HomeMy WebLinkAbout2016-005ORDINANCE NO. 2016- 005
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF
INDIAN RIVER COUNTY, FLORIDA, AMENDING CHAPTER 315 OF THE
CODE OF INDIAN RIVER COUNTY ENTITLED "INDIAN RIVER COUNTY
PAIN MANAGEMENT CLINIC AND CONTROLLED SUBSTANCES
ORDINANCE" TO INCLUDE 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, Amendment 2, allowing for the use of marijuana for certain medical
conditions is on the November 8, 2016 ballot; and
WHEREAS, in the event Amendment 2 is approved by the voters, it is necessary to
have existing regulations in effect to prevent a proliferation of medical marijuana distribution
facilities; and
WHEREAS, the Board finds that utilizing the regulations established for pain
management clinics in Indian River County to regulate medical marijuana is reasonable and
necessary to prevent the harmful impacts of medical marijuana distribution facilities in the
same manner that those regulations prevented the harmful effects of pain management
clinics and pharmacies,
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA THAT:
Section 1. Enactment Authority.
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.
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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 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 chonic
nonmalignant paint or any Medical Marijuana Treatment Center as defined
below, 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 marijuana or 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).
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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.
(6) Department shall mean the Indian River County Community Development
Department.
(7) Reserved. Marijuana shall mean cannabis as defined in Section 893.02(3),
Florida Statutes The term shall include "low -THC cannabis." as defined in
Section 381.986(1)(b), Florida Statutes.
(8) Resewed. Medical Marijuana Treatment Center shall mean an entity that
acquires possesses processes (including development of related
products such as food tinctures aerosols oils or ointments), transfers,
transports sells distributes or dispenses marijuana products containing
marijuana related supplies or educational materials to qualifying patients
or their caregivers and is registered by the Department.
(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.
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(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
)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
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:
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(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,
or registered by the Department of Health, pursuant to Article X, Section
29 of the Florida Constitution, unless such clinic is exempt from
registration under such statute;
(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;
(7) Prescribing or dispensing of controlled substances or marijuana 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;
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(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).
(14) Cultivation administration or consumption of marijuana at a pain
management clinic.
(15) Operating a Medical Marijuana Treatment Center that is not wholly owned
and operated by one or more
a. board-certified anesthesiologists, physiatrists, or neurologists; or
b. 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.
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.
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(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 each person who will be
acquiring possessing processing transferring selling distributing or
dispensing marijuana 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,
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 or registered as a Medical Marijuana Treatment
Center, pursuant to Article X Section 29 of the Florida 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
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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.
Proof that a Medical Marijuana Treatment Center is wholly owned and
operated by one or more
1. board-certified anesthesiologists, physiatrists, or
neurologists; or
2. 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.
(3) Abbreviated application for qualified pain management clinics that do not
acquire possess process (including development of related products such as
food tinctures aerosols oils or ointments) transfer, transport, sell, distribute or
dispense marijuana products containing marijuana related supplies, or
educational materials to qualifying patients or their caregivers. In lieu of
completing the application form described in subsection (2), a qualified pain
management clinic that does not acquire possess process (including
development of related products such as food tinctures, aerosols, oils, or
ointments) transfer, transportsell distribute or dispense marijuana, products
containing mariivana related supplies or educational materials to qualifying
patients or their caregivers 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;
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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
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).
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(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 marijuana 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 459.0137, Florida Statutes, or registered as a Medical
Marijuana Treatment Center, pursuant to Article X Section 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
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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. — #i. 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. — #i. or (3)a. — d. are
no longer completely true and accurate. Such notification shall be
provided within thirty (30) days of the change.
Section 4. 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.
Section 5. 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 6. 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 25th day of April,
2016, for a public hearing to be held on the 10th day of May, 2016, at which time it was
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moved for adoption by Commissioner F1 P-,c-hPr , seconded by
Commissioner o -Bryan , and adopted by the following vote:
Chairman Bob Solari AYE
Vice Chairman Joseph E. Flescher AYE
Commissioner Wesley S. Davis AYE
Commissioner Peter D. O'Bryan AYE
Commissioner Tim Zorc AYE
The Chairman thereupon declared the ordinance duly passed and adopted this 1 ni-h day of
May , 2016.
ATTEST: Jeffrey R. Smith, Clerk
and Comptroller /
M
EFFECTIVE DATE
day of
BOARD OF COUNTY COMMISSIONE
INDIAN RIVER COUNTY, FLORIDA;
By: 11 eA7-L -1 l c
Bob Solari, Chairman
urt Approved as to form and legal suffic
r ,
Dylan Reingold, County Attorney
This ordinance was filed with the Florida Department of State on the
.2016.
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