HomeMy WebLinkAboutOrdinance 2010-22 Moratorium Of Pain Management Clinics 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
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