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HomeMy WebLinkAbout2012 08 13 Public Hearings 500 2nd Reading - Pain Management Regulatory Ordinance 2012-10 COMMISSION AGENDA Informational Consent ITEM 500 Public Hearings X Regular August 13, 2012 KS Regular Meeting City Manager Department REQUEST: On behalf of the Police Department and Community Development Department, the City Attorney requests the City Commission hold a public hearing for Second Reading and adoption of Ordinance 2012-10, which provides operational regulations 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. The City Commission recently adopted zoning regulations for pain management clinics requiring that they be located in the I-1 (Light Industrial) zoning district subject to certain locational requirements, and prohibiting pain management clinics as a home occupation. In conjunction with the zoning regulations, Ordinance 2012-10 proposes to impose certain operational requirements on pain management clinics such as status certification requirements, cash payment restrictions, hours of operation, loitering restrictions. Further, Ordinance 2012-10 amends the City's Nuisance Board jurisdiction to include pain management clinics pursuant to recent changes in Florida law. CONSIDERATIONS: APPLICABLE LAW &, PUBLIC POLICY Home Rule Powers Florida Statutes City of Winter Springs Comprehensive Plan Public Hearings 500 PAGE 1 OF 3-August 13,2012 City of Winter Springs Code of Ordinances, Chapters 10 and 13 DISCUSSION: The City Commission passed Ordinance 2012-10 on First Reading at its July 23, 2012 meeting. 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 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 2012-10 proposes to amend Chapter 10 and 13 of the City Code to impose certain operational restrictions of pain management clinics including: 1. To require an affidavit from certain medical professionals that are authorized by law to prescribe drugs and businesses such as wellness centers and clinics to be submitted with its business tax receipt application certifying registration as a pain management clinic with the State of Florida, if applicable, or certifying that the business activity does not meet the definition of pain management clinic or does not otherwise require registration as a pain management clinic, as this term is defined in state law. The failure of an applicant to certify by affidavit that a business meets the definition of pain management clinic will result in the immediate ceasing of all activity conducted in the pain management clinic. 2. To prohibit pain management clinics to operate on a cash payment only basis. 3. To restrict operational hours between 7:00 a.m. to 9:00 p.m. of the same day. 4. To restrict certain activities to reduce loitering opportunities around the pain management clinic. 5. To modify the jurisdiction of the City's nuisance abatement board to include pain management clinics pursuant to, and consistent with, recent amendments to Florida Statutes. FISCAL IMPACT: There is no fiscal impact resulting from the adoption of this Ordinance except for legal advertising required by Florida law. Public Hearings 500 PAGE 2 OF 3-August 13,2012 COMMUNICATION EFFORTS: This Agenda Item has been electronically forwarded to the Mayor and City Commission, City Manager, City Attorney/Staff, and is available on the City's Website, LaserFiche, and the City's Server. Additionally, portions of this Agenda Item are typed verbatim on the respective Meeting Agenda which has also been electronically forwarded to the individuals noted above, and which is also available on the City's Website, LaserFiche, and the City's Server; has been sent to applicable City Staff, Media/Press Representatives who have requested Agendas/Agenda Item information, Homeowner's Associations/Representatives on file with the City, and all individuals who have requested such information. This information has also been posted outside City Hall, posted inside City Hall with additional copies available for the General Public, and posted at five (5) different locations around the City. Furthermore, this information is also available to any individual requestors. City Staff is always willing to discuss this Agenda Item or any Agenda Item with any interested individuals. RECOMMENDATION: The City Attorney, Police Department, and Community Development Department recommend that the City Commission adopt Ordinance 2012-10 on Second Reading. ATTACHMENTS: A. Ordinance 2012-10 Public Hearings 500 PAGE 3 OF 3-August 13,2012 ATTACHMENT 'A' ORDINANCE NO. 2012-10 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, SEMINOLE COUNTY, FLORIDA; PROVIDING FOR THE REGULATION OF PAIN MANAGEMENT CLINICS AS DEFINED BY FLORIDA STATUTES; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS, INCORPORATION INTO THE CODE, SEVERABILITY, AND AN EFFECTIVE DATE. WHEREAS, the City is granted the authority, under § 2(b), Art. 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, City of Winter Springs Ordinance No. 2012-10 1 dispensing health care practitioners and other persons dispensing controlled substances through 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 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 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, 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 of Winter Springs Ordinance No. 2012-10 2 City to adopt regulations for such clinics from the standpoint of regulating the operation of such 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 regulatory and operational recommendations will provide a comprehensive 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,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. Chapter 10 Code Amendment. The City of Winter Springs Code of Ordinances, Chapter 10, is hereby amended to add a new Article IV. Pain Management Clinics as follows (underlined type indicates additions and strikeout type indicates deletions): Article IV. Pain Management Clinics. (a) Any application for a business tax receipt filed with the City to engage in a business involving the practice of medicine, osteopathic medicine, dentistry, or any other profession that can legally prescribe drugs to patients,or any business classified or described as a wellness center, clinic, or similar kind of business shall be accompanied by an executed affidavit certifying registration as a pain management clinic with the State of Florida, if applicable, or certifying that the business activity does not meet the definition of pain management clinic or does not otherwise require registration as a pain management clinic,as this term is defined in state law. The affidavit shall be on a form provided by the City. Any such application for a business tax receipt and executed affidavit shall be provided to the City at the time the City reviews a proposed use for zoning compliance purposes. The failure of an applicant to certify by affidavit that a business meets the definition of pain management clinic will result in the immediate ceasing of all activity conducted in the pain management clinic. (b) No pain management clinic shall limit patient payment options to cash only. City of Winter Springs Ordinance No. 2012-10 3 (c) The hours of operation of a pain management clinic shall be limited to 7:00 a.m. to 9 p.m. of the same day. (d) No pain management clinic shall provide or allow outdoor seating areas, queues, or customer waiting areas. All activities shall be conducted within the building and adequate indoor waiting areas shall be provided for allpatients and business invitees. The pain management clinic shall not direct or encourage any patient or business invitee to stand, sit(including in a parked car), gather, or loiter outside of the building where the clinic operates, including in any parking area, adjacent sidewalk or right of way or neighboring property for any period of time longer than that reasonably required to arrive and depart. The pain management clinic shall post a conspicuous sign stating that no loitering is allowed on the property. Section 3. Chapter 13, Article V Code Amendment. The City of Winter Springs Code of Ordinances, Chapter 13, Article V is hereby amended as follows (underlined type indicates additions and strikeout type indicates deletions,while asterisks(* * *)indicate a deletion from the Ordinance of text existing in Chapter 13,Article V. It is intended that the text in Chapter 13,Article V denoted by the asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this ordinance: Chapter 13. Nuisances * * * Article IV. Public Nuisance Abatement Board Sec. 13-70. Intent and purpose. It is the intent and purpose of this Article to promote,protect and improve the health, safety and welfare of the citizens of the City of Winter Spring by creating an administrative board to impose administrative fines, enjoin and prohibit certain criminal activity on private property and provide an equitable, expeditious, effective and efficient method of abating drug,prostitution, dealing in stolen property, and criminal street gang activity, and pain management clinics constituting public nuisances within the municipal boundaries of the City of Winter Springs as provided under Section 893.138, Florida Statutes (2002), and as may be amended. * * * Sec. 13-72. Definitions. The following terms and phrases, when used in this Article, shall have the meanings ascribed to them in this section: * * * City of Winter Springs Ordinance No. 2012-10 4 (i) Pain Management Clinics shall mean as described in section 458.3265 or section 459.0137, Florida Statutes. Sec. 13-74. Powers; duties; jurisdiction. (b) It is the intent of this Article to provide the City of Winter Springs with an additional and supplemental means to abate drug, prostitution, dealing in stolen property, pain management clinics and criminal street gang activities amounting to a public nuisance. Nothing contained herein shall preclude the City from abating nuisances under Section 60.05, Florida Statutes or as otherwise provided by federal, state or local law. (c) The Nuisance Abatement Board shall hear complaints alleging that any place or premises constitutes a public nuisance, and may find said place or premises, or any part thereof, to be a public nuisance, upon competent and substantial evidence that said place or premises has been used: (1) On more than two occasions within a 6-month period, as the site of a violation of Section 796.07, Florida Statutes, relating to Prostitution and Prostitution-related activities; (2) On more than two occasions within a 6-month period, as the site of the unlawful sale, delivery, manufacture, or cultivation of any Controlled Substance; (3) On one occasion as the site of the unlawful possession of a Controlled Substance, where such possession constitutes a felony,and that has been previously used on more than one occasion as the site of the unlawful sale, delivery,manufacture, or cultivation of any Controlled Substance; (4) By a Criminal Street Gang for the purpose of conducting a pattern of Criminal Street Gang Activity as defined by Section 874.03, Florida Statutes; or (5) On more than two occasions within a 6-month period, as the site of a violation of Section 812.019, Florida Statutes, relating to dealing in Stolen Property; or: (6) As a pain management clinic, which has been used on more than two occasions within a 6-month period, as the site of a violation of: (i) Section 784.011, s. 784.021, s. 784.03, or s. 784.045, relating to assault and battery; (ii) Section 810.02, relating to burglary; City of Winter Springs Ordinance No. 2012-10 5 (iii) Section 812.014, relating to dealing in theft; (iv) Section 812.131, relating to robbery by sudden snatching; or (v) Section 893.13, relating to the unlawful distribution of controlled substances. Section 4. 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 5. 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 6. 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 7. 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 13th day of August, 2012. CHARLES LACEY,Mayor ATTEST: ANDREA LORENZO-LUACES City Clerk City of Winter Springs Ordinance No. 2012-10 6 APPROVED AS TO LEGAL FORM AND SUFFICIENCY FOR THE CITY OF WINTER SPRINGS ONLY. ANTHONY A. GARGANESE City Attorney First Reading: July 23, 2012 Legal Ad Published: Effective Date: August 13, 2012 City of Winter Springs Ordinance No. 2012-10 7