HomeMy WebLinkAboutO-2009-009 On-Site Dispensing ORDINANCE NO. 2009-009
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, AMENDING ITS LAND DEVELOPMENT
REGULATIONS TO PROHIBIT ON-SITE DISPENSING OF CONTROLLED
SUBSTANCES BY PAIN MANAGEMENT CLINICS, TO THE EXTENT
PERMITTED BY LAW; PROVIDING DEFINITIONS; PROVIDING
SUPPLEMENTAL REGULATIONS; PROVIDING FOR CONFLICTS;
PROVIDING FOR SEVERABILITY; FURTHER, PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, the City of Dania Beach (the "City") finds that it is in the best interest of
the health, safety, and welfare of its residents, businesses, and visitors to enact regulations to
provide for safer residential and commercial neighborhoods in the City; and
WHEREAS, the City Commission finds that the illegal sale, use, and delivery of
controlled substances is a threat to the health, safety and welfare of the residents of the City; and
WHEREAS, the City Commission has recently been made aware by law enforcement
and news reports that a pattern of illegal drug use and distribution has been associated with pain
management clinics in neighboring municipalities, which dispense on-site narcotic drugs; and
WHEREAS, the Miami Herald, Sun Sentinel and other news media, such as the
Lexington Herald Leader, have published numerous newspaper stories in the recent past
describing a "pipeline" of trafficking drugs from South Florida pain management clinics to users
in other states, such as Kentucky, West Virginia, and Ohio; and
WHEREAS,the threat of increased crime associated with such clinics, is very significant
and could undermine the economic health of the City's development and redevelopment efforts;
and
WHEREAS, the Florida Legislature has attempted to deter such illegal drug use,
distribution and activities by the creation of a secure and privacy-protected, statewide electronic
system of monitoring prescription drug medication information, to encourage safer controlled
substance prescription decisions and to reduce the number of prescription drug overdoses, deaths
and related crimes; and
WHEREAS, it is the intent of this Ordinance not to interfere with the legitimate medical
use of controlled substances, but rather to prohibit the location of dispensing of narcotic drugs on
site at pain management clinics,to the extent permitted by law; and
WHEREAS, in the absence of regulations identifying where narcotic drugs may be
dispensed, the City's residents, visitors and businesses are more vulnerable to criminal actions,
despite the provision of law enforcement services; and
WHEREAS, the City Commission approved a Resolution on April 27, 2009 notifying
the public that changes to its zoning code regarding medical offices that offer on-site dispensing
of narcotic drugs was under review; and
WHEREAS, during an advertised public hearing on June 17, 2009, the Planning and
Zoning Board, sitting as the City's Local Planning Agency, reviewed this Ordinance and
recommended approval to the City Commission; and
WHEREAS, following proper notice to the public and after having received input and
participation by interested members of the public and staff, and having considered the
recommendation of the Planning and Zoning Board, the City Commission finds this Ordinance
consistent with its Comprehensive Plan, as well as Florida and federal law;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY
OF DANIA BEACH, FLORIDA:
Section 1. That the preceding "Whereas" clauses are ratified and incorporated as a
record of the legislative intent of this Ordinance.
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Section 2. That the City Commission amends Article 2, Section 2.10, entitled
"Definitions" of its Land Development Regulations to alter or create the following definitions:
Adult residential care facility. Any housing facility for one hundred (100) or more elderly
residents situated on property which has direct access to and is adjacent to either a minor arterial
containing at least one hundred ten (110) feet of right-of-way or a principal arterial as designated
on Broward County Trafficways Plan, which facility contains units with no more than one
sleeping room regardless of the number of accessory rooms including living rooms and
bathrooms; and contains a central dining facility which serves at least one full meal per day; and
provides central housekeeping services to its residents no less than weekly; and employs a full-
time registered nurse on call to the residents; and provides planned activities, which activities
may include, but are not limited to, social, educational and recreational activities; and may
provide on-site dispensingof f drugs under the supervision and control of a licensed physician as
an accessory use.
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Drue store shall mean a retail pharmacy, with or without a drive lane, unless otherwise specified
in this Code.
Office medical shall mean a facility providing services to the public by physicians dentists
surgeons chiropractors pharmacists osteopaths physical therapists nurses acupuncturists
podiatrists, optometrists, psychiatrists, or others who are duly licensed to practice their respective
professions in the State of Florida, as well as others, including but not limited to technicians and
assistants, who are acting under the supervision and control of a licensed health care practitioner.
Retail pharmacies staffed by pharmacists that sell prescription drugs nonprescription drugs or
both and other retail goods for sale to the public, are not medical offices. Offices for social
workers and mental health counselors are not medical offices. Pain management clinics as
defined in this provision, are medical offices.
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Pharmacy, retail shall mean a retail establishment primarily offering goods for retail sale and on-
site dispensing of prescription drugs nonprescription drugs or both A retail pharmacy may
also offer accessory services such as photo processing, eyeglass care etc
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Pain management clinic shall mean a type of medical office providing a variety of personal
services by an on-site physician who is currently licensed by either the Florida Board of
Medicine or Board of Osteopathic Medicine and his or her staff which individually or
collectively, are intended to reduce or manage pain.
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Substance abuse and rehabilitation centers shall mean a type of medical office established to
aid persons affected by excessive or illegal use of drugs, narcotics or other hallucinatory
substances, not including alcohol, who have developed a dependency on such substances,
including but not limited to methadone maintenance facilities, and outpatient rehabilitation
facilities.
Section 3. Article 6, entitled "Supplementary Use Regulations, " is amended to create
Section 6.66, entitled"Pain Management Clinics, "to read as follows:
Sec. 6.66. Pain Management Clinics.
(a) Applicability. Pain management clinics shall be subject to the following
supplemental regulations:
(1) On-site dispensing of controlled substances that are identified in Schedule II,
III, or IV in Sections 893.03, 893.035 or 893.036, Florida Statutes, unless otherwise expressly
permitted by statutory or general law, is prohibited.
(2) Any parking demand created by a pain management clinic shall not exceed
the supply of parking spaces legally available within the shared guest or visitor parking areas
allocated on the site as required by Section 6.20 of this Code. An applicant may be required to
demonstrate that on-site traffic flow and parking will be sufficient to accommodate parking
demands generated b the management clinic based on a current traffic and parking study
prepared by a certified professional, if requested by the City.
(b) Nonconformink Uses. Any application for a Certificate of Use for a business
oyeratin as s a pain management clinic prior to April 28, 2009 shall be subject to zoning
regulations in effect prior to the effective date of this Ordinance. Any such clinic legally in
existence prior to the effective date of this Ordinance, but now in violation of its provisions, shall
be considered a legal nonconforming use.
(c) Enforcement. Enforcement of these supplemental regulations shall be as provided by
law.
Section 4. Section 10.15, entitled "Zoning Relief Procedures" is created to read as
follows:
Section 10.15. Zoning relief procedures. In order to address possible unintended violations of
federal and state laws, subsequent to implementation of this Code or its related rules, policies
and procedures in advance of costly litigation, zoning relief may be granted pursuant to this
section.
4 ORDINANCE#2009-009
(1)Application. A person or entity shall request relief under this Section prior to filing a
lawsuit, by completing a Zoning Relief Request form, which is available from the Cites
Community Development Division ("CDD'). The form shall contain such questions and requests
for information as are necessary for evaluating the relief requested.
(2) Notice. The City shall display a notice in the City's public notice bulletin board and
shall maintain copies available for review in the Community Development Division and the City
Clerk's Office. The notice shall advise the public that a request for zoning relief under a federal
or state law is pending. The location, date and time of the applicable public hearing shall be
included in the notice. Notice shall also be provided to property owners within 300 feet, if the
request for relief is site specific.
(3) Hearing and determination. The City Commission shall have the authority to
consider and act on requests for zoning relief submitted to the Community Development
Division. A public hearing shall be held within seventy five (75) days of receipt by the City of
the request for relief at a regular or special City Commission meeting During the public hearing,
the City Commission shall solicit comment and information from the public and shall decide
whether to grant the requested relief. A written determination shall be issued by resolution no
later than seven (7) days after the conclusion of the public hearing. The determination may: (a)
grant the relief requested, (b) grant a portion of the request and deny a portion of the request, or
impose conditions upon the grant of the request, or (c) deny the request. Any determination
denying the requested relief shall be final, in writing, and shall state the reasons the relief was
denied. The final written determination shall be sent to the requesting party by certified mail,
return receipt requested.
(4)Additional information. If necessary, prior to the public hearing, the City may request
additional information from the requesting party, specifying in sufficient detail what information
is required. In the event a request for additional information is made to the requesting party by
the City, the seventy-five (75) day time period to schedule a public hearing shall be extended to
ninety (90) days to include the time necessary to seek and review the additional information. The
requesting party shall have fifteen (15) days after the date the information is requested to provide
the needed information If the requesting party fails to timely respond with the requested
additional information, the City shall notify the requesting party and proceed with scheduling a
public hearing and issuing its final written determination regarding the relief requested as
required in (3).
(5) Criteria. In determining whether the zoning relief request shall be granted or denied,
the applicant shall be required to establish:
(a) The applicant is a potential claimant under a federal or state law; and
(b) The applicant believes in good faith that the Citythrough hrough implementation of
its zoning code has intentionally or unintentionally violated federal or state law for the reasons
stated in the Zoning Relief Request. The law(s) the City has allegedly violated shall be
identified.
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(6) Exhaustion required. Completion of the zoningrelief elief procedures shall be a
supplement to and not a substitute for any other pre-litigation dispute resolution processes
available by law to the City or the applicant. Completion of the zoningrelief elief procedures shall
evidence the exhaustion of all administrative remedies available from the City.
(7) Fees. A fee as deemed appropriate by the City Commission shall be imposed as
provided by the City Commission by resolution. The fee is intended to defray administrative
costs incurred to review the request, including advertising costs. The City shall have no
obligation to pay a requesting party's attorney fees or costs in connection with the request for
zoning relief.
(8) Effect while pending. While an application for zoning relief or appeal of a
determination of same is pending before the City, the City will not enforce the subject zoning
ordinance, rules, policies, and procedures against the property owner, except the City may seek
iniunctive relief if an imminent threat to the health, safety and welfare of the public is present.
Section 5. Section 6.16(b)(7) containing standards for home occupations shall be
amended to read as follows:
(b) Standards: A home occupation is allowable as an accessory use in a bona fide dwelling unit
in any residential area. All provisions of this Code pertaining to residential uses shall be met. In
addition, all of the following standards shall apply:
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(7) No equipment or process shall be used in such home occupation which creates
noise, vibration, glare, fumes, odors, or electrical interference detectable to the normal senses off
the lot, if the occupation is conducted in other than a single-family residence, or outside the
dwelling unit if conducted in other than a single-family residence. There shall be no storage of
narcotic drugs, or hazardous or toxic materials for use in the home occupation. In the case of
electrical interference, no equipment or process shall be used which creates visual or audible
interference in any radio or television receivers off the premises, or causes fluctuation in line
voltage [to] the premises.
Section 6. Section 6.16(d) shall be amended to read as follows:
(d) Home offices, excluding medical, eetinseling, and dental offices and counseling
services, are permitted, provided that no transactions or meetings are made in person on the
premises.
Section 7. Section 16.20 containing permitted uses in the Industrial-Research-Office
(IRO) District shall be amended to read as follows:
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16.20. Permitted uses.
No building, structure, land, water, or part thereof, shall be erected, altered, or used, nor
shall the premises be used in whole or part for other than one or more of the following specified
uses:
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(d) Office uses, excluding,medical offices.
Section 8. Section 16.30 containing prohibited uses in the Industrial-Research-Office
(IRO) District shall be amended to read as follows:
16.30. Prohibited uses.
The permitted enumerated uses in section 16.20 above shall not be construed to include
any of the following, which are indicated for emphasis and clarification:
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(w) Medical offices, pharmacies (retail and compounding)
Section 9. Section 18.20 containing permitted uses in the Industrial-Research-Office-
Marine (IROM) District shall be amended to read as follows:
18.20. Permitted uses.
No building, structure, land, water, or part thereof, shall be erected, altered, or used, nor
shall the premises be used in whole or part for other than one (1) or more of the following
specified uses:
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(d) Offices (excluding medical offices), banks, and savings and loans.
Section 10. Section 18.30 containing prohibited uses in the Industrial-Research-
Office-Marine (IROM) District shall be amended to read as follows:
7 ORDINANCE #2009-009
18.30. Prohibited uses.
The permitted enumerated uses in section 18.20 above shall not be construed to include
any of the following prohibited uses, which are indicated for emphasis and clarification:
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NO Medical offices.
Section 11. Section 19.20 containing permitted uses in the Residential Office (RO)
District shall be amended to read as follows:
19.20. Permitted uses.
No building, structure, land, water, or part thereof, shall be erected, altered, or used, nor
shall the premises be used in whole or part for other than one (1) or more of the following
specified uses:
(a) General office, excluding medical er dental offices.
(b) Single-family dwelling units.
(c) Any use that is accessory or customarily incidental to and located upon the same lot
occupied by the main use.
Section 12. Section 21.18, containing a table of uses permitted, prohibited, special
condition and special exception uses in the Downtown Transit-Oriented Development (TOD)
District, East Dania Beach Boulevard Transit Oriented Corridor (TOC-1) District, and the South
Federal Highway Transit Oriented Corridor (TOC-2) District, shall be amended to read as
follows:
21.18. Use table.
Table F-1 below shows the list of permitted, prohibited, special condition and special
exception uses in each of the three (3) zoning districts.
Y = Permitted Use N = Prohibited Use
SC = Special Condition Use SE = Special Exception Use
Table F-1. Table of Permitted, Prohibited, Special Condition
and Special Exception Uses
8 ORDINANCE#2009-009
Zoning District
Use TOD TOC-1 TOC-2
District District District
Medical offices, excluding pain manaeement clinics
, Y Y Y
Retail sales within an enclosed building, including grocery
stores, drug store (no drive-through),caterers, wine shops,
appliances, carpet and floor coverings, home furnishings,
office supplies, sporting goods, electronics, photographic Y Y Y
equipment,jewelry, art, crafts, apparel, hardware, paint,
wallpaper, floor coverings, lighting, florist shop, pharmacy,
and antique stores
Section 13. Section 27.40 containing prohibited uses in the Industrial-General (IG)
District shall be amended to read as follows:
27.40. Prohibited uses.
The permitted uses enumerated above shall not be construed to include any of the
following prohibited uses, which are indicated for emphasis and clarification:
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(w) Medical offices.
Section 14. That all ordinances or parts of ordinances and all resolutions or parts of
resolutions in conflict with this Ordinance are repealed to the extent of such conflict.
Section 15. That if any section, clause, sentence or phrase of this Ordinance is for any
reason held invalid or unconstitutional by a court of competent jurisdiction, the holding shall not
affect the validity of the remaining portions of this Ordinance.
9 ORDINANCE 92009-009
Section 16. That this Ordinance shall be effective on adoption on second reading.
PASSED on first reading on June 23, 2009.
PASSED AND ADOPTED on second reading on July 28, 2009.
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ANNE CASTRO
MAYOR-COMMISSIONER
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LOUISE STILSON, CMC
CITY CLERK
APPROVED AS T FO AND CO
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THO AS J1XASBk6
CITY ATTORNEY
10 ORDINANCE#2009-009