, while asterisks (* * *) indicate a deletion from the Ordinance of text existing in section 20 -452. It is intended that the City of winter Springs Ordinance Iwo. 2012 -09 Page 4 of 6 text in section 20 -452 denoted by the asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this ordinance): 20 -242 Home occupations or home offices. (a) A home occupation or home office, as defined in section 20 -1 of the City Code, is permitted in all residential zoning categories provided that: (6) The following uses shall not be considered a home occupation or home office: bb. Pain Dian ement Clinics as defined by section 458.3265 or section 459.0137, Florida Statutes. . cc. Any other use or activity similar in nature or purpose to those listed herein and any other use or activity inconsistent with the requirements of this Code. Section 6. 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. Section 7. Incorporation Into Code. This Ordinance shall be incorporated into the Winter Springs City Code and any section or paragraph, number or letter, and any heading may be changed or modified as necessary to effectuate the foregoing. Grammatical, typographical, and like errors may be corrected and additions, alterations, and omissions, not affecting the construction or meaning of this Ordinance and the City Code may be freely made. Section g, 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 9. Effective Date, This Ordinance shall become effective immediately upon adoption by the City Commission of the City of winter Springs, Florida, and pursuant to the City Charter. ADOPTED by the City Commission of the City of winter Springs, Florida, in a regular meeting assembled on the day of 9 20120 City of winter Springs Ordinance No. 2012 -09 Page 5 of 6 CHARLES LACEY, Mayor ATTEST: ANDREA LORENZG- LUACES City Clerk APPROVED AS TO LEGAL FORM AND SUFFICIENCY FOR THE CITY OF WINTER SPRINGS ONLY. ANTHONY A. GARGANESE City Attorney First Reading: Legal Ad Published. Effective Date: City of Winter Springs Ordinance No. 2012-09 Page 6 of 6 45 Pain- management clinics Currentness (1) Registration. —­ (a) 1. As used in this section, the term: IIIIIIAM i i l li F 1� ` + i ■ a w + r f + a! b. "Fain- management clinic's or "clinic means any publicly or privately owned facility: (I) That advertises in any medium for any type of pain- management services; or (II) where in any month a majority of patients are prescribed opioids, benzodiazepines, barbiturates, or carisoprodol for the treatment of chronic nonmalignant pain. 2. Each pain- management clinic must register with the department 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 servi c. The clinic is awned 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 $SO 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 controlled substances for the treatment of pain; f. The clinic is owned by a corporate entity exempt from federal taxation under 26 U.S.C. s. 501 g. The clinic is wholly owned and operated by one or more board - certified anesthesiologists, physiatrists, or neurologists; or h. The clinic is wholly owned and operated by one or more board - certified medical specialists who have also completed fellowships in pain medicine approved by the Accreditation Council for Graduate Medical Education, or who are also board - certified in pain medicine by a board approved by the American Board of Medical Specialties and perform interventional pain procedures of the type routinely billed using surgical codes. Fla. Stat. Ann. § 458.3245 (West)