HomeMy WebLinkAbout2017-010ORDINANCE NO. 2017-_0_1Q_
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AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF
INDIAN RIVER COUNTY, FLORIDA, AMENDING CHAPTER 306 OF THE
CODE OF INDIAN RIVER COUNTY ENTITLED "MISCELLANEOUS
OFFENSES AND PROGRAMS" TO CREATE SECTION 306.15 "MEDICAL
MARIJUANA TREATMENT CENTER DISPENSING FACILITIES
PROHIBITED" AND AMENDING CHAPTER 315 OF THE CODE OF INDIAN
RIVER COUNTY ENTITLED "INDIAN RIVER COUNTY PAIN MANAGEMENT
CLINIC AND CONTROLLED SUBSTANCES ORDINANCE" TO ELIMINATE
REGULATIONS AND PROHIBITIONS OF CERTAIN ACTIVITIES RELATING
TO MEDICAL MARIJUANA; AND PROVIDING FOR SEVERABILITY,
CODIFICATION AND AN EFFECTIVE DATE.
WHEREAS, in 2011, the Indian River County Board of County Commissioners (the
"Board") created Chapter 315 of the Code of Indian River County entitled "Indian River County
Pain Management Clinic and Controlled Substances Ordinance"; and
WHEREAS, in anticipation of Amendment 2, allowing for the use of marijuana for certain
medical conditions on the November 8, 2016 ballot, the Board adopted regulations to prevent
a proliferation of medical marijuana distribution facilities; and
WHEREAS, during the 2017 Special Session, the Florida Legislature enacted a bill
preempting most local government regulation of medical marijuana; and
WHEREAS, local governments are allowed to either ban medical marijuana treatment
center dispensing facilities or allow them in the same manner as the local government would
allow a pharmacy regulated under Chapter 465, Florida Statutes; and
WHEREAS, as the City of Sebastian will allow medical marijuana treatment center
dispensing facilities and the City of Vero Beach intends to grandfather in one medical marijuana
treatment center dispensing facility, the Board acknowledges that citizens of Indian River
County have adequate access to such facilities and thus wishes to prohibit medical marijuana
treatment center dispensing facilities in the unincorporated areas of Indian River County;
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA THAT:
Section 1. Enactment Authorit
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Article VIII, section 1 of the Florida Constitution and chapter 125, Florida Statutes, vest broad
home rule powers in counties to enact ordinances, not inconsistent with general or special law,
for the purpose of protecting the public health, safety and welfare of the residents of the county.
The Board specifically determines that the enactment of this ordinance is necessary to protect
the health, safety and welfare of the residents of Indian River County.
Section 2. Legislative Findings.
The Board finds that the "Whereas" clauses above are true and correct, and hereby
incorporates such clauses as the legislative findings of the Board.
Section 3. Amendment of Chapter 306 (Miscellaneous Offenses and Programs).
Chapter 306 of the Code of Indian River County, Florida is hereby amended to read as follows
(added language is underlined, and deleted language noted by strikethrough):
CHAPTER 306. MISCELLANEOUS OFFENSES AND PROGRAMS
Section. 306.15. Medical Mariivana Treatment Center Disnensina Facilities Prohibited.
Medical Marijuana Treatment Center Dispensing Facilities as defined under section 381.986,
Florida Statutes, shall be prohibited in the unincorporated areas of Indian River County. Any
ordinances or other provisions of the Code of Indian River County to the contrary are repealed.
Section 4. Amendment of Chapter 315 (Pain Management Clinics and Controlled
Substances).
Chapter 315 of the Code of Indian River County, Florida is hereby amended to read as follows
(added language is underlined, and deleted language noted by strikethrough):
CHAPTER 315. PAIN MANAGEMENT CLINICS; AND CONTROLLED
SUBSTANCES AND MEDICAL MARIjUANA
Section. 315.02. Definitions.
For the purposes of this chapter, the following terms shall have the following meanings:
(1) Pain management clinic shall mean any publicly or privately owned facility:
that advertises in any medium for any type of pain management services;
or where in any month a majority of patients are prescribed opioids,
benzodiazepines, barbiturates, or carisoprodol for the treatment of chronic
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nonmalignant pain; or any MediGal MaFijUaRa Treatment Center as definorl
Belo , unless:
a. The clinic is licensed as a facility pursuant to chapter 395, Florida Statutes,
b. The majority of physicians who provide services in the clinic primarily
provide surgical services;
C. The clinic is owned by a publicly held corporation whose shares are traded
on a national exchange or on the over-the-counter market and whose total
assets at the end of the corporation's most recent fiscal quarter exceeded
$50 million;
d. The clinic is affiliated with an accredited medical school at which training is
provided for medical students, residents or fellows;
e. The clinic does not prescribe or dispense controlled
substances for the treatment of pain; or
f. The clinic is owned by a corporate entity exempt from federal taxation under
26 USC section 501(c)(3).
Any clinic or facility meeting the definition above shall be considered a pain
management clinic, regardless of its use of any other descriptive name, such as
a center for "wellness," "detox," "detoxification," "urgent care," etc.
(2) Applicable law shall mean this Code, applicable Florida law, including,
without limitation, rules and regulations promulgated by the Florida
Department of Health, the Florida Board of Medicine, the Florida Board of
Osteopathic Medicine, the Florida Board of Pharmacy, and applicable
federal law.
(3) Board shall mean the Indian River County Board of County Commissioners.
(4) Controlled substance shall mean a controlled substance listed in Schedules
II, III, or IV in section 893.03, Florida Statutes.
(5) Chronic nonmalignant pain shall mean pain unrelated to cancer or
rheumatoid arthritis which persists beyond the usual course of disease or
the injury that is the cause of the pain or more than 90 days after surgery.
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(6) Department shall mean the Indian River County Community Development
Department.
(7) Reserved. Mar#uana shall rnean Gannabis as defined in SeGtien 893.02(3),
Perffida Statutes. The term shall *nGlude "low THG Gannabos," as defined
SeGtien381.986(i)(b), Florida Statutes.
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(9) Pharmacy shall mean any pharmacy that is subject to licensure or regulation
by the Florida Department of Health under chapter 465, Florida Statutes,
and dispenses controlled substances in Indian River County.
(10)Pain Clinic Responsible Party shall mean any person or entity which owns,
in whole or in part, or operates a pain management clinic; any person who
manages or supervises the operations of a pain management clinic; any
person who has been designated as the responsible physician or
osteopathic physician for a pain management clinic, pursuant to
458.3265(1)(c) or 459.0137(1)(c), Florida Statutes; and any person who
participates, directly or indirectly, in any activity regulated or prohibited by
this chapter.
M)Pharmacy Responsible Party shall mean any person or entity which owns, in
whole or in part, or operates a pharmacy engaged in activity regulated or
prohibited by this chapter; any person who manages or supervises any
activity regulated or prohibited by this chapter; and any person who
participates, directly or indirectly, in any activity regulated or prohibited by
this chapter.
(12)Qualified pain management clinic shall mean:
a. A pain management clinic which is wholly owned and operated by one
or more board-certified anesthesiologists, physiatrists, or neurologists;
or
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(9) Pharmacy shall mean any pharmacy that is subject to licensure or regulation
by the Florida Department of Health under chapter 465, Florida Statutes,
and dispenses controlled substances in Indian River County.
(10)Pain Clinic Responsible Party shall mean any person or entity which owns,
in whole or in part, or operates a pain management clinic; any person who
manages or supervises the operations of a pain management clinic; any
person who has been designated as the responsible physician or
osteopathic physician for a pain management clinic, pursuant to
458.3265(1)(c) or 459.0137(1)(c), Florida Statutes; and any person who
participates, directly or indirectly, in any activity regulated or prohibited by
this chapter.
M)Pharmacy Responsible Party shall mean any person or entity which owns, in
whole or in part, or operates a pharmacy engaged in activity regulated or
prohibited by this chapter; any person who manages or supervises any
activity regulated or prohibited by this chapter; and any person who
participates, directly or indirectly, in any activity regulated or prohibited by
this chapter.
(12)Qualified pain management clinic shall mean:
a. A pain management clinic which is wholly owned and operated by one
or more board-certified anesthesiologists, physiatrists, or neurologists;
or
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b. A pain management clinic which is wholly owned and operated by one
or more board-certified medical specialists who have also completed
fellowships in pain medicine approved by the Accreditation Council for
Graduate Medical Education or the American Osteopathic Association
or who are also board-certified in pain medicine by a board approved by
the American Board of Medical Specialties or the American Osteopathic
Association and perform interventional pain procedures of the type
routinely billed using surgical codes.
Except as otherwise provided, a qualified pain management clinic shall be
deemed to be a pain management clinic for all purposes set forth herein.
Section 315.03. Prohibited Activities.
Each of following activities shall be prohibited and shall constitute a violation of this
Code:
(1) Operation of a pain management clinic without a valid and current permit
issued pursuant to section 315.04;
(2) Operation of a pain management clinic without a valid and current business
tax receipt;
(3) Operation of a pain management clinic without a valid and current
registration pursuant to sections 458.3265 or 459.0137, Florida Statutes
registe Fed by the DepaFtMeRt of Health OF its S GGessnr agennv pursuant to
AFtiGle X, SeGfien 29 of the Florida Genstituti , unless such clinic is exempt
from registration under such statute of the FleFida Gonstitu;
(4) Submittal of a permit application, any sworn statement, or any other
information required by this chapter, which contains materially false
information;
(5) Operation of a pain management clinic in violation of a sworn statement
submitted to pursuant to sections 315.04 or 315.05;
(6) Operation of a pain management clinic or pharmacy in violation of applicable
law;
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(7) Prescribing or dispensing of controlled substances a in violation
of applicable law;
(8) Activity within a pain management clinic with respect to a controlled
substance in violation of the standards of practice set forth in section
456.44(3), Florida Statutes;
(9) Operation of a pain management clinic in violation of the facility and physical
operations requirements, the infection control requirements, the health and
safety requirements, the quality assurance requirements or the data
collection and reporting requirements set forth in sections 458.3265(2)(f)-0)
and 459.0137(2)(f)-0), Florida Statutes, as applicable;
(10) Prescribing, administering or dispensing a controlled substance without a
valid and current controlled substance registration number issued by the
United States Department of Justice, Drug Enforcement Administration;
(11) Operation of a pain management clinic or pharmacy in a manner which
allows, permits or encourages persons to stand, sit (including inside parked
cars), gather or loiter in or about the clinic's parking area, for a period of time
exceeding that which is reasonably required to arrive and depart the parking
area, and to walk to and from the parking area and the clinic;
(12) Continued leasing or permitted use of a property or structure which is used
as a pain management clinic or pharmacy if (a) the landlord or property
owner knows or, through the exercise of reasonable care should know, that
the clinic or pharmacy is being operated in violation of applicable law, and
(b) despite the passage of a reasonable period of time to do so, the landlord
or property owner has failed or refused to take reasonable measures to stop
or prevent the continued illegal activity on the premises; or
(13) Failure to advise the Department of any change in any information,
statements, facts or circumstances, as required by section 315.04(10).
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Section 315.04. Permit Required for Operation of Pain Management Clinic.
(1) Permit Required. No pain management clinic shall operate by any means
in Indian River County without a valid and current pain management clinic
permit issued by the Department.
(2) Application. Any pain management clinic requesting issuance of a pain
management clinic permit shall complete and submit to the Department a
sworn application, on a form provided by the Department, containing, at a
minimum, the following information:
a. The name and address of the pain management clinic;
b. The name and address of each owner of the pain management clinic
(including, if the owner is a business entity such as a corporation, limited
liability company, etc, the name and address of each officer, manager or
managing member, general partner or other comparable person authorized
by state law to manage the affairs of the business entity), each person who
will be managing or supervising the activities of the pain management clinic,
and each person who will be prescribing or administering controlled
substances,, and—eaGh person whe will aGqu*rinn ,---- ssimng
nr `r inn e-rinn Sellingdistrib Minn nr diGpeRGinn moriiuonn at the
pain management clinic;
c. The name and address of the person who has been designated as the
responsible physician or osteopathic physician for the pain management
clinic, pursuant to sections 458.3265(1)(c) or 459.0137(1)(c), Florida
Statutes, if applicable;
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d. The name and address of the person or entity which owns the real property
upon which the pain management clinic will be operated;
e. Proof that the applicant is currently registered as a pain management clinic
with the Florida Department of Health, pursuant to sections 458.3265 or
459.0137, Florida Statutes ^r ronisteFe -1 as a Medinol MoriiUaRa Treatmon�
Constitution;
f. Proof that any person who will be prescribing or administering controlled
substances at the pain management clinic has a valid and current controlled
substance registration number issued by the United States Department of
Justice, Drug Enforcement Administration, including the controlled
substance registration number for each such person,
g. A sworn statement certifying that within the ten (10) years prior to submittal
of the application, neither the pain management clinic, nor any person
identified pursuant to subsections b, c or d above, has been found by any
county or municipal board, commission or council, or by any state or federal
court, or by any state or federal regulatory body, to have acted with respect
to controlled substances or marijuana in violation of applicable law; and
h. A sworn statement certifying that the pain management clinic, and every
other clinic owned or operated by any person identified pursuant to
subsections b, c or d above, will, during the term of the permit, be operated
in compliance with applicable law.
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(3) Abbreviated application for qualified pain management clinics
t'.RGWres,aerosols, e+ls, of of eRtS), traesfc,,traflsPOPt, sell, di +�ateor
d i s p eR se --r ai ii mai }a re di�E��Rtani i ni rn g mi-ra rari jua nn a ,, related supplies, p i eT
edUGatisRal- materials+tee qualifying - patients - or them-EaTegi ers. In lieu of
completing the application form described in subsection (2), a qualified pain
management clinicthat does not —aGge+re-pOSSess, ProeeS6 (in^l�g
deve'opere + of related —p tSsJUGh as
feed, +,nGtUres, aeresels, Oils, OF
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patients nr their nareniverc requesting issuance of a pain management clinic
permit may complete and submit to the department a sworn application, on a form
provided by the department, containing, at a minimum, the following information:
a. The name and address of the pain management clinic;
b. The name and address of the owner of the pain management clinic;
c. The name and address of all physicians who will be prescribing controlled
substances at the pain management clinic;
d. Proof that the pain management clinic meets the definition of a "qualified pain
management clinic" which proof may consist of written verification or
confirmation from the State of Florida that the pain management clinic is
exempt from state registration pursuant to [F.S.] §§ 458.3265(1)(a)2g or h or
459.0137(1)(a)2g or h; and
e. A sworn statement certifying that the pain management clinic, and every other
clinic owned or operated by any person identified pursuant to subsections b
or c above, will, during the term of the permit, be operated in compliance with
applicable law.
(4) Permit Application Fee. A permit application fee shall be paid by the applicant at
the time of submittal of the application, including renewal. The amount of the fee
shall be set by resolution of the Board. The amount shall be sufficient to recover
the County's approximate cost of reviewing and acting upon the application.
(5) Denial of Application. The application for a pain management clinic permit shall
be denied if any of the following facts are found to exist and are not cured within
ten (10) days of written notice of such deficiency:
a. The applicant fails to pay the required permit application fee; or
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b. The applicant fails to submit all information and statements required in
subsection (2) or (3) above, or the applicant has submitted such information
and statements but such information and statements are found to contain
materially false information.
(6) Issuance of Permit. The Department shall issue the permit within twenty (20)
days of submittal of a fully complete application, if the applicant has submitted all
information required in subsection (2) or (3) and none of the facts set forth in
subsection (5) is found to exist.
(7) Term of Permit. A pain management clinic permit shall remain in effect for a term
of two (2) years. Thereafter, a permit shall be subject to renewal in the same
manner that permits are issued initially as set forth in subsections (2) through (6).
(8) Appeal. If an application for issuance or renewal of a pain management clinic
permit is denied, the applicant shall have the right of appeal as set forth in section
100.06 of this Code. The denial shall be considered a decision of a department
head for the purpose of applying section 100.06. An appeal fee shall be paid by
the applicant at the time of filing an appeal to the Board. The amount of the fee
shall be set by resolution of the Board. The amount shall be sufficient to recover
the County's approximate cost of reviewing and acting upon the appeal.
(9) Revocation of Permit. A pain management clinic permit shall be subject to
revocation in proceedings before the Indian River County Code Enforcement
Board or any court of competent jurisdiction, in the event that:
a. The information or statements submitted to obtain issuance or renewal of
the permit contained materially false information;
b. The permit holder, or any Pain Clinic Responsible Party, has engaged in
activity prohibited by section 315.03;
c. The permit holder, or any Pain Clinic Responsible Party, has been found by
any county or municipal board, commission or council, or by any state or
federal court, or by any state or federal regulatory body, to have acted with
respect to controlled substances or maFijuana in violation of applicable law;
or
d. The permit holder, although required to be registered, is no longer registered
with the Florida Department of Health, pursuant to sections 458.3265 or
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459.0137, Florida Statutes, or registered as a Medinal Marijuana Treatment
Center, �Gle X, Se tine 29 of the Florida Constitution-, or no
longer holds a current business tax receipt for a pain management clinic, or
the controlled substance registration issued by the United States
Department of Justice, Drug Enforcement Administration to any person
prescribing, administering or dispensing controlled substances at the pain
management clinic has been suspended, revoked or denied renewal.
(10) Emergency Suspension of Permit. Upon clear and convincing proof that
one or more of the events set forth in subsection (9) have occurred, and upon a
finding that continued operation of the pain management clinic presents an
immediate danger to the health, safety and welfare of the residents of Indian River
County, the Department shall be authorized immediately to suspend the pain
management clinic's permit. In such event, the permit holder shall have the right
of appeal as set forth in section 100.06 of this Code. The suspension shall be
considered a decision of a department head for the purpose of applying section
100.06. All aspects of the appeal shall be expedited. An appeal fee shall be paid
by the applicant at the time of filing an appeal to the Board. The amount of the
fee shall be set by resolution of the Board. The amount shall be sufficient to
recover the County's approximate cost of reviewing and acting upon the appeal.
Any emergency suspension pursuant to this subsection shall continue for a
period not to exceed six (6) months; provided, however, that if revocation of the
permit is sought, the Code Enforcement Board or court of competent jurisdiction
in which the revocation request is pending may extend the suspension beyond
six (6) months until completion of the revocation proceedings, if necessary to
protect the health, safety and welfare of the residents of Indian River County.
(11) Change in Information or Statements. The permit holder shall notify the
Department in writing of any change in any information or statements submitted
pursuant to subsections (2) a. — hi. or (3)a. — d. above, or of any change in any
facts or circumstances such that any information or statements submitted
pursuant to subsections (2) a. — hi. or (3)a. — d. are no longer completely true and
accurate. Such notification shall be provided within thirty (30) days of the change.
Section 5. Severability. If any part of this ordinance is held to be invalid or unconstitutional
by a court of competent jurisdiction, the remainder of this ordinance shall not be affected by
such holding and shall remain in full force and effect.
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Section 6. Codification. It is the intention of the Board of County Commissioners that the
provisions of this ordinance shall become and be made part of the Indian River County Code,
and that the sections of this ordinance may be renumbered or re -lettered and the word
ordinance may be changed to section, article or such other appropriate word or phrase in order
to accomplish such intention.
Section 7. Effective Date. This ordinance shall become effective upon filing with the Florida
Department of State.
This ordinance was advertised in the Indian River Press Journal on the 22nd day of July, 2017,
for a public hearing to be held on the 15th day of August, 2017, at which time it was moved for
adoption by Commissioner Solari , seconded by
Commissioner O,Brva„ , and adopted by the following vote:
Chairman Joseph E. Flescher AYE
Vice Chairman Peter D. O'Bryan AYE
Commissioner Susan Adams AYE
Commissioner Bob Solari AYE
Commissioner Tim Zorc AYE
The Chairman thereupon declared the ordinance duly passed and adopted this 15th day of
August, 2017.
ATTEST: Jeffrey R. Smith, ClerR# Co
and Comptroller
RCOUN;
By:
Deputy Clerk
BOARD OF COUNTY COMMISSIONERS
INDIAN RIVER COUNTY, FLORIDA
E. Flescher, Chairman
as to form and legal sufficiency:
D eingold, County Attorney
EFFECTIVE DATE- This ordinance was filed with the Florida Department of State on the _Z110—eyk
day of �l v �r t , 2017.
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