6C BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY PLACEMENT: PUBLIC HEARINGS PRESET: 11:00 AM TITLE: PAIN MANAGEMENT CLINICS LAND DEVELOPMENT REGULATIONS AGENDA ITEM DATES: MEETING DATE: 2/8/2011 COMPLETED DATE: 1/27/2011 COUNTY ATTORNEY: 1/17/2011 ASSISTANT COUNTY ADMINISTRATOR: 1/24/2011 REQUESTED BY: DEPARTMENT: PREPARED BY: Name: Martin County Board of County Commissioners Name: Procedures: None EXECUTIVE SUMMARY: Growth Management Joseph Banfi Principal Planner An Ordinance of Martin County, Florida, amending Section 3.3. Glossary of Terms, Section 3.11. Permitted Uses, and Division 3. Standards for Specific Uses, Article 3, Zoning Districts, Land Development Regulations, Martin County Code; providing regulations for pain management clinics; providing for applicability, conflicting provisions and severability; providing for filing with the Department of State, codification, and an effective date. This is the first of two required public hearings. APPROVAL: LEG ACA CA BACKGROUND/RELATED STRATEGIC GOAL: 801a4f40 PDF Page 1 of 63
In the Fall of 2009, the State Attorney s Office for the 17th Judicial Circuit in Broward County, Florida, issued an interim report entitled The Proliferation of Pain Clinics in South Florida which established the following facts: (i) from August 2008 to November 2009, one new pain clinic was opened in Broward and Palm Beach counties every three days; (ii) doctors in Palm Beach County dispensed the second highest volume of Oxycodone units in the United States during the period from July 2008 to March 2009; (iii) in 2008, prescription drugs were related to nearly 13.5 deaths per day in Florida; and (iv) pain clinics are migrating north from Broward County to other metropolitan areas. In 2009, the Florida Legislature created Section 893.055, F.S., which provided for a prescription drug monitoring program. Section 893.055(2) required a comprehensive electronic database system to be designed and established by December 1, 2010. To date, the system has not been implemented. In 2010, the Legislature enacted Chapter 2010-211, Laws of Florida, which provided additional regulation of pain management clinics. Pursuant to that legislation, the Department of Health and the Board of Medicine were required to adopt rules. The Board of Medicine approved rules on January 21, 2011. However, Governor Rick Scott has issued Executive Order No. 11-01 which freezes all new regulations and establishes the Office of Fiscal Accountability and Regulatory Reform which will review all rules prior to promulgation as well as agency practices and contracts. Attorney General Pam Bondi has recently formed a pill mill unit to focus on the issue. Former state legislator, Dave Aronberg has been appointed as special prosecutor and has been assigned to the Attorney General s West Palm Beach Office. The Martin County Board of County Commissioners has recently been made aware that a pattern of illegal drug use and distribution has been associated with some pain management clinics in south Florida, including Martin County, which dispense narcotic drugs on-site. There have been several newspaper articles published in recent months describing the pipeline trafficking of drugs from some south Florida pain management clinics to users from other states such as Kentucky, West Virginia and Ohio. The threat of illegal narcotic activity and increased crime associated with certain pain management clinics is significant and could undermine the economic health of the County s development and redevelopment efforts The Martin County Board of County Commissioners adopted Ordinance Number 862 on April 13, 2010 establishing a moratorium on the issuance and licenses for pain clinics and pain management clinics for a period of one year or upon the effective date of amendments to the Martin County Code dealing with pain clinics and pain management clinics. Other local area jurisdictions, including the City of Boca Raton, the City of Delray Beach, the Town of Jupiter, Palm Beach County and the City of Stuart have recently enacted moratoria or regulations pertaining to pain management clinics in their jurisdictions, and as a result, the County could become a target for the location of pain management clinics. It is not the intent of these regulations to interfere with legitimate medical practices, including legitimate pain management clinics, nor the legal dispensation and use of controlled substances. In light of the uncertain status of the implementation of existing state regulations, a draft ordinance has been created for the Local Planning Agency s and the Board of County Commissioners consideration. 801a4f40 PDF Page 2 of 63
The ordinance closely follows the pain management clinics regulations that were recently enacted for the City of Stuart. The draft ordinance is the subject of this staff report. The proposed regulations are structured to include: 1. A new pain management clinics use category in the zoning code 2. A definition for pain management clinics 3. Standards for pain management clinics ISSUES: The subject ordinance was reviewed by the Local Planning Agency (LPA) at a public hearing on December 16, 2010. The LPA acted by a vote of 5-0 to recommend approval of the ordinance to the Board of County Commissioners (BCC). The LPA motion was as follows: * Mr. Damon made a motion and moved to approve the Ordinance, that the provisions dealing with the landlord are further reviewed to prevent landlord s from suffering for trying to partake including in the leases language dealing with this new Ordinance and any failure whether it be intentional or otherwise. I just want to protect against that, it s a worthy goal. * Mr. Moir wanted to add language about Hospice and Elder Care as well as being exempted from the requirements of advertising pain management and some of the other negative requirements. * Mr. Damon agreed to amend his motion to include Mr.Moir s language. ** Mr. Moir seconded and the motion carried unanimously. Hospice care providers has been added as an exemption to Sec. 3.86.1.D.4 as recommended by the LPA. Staff feels that the other concerns expressed by the LPA are adequately addressed in the ordinance. This ordinance required two (2) public hearings before the BCC. The hearings have been advertised for February 8, 2011 and February 22, 2011. The second public hearing must occur after 5 pm unless the BCC votes to have the hearing earlier. A minimum 4 affirmative votes by the BCC is required to change the hearing to an earlier time. At the first public hearing on February 8, 2011 the BCC is asked to review the draft ordinance, take public input, consider the recommendations of the LPA and act to change the hearing time for the second public hearing to 9:00 A.M. or as soon as it can be heard after this time. For the second public hearing the ordinance will be amended, if needed, to reflect any changes that are directed by the BCC at the first hearing. The BCC will be asked to take final action on the ordinance at the second public hearing. 801a4f40 PDF Page 3 of 63
A copy of the draft ordinance has been forwarded to the City of Stuart attorney s office for review and comments. RECOMMENDED ACTION: RECOMMENDATION At this first of two public hearings the BCC is asked to review the draft ordinance, take public input, consider the recommendations of the LPA, direct changes to the ordinance, as needed, and act to change the hearing time for the second public hearing to 9:00 A.M. or as soon as it can be heard after this time. ALTERNATIVE RECOMMENDATIONS None FISCAL IMPACT: RECOMMENDATION The costs associated with the creation and the processing of this ordinance. Funding Source County Funds Non-County Funds Authorization Subtotal Project Total ALTERNATIVE RECOMMENDATIONS None DOCUMENT(S) REQUIRING ACTION: Budget Transfer / Amendment Chair Letter Contract / Agreement Grant / Application Notice Ordinance Resolution Other: ROUTING: _ ADM _ BLD _ CDD _ COM _ ENG _ FRD _ GMD _ GSD _ ITS _ LIB _ MCA _ MPO _ PRD _ USD X CA X ACA X LEG 801a4f40 PDF Page 4 of 63
MARTIN COUNTY, FLORIDA DEVELOPMENT REVIEW DIVISION GROWTH MANAGEMENT DEPARTMENT STAFF REPORT SUBJECT: Pain Management Clinics Request for an ordinance amending section 3.3. glossary of terms, Section 3.11. permitted uses, and Division 3. standards for specific uses, Article 3, Zoning Districts, Land Development Regulations, Martin County Code; providing regulations for pain management clinics; providing for applicability, conflicting provisions and severability; providing for filing with the Department of State, codification and an effective date. A. APPLICATION PROCESSING INFORMATION Applicant: County Project Coordinator: Growth Management Director: First Staff Report Date: 12/07/2010 Local Planning Agency Meeting: 12/16/2010 Martin County Joseph Banfi, Principal Planner Nicki van Vonno, AICP Board of County Commissioners Meeting: 02/08/2011, 02/22/2011 Report Number: 2011_0114_Pain_Management_Clinics_LDR_LPA_FINAL B. BACKGROUND AND FINDINGS In the Fall of 2009, the State Attorney s Office for the 17th Judicial Circuit in Broward County, Florida, issued an interim report entitled The Proliferation of Pain Clinics in South Florida which established the following facts: (i) from August 2008 to November 2009, one new pain clinic was opened in Broward and Palm Beach counties every three days; (ii) doctors in Palm Beach County dispensed the second highest volume of Oxycodone units in the United States during the period from July 2008 to March 2009; (iii) in 2008, prescription drugs were related to nearly 13.5 deaths per day in Florida; and (iv) pain clinics are migrating north from Broward County to other metropolitan areas. The Martin County Board of County Commissioners has recently been made aware that a pattern of illegal drug use and distribution has been associated with some pain management clinics in south Florida, including Martin County, which dispense narcotic drugs on-site. There have been several newspaper articles published in recent months describing the pipeline trafficking of drugs from some south Florida pain management clinics to users from other states such as Kentucky, West Virginia and Ohio. The threat of illegal narcotic activity and increased crime associated with certain pain management clinics is significant and could undermine the economic health of the County s development and redevelopment efforts The Martin County Board of County Commissioners adopted Ordinance Number 862 on April 13, 2010 establishing a moratorium on the issuance and licenses for pain clinics and pain management clinics for a period of one year or upon the effective date of amendments to the Martin County Code dealing with pain clinics and pain management clinics. The County Administrator, the County Attorney and the Growth Management Director have reviewed the latest Florida legislation adopted as Chapter 2010- Page 1 of 1 pages PDF Page 5 of 63
211, Laws of Florida (SB2272), effective on October 1, 2010, and recommend additional standards be incorporated into the County s Land Development Regulations, Martin County Code to further promote the public health, safety, morals and general welfare. Other local area jurisdictions, including the City of Boca Raton, the City of Delray Beach, the Town of Jupiter, Palm Beach County and the City of Stuart have recently enacted moratoria or regulations pertaining to pain management clinics in their jurisdictions, and as a result, the County could become a target for the location of pain management clinics. It is not the intent of these regulations to interfere with legitimate medical practices, including legitimate pain management clinics, nor the legal dispensation and use of controlled substances. A draft ordinance has been created for the Local Planning Agency s and the Board of County Commissioners consideration. The ordinance closely follows the pain management clinics regulations that were recently enacted for the City of Stuart. The draft ordinance is the subject of this staff report. The proposed regulations are structured to include: 1. A new pain management clinics use category in the zoning code 2. A definition for pain management clinics 3. Standards for pain management clinics If adopted, pain management clinics will be permitted in the LI (Limited Commercial), CC (Community Commercial), GC (General Commercial) and LI (Limited Industrial zoning districts. The use must meet general requirements, location, distance requirements, other regulations, signage and landlord responsibilities standards as follows: GENERAL REQUIREMENTS 1. Pain management clinics shall at all times, be in compliance with each and every provision of this section, as well as all applicable federal laws, state laws, administrative rules, and County regulations; and 2. Pain management clinics, as defined in Sec. 3.3. Article 3, Zoning Districts, Land Development Regulations (LDR), Martin County Code (MCC), shall be permitted only in the zoning districts so specified in Sec 3.11., LDR, MCC and must be operated by an approved pain specialist, or as a Florida Agency for Health Care Administration (ACHA) licensed operation, under Chapter 400, Part X, Florida Statutes, and as otherwise required by Florida law; and 3. In the event the owner or operator of a state licensed or designated pain management clinic has such license or designation revoked by the Florida Board of Medicine, the Florida Board of Osteopathic Medicine or by ACHA, any permission granted by the County to operate the pain management clinic shall simultaneously be revoked, and shall thereafter be null and void. 4. Copies of all required state licenses and permits must be provided to the County prior to the issuance of any occupation authorizations, licenses or permits or any renewal of occupation authorizations, licenses or permits by the County. Page 2 of 2 pages PDF Page 6 of 63
LOCATION 1. On or after January 1, 2011 any new pain management clinic shall only be located in the zoning districts where such uses are permitted pursuant to Sec.3.11. Permitted uses, Article 3, LDR, MCC and shall be established pursuant to the requirements of this section, subject to the other requirements of this section. 2. Pain management clinics, regardless of location, which exist on December 31, 2010 shall be deemed a lawful use, and not subject to the requirements of this section. DISTANCE REQUIREMENTS 1. Distances shall be measured by straight line measurement without regard to intervening buildings from the nearest point of the building or unit within a building in which the proposed clinic is to be located to the nearest point of the lot, use, right-of-way line or district from which the proposed clinic is to be separated. 2. No pain management clinic shall commence operation within 1,000 feet of any other pain management clinic. 3. No pain management clinic shall be co-located in the same office or building with a pharmacy, unless such pharmacy shall have pre-dated the pain management clinic by at least one (1) year. 4. No pain management clinic shall commence operation within 500 feet of a pharmacy, unless such pharmacy shall have pre-dated the pain management clinic by at least one (1) year. 5. Regardless of the other provisions of subsection C, above, no pain management clinic shall commence operation within 5,000 feet from the nearest Interstate 1-95 or Florida Turnpike exit ramp or access ramp right-of-way line. OTHER REGULATIONS 1. It shall be unlawful for any pain management clinic to be open for operation between the hours of 6:00 p.m. and 7:00 a.m. 2. It shall be unlawful for a pain management clinic owner or operator to direct or encourage any patient or business invitee to stand, sit, or gather outside of the building in which the clinic operates, on the adjoining sidewalk or in the area(s) designated for parking, in such manner as to restrict or interfere with the lawful entry into or out of such clinic or other uses co-located within a building. This prohibition includes sitting in or on a vehicle. The clinic owner(s) and operator(s) shall be responsible to actively monitor and apply this regulation. Clinics shall provide sufficient inside seating to insure and provide adequate seating for all patients or business invitees, and those who accompany such persons. 3. The number of parking spaces required for pain management clinics shall be the same as for those required of medical offices. Page 3 of 3 pages PDF Page 7 of 63
SIGNAGE 1. Approved signage for a pain management clinic shall not include any word(s) or phrase(s) which offers or suggests goods, drugs, prescriptions or services in violation of any applicable state law or which otherwise violates state law, including without limitation, the provisions of Sections 456.037 (active license required), 456.057 (patient records requirements), 458.3265 (pain management clinic registration MD), 458.327 (medical practice violations & penalties), 458.331 (medical disciplinary actions), 459.0137 (pain management clinic registration DO), 459.013 (osteopathic practice violations & penalties), 459.015 (osteopath disciplinary actions), 465.0276 (dispensing practitioners) or 893.055 (drug monitoring program), Florida Statutes, as currently written or amended. 2. Signage for a pain management clinic shall not contain any word or phrase that uses the word pain, unless the clinic is operated by an approved pain specialist or as an AHCA licensed operation (Chapter 400, Part X, F.S.). No off-premise signage, including billboards wherever located, shall be permitted for the advertisement of pain management clinics. 3. Signage for a pain management clinic must contain the correct name of the physician or physicians designated by the clinic pursuant to Sec. 458.3265(1), Florida Statutes, as amended from time to time, and such signage shall be kept current at all times with the correct name of the practice, the correct name of the physician(s) designated, and other relevant information. 4. Nothing contained in this section shall be interpreted to restrict the use of the word pain in advertising by Florida licensed chiropractors, physical therapists, nurse practitioners, naturapaths, acupuncturists, massage therapists, dentists, oral surgeons, hospice care providers or similar treating or dispensing professionals not licensed under Chapters 458 or 459, Florida Statutes. LANDLORD RESPONSIBITITIES Owners or landlords who lease space to a pain management clinic must expressly incorporate the provisions of this Sec. 3.86.1. into their lease(s) with the clinic. Any such lease, whether oral or written, must provide that a violation of any federal or state law or County ordinance regulating or affecting pain management clinics shall be a material breach of the lease and shall constitute grounds for termination and eviction by the owner or landlord. The subject ordinance was reviewed by the Local Planning Agency (LPA) at a public hearing on December 16, 2010. The LPA acted by a vote of 5-0 to recommend approval of the ordinance to the Board of County Commissioners (BCC). The LPA motion was as follows: * Mr. Damon made a motion and moved to approve the Ordinance, that the provisions dealing with the landlord are further reviewed to prevent landlord s from suffering for trying to partake including in the leases language dealing with this new Ordinance and any failure whether it be intentional or otherwise. I just want to protect against that, it s a worthy goal. Page 4 of 4 pages PDF Page 8 of 63
* Mr. Moir wanted to add language about Hospice and Elder Care as well as being exempted from the requirements of advertising pain management and some of the other negative requirements. * Mr. Damon agreed to amend his motion to include Mr.Moir s language. ** Mr. Moir seconded and the motion carried unanimously. This ordinance required two (2) public hearings before the BCC. The hearings have been advertised for February 8, 2011 and February 22, 2011. The second public hearing must occur after 5 pm unless the BCC votes to have the hearing earlier. A minimum 4 affirmative votes by the BCC is required to change the hearing to an earlier time. At the first public hearing on February 8, 2011 the BCC is asked to review the draft ordinance, take public input, consider the recommendations of the LPA and act to change the hearing time for the second public hearing to 9:00 A.M. or as soon as it can be heard after this time. For the second public hearing the ordinance will be amended, if needed, to reflect any changes that are directed by the BCC at the first hearing. The BCC will be asked to take final action on the ordinance at the second public hearing. A copy of the draft ordinance has been forwarded to the City of Stuart attorney s office for review and comments. C. CONCLUSIONS The proposed ordinance is comprehensive and meets the intent of the Board of County Commissioners to properly regulate pain management clinics in the unincorporated areas of Martin County for the protection of the health, safety and welfare of the County s residents and visitors. The ordinance is consistent with the recently adopted pain management clinics ordinance for the City of Stuart. The ordinance does not interfere with legitimate medical practices, including legitimate pain management clinics, nor the legal dispensation and use of controlled substances. D. RECOMMENDATION At the first public hearing on February 8, 2011 the BCC is asked to review the draft ordinance, take public input, consider the recommendations of the LPA and act to change the hearing time for the second public hearing to 9:00 A.M. or as soon as it can be heard after this time. For the second public hearing the BCC will be asked to take final action on the ordinance. Staff recommends approval of the proposed ordinance. E. ATTACHMENTS 1. December 16, 2010 Local Planning Agency Minutes 2. Draft Martin County Pain Management Clinics Ordinance 3. Adopted City of Stuart Pain Management Clinics Ordinance Page 5 of 5 pages PDF Page 9 of 63
December 16, 2010 LOCAL PLANNING AGENCY MINUTES 7:00 pm COMMISSION CHAMBERS 2401 SE MONTEREY ROAD, STUART, FLORIDA 34996 PRESENT ABSENT Chairman. John Leighton, III Agency Members...Conrad Damon...Jim Moir...Barbara Essenwine...Jim Haley Martin County School Board (Ex-Officio)...J. Lisle Bozeman STAFF PRESENT Director, Growth Management...Nicki van Vonno Principal Planner, Growth Management...Joseph Banfi Senior Assistant County Attorney...Krista Storey Staff Recorder...Mary Holleran * Indicates a motion ** Indicates a vote *** For the record comment 1. CALL TO ORDER The Local Planning Agency meeting was called to order at 7:00 p.m. 4. NEW BUSINESS A. Public Hearings 2. Request to consider an Amendment to Article 3, Land Development Regulations, regarding Pain Management Clinics (PMC). Requested by: Nicki van Vonno, AICP, Director, Growth Management Department Presented by: Joseph Banfi, Principal Planner, Growth Management Department Mr. Banfi reviewed the background and findings of the State Attorney s Office as provided in Staff Report 2010_1207_Pain_Management_Clinics_LDR_LPA_FINAL. He reviewed the General Requirements, (pg.2/5) Location, Distance Requirements, and Other Regulations (3/5). A draft ordinance created for the LPA and the BCC was provided. The ordinance closely follows the pain management clinics regulations that were enacted for the City of Stuart. The rules address the problem and growing concerns of the pill mill industry in South Florida, and discourages illegal facilities from being established. Staff recommended approval of the proposed ordinance to the BCC. Public Comments: None. Mr. Banfi did not receive any calls. He sent the Ordinance to a retired physician who requested it and did not want the Ordinance to affect legitimate physicians. LPA Comments: Mr. Leighton asked if staff reached out to any medical facilities in the community to get input. Mr. Banfi relied on the City of Stuart s Ordinance after they did extensive research on it and discussed it with the City Attorney. Stuart reached out to the medical community and legitimate pain management organizations supported it. Mr. Moir was concerned about exemptions for Elder Care and Hospice, who should be noticed as exempt from dispensation of pain medication. Some are in a residential community and should be included. The Page 6 of 6 pages PDF Page 10 of 63
requirement for landlord standards in a contract seemed uncommon. Mr. Damon also addressed the requirement for landlords and asked what the intent was by putting it into the lease and, how it was to be enforced. He mentioned condo association leases and asked what power is there for enforcement, what s the mechanism for the landlord. Mr. Leighton provided an example of a building he has that lies within a well field protection zone, a wetland, and the County has an Ordinance that the landlord provide a 60+ page well field Ordinance to all tenants. It puts a burden on the landlord to police the activity of the state. He thought this ordinance puts a burden on the landlord. Mr. Damon questioned why the PMC shouldn t be clustered and put in a restricted area as possible. Mr. Banfi explained the reasoning to isolate them. Ms. Storey explained the difference between legitimate licensed physicians and those operations who do not meet the definition of pain management clinics, where no exams take place, they only dispense prescriptions and pill mills for resale. The pill mills generate a certain type of increase criminal activity, and this ordinance is trying to limit that. Local governments can enact and control this through zoning to determine what s appropriate for the community. Mr. Moir questioned drug treatment facilities. Ms. Storey said it wouldn t meet the definition of a pain management clinic. Discussion ensued on what and who would not be impacted by the Ordinance and examples of who/what is not a pain management clinic. Mr. Damon confirmed that no doctors objected or were present tonight. Ms. Essenwine was concerned there were unintended consequences for those who are legitimate. Mr. Leighton thought the definition of pain management clinic could be misconstrued and was not comfortable with it. Ms. Storey read the definition from the Code. Ms. Van Vonno added the explanation of those who do not fall under the description, it is not a primary business, and it is not a principal function. Ms. Storey agreed this was the critical piece. Ms. Storey advised that the BCC directed staff to draft this Ordinance. While there are laws, the Sheriff s Office was unable to rise to the level to make a criminal case and the issue is, what is the primary function of these clinics and they need to provide documentation. Mr. Haley asked if this was geared toward permitting new and providing guidelines rather than policing, rather than back fitting an ordinance that allows them to continue. Mr. Damon agreed with Mr. Haley s comments and would rather discourage undesirable uses in the community versus trying to police once it exists. The goal of the ordinance is a worthy goal and we can tweak it. John s comments about the medical community getting involved are valuable, the intent is good, is the language such that people who you don t want to get restricted will get caught up in the net somehow. Mr. Leighton addressed the landlord s responsibility, while not violating any law, how it would violate the ordinance. Mr. Damon asked how to take the landlord out of liability. Ms. Storey said enforcement is problematic but the intent is to discourage these clinics from moving from location to location. Pain management clinics will be a permitted use provided they get their necessary approval from the state and meet these standards. * Mr. Damon made a motion and moved to approve the Ordinance, that the provisions dealing with the landlord are further reviewed to prevent landlord s from suffering for trying to partake including in the leases language dealing with this new Ordinance and any failure whether it be intentional or otherwise. I just want to protect against that, it s a worthy goal. * Mr. Moir wanted to add language about Hospice and Elder Care as well as being exempted from the requirements of advertising pain management and some of the other negative requirements. * Mr. Damon agreed to amend his motion to include Mr.Moir s language. ** Mr. Moir seconded and the motion carried unanimously. Page 7 of 7 pages PDF Page 11 of 63
BEFORE THE BOARD OF COUNTY COMMISSIONERS MARTIN COUNTY, FLORIDA ORDINANCE NUMBER AN ORDINANCE OF MARTIN COUNTY, FLORIDA, AMENDING SECTION 3.3. GLOSSARY OF TERMS, SECTION 3.11. PERMITTED USES, AND DIVISION 3. STANDARDS FOR SPECIFIC USES, ARTICLE 3, ZONING DISTRICTS, LAND DEVELOPMENT REGULATIONS, MARTIN COUNTY CODE; PROVIDING REGULATIONS FOR PAIN MANAGEMENT CLINICS; PROVIDING FOR APPLICABILITY, CONFLICTING PROVISIONS AND SEVERABILITY; PROVIDING FOR FILING WITH THE DEPARTMENT OF STATE, CODIFICATION AND AN EFFECTIVE DATE. WHEREAS, in the Fall of 2009, the State Attorney s Office for the 17th Judicial Circuit in Broward County, Florida, issued an interim report entitled The Proliferation of Pain Clinics in South Florida which established the following facts: (i) from August 2008 to November 2009, one new pain clinic was opened in Broward and Palm Beach counties every three days; (ii) doctors in Palm Beach County dispensed the second highest volume of Oxycodone units in the United States during the period from July 2008 to March 2009; (iii) in 2008, prescription drugs were related to nearly 13.5 deaths per day in Florida; and (iv) pain clinics are migrating north from Broward County to other metropolitan areas; and WHEREAS, the Martin County Board of County Commissioners has recently been made aware by news reports that a pattern of illegal drug use and distribution has been associated with some pain management clinics in south Florida which dispense narcotic drugs on-site; and WHEREAS, there have been several newspaper articles published in recent months describing the pipeline trafficking of drugs from some south Florida pain management clinics to users from other states such as Kentucky, West Virginia and Ohio; and WHEREAS, the threat of illegal narcotic activity and increased crime associated with certain pain management clinics is significant and could undermine the economic health of the County s development and redevelopment efforts; and WHEREAS, the Martin County Board of County Commissioners adopted Ordinance Number 862 on April 13, 2010 establishing a moratorium on the issuance and licenses for pain clinics and pain management clinics for a period of one year or upon the effective date of amendments to the Martin County Code dealing with pain clinics and pain management clinics; and WHEREAS, the County Administrator, the County Attorney and the Growth Management Director have reviewed the latest Florida legislation adopted as Chapter 2010-211, 1 DRAFT DECEMBER 17, 2010 PDF Page 12 of 63
Laws of Florida (SB2272), effective on October 1, 2010, and recommend additional standards be incorporated into the County s Land Development Regulations, Martin County Code to further promote the public health, safety, morals and general welfare; and WHEREAS, other local area jurisdictions, including the City of Boca Raton, the City of Delray Beach, the Town of Jupiter, Palm Beach County and the City of Stuart have recently enacted moratoria or regulations pertaining to pain management clinics in their jurisdictions, and as a result, the County could become a target for the location of pain management clinics; and WHEREAS, it is not the intent of these regulations to interfere with legitimate medical practices, including legitimate pain management clinics, nor the legal dispensation and use of controlled substances. WHEREAS, the proposed revisions to the Land Development Regulations have received public hearings before the Local Planning Agency and the Board of County Commissioners; and WHEREAS, the Local Planning Agency has recommended its approval/denial of the proposed revisions to the Land Development Regulations to the Board of County Commissioners. NOW THEREFORE BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS, MARTIN COUNTY, FLORIDA, THAT: PART 1: AMENDMENT TO ARTICLE 3, ZONING DISTRICTS, SECTION 3.3. GLOSSARY OF TERMS, SECTION 3.11 PERMITTED USES, DIVISION 3. STANDARDS FOR SPECIFIC USES Sec. 3.3. - Glossary of terms. Article 3 is hereby amended as follows (new language is underlined, deleted language is struck through): Business and professional offices. Office uses which extend services by providing advice, information or consultation of a professional nature, such as, but not limited to, insurance, real estate, and executive management, but specifically excluding the storage or display of goods or chattels for the purpose of sale, lease, or rent and specifically excluding financial institutions Business and professional office use shall also include the creation and processing of information, such as, but not limited to, life sciences, technology, research, computer software development, information storage and retrieval and publishing, excluding pain management clinics. Medical services. The provision of therapeutic, preventive or other corrective personal treatment services by physicians, dentists, and other licensed medical practitioners, as well as the provision of medical testing and analysis services. These services are provided to patients who are 2 DRAFT DECEMBER 17, 2010 PDF Page 13 of 63
admitted for examination and treatment by a physician involving no overnight lodging, excluding pain management clinics. Outdoor shooting range. (See: Shooting range, outdoor.) Pain management clinic or clinic. The same as the definition found in Sec. 458.3265(1)(a), Florida Statutes (2010), as may be amended from time to time. Such definition shall not include any of the following: 1. A clinic that is licensed as a facility pursuant to chapter 395; or 2. A majority of the physicians who provide services in the clinic primarily provide surgical services; or 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; or 4. The clinic is affiliated with an accredited medical school at which training is provided for medical students, residents, or fellows; or 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. s. 501(c)(3); or 7. A facility that is owned or operated by a chiropractic physician licensed under Chapter 460, Florida Statutes, and does not contract or employ a physician licensed under Chapter 458 or Chapter 459, Florida Statutes, who is primarily engaged in the treatment of pain by prescribing or dispensing controlled substance medications for the treatment of chronic nonmalignant pain. 8. A clinic that is associated with a not-for profit hospice care provider. Pain specialist (approved). A physician, or group of physicians licensed under either Chap. 458 or Chap. 459, Florida Statutes, and who comply with Rule 64B8-9.0131 (medical doctors), or Rule 64B15-14.005 and Rule 64B15-14.009 (osteopathic physicians), Florida Administrative Code, as each is amended from time to time. Parking lots and garages. A public or private parking lot or parking structure operated as a principal use for the purpose of providing off-street parking or storage of operable motor vehicles, including trailers, but specifically excluding the parking or storage of construction equipment. Pharmacy. The same as the definition in Sec. 465.003, Florida Statutes (2010), as may be 3 DRAFT DECEMBER 17, 2010 PDF Page 14 of 63
amended from time to time, and includes community pharmacy, internet pharmacy, and special pharmacy, but does not include institutional pharmacy or nuclear pharmacy, as each of those terms are used in that section. Place of worship. Any structure, used on a regular basis by a group of persons who assemble for religious worship, including, but not limited to, a church, synagogue, mosque, or temple. Retail sales and services, general. Retail sale or rental from the premises of goods and/or services and highway-oriented sales and services that generally cater to a market area in excess of three miles, excluding establishments with significant wholesaling, warehousing, or outside storage and distribution functions and excluding pain management clinics. Retail sales and services, limited. Shops and stores limited to retail sales of convenience items or services typically needed on a frequently reoccurring basis, excluding pain management clinics. This definition includes shops with: l. Limited inventory; 2. A household market area in the immediate vicinity; 3. A specialized market with customized service demand; or 4. A tourist-oriented market area in the immediate vicinity. Sec. 3.11. Permitted uses. USE CATEGORY TABLE 3.11.2 PERMITTED USES - CATEGORY "A" NONRESIDENTIAL DISTRICTS Commercial and Business Uses Adult business P P P Ancillary retail use P P P Bed and breakfast inns P P P P P P P C O Business and professional offices P P P P P P P P P P Campgrounds P Commercial amusements, indoor P P P P P P Commercial amusements, outdoor P P P P Commercial day care P P P P P P P P P 4 C O R 1 C O R 2 L C C C G C W R C W G C L I G I H I P R P C P S 1 P S 2 DRAFT DECEMBER 17, 2010 PDF Page 15 of 63
Construction industry trades P P P P P P Construction sales and services P P P P P P Family day care P P Financial institutions P P P P P P P P Flea markets P P P Funeral homes P P P P P General retail sales and services P P P Golf courses P P Golf driving ranges P P P P Hotels, motels, resorts and spas P P P P P P P Kennels, commercial P P P P P Limited retail sales and services P P P P P P Marinas, commercial P P P P P Marine education and research P P P P Medical services P P P P P P P Pain management clinics P P P P Parking lots and garages P P P P P Recreational vehicle parks P P P P P P Recreational vehicle parks, limited to the P P number and configuration of units lawfully established prior to the effective date of this ordinance Residential storage facilities P P P P P P P P Restaurants, convenience, with drivethrough P P facilities Restaurants, convenience, without drivethrough P P P P P facilities Restaurants, general P P P P P P P Shooting ranges Shooting ranges, indoor P P P P P P P P Shooting ranges, outdoor P Trades and skilled services P P P P P P Vehicular sales and service P P P Vehicular service and maintenance P P P P Veterinary medical services P P P P P P Wholesale trades and services P P P P P 5 DRAFT DECEMBER 17, 2010 PDF Page 16 of 63
DIVISION 3, STANDARDS FOR SPECIFIC USES Sec. 3.86.1. Pain management clinics Sec. 3.86.1.A. General requirements 1. Pain management clinics shall at all times, be in compliance with each and every provision of this section, as well as all applicable federal laws, state laws, administrative rules, and County regulations; and 2. Pain management clinics, as defined in Sec. 3.3. Article 3, Zoning Districts, Land Development Regulations (LDR), Martin County Code (MCC), shall be permitted only in the zoning districts so specified in Sec 3.11., LDR, MCC and must be operated by an approved pain specialist, or as a Florida Agency for Health Care Administration (ACHA) licensed operation, under Chapter 400, Part X, Florida Statutes, and as otherwise required by Florida law; and 3. In the event the owner or operator of a state licensed or designated pain management clinic has such license or designation revoked by the Florida Board of Medicine, the Florida Board of Osteopathic Medicine or by ACHA, any permission granted by the County to operate the pain management clinic shall simultaneously be revoked, and shall thereafter be null and void. 4. Copies of all required state licenses and permits must be provided to the County prior to the issuance of any occupation authorizations, licenses or permits or any renewal of occupation authorizations, licenses or permits by the County. Sec. 3.86.1.B. Location. 1. On or after January 1, 2011 any new pain management clinic shall only be located in the zoning districts where such uses are permitted pursuant to Sec.3.11. Permitted uses, Article 3, LDR, MCC and shall be established pursuant to the requirements of this section, subject to the other requirements of this section. 2. Pain management clinics, regardless of location, which exist on December 31, 2010 shall be deemed a lawful use, and not subject to the requirements of this section. Sec. 3.86.1.C. Distance requirements. 1. Distances shall be measured by straight line measurement without regard to intervening buildings from the nearest point of the building or unit within a building in which the proposed clinic is to be located to the nearest point of the lot, use, right-of-way line or district from which the proposed clinic is to be separated. 2. No pain management clinic shall commence operation within 1,000 feet of any other pain 6 DRAFT DECEMBER 17, 2010 PDF Page 17 of 63
management clinic. 3. No pain management clinic shall be co-located in the same office or building with a pharmacy, unless such pharmacy shall have pre-dated the pain management clinic by at least one (1) year. 4. No pain management clinic shall commence operation within 500 feet of a pharmacy, unless such pharmacy shall have pre-dated the pain management clinic by at least one (1) year. 5. Regardless of the other provisions of subsection C, above, no pain management clinic shall commence operation within 5,000 feet from the nearest Interstate 1-95 or Florida Turnpike exit ramp or access ramp right-of-way line. Sec. 3.86.1.C. Other regulations. 1. It shall be unlawful for any pain management clinic to be open for operation between the hours of 6:00 p.m. and 7:00 a.m. 2. It shall be unlawful for a pain management clinic owner or operator to direct or encourage any patient or business invitee to stand, sit, or gather outside of the building in which the clinic operates, on the adjoining sidewalk or in the area(s) designated for parking, in such manner as to restrict or interfere with the lawful entry into or out of such clinic or other uses co-located within a building. This prohibition includes sitting in or on a vehicle. The clinic owner(s) and operator(s) shall be responsible to actively monitor and apply this regulation. Clinics shall provide sufficient inside seating to insure and provide adequate seating for all patients or business invitees, and those who accompany such persons. 3. The number of parking spaces required for pain management clinics shall be the same as for those required of medical offices. Sec. 3.86.1.D. Signage. 1. Approved signage for a pain management clinic shall not include any word(s) or phrase(s) which offers or suggests goods, drugs, prescriptions or services in violation of any applicable state law or which otherwise violates state law, including without limitation, the provisions of Sections 456.037 (active license required), 456.057 (patient records requirements), 458.3265 (pain management clinic registration MD), 458.327 (medical practice violations & penalties), 458.331 (medical disciplinary actions), 459.0137 (pain management clinic registration DO), 459.013 (osteopathic practice violations & penalties), 459.015 (osteopath disciplinary actions), 465.0276 (dispensing practitioners) or 893.055 (drug monitoring program), Florida Statutes, as currently written or amended. 2. Signage for a pain management clinic shall not contain any word or phrase that uses the word pain, unless the clinic is operated by an approved pain specialist or as an AHCA 7 DRAFT DECEMBER 17, 2010 PDF Page 18 of 63
licensed operation (Chapter 400, Part X, F.S.). No off-premise signage, including billboards wherever located, shall be permitted for the advertisement of pain management clinics. 3. Signage for a pain management clinic must contain the correct name of the physician or physicians designated by the clinic pursuant to Sec. 458.3265(1), Florida Statutes, as amended from time to time, and such signage shall be kept current at all times with the correct name of the practice, the correct name of the physician(s) designated, and other relevant information. 4. Nothing contained in this section shall be interpreted to restrict the use of the word pain in advertising by Florida licensed chiropractors, physical therapists, nurse practitioners, naturapaths, acupuncturists, massage therapists, dentists, oral surgeons, hospice care providers or similar treating or dispensing professionals not licensed under Chapters 458 or 459, Florida Statutes. Sec. 3.86.1.D. Landlord Responsibilities. Owners or landlords who lease space to a pain management clinic must expressly incorporate the provisions of this Sec. 3.86.1. into their lease(s) with the clinic. Any such lease, whether oral or written, must provide that a violation of any federal or state law or County ordinance regulating or affecting pain management clinics shall be a material breach of the lease and shall constitute grounds for termination and eviction by the owner or landlord. PART 2: APPLICABILITY OF ORDINANCE. This ordinance shall be applicable throughout the unincorporated area of Martin County. PART 3: CONFLICTING PROVISIONS. Special acts of the Florida Legislature applicable only to unincorporated areas of Martin County, Martin County ordinances, County resolutions, or parts thereof, in conflict with this ordinance are hereby superseded by this ordinance to the extent of such conflict except for ordinances concerning the adoption or amendment of the Comprehensive Plan, pursuant to Chapter 163, Part II, Florida Statutes, or land development regulations relating specifically to community redevelopment areas established pursuant to Chapter 163, Part III, Florida Statutes. PART 4: SEVERABILITY. If any portion of this ordinance is for any reason held or declared to be unconstitutional, inoperative or void by a court of competent jurisdiction, such holding shall not affect the remaining portions of this ordinance. If this ordinance or any provision thereof shall be held to be inapplicable to any person, property or circumstances by a court of competent jurisdiction, such holding shall not affect its applicability to any other person, property or circumstances. 8 DRAFT DECEMBER 17, 2010 PDF Page 19 of 63
PART 5: FILING WITH THE DEPARTMENT OF STATE. The clerk shall be and is hereby directed to forthwith to send a certified copy of this ordinance to the Bureau of Administrative Code, Department of State, R.A. Gray Bldg., Room 101, 500 S. Bronough Street, Tallahassee, Florida 32399-0250. PART 6: CODIFICATION. Provisions of this ordinance shall be incorporated into the Martin County Land Development Regulations, except that parts 3 through 8 shall not be codified. The word ordinance may be changed to article, section, or other word, and the sections of this ordinance may be renumbered or re-lettered. PART 7: EFFECTIVE DATE This ordinance shall take effect upon filing with the Office of Secretary of State. PASSED AND DULY ADOPTED THIS DAY OF, 2011. ATTEST: BOARD OF COUNTY COMMISSIONERS MARTIN COUNTY, FLORIDA MARSHA EWING CLERK OF THE CIRCUIT COURT EDWARD CIAMPI, CHAIRMAN APPROVED AS TO FORM AND CORRECTNESS: STEPHEN FRY COUNTY ATTORNEY 9 DRAFT DECEMBER 17, 2010 PDF Page 20 of 63
BEFORE THE CITY COMMISSION CITY OF STUART, FLORIDA ORDINANCE NUMBER 2212-2010 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF STUART, FLORIDA DEFINING AND DESIGNATING PAIN MANAGEMENT CLINICS AS A SPECIAL EXCEPTION USE IN CERTAIN DISTRICTS AND AREAS OF THE CITY; ADOPTING REGULATIONS REGARDING THE OPERATION OF PAIN MANAGEMENT CLINICS; PROVIDING FOR SEVERABILITY; PROVIDING FOR CONFLICTING PROVISIONS; PROVIDING FOR CODIFICATION; PROVIDING AN EFFECTIVE DATE AND FOR OTHER PURPOSES. * * * * * WHEREAS, in the Fall of 2009, the State Attorney s Office for the 17th Judicial Circuit in Broward County, Florida, issued an interim report entitled The Proliferation of Pain Clinics in South Florida which established the following facts: (i) from August 2008 to November 2009, one new pain clinic was opened in Broward and Palm Beach counties every three days; (ii) doctors in Palm Beach County dispensed the second highest volume of Oxycodone units in the United States during the period from July 2008 to March 2009; (iii) in 2008, prescription drugs were related to nearly 13.5 deaths per day in Florida; and (iv) pain clinics are migrating north from Broward County to other metropolitan areas; and WHEREAS, the Stuart City Commission has recently been made aware by news reports that a pattern of illegal drug use and distribution has been associated with some pain management clinics in south Florida which dispense narcotic drugs on-site; and WHEREAS, there have been several newspaper articles published in recent months describing the pipeline trafficking of drugs from some south Florida pain management clinics to users from other states such as Kentucky, West Virginia and Ohio; and WHEREAS, the threat of illegal narcotic activity and increased crime associated with certain pain management clinics is significant and could undermine the economic health of the City s development and redevelopment efforts; and WHEREAS, the City Manager, the City Attorney and the Development Director have reviewed the latest Florida legislation adopted as Chapter 2010-211, Laws of Florida (SB2272), PDF Page 21 of 63
ORDINANCE No. 2212-2010 Pain Management Clinic Regulations effective on October 1, 2010, and recommend additional standards be incorporated into the City s Land Development Code to further promote the public health, safety, morals and general welfare; and WHEREAS, other local area jurisdictions, including the City of Boca Raton, the City of Delray Beach, the Town of Jupiter, and Palm Beach County have recently enacted moratoria or regulations pertaining to pain management clinics in their jurisdictions, and as a result, the City could become a target for the location of pain management clinics in Martin County; and WHEREAS, it is not the intent of these regulations to interfere with legitimate medical practices, including legitimate pain management clinics, nor the legal dispensation and use of controlled substances. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF STUART, FLORIDA that: SECTION 1: Legislative Findings, Intent and Purpose. The precatory clauses above are incorporated herein, are true and correct, and represent the legislative findings of the City Commission. It is the purpose and intent of this ordinance to promote the health, safety and general welfare of the residents and businesses of the City through the proper regulation of any adverse impacts from pain management clinics and through the adoption of special exception criteria for the location of pain management clinic uses within the City. SECTION 2: The City Land Development Code of the City of Stuart, Florida, as amended, is hereby further amended at Chapter VI, DEVELOPMENT DESIGN AND IMPROVEMENT STANDARDS, by adding a new section, as follows: 6.07.15. Pain Management Clinics. A. Definitions. The following terms, as used in this code, are: Approved pain specialist means a physician, or group of physicians licensed under either Chap. 458 or Chap. 459, Florida Statutes, and who comply with Rule 64B8-9.0131 (medical doctors), or Rule 64B15-14.005 and Rule 64B15-14.009 (osteopathic physicians), Florida Administrative Code, as each is amended from time to time. Pain management clinic or clinic means the same as the definition found in Sec. 458.3265(1)(a), Florida Statutes (2010), as may be amended from time to time. Such definition shall not include any of the following: 1. A clinic that is licensed as a facility pursuant to chapter 395; or 2. A majority of the physicians who provide services in the clinic primarily provide surgical services; or 2 PDF Page 22 of 63
ORDINANCE No. 2212-2010 Pain Management Clinic Regulations 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; or 4. The clinic is affiliated with an accredited medical school at which training is provided for medical students, residents, or fellows; or 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. s. 501(c)(3); or 7. A facility that is owned or operated by a chiropractic physician licensed under Chapter 460, Florida Statutes, and does not contract or employ a physician licensed under Chapter 458 or Chapter 459, Florida Statutes, who is primarily engaged in the treatment of pain by prescribing or dispensing controlled substance medications for the treatment of chronic nonmalignant pain. Pharmacy means the same as the definition in Sec. 465.003, Florida Statutes (2010), as may be amended from time to time, and includes community pharmacy, internet pharmacy, and special pharmacy, but does not include institutional pharmacy or nuclear pharmacy, as each of those terms are used in that section. B. General requirements; special exception use. 1. Each pain management clinic shall at all times, be in compliance with each and every provision of this section, as well as all applicable federal laws, state laws, administrative rules, and city codes. It is the intention of this section to insure compliance with all provisions of Chapter 2010-211, Laws of Florida, as incorporated in the Florida Statutes, and Rule 64B8-9.0131 (medical doctors), or Rule 64B15-14.005 and Rule 64B15-14.009 (osteopathic physicians), Florida Administrative Code, all as amended from time to time, and to provide additional city regulations not covered or regulated thereby; and 2. A pain management clinic, as defined herein, shall be permitted only as a special exception use, as provided in Sec. 11.08.00, Stuart Land Development Code (LDC), and must be operated by an approved pain specialist, or as a Florida Agency for Health Care Administration (ACHA) licensed operation, under Chapter 400, Part X, Florida Statutes, and as otherwise required by Florida law. In addition to the regulations in this section, the provisions of Sec. 11.08.00, LDC, regarding special exception uses, shall apply; and 3. In the event the owner or operator of a state licensed or designated pain management clinic has such license or designation revoked by the Florida Board of Medicine, the Florida Board of Osteopathic Medicine or by ACHA, any special exception granted hereunder shall simultaneously be revoked, and shall thereafter be null and void. C. Location. On or after September 13, 2010, any new pain management clinics shall only be located in the following zoning districts, subject to the other requirements of this section: 3 PDF Page 23 of 63
ORDINANCE No. 2212-2010 Pain Management Clinic Regulations 1. In the H Hospital zoning district, and in those portions of the R-3 (multi-family) residential zoning district, which allow for professional office use, and which are shown on the boundary map below: 2. In the CPUD commercial planned unit development districts. Pain management clinics shall only be permitted in CPUD locations where the predominate use within the CPUD is office or professional office. Any existing CPUD shall qualify for a new or expanded pain management clinic use, by obtaining a major PUD amendment, and demonstrating strict compliance with all of criteria contained in this section. 3. Pain management clinics, regardless of location, which exist on September 13, 2010 shall be deemed a lawful use, and not subject to the provisions of Sec. 10.01.00, LDC, regarding non-conforming uses. D. Distance requirements. The following distances shall be measured by straight line measurement without regard to intervening buildings from the nearest point of the building or unit within a building in which the proposed clinic is to be located to the nearest point of the lot, use, right-of-way line or district from which the proposed clinic is to be separated. 4 PDF Page 24 of 63
ORDINANCE No. 2212-2010 Pain Management Clinic Regulations 1. No pain management clinic shall commence operation within 300 feet of any other pain management clinic. 2. No pain management clinic shall be co-located in the same office or building with a pharmacy, unless such pharmacy shall have pre-dated the pain management clinic by at least one (1) year. 3. No pain management clinic shall commence operation within 200 feet of a pharmacy, unless such pharmacy shall have pre-dated the pain management clinic by at least one (1) year. 4. Regardless of the other provisions of subsection C, above, no pain management clinic shall commence operation within 250 feet from the nearest right-of-way line of State Road 5, commonly known as "U.S. Highway 1." as laid out and in use on July 26, 1995. This requirement shall also include that portion of State Road 5 consisting of the Roosevelt Bridge and the approaches thereto. E. Other regulations. 1. It shall be unlawful for any clinic to be open for operation between the hours of 6:00 p.m. and 7:00 a.m. 2. It shall be unlawful for a clinic owner or operator to direct or encourage any patient or business invitee to stand, sit, or gather outside of the building in which the clinic operates, on the adjoining sidewalk or in the area(s) designated for parking, in such manner as to restrict or interfere with the lawful entry into or out of such clinic or other uses co-located within a building. This prohibition includes sitting in or on a vehicle. The clinic owner(s) and operator(s) shall be responsible to actively monitor and apply this regulation. Clinics shall provide sufficient inside seating to insure and provide adequate seating for all patients or business invitees, and those who accompany such persons. 3. The number of parking spaces required for pain management clinics shall be the same as for those required of medical offices, but may be subject to a parking analysis study as provided in Sec. 6.03.08, LDC. when the Development Director has reasonable doubt as to the safety, sufficiency or configuration of available vehicle parking. F. Signage. 1. Approved signage for a pain management clinic shall not include any word(s) or phrase(s) which offers or suggests goods, drugs, prescriptions or services in violation of any applicable state law or which otherwise violates state law, including without limitation, the provisions of Sections 456.037 (active license required), 456.057 (patient records requirements), 458.3265 (pain management clinic registration MD), 458.327 5 PDF Page 25 of 63
ORDINANCE No. 2212-2010 Pain Management Clinic Regulations (medical practice violations & penalties), 458.331 (medical disciplinary actions), 459.0137 (pain management clinic registration DO), 459.013 (osteopathic practice violations & penalties), 459.015 (osteopath disciplinary actions), 465.0276 (dispensing practitioners) or 893.055 (drug monitoring program), Florida Statutes, as currently written or amended. 2. Signage for a pain management clinic shall not contain any word or phrase that uses the word pain, unless the clinic is operated by an approved pain specialist or as an AHCA licensed operation (Chapter 400, Part X, F.S.). No off-premise signage, including billboards wherever located, shall be permitted for the advertisement of pain management clinics. 3. Signage for a pain management clinic must contain the correct name of the physician or physicians designated by the clinic pursuant to Sec. 458.3265(1), Florida Statutes, as amended from time to time, and such signage shall be kept current at all times with the correct name of the practice, the correct name of the physician(s) designated, and other relevant information. 4. Nothing contained in this section shall be interpreted to restrict the use of the word pain in advertising by Florida licensed chiropractors, physical therapists, nurse practitioners, naturapaths, acupuncturists, massage therapists, dentists, oral surgeons, or similar treating or dispensing professionals not licensed under Chapters 458 or 459, Florida Statutes. 4. Landlord Responsibilities. Owners or landlords who lease space to a pain management clinic must expressly incorporate the provisions of this Sec. 6.07.15 into their lease(s) with the clinic. Any such lease, whether oral or written, must provide that a violation of any federal or state law or municipal ordinance regulating or affecting pain management clinics shall be a material breach of the lease and shall constitute grounds for termination and eviction by the owner or landlord. SECTION 3: All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict. SECTION 4: If any section, sentence, clause, phrase or word of this ordinance is for any reason declared to be unconstitutional, inoperative or void, such holding shall not affect the remaining portions of this ordinance and the remaining portions shall be deemed and held to be valid. SECTION 5: The provisions of Section 2 of this ordinance shall be codified. SECTION 6: This ordinance shall take effect immediately upon adoption. PASSED on First Reading on the 23rd day of August, 2010. 6 PDF Page 26 of 63
ORDINANCE No. 2212-2010 Pain Management Clinic Regulations Commissioner, offered the foregoing Ordinance, and moved its adoption. The motion was seconded by Commissioner and upon being put to a vote, the vote was as follows: MAYOR MICHAEL J. MORTELL VICE MAYOR CAROL S. WAXLER COMMISSIONER JAMES A. CHRISTIE, JR. COMMISSIONER MARY L. HUTCHINSON COMMISSIONER JEFFREY A. KRAUSKOPF YES NO ABSTAIN ABSENT ATTEST: ADOPTED on Second Reading this 13th day of September, 2010. CHERYL WHITE CITY CLERK MICHAEL J. MORTELL MAYOR APPROVED AS TO FORM AND CORRECTNESS: PAUL J. NICOLETTI CITY ATTORNEY 7 PDF Page 27 of 63
PROPOSED PAIN MANAGEMENT CLINICS LAND DEVELOPMENT REGULATIONS BOARD OF COUNTY COMMISSIONERS FEBRUARY 8, 2011 PDF Page 28 of 63
FINDINGS In 2009 the State Attorney s Office for the Florida 17th Judicial Circuit issued a report entitled The Proliferation of Pain Clinics in South Florida which established the following facts: 1. From August 2008 to November 2009, one new pain clinic was opened in Broward and Palm Beach counties every three days. PDF Page 29 of 63
FINDINGS 2. Doctors in Palm Beach County dispensed the second highest volume of Oxycodone units in the United States during the period from July 2008 to March 2009. 3. In 2008, prescription drugs were related to nearly 13.5 deaths per day in Florida. 4. Pain clinics are migrating north from Broward County to other metropolitan areas. PDF Page 30 of 63
FINDINGS The Martin County Board of County Commissioners has recently been made aware by news reports that a pattern of illegal drug use and distribution has been associated with some pain management clinics in south Florida which dispense narcotic drugs on-site. PDF Page 31 of 63
FINDINGS There have been several newspaper articles published in recent months describing the pipeline trafficking of drugs from some south Florida pain management clinics to users from other states such as Kentucky, West Virginia and Ohio. PDF Page 32 of 63
FINDINGS The threat of illegal narcotic activity and increased crime associated with certain pain management clinics is significant and could undermine the economic health of the County s development and redevelopment efforts. PDF Page 33 of 63
FINDINGS The Martin County Board of County Commissioners adopted Ordinance Number 862 on April 13, 2010 establishing a moratorium on the issuance of licenses for pain clinics and pain management clinics for a period of one year or upon the effective date of amendments to the Martin County Code dealing with pain clinics and pain management clinics. PDF Page 34 of 63
FINDINGS The County Administrator, the County Attorney and the Growth Management Director have reviewed the latest Florida legislation adopted as Chapter 2010-211, Laws of Florida (SB2272), effective on October 1, 2010, and recommend additional standards be incorporated into the County s Land Development Regulations, Martin County Code to further promote the public health, safety, morals and general welfare. PDF Page 35 of 63
FINDINGS Other local area jurisdictions, including the City of Boca Raton, the City of Delray Beach, the Town of Jupiter, Palm Beach County and the City of Stuart have recently enacted moratoria or regulations pertaining to pain management clinics in their jurisdictions, and as a result, the County could become a target for the location of pain management clinics. PDF Page 36 of 63
FINDINGS It is not the intent of these regulations to interfere with legitimate medical practices, including legitimate pain management clinics, nor the legal dispensation and use of controlled substances. PDF Page 37 of 63
FINDINGS A draft ordinance has been created for the Local Planning Agency s and the Board of County Commissioners consideration. The ordinance closely follows the pain management clinics regulations that were recently enacted for the City of Stuart. PDF Page 38 of 63
FINDINGS The proposed regulations is structured to include: 1. A new pain management clinics use category in the zoning code 2. A definition for pain management clinics 3. Standards for pain management clinics PDF Page 39 of 63
FINDINGS If adopted, pain management clinics will be permitted in the LC (Limited Commercial), CC (Community Commercial), GC (General Commercial) and LI (Limited Industrial) zoning districts. PDF Page 40 of 63
DEFINITION Pain management clinic or clinic. The same as the definition found in Florida Statutes, as may be amended from time to time. Such definition shall not include any of the following: 1. A Clinic that is licensed as a facility pursuant to Chapter 395; or 2. A majority of the physicians who provide services in the clinic primarily provide surgical services; or PDF Page 41 of 63
DEFINITION 3. The clinic is owned by a publicly held corporation whose total assets at the end of the corporation s most recent fiscal quarter exceeded $50 million; or 4. The clinic is affiliated with an accredited medical school at which training is provided for medical students, residents, or fellows; or 5. The clinic does not prescribe or dispense controlled substances for the treatment of pain; or PDF Page 42 of 63
DEFINITION 6. The clinic is owned by a corporate entity exempt from federal taxation under 26 U.S.C. s. 501(c)(3); or 7. A facility that is owned or operated by a chiropractic physician licensed under Florida Statutes, and does not contract or employ a physician licensed under Florida Statutes, who is primarily engaged in the treatment of pain. PDF Page 43 of 63
GENERAL STANDARDS - Compliance with all applicable federal laws, state laws, administrative rules, and County regulations. - Permitted in the LC, CC, GC and LI zoning districts. PDF Page 44 of 63
DISTANCE STANDARDS - No pain management clinic shall commence operation within 1,000 feet of any other pain management clinic. - No pain management clinic shall be colocated in the same office or building with a pharmacy, unless such pharmacy shall have pre-dated the pain management clinic by at least one (1) year. PDF Page 45 of 63
DISTANCE STANDARDS - No pain management clinic shall commence operation within 500 feet of a pharmacy, unless such pharmacy shall have pre-dated the pain management clinic by at least one (1) year. - No pain management clinic shall commence operation within 5,000 feet from the nearest Interstate I-95 or Florida Turnpike exit ramp or access ramp right-of-way line. PDF Page 46 of 63
OTHER STANDARDS - It shall be unlawful for any pain management clinic to be open for operation between the hours of 6:00 p.m. and 7:00 a.m. - The number of parking spaces required for pain management clinics shall be the same as those required of medical offices. PDF Page 47 of 63
OTHER STANDARDS - It shall be unlawful for a patient or invitee to stand, sit, or gather outside of the building in which the clinic operates, on the adjoining sidewalk or in the area(s) designated for parking, in such manner as to restrict or interfere with the lawful entry into or out of such clinic or other uses co-located within a building. This prohibition includes sitting in or on a vehicle. PDF Page 48 of 63
OTHER STANDARDS The clinic owner(s) and operator(s) shall be responsible to actively monitor and apply this regulation. Clinics shall provide sufficient inside seating to insure and provide adequate seating for all patients or business invitees, and those who accompany such persons. PDF Page 49 of 63
SIGNAGE STANDARDS - Approved signage for a pain management clinic shall not include any word(s) or phrase(s) which offers or suggests goods, drugs, prescriptions or services in violation of any applicable state law. PDF Page 50 of 63
SIGNAGE STANDARDS - Signage for a pain management clinic shall not contain any word or phrase that uses the word pain, unless the clinic is operated by an approved pain specialist or as an AHCA licensed operation (Chapter 400, Part X, F.S.). No off-premise signage, including billboards, shall be permitted for the advertisement of pain management clinics. PDF Page 51 of 63
SIGNAGE STANDARDS - Signage for a pain management clinic must contain the correct name of the physician or physicians designated by the clinic pursuant to Sec. 458.3265(1), Florida Statutes. PDF Page 52 of 63
SIGNAGE STANDARDS - Nothing contained in this section shall be interpreted to restrict the use of the word pain in advertising by Florida licensed chiropractors, physical therapists, nurse practitioners, naturapaths, acupuncturists, massage therapists, dentists, oral surgeons, hospice care providers or similar treating or dispensing professionals not licensed under Chapters 458 or 459, Florida Statutes. PDF Page 53 of 63
LANDLORD STANDARDS - Owners or landlords who lease space to a pain management clinic must expressly incorporate the provisions of this ordinance into their lease(s) with the clinic. Any such lease, whether oral or written, must provide that a violation of any federal or state law or County ordinance regulating or affecting pain management clinics shall be a material breach of the lease and shall constitute grounds for termination and eviction by the owner or landlord. PDF Page 54 of 63
CONCLUSIONS The proposed ordinance is comprehensive and meets the intent of the Board of County Commissioners to properly regulate pain management clinics in the unincorporated areas of Martin County for the protection of the health, safety and welfare of the County s residents and visitors. PDF Page 55 of 63
PROCESS This ordinance required two (2) public hearings before the Board. The hearings have been advertised for February 8, 2011 and February 22, 2011. The second public hearing must occur after 5 pm unless the Board votes to have the hearing earlier. A minimum 4 affirmative votes by the Board members is required to change the hearing to an earlier time. PDF Page 56 of 63
PROCESS At the first public hearing the Board is asked to review the draft ordinance, take public input, consider the recommendations of the LPA, direct changes if needed and act to change the hearing time for the second public hearing to 9:00 A.M. or as soon as it can be heard after this time. The Board will be asked to take final action on the ordinance at the second public hearing. PDF Page 57 of 63
PROCESS A copy of the draft ordinance has been forwarded to the City of Stuart attorney s office for review and comments. PDF Page 58 of 63
LPA RECOMMENDATION The proposed ordinance was reviewed by the Local Planning Agency (LPA) at a public hearing on December 16, 2010. The LPA acted by a vote of 5-0 to recommend approval of the ordinance to the Board of County Commissioners (BCC). PDF Page 59 of 63
LPA RECOMMENDATION The LPA motion was as follows: * Mr. Damon made a motion and moved to approve the Ordinance, that the provisions dealing with the landlord are further reviewed to prevent landlord s from suffering for trying to partake including in the leases language dealing with this new Ordinance and any failure whether it be intentional or otherwise. I just want to protect against that, it s a worthy goal. * Mr. Moir wanted to add language about Hospice and Elder Care as well as being exempted from the requirements of advertising pain management and some of the other negative requirements. * Mr. Damon agreed to amend his motion to include Mr.Moir s language. ** Mr. Moir seconded and the motion carried unanimously. PDF Page 60 of 63
LPA RECOMMENDATION Hospice care providers has been added as an exemption to Sec. 3.86.1.D.4 as recommended by the LPA. Staff feels that the other concerns expressed by the LPA are adequately addressed in the ordinance. PDF Page 61 of 63
RECOMMENDATION At this first public hearing the Board is asked to review the draft ordinance, take public input, consider the recommendations of the LPA, direct changes if needed and act to change the hearing time for the second public hearing to 9:00 A.M. or as soon as it can be heard after this time. PDF Page 62 of 63
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