HomeMy WebLinkAboutOrdinance No. 11-2017 ORDINANCE NO. 11-2017
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA;
PROHIBITING MEDICAL MARIJUANA TREATMENT
CENTER DISPENSING FACILITIES FROM LOCATING
WITHIN THE CITY; ADOPTING OTHER CONFORMING
AMENDMENTS TO THE CITY CODE TO EFFECTUATE
THE PROHIBITION OF MEDICAL MARIJUANA
TREATMENT CENTER DISPENSING FACILITIES
WITHIN THE CITY; PROVIDING FOR THE REPEAL OF
PRIOR INCONSISTENT ORDINANCES AND
RESOLUTIONS; INCORPORATION INTO THE CODE;
SEVERABILITY AND AN EFFECTIVE DATE.
WHEREAS,the City is granted the authority,under Section 2(b),Article VIII,of the State
Constitution, to exercise any power for municipal purposes, except when expressly prohibited by
law; and
WHEREAS,currently,the City regulates medical marijuana treatment centers in a similar
manner as pain management clinics, which are permitted by special exception in the C-1, C-2 and
M-1 zoning districts, subject to the general conditions for special exceptions and additional
requirements established in Sec. 110-489 of the Land Development Code; and
WHEREAS, the City's current regulations were adopted in 2014, prior to Florida voters
approving the Florida Right to Medical Marijuana Initiative ("Amendment 2"), which amended
the Florida Constitution to authorize "Medical Marijuana Treatment Centers"; and
WHEREAS, the Florida Legislature passed SB 8-A, amending section 381.986, Florida
Statutes, in the 2017 Special Session, approved by the Governor on June 23, 2017, which
implements Amendment 2 and which further contains specific preemption provisions regarding
dispensary facilities of medical marijuana treatment centers; and
WHEREAS, specifically, SB 8-A provides that a municipality may, by ordinance, ban
medical marijuana treatment center dispensing facilities from being located within the boundaries
of that municipality, but that a municipality that does not ban dispensing facilities may not place
specific limits either on the number of dispensing facilities that may locate in the municipality and,
further,may not enact ordinances for permitting or determining the location of dispensing facilities
which are more restrictive than its ordinances permitting or determining the locations for
pharmacies licensed under chapter 465, Florida Statutes; and
WHEREAS, the City Council determines that it must update its ordinances relating to
medical marijuana treatment center dispensing facilities to comply with state law; and
WHEREAS,the City Council determines that it is in the best interests of the public health,
safety and welfare of the citizens of Cape Canaveral to ban medical marijuana treatment center
dispensing facilities from being located within the boundaries of the City.
City of Cape Canaveral
Ordinance No. 11-2017
Page 1 of 10
NOW, THEREFORE,BE IT ENACTED BY THE CITY COUNCIL OF THE CITY
OF CAPE CANAVERAL, BREYARD COUNTY, FLORIDA,AS FOLLOWS:
Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by this
reference as legislative findings and the intent and purpose of the City Council of the City of Cape
Canaveral.
Section 2. Code Amendment. Chapter 110 of the Code of Ordinances, City of Cape
Canaveral, Florida, is hereby amended as follows (underlined type indicates additions and
strikeout type indicates deletions, while asterisks (* * *) indicate a deletion from this Ordinance
of text existing in Chapter 110. It is intended that the text in Chapter 110 denoted by the asterisks
and set forth in this Ordinance shall remain unchanged from the language existing prior to adoption
of this Ordinance):
Chapter 110—ZONING
ARTICLE I.—IN GENERAL
Sec. 110-1. - Definitions.
The following words, terms and phrases, when used in this chapter, shall have the meanings
ascribed to them in this section, except where the context clearly indicates a different meaning:
* * *
Medical marijuana treatment center dispensing facility means an entity that acquires, cultivates,
oils, or ointments), transfers, transports, sells, distributes, dispenses, or
heal&a facility of a medical marijuana treatment center, as that term is defined in s. 29,Art. X of
the Florida State Constitution, which dispenses marijuana,-products containing marijuana, related
supplies or educational materials to qualifying patients or their personal caregivers, as defined in
s. 29, Art. X of the Florida State Constitution and section 381.986, Florida Statutes, but shall not
include facilities growing, cultivating or processing marijuana or derivative products.
* * *
ARTICLE VII.—DISTRICTS
* * *
DIVISION 5.—C-1 LOW DENSITY COMMERCIAL DISTRICT
* * *
Sec. 110-334. - Special exceptions permissible by board of adjustment.
(a) Special exceptions may be permitted for the following:
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Ordinance No. 11-2017
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(1) Automotive service stations that were lawfully approved and permitted by the city
pursuant to a special exception prior to the effective date of Ord.No. 11-2015 [November
17,2015] shall be considered a lawful, conforming use subject to all applicable conditions
and requirements imposed by the city when said use was previously permitted. In
addition, such automotive service stations may be modified to allow no more than ten
fueling stations (where one vehicle can be accommodated for refueling) within any one
filling station property or location, whether said filling station is located on one lot or
comprises more than one lot. An automotive service station may be modified to allow up
to 16 fueling stations on a single lot of at least one acre with at least 275 feet of single
street frontage.
Any request for a modification to such special exception is subject to Chapter 110,Article
II, Division 4, City Code, and all other applicable provisions of the City Code.
(2) Pain management clinics, subject to the requirements of section 110-489 of this Code.
(3) Medical marijuana treatment centers, subject to the requirements of section 110 189 of
this Code.
(34)Commercial establishments which sell, dispense, serve or store alcoholic beverages or
which permit the consumption of alcoholic beverages on their premises subject to section
110-171.
* * *
DIVISION 6.—C-2 COMMERCIAL/MANUFACTURING DISTRICT
* * *
Sec. 110-343. - Special exceptions permissible by the board of adjustment.
(a) Special exceptions may be permitted for the following:
(1) Pain management clinics, subject to the requirements of section 110-489 of this Code.
this Code.
(23-)Commercial establishments which sell, dispense, serve or store alcoholic beverages or
which permit the consumption of alcoholic beverages on their premises subject to section
110-171.
* * *
DIVISION 7.—M-1 LIGHT INDUSTRIAL AND RESEARCH AND DEVELOPMENT
DISTRICT
* * *
Sec. 110-354. - Special exceptions permissible by board of adjustment.
(a) Special exceptions may be granted for the following:
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Ordinance No. 11-2017
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(1) Conveyor systems for purposes of moving aggregate and other materials, subject to the
following:
a. Conveyor systems must be connected and adjacent to Port Canaveral.
b. Conveyor systems crossing the setback must be constructed in a north-south
direction, perpendicular to Port Canaveral.
c. Conveyor systems must be completely enclosed where located within a setback.
d. Conveyor systems shall not exceed 30 feet in height, where located within a setback.
e. Conveyor systems in the setbacks shall not be located within 750 feet from any other
existing or approved conveyor system(s). This measurement shall be drawn as a
straight line connecting the conveyor systems.
(2) Pain management clinics, subject to the requirements of section 110-489 of this Code.
(3) Medical marijuana treatment centers, subject to the requirements of section 110 '189 of
this Code.
(34)Commercial establishments which sell, dispense, serve or store alcoholic beverages or
which permit the consumption of alcoholic beverages on their premises subject to section
110-171.
* * *
ARTICLE IX.—SUPPLEMENTARY DISTRICT REGULATIONS
DIVISION 1.—GENERALLY
* * *
Sec. 110-489. - Pain management clinic and medical marijuana treatment center dispensing
facility regulations. -
(1) Pain management clinics : - : -- -:' : --: --.: -: • -: ••• - - -- • - may only be permitted
by special exception in the C-1, C-2 and M-1 zoning districts, subject to the general conditions for
special exceptions and subject to the following requirements:
(a) State registration. Pain management clinics and medical marijuana treatment centers
must be registered with the state if required by Florida law. If registration is required by
state law, then proof of registration, application for registration or letter of exemption
must be provided with the special exception application for the pain management clinic
or medical marijuana treatment center.
(b) Pain management clinic licensing. Each pain management clinic shall be operated by a
medical director who is a Florida-licensed physician, board-certified in pain medicine,
and who shall be responsible for complying with all requirements related to registration
and operation of the clinic. The designated physician must have a full, active, and
unencumbered license under F.S. ch. 458 or ch. 459, and shall practice at the clinic
location for which the physician has assumed responsibility. Within ten days after
termination or absence of the medical director, the clinic must notify the city of the
identity of another medical director for the clinic.
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Ordinance No. 11-2017
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(c) Separation requirements from similar uses. There shall be no less than one-half-mile
distance between each pain management clinic . - : '
center regardless of the municipal boundaries of the city.
(d) Separation requirements from schools, churches and daycare facilities. No pain
management clinic or medical marijuana treatment center shall be permitted to locate
within 1,000 feet of any public or private school, church,or daycare facility and no public
or private school, church, or daycare facility shall be permitted to locate within 1,000 feet
of a pain management clinic : -. . .. . - . -- . - - .
(e) Hours of operation. Pain management clinics and medical marijuana treatment centers
shall only be permitted to operate between the hours of 9:00 a.m. and 7:00 p.m., Monday
through Friday, and 9:00 a.m. to 12:00 p.m. on Saturday.
(f) Requirement for indoor operation and prohibition on loitering. There shall be no outdoor
seating areas, queues, or customer waiting areas. All activities of the pain management
clinic or medical marijuana treatment center; including sales, display, preparations and
storage; shall be conducted entirely within an enclosed building. A pain management
clinic : -. - . -•. . . .. - . _ shall provide adequate seating for its patients
and business invitees. The pain management clinic : -- _: _. . -•. . . .. -. - - -
shall not direct or encourage any patient or business invitee to stand, sit, gather or loiter
outside of the building where the clinic or center operates, including in a parked car,
including in any parking areas, sidewalks, rights-of-way, or neighboring properties for
any period of time longer than reasonably required for patients to conduct their official
business and depart. The pain management clinic : '
shall post conspicuous signs on at least three sides of the building stating that no loitering
is allowed on the property.
(g) Vehicular traffic. The pain management clinic : _:•-. - _. -- _ . _
shall ensure that there is no queuing of vehicles in the rights-of-way.No pain management
clinic : . - . •.. . .. -- -- - - shall have a drive-through or drive-in service
aisle.
(h) Prohibition of on-site consumption of pain management drugs, marijuana or alcohol. No
consumption of a pain management drug, marijuana, or alcoholic beverage shall be
allowed on the premises, including in the parking areas, sidewalks, or rights-of-way.
(i) Parking. Any parking demand created by a pain management clinic
treatment center shall not exceed the parking spaces located or allocated on site, as
required by the city's parking regulations. An applicant shall be required to demonstrate
that on-site traffic and parking attributable to the pain management clinic or medical
marijuana treatment center will be sufficient to accommodate traffic and parking demands
it generates, based upon a current traffic and parking study prepared by a certified
professional.
(j) Prohibition on cash only businesses. Limiting payment for goods or services to cash only
is prohibited.
(k) Daily reports required. Pain management clinics : - : -- -: . . . . . : •- - - -- -
shall be required to submit to the Brevard County Sheriffs Office a daily summary
containing the following information from the prior business day:
(i) The total number of prescriptions written that day;
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Ordinance No. 11-2017
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(ii) The total number of doses of drugs sold and/or dispensed by the pain management
clinic : :• . . . . • - - - that day(including samples),specifying
how many doses were sold or dispensed; the person prescribing or dispensing same;
and the manner of payment by each person who was dispensed drugs at the clinic
that day; and
(iii) The state of residence of each person to whom drugs were prescribed or dispensed
that day.
(1) Prohibition on home occupations. A pain management clinic
shall not be permitted as a home occupation.
(m) No pain management clinic _ _.•_. - .. •. ., . , _. .- __ _ shall be wholly or
partially owned by, or have any contractual relationship (whether as a principal, partner,
officer, member, managing member, employee, independent contractor, or otherwise)
with any physician,pharmacist,or any other person who prescribes drugs and who,within
five years prior to the receipt of any application for special exception:
(i) Has been suspended, had his or her license revoked, or been subject to disciplinary
action for prescribing,dispensing,administering,providing,supplying,or selling any
controlled substance in violation of any state, federal, or similar law where such
person is licensed to practice;
(ii) Has been convicted of, pled nolo contendere to, or violated any plea agreement
regarding an arrest for,a violation of any state,federal,or similar law related to drugs
or alcohol, specifically including but not limited to, prescribing, dispensing,
administering,providing, supplying, or selling any controlled substance;
(iii) Has been suspended, had his or her license revoked, or been subject to disciplinary
action by any state, federal, or other governmental entity where such person is
licensed to practice;
(iv) Has had any state,federal,or other governmental entity where such person is licensed
to practice take any action against such person's license as a result of dependency on
drugs or alcohol; or
(v) Has been convicted of, pled nolo contendere to, or violated any plea agreement
regarding an arrest for, any felony or crime involving moral turpitude.
(n) No pain management clinic . - _.•_. .,-•. ., : : •• - • _ - - shall be wholly or
partially owned by, or have as a principal, partner, officer, member, managing member,
or otherwise where the owner is an entity, any person who:
(i) Has been convicted of, pled nolo contendere to, or violated any plea agreement
regarding an arrest for,a violation of any state,federal,or similar law related to drugs
or alcohol; or
(ii) Has been convicted of, pled nolo contendere to, or violated any plea agreement
regarding an arrest for, any felony or crime involving moral turpitude.
(o) No pain management clinic : -:'=: :, : • -: ••• - • -• - shall employ any
person, as an independent contractor or otherwise, who:
(i) Has been convicted of, pled nolo contendere to, or violated any plea agreement
regarding an arrest for,a violation of any state,federal,or similar law related to drugs
City of Cape Canaveral
Ordinance No. 11-2017
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or alcohol, specifically including but not limited to, prescribing, dispensing,
administering, providing, supplying or selling any controlled substance; or
(ii) Has been convicted of, pled nolo contendere to, or violated any plea agreement
regarding an arrest for, any felony or crime involving moral turpitude within the five
years preceding the application for special exception.
(p) Landlord responsibilities.
(i) Any landlord, leasing agent, or owner of property upon which a pain management
clinic : •• . . . . •• - • _ • - operates, who knows, or in the exercise
of reasonable care should know, that a pain management clinic medical marijuana
treatment center is operating in violation of city code or applicable Florida law,
including the rules and regulations promulgated by the state department of health,
must prevent, stop, or take reasonable steps to prevent the continued illegal activity
on the leased premises.
(ii) Landlords who lease space to a pain management clinic •- =.'-.
center must expressly incorporate language into the lease or rental agreement stating
that failure to comply with city code is a material non-curable breach of the lease and
shall constitute grounds for termination of the lease and immediate eviction by the
landlord.
(q) Additional application information. An applicant seeking a special exception for a pain
management clinic : •• . -- -. . •• • - • - shall, in addition to the general
application information required for special exceptions, provide the following:
(i) The pain management clinic's or medical marijuana treatment center's registration
number issued by the Florida Department of Health, as required by Florida law.
(ii) For pain management clinics, the name of the medical director, as required herein,
responsible for complying with all requirements related to operation of the pain
management clinic and the medical director's Drug Enforcement Agency number.
(iii) A list of all persons associated with the management or operation of the pain
management clinic or medical marijuana treatment center, whether paid or unpaid,
part-time or full-time, including all contract labor and independent contractors. This
list shall include, but not be limited to, all owners, operators, employees and
volunteers. For persons listed, the following additional information must be
provided:
(A) Person's title, current home address, telephone number and date of birth;
(B) List of all criminal convictions whether misdemeanor or felony; that are drug
related;
(C) A copy of a current Florida driver's license or government issued photo
identification; and
(D) A set of fingerprints.
(iv) If the property owner is different from the owner of the pain management clinic of
, the applicant shall provide the name, address,
telephone number and a copy of a Florida driver's license or government issued photo
identification of the property owner along with the application.
(v) An inventory of diagnostic equipment to be located at the clinic;
City of Cape Canaveral
Ordinance No. 11-2017
Page 7 of 10
(vi) A natural disaster management plan;
(vii)A floor plan showing the location and nature of adequate security measures,
including those required by the State of Florida for controlled substances, to
safeguard all drugs to be dispensed in the course of its business.
(viii) An affidavit of the medical director of the pain management clinic, or owner of the
.•-. . .: •: -. =• -=• - , signed under oath, attesting:
(A) That their practice is located at the subject site;
(B) That no employees of the facility have been convicted of a drug-related felony
within the five years preceding the application for special exception;
(C) That the pain management clinic will not
knowingly employ any such convicted felons thereafter; and
(D) For pain management clinics, that the medical director shall be required to
inform the city within ten days should the medical director be terminated or
otherwise leave the affiliation of the pain management clinic as medical director.
The medical director of the pain management clinic, or owner of the medical
shall be required to keep all application information
updated with the city at all times, even after issuance of a special exception, and said
information shall be verified annually by the city in conjunction with the city's local
business tax receipt renewal process. The medical director of the pain management
clini , . : _ : _ _.•t: :. . .. . . _. . _ __ _ shall notify the city of any
change to the information within ten days of any new person becoming associated
with the pain management clinic . --•-. - . . ., . - - -- - or any other
change to the application information required herein. Failure to properly maintain
updated information with the city shall be grounds for revocation of the special
exception.
(r) Single special exception application/Single classification of special exception. Only one
special exception may be issued for a location or any single building and only under a
single classification for either a pain management clinic or medical marijuana treatment
center.
(s) Compliance with law. The pain management clinic : -- =:
shall at all times be subject to the requirements of all applicable federal, state, county and
local laws and ordinances, as they may be amended from time to time.
(t) Suspension or revocation of special exception. Any special exception granted for a pain
management clinic : -• ., •. . -- - • - may be temporarily suspended
or absolutely revoked by majority vote of the board of adjustment at a public hearing,
when the board of adjustment has determined by competent substantial evidence that
either:
(i) The pain management clinic : . ., •. . . - . • - -- - - has obtained the
special exception upon false statements, fraud, deceit, misleading statements, or
suppression of material facts;
(ii) The pain management clinic . -. -. - ., . ., . - . -- -- • - has committed
substantial violations of the terms and conditions on which the special exception was
granted;
City of Cape Canaveral
Ordinance No. 11-2017
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(iii) The pain management clinic : •- -:' . -- . -'. . • . -. ••• - • -- - no longer meets
the requirements of this section or other applicable law; or
(iv) The medical director or any other employee of the pain management clinic or medical
. - •
. . . •• . - - - knowingly allowed illegal activities to be conducted on
the premises.
Prior to any special exception being revoked, the pain management clinic or medical
• . . . . - -- -- - shall be provided with minimum due process including notice
of the grounds for revocation and hearing date, an opportunity to be heard, the right to
present evidence, and the right to cross-examine adverse witnesses.
(u) Certification affidavit by applicants for related uses.
(i) Any application for a business tax receipt under chapter 70 of this Code, as a pain
management clinic or as a medical marijuana treatment center as such terms are is
defined in section 110-1 of this Code, shall be accompanied by an executed affidavit
certifying registration with the State of Florida and the city as a pain management
clinic or as a medical marijuana treatment ccntcr, as applicable. The failure of an
applicant to identify the business in the application for a business tax receipt as a
pain management clinic or medical marijuana treatment center will result in the
immediate expiration of the business tax receipt and immediate ceasing of all activity
conducted in the pain management clinic : '
(ii) Any applicant's application for a business tax receipt and executed affidavit relating
to use as a pain management clinic or as a medical marijuana treatment center,where
applicable, shall be provided to the city building division at the time of the proposed
use.
(2) Medical marijuana treatment center dispensing facilities shall be prohibited from locating in
any district of the City.
Footnotes:
(17)
Editor's note Section 6 of Ord. No. 09 2011, adopted Sept. 16, 2014, states: This ordinance
medical marijuana treatment centers are deemed legal by the State of Florida.
Section 3. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior
inconsistent ordinances and resolutions adopted by the City Council, or parts of prior ordinances
and resolutions in conflict herewith, are hereby repealed to the extent of the conflict.
Section 4. Incorporation Into Code. This Ordinance shall be incorporated into the Cape
Canaveral City Code and any section or paragraph, number or letter and any heading may be
changed or modified as necessary to effectuate the foregoing. Grammatical, typographical and
City of Cape Canaveral
Ordinance No. 11-2017
Page 9 of 10
like errors may be corrected and additions, alterations, and omissions, not affecting the
construction or meaning of this Ordinance and the City Code may be freely made.
Section 5. Severability. If any section, subsection, sentence, clause, phrase, word or
provision of this Ordinance is for any reason held invalid or unconstitutional by any court of
competent jurisdiction, whether for substantive,procedural or any other reason, such portion shall
be deemed a separate, distinct and independent provision, and such holding shall not affect the
validity of the remaining portions of this Ordinance.
Section 6. Effective Date. This Ordinance shall become effective immediately upon
adoption by the City Council of the City of Cape Canaveral, Florida.
ADOPTED by the City Council of the City of Cape Canaveral, Florida, this 15th day
of August, 2017.
s' /
-,, Bob Hoog, Mayor 4
ATTEST; For Against
• iy Mike Brown Second
Goforth, Robert Hoog x
'ity Clerk
Brendan McMillin Motion
Rocky Randels x
Betty Walsh x
1St Advertisement: June 30, 2017
1st Reading: July 18, 2017
2nd Advertisement: August 3, 2017
2nd Reading: August 15, 2017
Approved as to 1=_al orm and sufficiency
for the City o_jjIa averal only by:
40
Anthony A. Garganese, City Attorney
City of Cape Canaveral
Ordinance No. 11-2017
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