Ord 27-10ORDINANCE NO. 27-10
AN ORDINANCE OF "THE CITY C0TVIMISSION OF "I'HE
CITY OI~ DEI.RAY BEACH, FLORIDA, AMENDING THF.
I.11ND DI?VELOPI~IENI' REGULATIONS, BY A1~IENDING
APPI_?NDI1 "A", "DEFINITIONS", TO ENACT A REVISI'D
DI?FINITION I~OR "PHARMACY", PROVIDING ~~
SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND
AN F,F1~L:C1'IVE DA'Z'E.
WHI?REAS, the City Commission of the City of Delray Beach has the authority to protect
the health, safety and welfare of its citizens; and
WHI?RI?AS, the Cit}' Commission of the City of Delray Beach has the authority to make
regulations pertaining to land use and development within the City of Delray Beach; and
WHI?RI?AS, the City Commission of the City of Delray Beach desires to reduce the
fraudulent sales of Schedule II Controlled Substances as listed in Florida Statute X893.03 in order to
reduce the number of unnecessary dead~s resulting from the fraudulent obtainment of these drugs
each year; and
WHEREAS, the City Commission of the City of Delray Beach has discussed the fraudulent
sale of Schedule II Controlled Substances as listed in Florida Statute X893.03 with the Department
of Health, the. State Board of Pharmacy, and local existing pharmacies; and
WHERI~.AS, the City Commission of the City of Delray Beach has determined that a
possible solution to curtail the fraudulent sales of Schedule II Controlled Substances as listed in
Florida Statute X893.03 is to limit the percentage of Schedule II Controlled Substances sold in
relation to the number of other prescriptions sold at each pharmacy in the City within a 30 day
period to be determined by audits or information obtained by/through the State Department of
Health or other applicable governmental entity; and
WHEREAS, pursuant to LDR Section 1.LC, the Planning and toning Board reviewed the
proposed text amendment at a public hearing held on June 21, 2010 and voted 6 to 0 to recommend
that the changes be approved; and
WH1?RI?AS, pursuant to Florida Statute 163.3174(4)(c), the Planning and Zoning Board,
sitting as the Local Planning Agency, has determined that the change is consistent with and furthers
the goals, objectives and policies of the Comprehensive Plan; and
WHLRRAS, the City Commission of the City of Delray Beach adopts the findings in the ~~
Planning and "boning Staff Report; and ~'i
WH1RF.i1S, the City Comnssion of the City of Delray Beach finds the ordinance is
consistent with the Comprehensive Plan.
NOW 'I'HliRliFORE, BE I`I' ORDAINED BY THE CITY COMMISSION OF THE
CI'IZ' OF DLLIZAY Bl?ACH, FLORIDA X15 FOLLOWS:
Section 1. "That the recitations set forth above arc incorporated herein.
Section 2. 'hhat Appendix "A", "Definitions", of the Land Development Regulations of
the Code of Ordinances of the City of Delray Beach, Florida, is hereby amended as follows:
PHARMACY 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, e}'eglass care, etc. No more than 15% of the total
number of prescriptions Sold within a thirt~(30) damperiod can be derived from the sale of Schedule
II controlled substances as listed in Florida Statute 893.03 as determined by an audit/information
obtained from an entity that has jurisdiction to reduest and review such information. All pharmacies
shall be staffed by a state licensed pharmacist.
Section 3. 'That should an}' section or provision of this ordinance or any portion thereof,
any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such
decision shall not affect the ealidit}' of the remainder hereof as a whole or part thereof other than the
part declared to be invalid.
Section 4. 'That all ordinances or parts of ordinances in conflict herewith shall be, and
the same are hereby repealed.
2 ORD. NO. 27-10
Section 5. 'That this ordinance shall become effective immediately upon its passage on
second and final reading.
PASSL;D ~iND ADOPTED in regular session on second and final reading on this 21" day of
September, 2010.
~~
MAYOR
A"I'1 CST:
Cin~ Clerk ~ r~
hirst Readin = ~~ ob-~~~
Second Readin > \ ~ oL~~O
ORD. NO. 27-10
Coversheet
MEMORANDUM
TO: Mayor and City Commissioners
FROM: David T. Harden, City Manager
DATE: September 9, 2010
Page 1 of 1
SUBJECT: AGENDA ITEM 10 A -REGULAR COMMISSION MEETING OF SEPTEMBER 21, 2010
ORDINANCE NO. 27-10
ITEM BEFORE COMMISSION
This ordinance is before Commission for second reading to consider a city initiated amendment to
Appendix "A", "Definitions" of the Land Development Regulations (LDR) to revise the definition of
"Pharmacy".
BACKGROUND
At the first reading on August 17, 2010, the Commission passed Ordinance No. 27-10. The ordinance
has been amended since first reading to reflect that the information needed to determine whether or not
a pharmacy is in compliance may only be obtained from an entity that has the authority to request and
review such information.
RECOMMENDATION
Recommend approval of Ordinance No. 27-10 on second and final reading.
http://miweb001/agendas/Bluesheet.aspx?ItemID=3749&MeetingID=271 9/22/2010
ORDINANCE NO. 27-10
AN ORDINANCE OF THE CITY COMMISSION OF THE
CITY OF DELRAY BEACH, FLORIDA, AMENDING THE
LAND DEVELOPMENT REGULATIONS, BY AMENDING
APPENDIX "A", "DEFINITIONS", TO ENACT A REVISED
DEFINITION FOR "PHARMACY", PROVIDING A
SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND
AN EFFECTIVE DATE.
WHEREAS, the Cit}' Commission of the City of Delray Beach has the authority to protect
the health, safety and welfare of its citizens; and
WHEREAS, the City Commission of the City of Delray Beach has the authority to make
regulations pertaining to land use and development within the City of Delray Beach; and
WHEREAS, the City Commission of the City of Delray Beach desires to reduce the
fraudulent sales of Schedule II Controlled Substances as listed in Florida Statute §893.03 in order to
reduce the number of unnecessar}' deaths resulting from the fraudulent obtainment of these drugs
each year; and
WHEREAS, the City Commission of the City of Delray Beach has discussed the fraudulent
sale of Schedule II Controlled Substances as listed in 1 lorida Statute §893.03 with the Department
of Health, the State Board of Pharmacy, and local existing pharmacies; and
WHI~REAS, the City Commission of the Cit}' of Delray Beach has determined that a
possible solution to curtail the fraudulent sales of Schedule II Controlled Substances as listed in
Florida Statute §893.03 is to limit the percentage of Schedule II Controlled Substances sold in
relation to the number of other prescriptions sold at each pharmacy in the City within a 30 day
period to be determined by audits or information obtained by/through the State Department of
Health or other applicable governmental entity; and
WHEREAS, pursuant to LDR Section 1.1.6, the Planning and Zoning Board reviewed the
proposed text amendment at a public hearing held on June 21, 2010 and voted 6 to 0 to recommend
that the changes be approved; and
WHEREAS, pursuant to Florida Statute 163.3174(4)(c), the Planning and Zoning Board,
sitting as the Local Planning Agency, has determined that the change is consistent with and furthers
the goals, objectives and policies of the Comprehensive Plan; and
WHERF,AS, the City Commission of the City of Delray Beach adopts the findings in the
Planning and Zoning Staff Report; and
WHEREAS, the City Commission of the City of Delray Beach finds the ordinance is
consistent with the Comprehensive Plan.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF DELRAY BEACH, FLORIDA AS FOLLOWS:
Section 1. That the recitations set forth above are incorporated herein.
Section 2. "That Appendix "A", "Definitions", of the Land Development Regulations of
the Code of Ordinances of the City of Delray Beach, Florida, is hereby amended as follows:
PHARMACY 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. No more than 15% of the total
number of prescriptions sold within a thirt}' (30) da~aeriod can be derived from the sale of Schedule
II controlled substances as listed in Florida Statute 893.03 as determined by an audit/information
obtained from an entity that has jurisdiction to request and review such information. All pharmacies
shall be staffed by a state licensed pharmacist.
Section 3. That should any section or provision of this ordinance or any portion thereof,
any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such
decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the
part declared to be invalid.
Section 4. That all ordinances or parts of ordinances in conflict herewith shall be, and
the same are hereby repealed.
2 ORD. NO. 27-10
ORD. NO. 27-10
Page 1 of 1
MEMORANDUM
TO: Mayor and City Commissioners
FROM: David T. Harden, City Manager
DATE: September 2, 2010
SUBJECT: AGENDA ITEM 10 B -REGULAR COMMISSION MEETING OF SEPTEMBER 7, 2010
ORDINANCE NO. 27-10
ITEM BEFORE COMMISSION
This item is before commission for secord reading to consider a city initiated amendment to Appendix
"A", "Definitions" of the Land Development Regulations (LDR) to revise the definition of "Pharmacy".
(Staff Jtas requested the item be postponed until the September 21, 2010 Ciry Commission Meeting)
BACKGKOLIND
Staff is recommending that Ordinance No. 27-10 be postponed to September 21, 2010 due to the
necessary expert witness being unavailable to attend the Commission meeting.
RECOMMENDATION
Recommend postponement of Ordinance No. 27-10 to September 21, 2010.
http://miweb001/Agendas/Bluesheet.aspx?ItemID=3730&MeetinglD=269 9/9/2010
MEMORANDUM
TO: Mayor and City Commissioners
FROM: Paul Dorling, AICP, Director of Planning and Zoning
THROUGH: City Manager
DATE: August 12, 2010
SUBJECT: orFNDA ITEM ~ 2 A -REGULAR COMMISSION MEETING OF AUGUST 17, 2010
ORDINANCE NO. 27-10 DEFINITION OF PHARMACY
ITEM BEFORE COMMISSION
Consideration of aCity-initiated amendment to the Land Development Regulations (LDRs)
that will revise the definition of Pharmacy.
BACKGROUND
Pharmacy is currently defined in the City's LDRs as a retail establishment primarily offering
goods for retail sale and on-site dispensing of prescription drugs, non-prescription drugs or
both. A retail pharmacy may also offer accessory services such as photo processing, eyeglass
care, etc.
The proposed changes are to follow-up on recent changes to medical office regulations
which address practices (pain clinics), including prescribing and distributing Class II, III, and
IV narcotic prescription drugs at these facilities. These recent changes prohibited the
distribution of these substances at medical, professional, and business offices, and only
allowed them to be dispensed at pharmacies. It was anticipated that distribution would only
occur at conventional pharmacies (CVS, Walgreens, etc.).
To assure that the original intent of the Ordinance is met and to minimize the potential for
abuses, clarification of what constitutes a pharmacy is now being considered. The definition
originally considered by the Planning and Zoning Board at their June 21, 2010 meeting
included the following language: "No more than 50% of the total building or floor area of
the business shall be devoted to the sale and storage of prescription drugs. Further, no more
than 50% of total sales can be derived from the sale of Schedule II controlled substances as
listed in Florida Statute 893.03. All pharmacies shall be staffed by a state licensed
pharmacist."
The Planning and Zoning Board had significant discussion about the requirements for retail
components and the amount of Schedule II thresholds. The Board had concerns that
references to building floor area maximums for sale and storage of prescription drugs would
hurt small pharmacies which may have minimum ancillary retail sales components. While the
Board agreed that Schedule II controlled substances should be restricted they felt the 50%
maximum was too liberal and should be reduced. The Board unanimously recommended
http://www.mydelraybeach.com/Agendas/Bluesheet.aspx?ItemID=3647&MeetingID=268[9/2/2010 1:40:29 PM]
approval of the Ordinance, subject to the elimination of the retail threshold language and
retention of the 50% maximum Schedule II threshold, on a 6 to 0 vote (Deborah Dowd
absent). No one from the public spoke on this item. Following that meeting, additional
inquiries as to reasonable maximum thresholds of Schedule II sales were made and the
maximum total sales numbers were revised downward to a maximum of 25%.
The City Commission considered the revised ordinance with these modifications on first
reading on July 6, 2010, at which time the maximum thresholds were recommended to be
further reduced to 10% based upon testimony received at the meeting. Local pharmacy
representatives raised some objections to these thresholds between first and second reading
of the ordinance and Ordinance 12-10 was continued on July 20 and again on August 3,
2010. During that time Planning staff and the City Attorney's office have met with
these pharmacy representatives and there have been some revisions to the Ordinance that
are acceptable to both parties. These changes include raising the maximum threshold to
15% and modifying the percentage language to represent 15% of prescriptions written vs.
15% of total sales in any one month period. Since pharmacies are required to keep detailed
records of prescription sales, this method would be easily enforceable. As these changes
have modified the original Ordinance it is recommended that the Commission deny Ordinance
12-10 and approve the revised Ordinance 27-10 on first reading.
REVIEW BY OTHERS
The Planning and Zoning Board considered the request at their June 21, 2010 meeting. As
noted above their recommendations have been considered in the development of the current
ordinance before the Commission.
RECOMMENDATION
By motion, approve on first reading Ordinance No. 27-10, by adopting the findings of fact
and law contained in the staff report and finding that the amendment is consistent with the
Comprehensive Plan and meets criteria set forth in Section 2.4.5(M) of the Land Development
Regulations.
http://www.mydelraybeach.com/Agendas/Bluesheet.aspx?ItemID=3647&MeetingID=268[9/2/2010 1:40:29 PM]