Miami-Dade Legislative Item
File Number: 111574
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File Number: 111574 File Type: Ordinance Status: Adopted
Version: 0 Reference: 11-61 Control: Board of County Commissioners
File Name: REGISTRATION OF PAIN CLINICS Introduced: 7/21/2011
Requester: NONE Cost: Final Action: 8/2/2011
Agenda Date: 8/2/2011 Agenda Item Number: 7E
Notes: Title: ORDINANCE REQUIRING THE REGISTRATION OF PAIN CLINICS OPERATING IN INCORPORATED AND UNINCORPORATED MIAMI-DADE COUNTY; SETTING MINIMUM REQUIREMENTS FOR REGISTRATION AND PROVIDING FOR APPEAL OF DENIAL OF REGISTRATION; PROVIDING FOR TEMPORARY MORATORIUM; PROVIDING FOR PENALTIES; PROVIDING SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE [SEE ORIGINAL ITEM UNDER FILE NO. 111219]
Indexes: PAIN CLINICS
Sponsors: Barbara J. Jordan, Prime Sponsor
  Bruno A. Barreiro, Co-Sponsor
  Lynda Bell, Co-Sponsor
  Esteban L. Bovo, Jr., Co-Sponsor
  Jose "Pepe" Diaz, Co-Sponsor
  Audrey M. Edmonson, Co-Sponsor
  Sally A. Heyman, Co-Sponsor
  Sen. Javier D. Souto, Co-Sponsor
Sunset Provision: No Effective Date: Expiration Date:
Registered Lobbyist: None Listed


Legislative History

Acting Body Date Agenda Item Action Sent To Due Date Returned Pass/Fail

Board of County Commissioners 8/2/2011 7E Adopted P
REPORT: During consideration of changes to today’s (8/2) agenda, a scrivener’s error was corrected as follows, pursuant to the Mayor's Memorandum entitled "Changes for the August 2, 2011 BCC Meeting": On handwritten page 10, under the Temporary Moratorium Section B, “Building and Zoning Department” should read “Planning and Zoning Department.”

County Mayor 7/27/2011 Scrivener's Errors 8/2/2011
REPORT: On handwritten page 10, under the Temporary Moratorium Section B, '' Building and Zoning Department'' should read ''Planning and Zoning Department''.

County Attorney 7/21/2011 Assigned Karon M. Coleman 7/22/2011

Public Safety & Healthcare Admin Cmte 7/12/2011 1F1 AMENDED Forwarded to BCC with a favorable recommendation with committee amendment(s) P
REPORT: Assistant County Attorney Gerald Sanchez read the foregoing proposed ordinance into the record. Chairman Diaz opened the public hearing, and the following persons appeared before the Committee: Mr. David Kann, 8551 N Bay Shore Drive, spoke in support of this proposed ordinance. Mr. Ralph Hernandez, 16901 NE 19 Ave, City of North Miami Beach Police Chief, spoke in support of this proposed ordinance. Mr. Raymond White, 15353 SW 142 Terrace, Chairman, Addiction Services Board, spoke in support of this proposed ordinance. Mr. Alvaro Serna, Narcotics Bureau Detective, Miami-Dade Police Department, spoke in support of this proposed ordinance. He requested the Committee amend this proposal to impose sanctions on pain clinics that failed inspections conducted by the State Department of Health twice in one year. Chairman Diaz asked that he be listed as a co-sponsor. Mr. Frank Figuero, Medical Malpractice Investigator, State of Florida Department of Health, spoke in support of this proposed ordinance. Mr. Doug Hughes, Miami Coalition for a Safe and Drug Free Community, South Florida Alliance, 13287 SW 124 Street, spoke in support of this proposed ordinance. Chairman Diaz closed the public hearing after no other persons appeared wishing to speak. Assistant County Attorney Karon Coleman advised that this proposed ordinance should be amended to change “sixty” to “ninety” in paragraph A on handwritten page 5; and to change the language contained within paragraph B on handwritten page 6 to read as follows: “The Department shall establish policies and procedures necessary to implement the registration process, maintain the database, enforce the ordinance, and create an implementing order, charge fees.” Commissioner Heyman pointed out that the second amendment read by the Assistant County Attorney should be amended to “charge reasonable fees” to avoid a legal challenge. Commissioner Souto asked that he be listed as a co-sponsor. Commissioner Souto noted that the County should have a mechanism to ensure that these controlled substances were registered whenever they came into the county, and that pain clinics needed to account for every pill received when inspected. He stressed the importance of the County holding pharmacies accountable for their distribution of controlled substances. Mr. Serna noted a tracking system was already in place to account for all prescription drugs. He clarified that issues of accountability arose when people illegally brought these drugs into the county. Commissioner Souto noted controlled substances could be changed through chemical reactions and made into illegal drugs. He pointed out that Sudafed could be turned into a methamphetamine. He stressed the County needed to work daily to fight drug problems in the County. Commissioner Bovo noted the drug abuse and its consequences through pain clinics in Florida was a tragedy. Commissioner Bell asked that she be listed as a co-sponsor. Commissioner Bell pointed out that the pain clinics used their own pharmacies connected to the clinics to bypass the Florida Department of Business and Professional Regulations. Chairman Diaz suggested this proposed ordinance be amended to prohibit pain clinics from being opened within 100 feet of schools. Assistant County Attorney Coleman advised that the suggested amendment was outside the scope of this proposed ordinance. She noted this proposed ordinance would create the Pain Clinic Task Force and it could address the issue. Mr. Kann pointed out that Broward County had an ordinance that stated no pain management clinics could be located within 1200 feet of a place of worship, child care center, educational center. He noted that some pain clinic doctors were legitimate, and that the County should be careful to not uproot a doctor who was prescribing pain medication legally. He further noted that some clinics only required an X-ray and cash to receive medicine, and that if a person did not have an X-ray, the clinic would do it. Commissioner Jordan noted the United States Drug Enforcement Agency reported that 49 of the top 50 practitioners dispensing oxycodone in the United States were in Florida. Commissioner Jordan asked Assistant County Attorney Gerald Sanchez to determine the feasibility of amending this proposed ordinance to impose sanctions on pain clinics that failed inspections conducted by the State Department of Health twice in one year and to submit his findings to Committee members before this proposal was considered by the County Commission. Hearing no other questions or comments, the Committee proceeded to vote on this proposed ordinance as amended to change “sixty” to “ninety” in paragraph A on handwritten page 5; to change the language contained within paragraph B on handwritten page 6 to read as follows: “The Department shall establish policies and procedures necessary to implement the registration process, maintain the database, enforce the ordinance, and create an implementing order, charge fees”; to insert “reasonable” between “charge” and “fees”; and to direct the County Attorney to prepare legislation that would prohibit pain clinics from being located within a specified distance of educational centers, child care centers, and places of worship.

Legislative Text


TITLE
ORDINANCE REQUIRING THE REGISTRATION OF PAIN CLINICS OPERATING IN INCORPORATED AND UNINCORPORATED MIAMI-DADE COUNTY; SETTING MINIMUM REQUIREMENTS FOR REGISTRATION AND PROVIDING FOR APPEAL OF DENIAL OF REGISTRATION; PROVIDING FOR TEMPORARY MORATORIUM; PROVIDING FOR PENALTIES; PROVIDING SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE

BODY
WHEREAS, Miami-Dade County has experienced a rapid influx of pain clinics and pain management clinics in recent years and currently there are 109 pain clinics in Miami-Dade County; and
WHEREAS, a pattern of illegal drug use and distribution and increased crime has been associated with some pain clinics; and
WHEREAS, some pain clinics dispense or prescribe medically unjustified amounts of controlled substances to addicts and to people who intend to illegally sell the drugs; and
WHEREAS, physicians in Florida, many of whom work in pain clinics, purchased over eighty-five (85%) percent of all the oxycodone and over ninety-three (93%) percent of all the methadone purchased by practitioners in the United States in 2006; and
WHEREAS, there has been an increased number of prescription drug-related deaths in Miami-Dade County over the past several years -- 66 deaths in Miami-Dade County were with the presence of Oxycodone and 122 deaths were with the presence of Benzodiazepines, according to the South Florida Behavioral Network presentation at the Florida Alcohol and Drug Abuse Association on August 11, 2010; and
WHEREAS, according to the various annual and interim reports of the Florida Medical Examiner Commission, in Miami-Dade County, there was a 27% increase in opioid deaths in 2008; 42% of the total opioid reports in 2009 were lethal doses; and 28% of the opioid reports were considered to be the cause of deaths in the first half of 2010; and
WHEREAS, it has been reported to the Miami-Dade County Addiction Services Board that the nearly 1,000 infants born in Florida hospitals were treated for drug withdrawal in 2009, primarily for withdrawal from oxycodone and other prescription drugs; and
WHEREAS, some pain clinics attract unwelcome behaviors on their premises such as loitering, vagrancy, littering, drug use on the exterior of the premises, and illegal sale of drugs; and
WHEREAS, the Florida Legislature unanimously approved, and the Governor will most likely to sign, CS/CS/HB 7095 Engrossed 3, which provides a comprehensive response to pain clinics in Florida, including a prohibition on dispensing controlled substances on site; and
WHEREAS, pursuant to the Home Rule Charter of Miami-Dade County, the Board of County Commissioners has the power to establish, coordinate and enforce such regulations as are necessary for the protection of the public (Section 1.01(A) (12)) as well as perform any other acts which are in the common interest of the people of Miami-Dade County (Section 1.01(A)(23)); and
WHEREAS, the Board of County Commissioners is concerned about the rapid proliferation of pain clinics in Miami-Dade County, the pattern of illegal drug use and distribution and increased crime associated with some pain clinics, the increased deaths and addictions associated with the prolific distribution of prescription drugs for non-medical purposes and the overall nuisance characteristics of many pain clinics; and
WHEREAS, the Board of County Commissioners desires to provide for the public health, safety and welfare of the people of Miami-Dade County,
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMIDADE COUNTY, FLORIDA:
Section 1. That the above recitals of legislative intent and findings are fully incorporated herein as part of this ordinance.
Section 2. Section _____ of the Code of Miami-Dade County, Florida, is hereby created to read as follows1:
Sec. _____. Definition.

“Pain Clinic” and “Pain Management Clinic” (hereinafter “pain clinics” shall be inclusive of pain clinics and pain management clinics) shall have the same meanings and same exemptions as provided for in Sections 458.3265(1) and 459.0137(1) of Florida Statutes, as amended, or any successor state law.

Sec. _____. Registration.

A. All pain clinics operating within the geographic boundaries of Miami-Dade County shall register with Miami-Dade County’s Consumer Services Department immediately upon issuance of implementing policies and procedures which shall occur no later than [[sixty (60)]]2 >>ninety (90)<< days from the effective date of this ordinance, and annually thereafter.

B. Proof of registration with the County shall be prominently displayed in the common public area of the pain clinic.

C. Each pain clinic location shall be registered separately regardless of whether the clinic is operated under the same business name or management as another pain clinic.

D. A database of registered pain clinics operating in Miami-Dade County shall be maintained by the Miami-Dade Consumer Services Department.

Sec. _____. Designated Department.

A. The Miami-Dade Consumer Services Department (“Department”) shall: conduct the registration process; establish a database of pain clinics operating in Miami-Dade County; enforce the provisions of this ordinance; and charge a >>reasonable<< fee for processing the applications and maintaining the database.

B. The Department [[through implementing orders and/or administrative orders]] shall establish policies and procedures necessary to implement the registration process, maintain the database, enforce the ordinance, and >>and through an implementing order<< charge >>reasonable<< fees[[ , and such order(s) ]].

C. The Department is authorized to inspect any pain clinic for proof of registration at any reasonable hour without prior notice.

Sec. _____. Application; Review.

A. Any pain clinic operating in Miami-Dade County shall file a sworn and notarized application which shall include proof of the following:

1. That the applicant >>is<< [[has]] registered with the State Department of Health as required by state law >>and is in good-standing with the Department of Health, has not received notification of a pending investigation by the Department of Health, has not received a probable cause finding as a result of a Department of Health investigation, is not currently suspended, and has not received notice of any deficiencies from most recent Department of Health inspection <<;

2. That the pain clinic is fully owned by a duly licensed medical or osteopathic physician or group of medical or osteopathic physicians, or is licensed as a health care clinic under Part X of Chapter 400 of Florida Statutes; and

3. That all physicians who own the clinic or are employed by or have a contractual relationship with the clinic: have never had a Drug Enforcement Administration number revoked; have never had a license to prescribe, dispense, or administer a controlled substance denied by any jurisdiction; and have never been convicted of or pled guilty or nolo contendere to, regardless of adjudication, an offense that constitutes a felony for receipt of illicit and diverted drugs, including a controlled substance listed in Schedule I, Schedule II, Schedule III, Schedule IV or Schedule V of Section 893.03 of Florida Statutes, or of any state or the United States; and

4. Ownership in other pharmacies or pain clinics and the percentage of such ownership by any and all physicians who own the clinic seeking registration.

5. In addition, the application shall designate a physician who is responsible for complying with all requirements related to registration and operation of the clinic. If that physician ceases to be affiliated with the pain clinic, another physician must be so designated within ten (10) days. The designated physician must have a clear and active license under Chapter 458 (medical) of Florida Statutes or under Chapter 459 (osteopathic) of Florida Statutes, an active DEA registration; and shall practice at the clinic location for which the physician has assumed responsibility.

6. Any and all physicians associated with the pain clinic as owners, employees, contractors and specifically the physician designated to comply with all the requirements of registration and operations of the clinic shall provide the following:

a. sworn and notarized statement that attests: the physician owns, is employed by or has a contractual relationship with the pain clinic; and when applicable, agrees and accepts the designation to comply with all the requirements of registration and operations of the clinic;

b. a copy of the physician’s driver’s license or other government issued photographic identification; and

c. a copy of the physician’s active State of Florida medical license.

B. The Department may require any physician identified in Sec. ____(A)(6) to complete an in-person interview to verify the information in the application and/or notarized statement.

C. Within thirty (30) days of submission, the Department shall verify the information in the application and determine whether or not the applicant meets all the criteria established in Section 4(A) above.

1. If the applicant satisfies all the criteria in Section (4)(A), the pain clinic shall be registered within thirty (30) days of submission.

2. If the application is deemed incomplete, the applicant shall be notified in writing of the deficiencies within thirty (30) days of submission. The applicant shall have fifteen (15) days from the date of such notice to correct the deficiencies and complete the application. Failure to respond or make the corrections within the fifteen (15) days shall be considered a withdrawal of the application. The Department shall notify the applicant of the withdrawal upon expiration of the fifteen (15) days. If the applicant corrects the deficiencies within the fifteen (15) days, the Department shall have fifteen (15) additional days to verify that the application is complete and if complete, register the pain clinic.

3. If the applicant does not satisfy the criteria in Section 4(A), the clinic shall not be registered. The applicant shall be notified in writing of the decision to not register the pain clinic and of the reasons for not registering the clinic within thirty (30) days of submission or fifteen (15) days from the date that the applicant corrects deficiencies. The applicant shall have fifteen (15) days from the date of such notice to request a hearing in writing before the Department Director or designee. The Department Director or designee shall conduct the hearing within twenty (20) days of the date of the request for hearing. The Department Director or designee shall issue a written decision within fifteen (15) days of the hearing.

Sec. _____. Violation.

A. It shall be unlawful for any person to operate a clinic without prior registration. Violations shall be enforced through and in accordance with Chapter 8CC of the Miami-Dade County Code.

B. The Director of the Consumer Services Department is authorized to file any action in a court of competent jurisdiction to enforce the provisions of this ordinance and to seek appropriate remedies. In any such action the department shall be entitled to recover its reasonable costs in the enforcement of this ordinance including reasonable attorney fees.

Section 3. Section _____ of the Code of Miami-Dade County, Florida, is hereby created to read as follows:
Sec. _____. Temporary Moratorium.

A. The above recitals of legislative intent and findings are fully incorporated herein as part of this moratorium ordinance. The Board of County Commissioners finds that it is in the best interest of and for the benefit of the health, safety, and welfare of the residents of Miami-Dade County to institute a temporary moratorium on the issuance of pain clinic registrations, occupational licenses/taxes, certificates of use, permits and development orders so that Miami-Dade County can investigate the complaints surrounding pain clinics including but not limited to illegal drug use and distribution, increased crime, drug-related deaths and addictions and other nuisance activities as well as study the effectiveness of recent legislative action, CS/CS/HB 7095 Engrossed 3, in addressing these complaints. For the duration of this temporary moratorium, the County shall cease accepting applications or requests for issuance of pain clinic registrations, occupational licenses/taxes, certificates of use, permits and development orders from pain clinics not registered with the State of Florida Department of Health as of the effective date of this ordinance.

B. During the temporary moratorium, the Pain Clinic Task Force shall convene, with all deliberate speed, to investigate the complaints about pain clinics. The Pain Clinic Task Force shall consist of one representative from each of the following: the Miami-Dade County Addiction Services Board, the Nuisance Abatement Board, Consumer Services Department, Miami-Dade County Police Department, and Planning and Zoning Department. The Task Force shall seek collaboration and input from other local, state and federal law enforcement, the State of Florida Department of Health and any other entity or person the Task Forces deems appropriate.

C. The Mayor or designee shall provide appropriate staff support to the Task Force. The staff shall: comply with requests for information by the Task Force; assist the Task Force with its duties; maintain and keep the records of the Task Force; prepare, in cooperation with the Task Force, the agenda for each meeting; be responsible for the preparation of such reports, minutes, documents, resolutions or correspondence as the Task Force may direct; and generally administer the business and affairs of the Task Force.

D. The Pain Clinic Task Force shall make recommendations to the Board of County Commissioners within one hundred and twenty (120) days from the effective date of this ordinance on: the effectiveness of CS/CS/HB 7095 Engrossed 3 in addressing the complaints surrounding pain clinics; whether or not it is necessary for the County to take any action to address the complaints surrounding plain clinics; and if so, how to best address the complaints surrounding pain clinics, including but not limited to zoning, regulatory, and enforcement recommendations.


E. The temporary moratorium shall expire upon enactment of any new ordinance(s) or resolution(s) addressing the underlying complaints or on hundred and eighty (180) days from the effective date of this ordinance, whichever date is earliest.

Section 4. Section 8CC-10 of the Code of Miami-Dade County, Florida, is hereby amended to read as follows:
Code Section Description of Violation Civil Penalty
>>         Operating Pain Clinic $500<<
without Prior Registration

Section 5. If any section, subsection, sentence, clause or provision of this ordinance is held invalid, the remainder of this ordinance shall not be affected by such invalidity.
Section 6. It is the intention of the Board of County Commissioners, and it is hereby ordained that the provisions of this ordinance, including any sunset provision, shall become and be made a part of the Code of Miami-Dade County, Florida. The sections of this ordinance may be renumbered or relettered to accomplish such intention, and the word "ordinance" may be changed to "section," "article," or other appropriate word.
Section 7. This ordinance shall become effective ten (10) days after the date of enactment unless vetoed by the Mayor, and if vetoed, shall become effective only upon an override by this Board.

1 Words stricken through and/or [[double bracketed]] shall be deleted. Words underscored and/or >>double arrowed<< constitute the amendment proposed. Remaining provisions are now in effect and remain unchanged.

2 Committee amendments are indicated as follows: words double stricken through and/or [[double bracketed]] shall be deleted, words double underlined and/or >>double arrowed<< constitute the amendment proposed.



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