4232 Pain Mgmt MoratoriumOrdinance No. 2011- 4232
An ordinance of the City of Sanford, Florida relating to the imposition
of a temporary moratorium as to the filing and /or receiving of any
application for, or land use and building approvals (development
orders or development permits) of, pain management clinics until
October 1, 2011; providing for legislative findings; providing for a
definition; providing for enforcement and penalties; providing for
exceptions; providing for implementing administrative actions
including direction to City staff to study, analyze and report to the
City Commission on issues pertaining to the regulation of and issues
relating to pain management clinics; prohibiting pain management
clinics from limiting business transactions to "cash only ";
prohibiting the operation of pain management clinics during
unpermitted hours of operation; providing for a savings provision;
providing for conflicts; providing for severability; providing for
instructions relative to codification and providing for an effective
date with a sunset date and a method of potential extension.
Whereas, the City of Sanford is vested with home rule authority pursuant to
Article VII, Section 2 of the Constitution of the State of Florida and Chapter 166, Florida
Statutes, as well as other controlling law to enact ordinances; and
Whereas, there has been a recent proliferation of pain clinics, pain
management clinics, and cash only pharmacies throughout the State of Florida all of
which are generally known as "pain management clinics "; and
Whereas, the Prescription Drug Monitoring Program set forth in Section
893.055, Florida Statutes, is currently under regulatory strain and uncertainty and the
Florida Legislature is grappling with the issues relating to prescription drug monitoring
and related matters and, therefore, there is a current absence of effective regulation of
the dispensing of controlled substances and prescriptions for controlled substances for
physicians; and
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Whereas, the United States Department of Health and Human Services has
released data showing that prescription drug deaths are now the fourth leading cause of
death in the United States, after heart disease, cancer and stroke; and
Whereas, various studies and reports have been conducted concerning the
proliferation of pain management clinics in Florida, and in 2008, prescription drugs were
attributed to an average of nearly 13.5 deaths per day in Florida; and
Whereas, reports have found that burglaries and robberies in the areas where
pain management clinics are located have increased; drug trafficking in prescription
drugs and street level sales of prescription drugs have increased; and identity theft and
organized criminal activities have increased; and
Whereas, on -site dispensing of prescription drugs requires additional security
measures be in place to assure the public health, safety, and welfare; and
Whereas, according to a study reported by the New York Times in 2008, while
38 other states have prescription drug monitoring programs that track sales, Florida
does not, resulting in, according to federal, state and local law enforcement officials,
Florida becoming a source of prescription drugs that are illegally sold across the United
States; and
Whereas, physicians and other persons dispensing prescription drugs through
pain clinics, facilities, or office are required under controlling Florida law to register with
the Florida Department of Health in order to conduct such businesses; and
Whereas, several counties and municipalities in Florida have established
moratoria on certain new pain management clinics to curb the immediate negative
impacts created by these clinics, such as illegal prescription, drug trafficking and sales
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of illegal drugs around the pain management clinics, and loitering in areas surrounding
the clinics and the City of Sanford recognizes and adopts the findings made by those
jurisdictions; and
Whereas, the negative impacts associated with certain pain management clinics
create an urgent situation necessitating immediate investigation into regulation of pain
management clinics in the City; and
Whereas, under its home rule authority, the City can pass additional legislation
to further regulate pain management clinics as long as these additional regulations are
not preempted by Federal or Florida law and are not inconsistent with the statutory
provisions; and
Whereas, the City of Sanford Chief of Police and others have made the City
Commission aware of illegal drug use and distribution associated with some pain
management clinics which dispense narcotic drugs on site; and
Whereas, the threat of illegal narcotic activity and increased crime associated
with pain management clinics is significant and could undermine the economic health of
the City's development and redevelopment efforts; and
Whereas, the Florida Legislature has indicated that is has identical concerns as
the City Commission regarding the increased illicit use of pain management clinics by
persons obtaining prescription drugs for improper purposes; and
Whereas, City staff, and others, are in the process of analyzing the effects of
pain management clinics and preparing recommendations which will better promote the
health, safety, morals and general welfare of the City; and
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Whereas, as a result of other jurisdictions in Florida having recently enacted
moratoria pertaining to pain management clinics in their jurisdictions, the City of Sanford
could become a target for the migration and proliferation of new pain management
clinics; and
Whereas, the City has been advised that the Florida Board of Medicine and
Board of Osteopathic Medicine are currently engaged in rulemaking but have not yet
been able to effectually adopt and implement the new rules setting forth standards of
practice for health care practitioners who practice in privately -owned pain management
clinics; and
Whereas, the City Commission of the City of Sanford has determined that a
temporary moratorium on the opening of new pain management clinics will provide
interim oversight of the proliferation of these establishments; and
Whereas, the City Commission of the City of Sanford finds it is in the best
interest of the citizens of the City to minimize and control the adverse effects of pain
management clinics and thereby protect the health, safety, and welfare of the citizenry;
protect the citizens from increased crime; preserve the quality of life and preserve
property values by adopting appropriate regulations regulating pain management
clinics; and
Whereas, the City Commission of the City of Sanford hereby finds this
Ordinance to be in the best interests of the public health, safety, and welfare of the
citizens of Sanford.
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Now, Therefore, be it Enacted By the People of the City Of Sanford, Florida:
Section 1. Legislative Findings. A new section of the City Code of the City of
Sanford is created to read as follows:
(a). The City staff report and City Commission agenda memorandum relating
to this matter are hereby adopted as if fully set forth herein.
(b). The City of Sanford has complied with all requirements and procedures of
Florida law in processing and advertising this Ordinance.
(c). The findings set forth in Seminole County Ordinance Number 2011 -2 are
hereby adopted.
(d). The foregoing recitals (whereas clauses) are hereby adopted as the
legislative findings of the City Commission of the City of Sanford and incorporated into
this Ordinance as if set forth in haec verbs.
Section 2. Definition Of Pain Management Clinic; Administrative Rules.
A new section of the City Code of the City of Sanford is created to read as
follows:
(a). For the purposes of this Ordinance, a pain management clinic is a clinic
required to be registered with the Department of Health pursuant to Section 458.3265'
or Section 459.0137 Florida Statutes. A pain management clinic is 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
Medical practice.
2 Osteopathic practice.
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medications, unless (i) licensed as a facility pursuant to Chapter 395,
Florida Statutes; (ii) the majority of the physicians who provide services in
the clinic primarily provide surgical services; (iii) 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; (iv) the
clinic is affiliated with an accredited medical school at which training is
provided for medical students, residents, or fellows; (v) the clinic does not
prescribe or dispense controlled substances for the treatment of pain; or
(vi) the clinic is owned by a corporate entity exempt from federal taxation
under 26, United States Code, § 501(c)(3).
(b). The City Manager is authorized to promulgate any administrative rules
that may be necessary to implement the provisions of this Ordinance; provided,
however, that the adopted rules shall be reported to the City Commission as soon as
practical.
Section 3. Temporary Moratorium Upon Pain Management Clinics. A new
section of the City Code of the City of Sanford is created to read as follows:
(a). All activities relating to the acceptance, review and action upon land use,
development, and building applications related to a pain management clinic are
temporarily suspended in order for the City of Sanford, through its officials and staff, to
have adequate time and opportunity to conduct a study or studies and comprehensively
analyze the adequacy of application criteria, standards, and other approved processes
and procedures related to the issuance of said permits within the City of Sanford.
3 Hospital regulation.
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(b). 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, building permits and development permits and orders related to pain
management clinics until October 1, 2011 in order to permit the City to research the
nature and scope of possible measures of mitigation and regulation of pain
management clinics.
(c). 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,
building permits or any development permits or orders for pain management clinics and
no pain management clinics shall be permitted within the City.
(d). It is prohibited and unlawful for any person or entity to own or operate a
pain management clinic in violation of the moratorium enacted by this Ordinance. Any
person or entity owning or operating a pain management clinic in violation of this
Ordinance shall be subject to code enforcement activities by the City using any and all
legal remedies and processes that are available to the City and the City Manager is
hereby authorized to instruct the City Attorney to file such legal actions and lawsuits as
may be appropriate in the judgment of the City Manager after consultation with the City
Attorney.
Section 4. Existing Businesses Operating As Pain Management Clinics.
A new section of the City Code of the City of Sanford is created to read as follows:
This moratorium shall not affect any business lawfully operating as a pain
management clinic within the City pursuant to valid permits and approvals if in
compliance with all applicable City, Seminole County, State and Federal laws, codes,
ordinances, rules, regulations and policies including, but not limited to, the pertinent
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provisions of this Ordinance; provided, however, that Sections 5, 6 and 7 of this
Ordinance shall apply to all pain management clinics and businesses
Section 5. Local Business Tax; No Land Use, Building, Development Or
Other Approval Upon Payment. A new section of the City Code of the City of
Sanford is created to read as follows:
The payment of the local business tax and the issuance of a business tax receipt
shall not, in any way, be deemed to grant any right or entitlement to any payor of the
local business tax such as, but not limited to, any land use, building or development
approval. The payment of the tax represents only the payment of a tax and nothing
more. The payment of the tax shall not exempt the payor from any other provision of
Federal, State or City law, ordinance, rule, regulation or policy.
Section 6. Cash Only Business Prohibited. A new section of the City Code of
the City of Sanford is created to read as follows:
It is prohibited and unlawful for pain management clinics to limit payment options
for goods or services to *cash only" transactions.
Section 7. Hours of Operation. A new section of the City Code of the City of
Sanford is created to read as follows:
It is prohibited and unlawful for a pain management clinic to be open for
business for customer transactions except during the hours of 7:00 a.m. through 9:00
p.m. of the same day.
Section 8. Conflicts.
4 See Attorney General Opinion Number AGO 90 -25, dated April 3, 1990, to Mr. Randy Ludacer, County Attorney
for Monroe County.
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All ordinances or parts of ordinances in conflict with this Ordinance are hereby
repealed.
Section 9. Severability.
If any section, sentence, phrase, word, or portion of this Ordinance is determined
to be invalid, unlawful or unconstitutional, said determination shall not be held to
invalidate or impair the validity, force or effect of any other section, sentence, phrase,
word, or portion of this Ordinance not otherwise determined to be invalid, unlawful, or
unconstitutional.
Section 10. Codification.
Except for Sections 2, 5, 6 and 7 the provisions of this Ordinance shall not
become and be made a part of the Code of Ordinances of the City of Sanford, Florida.
Section 11. Effective Date; Sunset Date; Potential Extension Of Time.
(a). This Ordinance shall become effective immediately upon enactment by
the City Commission.
(b). Except for Sections 2, 5, 6 and 7 this Ordinance shall automatically sunset
on October 1, 2011, unless otherwise reaffirmed or amended by the City Commission
prior to that date.
(c). Notwithstanding the time limit on the moratorium herein established, in the
event the City Commission finds that additional time is needed for staff to conclude its
review of the problems associated with pain management clinics within the City and for
the drafting of regulations of those businesses, then the term of this Ordinance may be
extended by the City Commission for an additional ninety (90) days by resolution.
Passed and adopted this 14th day of March, 2011.
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City Commission bf the City of
Sanford, Florida
Attest:
Janet Dougherty, Ci Clerk Jeff Tri ay r
Approved as to form
end legal sufficiency.
nmam L. Colbert, Gity 4tWnby
l fJ kJ,F Al,
1
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