Categories: Health Law,

Counties and Cities  frustrated with “Pill Mills” began using zoning and ordinances laws as a means of restricting and eliminating those clinics.  The concept of regulating health care professions at the local level, as a general principle, has not received much scrutiny.   However, unaddressed in the flurry of such regulation is how far can counties or cities go regulate professions already regulated by the state; and where does the regulation cross over into interference with the practice of medicine? 

Now, Hillsboro County is considering an ordinance to regulate the practice of PIP clinics, that is chiropractic and medical offices which treat accident injury patients under the provisions of no fault insurance under Chapter 627.  The regulation of these practices involves both the practice of health care professions and insurance law, each which are covered by state legislation and agencies.  Each is also an area that has generally been thought to be exclusively the province of the State. 

There has not yet been a notable litigation on the zoning issues, and pain management clinics likely don’t provide the best case; counties can cite to increased crime, traffic, loitering, etc brought about by pain management clinics, however inflated those claims may be.   Under Chapter 166, Florida law grants fairly broad authority to municipalities to pass ordinances on topics not prohibited by the Constitution, general or special laws or which interfere with the State’s paramount authority to regulate matters in order to protect the health safety and welfare of its citizens under the constitutional theory of preemption.

Before getting to preemption, the first proposition to be considered is that localities cannot prohibit that which the State expressly permits, nor can the localities permit that which the State specifically prohibits.  However, there is a  lot of ground in between.  To figure out whether the State law preempts local law, the inquiry is first whether the State has specifically addressed the conduct, and then determine if the state has regulated the conduct to such an extent that it makes clear that the State, and not locality, has said all there is to be said on the regulation of the conduct.  Facts such as whether there is a comprehensive regulatory system already in place is evidence of such preemption.

The State has addressed this issue in the past with respect to abortion clinics.  The Attorney General in that instance opined that setting aside the constitutional issues, that the State had preempted regulation of abortion clinics through its regulatory system, so cities could not ban abortion providers.  It would seem on first blush that the State’s comprehensive regulation of pain management clinics would evidence a similar intent. 

If Hillsboro County gets around to regulating PIP clinics, the evidence of preemption is even more comprehensive given the State regulation of PIP, insurance and health care professions.  It is entirely possible that a successful challenge to any such ordinance regarding PIP could have a substantial effect on pain management regulation by counties and municipalities.