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HomeMy WebLinkAboutItem #07 First Reading of Ordinance - Adopting Ocoee Pain Management Clinic Ordinance be C of Good L Florida AGENDA ITEM COVER SHEET Meeting Date: March 15, 2011 Item # 7 Reviewed By: Contact Name: S. Goclon Department Director: S. G • -a� Contact Number: X3027 City Manager: Rob Fran, Subject: Adoption of an Ordinance imposing a temporary Moratorium on the opening of any new Pain Management Clinic (PMC) and on the relocation or expansion of existing PMC; and establishing other regulations on PMC as are necessary for the public health, safety, and welfare. Background Summary: Several counties and municipalities in Florida have established moratoria on new Pain Management Clinics (PMC) to help curb the immediate deleterious consequences of these clinics including illegal drug trafficking, the illegal purchase and sale of prescription pain medication, loitering and other criminal behavior in and around such clinics, the diversion of prescription drugs for unlawful and dangerous uses, and an alarming increase in deaths related to and caused by prescription drug abuse. The proposed Ordinance would impose a moratorium on the opening of new pain management clinics and on the expansion or relocation of existing pain management clinics. The moratorium would be effective commencing on April 15, 2011 and ending on April 15, 2012 unless sooner terminated. The Ordinance would also prohibit pain management clinics from operating on a cash -only basis. Additionally, it would be made unlawful for a pain management clinic to operate between the hours of 8:00 pm and 8:00 am. A violation of the Ordinance would be a municipal code violation. Section 1 -12 of the Code provides that a violation of the Code is punishable by a fine not to exceed $1,000 or imprisonment not to exceed 1 year, or both fine and imprisonment. The purpose of the moratorium is to allow staff and the City Commission time to fully analyze the effects and impacts of pain management clinics within the city limits of Ocoee and appropriate remedies to address the problems associated therewith. The report would address whether there is a need to adopt an ordinance regulating pain management clinics within the city limits. The ordinance directs staff to provide a report to the City Commission with its findings and recommendations not later than March 31, 2012. The proposed Ordinance references the following reports: (1) The Florida Medical Examiners Commission 2010 Interim Report on Drugs in Deceased Persons; (2) Interim Report of a Broward County Grand Jury entitled "The Proliferation of Pain Clinics in South Florida" dated November 19, 2009; and (3) Final Report of the Broward County Pain Management Clinic Task Force dated January 13, 2011. Copies of these reports are available for review in the City Clerk's Office. Issue: Should the Honorable Mayor and the Board of City Commissioner adopt an ordinance imposing a moratorium on any new Pain Management Clinic (PMC), and on the relocation or expansion of any existing PMC, and other regulations on existing PMC as are necessary for the public health, safety and welfare? Recommendations: Staff respectfully recommends that the Honorable Mayor and Board of City Commissioners adopt an ordinance imposing a moratorium on any new Pain Management Clinic (PMC), and on the relocation or expansion of any existing PMC, and other regulations on existing PMC as are necessary for the public health, safety and welfare. Attachments: Proposed Ordinance Financial Impact: N/A Type of Item: (please mark with an "x ") Public Hearing For Clerk's Dept Use: x Ordinance First Reading Consent Agenda Ordinance Second Reading Public Hearing Resolution Regular Agenda Commission Approval Discussion & Direction Original Document/Contract Attached for Execution by City Clerk Original Document/Contract Held by Department for Execution Reviewed by City Attorney N/A Reviewed by Finance Dept. N/A Reviewed by 0 N/A ORDINANCE NO. AN ORDINANCE OF THE CITY OF OCOEE, FLORIDA RELATING TO PAIN MANAGEMENT CLINICS AND THE ABUSE OF PRESCRIPTION PAIN MEDICATION; ADOPTING FINDINGS OF FACT; PROVIDING DEFINITIONS; IMPOSING A TEMPORARY MORATORIUM ON THE OPENING OF NEW PAIN MANAGEMENT CLINICS AND ON THE EXPANSION OR RELOCATION OF EXISTING PAIN MANAGEMENT CLINICS; PROHIBITING EXISTING PAIN MANAGEMENT CLINICS FROM CONDUCTING BUSINESS ON A CASH -ONLY BASIS; PROVIDING LAWFUL HOURS OF OPERATION FOR SUCH CLINICS; DIRECTING STAFF TO STUDY AND REPORT TO THE CITY COMMISSION ON ISSUES RELATING TO PAIN MANAGEMENT CLINICS BY A DATE CERTAIN; PROVIDING FOR PENALTIES, CONFLICTS, SEVERABILITY, AND AN EFFECTIVE DATE. WHEREAS, as provided in section 2(b), Article VIII of the Constitution of the State of Florida, and section 166.021(1), Florida Statutes, the City of Ocoee, Florida (the "City ") , a municipal corporation, enjoys all governmental, corporate, and proprietary powers necessary to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except as expressly prohibited by law; and WHEREAS, as provided in section 166.021(3), Florida Statutes, the governing body of each municipality in the state has the power to enact legislation concerning any subject matter upon which the state legislature may act, except when expressly prohibited by law; and WHEREAS, the Ocoee Police Department ( "OPD ") and the Metropolitan Bureau of Investigation for the Ninth Judicial Circuit (the "MBI ") have advised the City Commission of the City of Ocoee, Florida (the "City Commission "), that the City, Orange County, and the State of Florida is currently experiencing an epidemic of prescription pain medication abuse and that this epidemic constitutes an immediate and pressing threat to the public health, safety, and welfare of the City; and WHEREAS, OPD and MBI have advised the City Commission that certain controlled substances lawfully used as prescription pain medications are being diverted from their lawful therapeutic uses to unlawful and dangerous drug abuse; and WHEREAS, the unlawful distribution of prescription pain medication and increasing crime associated with such activity has created an urgent public health and safety emergency requiring immediate action; and ORLA 1703785.2 WHEREAS, several counties and municipalities in Florida have established moratoria on new pain management clinics to help curb the immediate deleterious consequences of these clinics, such consequences including illegal drug trafficking, the illegal purchase and sale of prescription pain medication, loitering and other criminal behavior in and around such clinics, the diversion of prescription drugs for unlawful and dangerous uses, and an alarming increase in deaths related to and caused by prescription drug abuse; and WHEREAS, on December 2, 2010. the Florida Department of Law Enforcement ( the "FDLE ") released the Florida Medical Examiners Commission 2010 Interim Report on Drugs Identified in Deceased Persons. The report aggregated toxicology reports submitted to the Florida Medical Examiners Commission and found that during January through June of 2010. of the 89,800 deaths occurring in Florida from all causes, 4,150 were drug - related. Of the 4.150 drug- related deaths, the report found as follows: 1. The drug that caused the most deaths during the study period (715 decedents) was Oxycodone (trade names include OxyContin). 2. Prescription drugs accounted for 81% of all drug - related deaths when excluding deaths related to Ethyl Alcohol. 3. 1,268 people died with at least one prescription drug in their system that was, in the opinion of the medical examiner, the cause of death. 4. In the Ninth Medical Examiner District (consisting of Orange and Osceola counties), 63 deaths were related to Alprazolam (trade names include Xanax). 5. In the Ninth Medical Examiner District, 27 deaths were related to Diazepam (trade names include Valium). 6. In the Ninth Medical Examiner District, 76 deaths were related to Oxycodone (trade names include OxyContin). 7. In the Ninth Medical Examiner District, 30 deaths were related to Hydrocodone (trade names include Vicodin and Lortab). 8. In the Ninth Medical Examiner District, 15 deaths were related to Proxyphene (trade names include Darvon and Darvocet). WHEREAS, the interim report of a Broward County grand jury entitled '`The Proliferation of Pain Clinics in South Florida" (dated November 19, 2009) identified Orange County as one of the top ten counties in the nation for units of Oxycodone dispensed by top 50 dispensing doctors for the period of July 2008 to December 2008 and for the period of October 2008 to March 2009; and ORLA_1703785.2 -2- WHEREAS, Broward County formed a Pain Management Clinic Task Force which did extensive research and review of the issues regarding the licensing and location of pain management clinics and issued its Final Report dated January 13, 2011; and WHEREAS, based on foregoing n the fore oin studies and information from OPD and the MBI, the City Commission hereby finds and declares that the abuse of prescription pain medication can and does lead to property crimes, violent crime, drug dependency, debilitating sickness. and death; and WHEREAS, this Ordinance is not intended to interfere with the lawful prescription and use of controlled substances; and WHEREAS, the City Commission hereby finds and declares that the temporary moratorium established by this Ordinance is being imposed for the minimum amount of time necessary for City staff to analyze and report to the City Commission on the matter of prescription drug abuse and pain management clinics; and WHEREAS, the City Commission hereby finds and declares that this Ordinance is in the best interest of the public health, safety, and welfare, and that it advances a significant and important governmental interest. NOW, THEREFORE, BE IT ENACTED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA, AS FOLLOWS: SECTION 1. AUTHORITY. The City Commission of the City of Ocoee has the authority to adopt this Ordinance pursuant to Article VIII of the Constitution of the State of Florida and Chapter 166, Florida Statutes. SECTION 2. FINDINGS OF FACT. The foregoing "WHEREAS" clauses are hereby ratified and confirmed as being true and correct and are hereby made a part of this Ordinance. SECTION 3. DEFINITIONS. For the purposes of this Ordinance, the following words, terms, and phrases, including their respective derivatives, have the following meanings: 1. "Conduct business" means any one or more of the following activities: ORLA_1703785.2 _3_ a. Seeing or examining patients. b. Filling prescriptions or otherwise providing controlled substances to patients or customers. c. Settling accounts receivable for goods or services provided onsite. d. Inviting or allowing patients or customers into the premises. e. Allowing patients or customers to congregate or await goods or services within the premises. 2. "Controlled substance" means any substance named or described in Schedules I through V of section 893.03, Florida Statutes, as may be amended from time to time. 3. "Pain management clinic" means a privately owned pain management clinic, facility, or office (hereinafter referred to as a "clinic "), which advertises in any medium for any type of pain management service, or employs a physician or osteopathic physician who is primarily engaged in the treatment of pain by prescribing or dispensing controlled substance medications, except for the following: a. Clinics licensed as a facility pursuant to chapter 395, Florida Statutes. b. Clinics where the majority of the physicians or osteopathic physicians who provide services primarily provide surgical services. c. Clinics 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. Clinics affiliated with an accredited medical school at which training is provided for medical students, residents, or fellows. e. Clinics that do not prescribe or dispense controlled substances for the treatment of pain. f. Clinics owned by a corporation exempt from federal taxes pursuant to 26 United States Code section 501(c)(3) or (4), as may be amended. ORLA_1703785.2 -4- SECTION 4. TEMPORARY MORATORIUM. Beginning on the effective date of this Ordinance and continuing through April 15, 2012, or sooner as provided in Section 5 of this Ordinance, a moratorium is hereby imposed on the opening of new pain management clinics and on the expansion or relocation of existing pain management clinics. During the moratorium, the following shall be unlawful and a violation of this Ordinance: 1. During the moratorium, it is unlawful and a violation of this Ordinance for any person, firm, or corporation to open or caused to be opened any pain management clinic within the City of Ocoee. 2. During the moratorium, it is unlawful and a violation of this Ordinance for any person, firm, or corporation to relocate or cause to be relocated any pain management clinic within the City of Ocoee. 3. During the moratorium, it is unlawful and a violation of this Ordinance for any person, firm, or corporation to expand or cause to be expanded any pain management clinic within the City of Ocoee. For the purposes of this subsection, the terms "to expand" and "cause to be expanded" mean to "enlarge the physical size of'. SECTION 5. EXPIRATION OF THE TEMPORARY MORATORIUM. The temporary moratorium imposed by Section 4 of this Ordinance expires as of the earliest of the following occurrences: 1. April 15, 2012, one year from the effective date of this Ordinance; or 2. The effective date of an ordinance, adopted by the City Commission, to address drug use and distribution associated with pain management clinics which dispense narcotic drugs on site in the City of Ocoee; or 3. At such time as the City Commission receives a report from City staff on issues relating to pain management clinics and votes by majority vote to repeal this moratorium. SECTION 6. CASH -ONLY PROHIBITED. During the moratorium established by this Ordinance, it is unlawful and a violation of this Ordinance to own, operate, manage, or work at a pain management clinic unless at all times during the clinic's hours of ORLA_1703785.2 -5- operation patients are permitted and able to make payments for services rendered onsite by electronic funds transfer at point of sale utilizing an United States interbank network. SECTION 7. HOURS OF OPERATION. During the moratorium established by this Ordinance, it is unlawful and a violation of this Ordinance for any person, firm, or corporation to conduct business at a pain management clinic between 8:00 p.m. and 8:00 a.m. the following day. SECTION 8. STAFF REPORT. 1. This moratorium has been established for the minimum time period necessary for the City staff to analyze the effects and impacts of pain management clinics in the City of Ocoee; analyze the criteria for additional standards needed, if any, under zoning, land use, land development and general police power regulations in connection with the issuance of development permits, business licenses, business tax receipts. or approvals for pain management clinics within the City; analyze any new laws regarding pain management clinics enacted by the Florida legislature; complete an analysis of illegal drug use, distribution patterns and other public heath, safety and welfare issues that are associated with some pain management clinics that dispose narcotics on site; and to take recommendations to the City Commission regarding whether there is a need to enact an ordinance regulating pain management clinics so as to promote the health, safety and general welfare of the citizens of the City. 2. City staff is directed to provide a report to the City Commission of its finding and recommendations not later than March 31, 2012. SECTION 9. PENALTIES. Unless as otherwise provided herein, violations of this Ordinance shall be punishable in accordance with Section 1 -12 of the City of Ocoee Code of Ordinance. In addition, the City may bring any other action available at law or equity to penalize or enjoin violations of this Ordinance. SECTION 10. CONFLICTS. All ordinances or parts of ordinances in conflict herewith are suspended for the duration of the moratorium established by this Ordinance. ORLA_1703785.2 -6- SECTION 11. SEVERABILITY. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion hereto. SECTION 12. EFFECTIVE DATE. This Ordinance shall become effective ten (10) days after its passage and adoption. PASSED AND ADOPTED this day of , 2011. APPROVED: ATTEST: CITY OF OCOEE, FLORIDA Beth Eikenberry, City Clerk S. Scott Vandergrift, Mayor (SEAL) ADVERTISED , 2011 READ FIRST TIME , 2011 READ SECOND TIME AND ADOPTED , 2011 UNDER AGENDA ITEM NO. FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA; APPROVED AS TO FORM AND LEGALITY this day of , 2011. FOLEY & LARDNER LLP By: City Attorney ORLA_1703785.2 -7-