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HomeMy WebLinkAbout2012 01 09 Public Hearings 502 Ordinance 2012-03 First Reading Pain ClinicsCOMMISSION AGENDA ITEM 502 January 09, 2012 Regular Meeting Informational Consent Public Hearings X Regular KS City Manager Department REQUEST: The City Attorney requests that the City Commission approve Ordinance 2012 -03 at first reading, which further extends, for a period of six (6) months, the City's temporary moratorium on the issuance of business tax receipts or land use approvals for pain management clinics. SYNOPSIS: On December 13, 2010, the City Commission adopted Ordinance 2010 -22, which established a temporary moratorium for two hundred and seventy (270) days on the issuance of business tax receipts or land use approvals for pain management clinics in order to allow the City's staff time to research and study various regulatory options for pain clinics located in the City. On August 22, 2011, the City Commission extended the temporary for an additional 90 days pursuant to Resolution 2011 -43. On November 14, 2011, the Orange County Prescription Drug Task Force presented its findings and recommendations on pain clinics in a report to the City of Orlando City Commission. Given this recent report and recent developments in the state laws regulating pain management clinics, City staff requires additional time to study and analyze what regulations other local jurisdictions are proposing with regard to pain management clinics. The proposed temporary moratorium further extends the initial moratorium approved in December 2010 and is more fully described below. CONSIDERATIONS: 1. The Ordinance 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. These statutes generally define pain management clinics as all Public Hearings 502 PAGE 1 OF 3 - January 09, 2012 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, Florida Statutes; 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). 2. The Ordinance 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. 3. The moratorium does not affect any 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. However, at the time this agenda item was prepared, the Police Department has advised that there are no pain management clinics currently operating with the city limits of Winter Springs. Applications for business tax receipts received after the date the City Commission initially directed declaration of the moratorium (October 25, 2010) will be returned to the applicant. No new business tax receipts are issued and no payments of the business tax or funds for pending applications are accepted during the moratorium period. 4. The Ordinance provides that the City Commission may, by resolution, extend the moratorium for an additional six (6) months 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. Public Hearings 502 PAGE 2 OF 3 - January 09, 2012 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. 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, eAlert/eCitizen Recipients, 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 recommends that the City Commission approve Ordinance 2012 -03 at first reading and direct that the Ordinance be advertised for second and final reading at the next regularly scheduled City Commission meeting. ATTACHMENTS: A. Ordinance 2012 -03 Public Hearings 502 PAGE 3 OF 3 - January 09, 2012 ORDINANCE NO. 2012-03 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, SEMINOLE COUNTY, FLORIDA; DECLARING A TEMPORARY MORATORIUM ON THE ISSUANCE OF ANY NEW BUSINESS TAX RECEIPTS OR LAND USE APPROVALS FOR PAIN MANAGEMENT CLINICS FOR A PERIOD OF SIX (6) MONTHS; PROVIDING FOR ONE (1) SIX -MONTH EXTENSION OF THE MORATORIUM; PROVIDING FOR THE REPEAL OF PRIOR, INCONSISTENT ORDINANCES AND RESOLUTIONS, 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, in response to a recent proliferation of pain management clinics throughout the State of Florida, the City Commission adopted Ordinance 2010 -22 on December 13, 2010, which imposed a 270 -day moratorium on the issuance of business tax receipts and /or land use approvals for pain management clinics in order to allow the City time to research and study various local regulatory options; and WHEREAS, on August 22, 2011, the City Commission adopted Resolution 2011 -43, extending the moratorium period for an additional 90 -days; and WHEREAS, during its 2011 session, the Florida Legislature amended the state laws applicable to pain management clinics; and WHEREAS, on November 14, 2011, the Orange County Prescription Drug Task Force published its findings in a report to the City of Orlando City Commission; and WHEREAS, the City Commission desires to further extend the temporary moratorium for a period of six (6) months in order to allow City staff additional time to study the effect of the new state legislation on pain management clinics and to analyze the findings and recommendations of the Orange County Prescription Drug Task Force; and WHEREAS, the City's Local Planning Agency previously recommended approval of the temporary moratorium applicable to pain management clinics; and WHEREAS, during the extended moratorium period, City staff will consider the latest City of Winter Springs Ordinance No. 2012 -03 Page 1 of 4 regulatory developments and study and propose local regulations applicable to pain management clinics that are in the best interest of the citizens of 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. 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 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: That clinic is licensed as a facility pursuant to Chapter 395, Florida Statutes; 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 City of Winter Springs Ordinance No. 2012 -03 Page 2 of 4 taxation under 26 U.S.C. § 501(c)(3). Section 3. Temporary Moratorium. All activities relating to the acceptance, review and action upon applications related to pain management clinics are temporarily suspended in order for the City of Winter Springs, through its officials and staff, to have adequate time and opportunity to study 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 six (6) months 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 new pain management clinics shall be permitted within 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 subj ect 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. New Business Tax Receipts. Applications for business tax receipts for operation ofpain management clinics received after the date the City Commission originally directed this moratorium be enacted (October 25, 2010), shall be returned to the applicant along with any funds accepted for pending applications. Section 5. 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 six (6) months by resolution. Section 6. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior inconsistent ordinances and resolutions adopted by the City Commission, or parts ofprior ordinances and resolutions in conflict herewith, are hereby repealed to the extent of the conflict. City of Winter Springs Ordinance No. 2012 -03 Page 3 of 4 Section 7. 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 8. 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 , 2012. 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 No. 2012 -03 Page 4 of 4