This is a serious policy piece on the failure of the leadership of the City of Providence to squarely confront critical issues that affect our neighborhoods. It’s all about the Suboxone Shuffle, a new song-and-dance combo developed and performed by Mayor Jorge Elorza and his underlings. The principal motif of the musical score is silence. And the key dance move is to duck.
Frontage of 150 Lloyd Avenue, Providence RI 02906, as seen from the intersection of Thayer Street and Lloyd Avenue at 11:25 AM EDT on March 18, 2017.
Resolution 1500: March 31, 1955
On March 31, 1955, the Providence Zoning Board of Review approved Resolution 1500, stating in relevant part:
WHEREAS, Dr. Ralph H. Hankins, owner of Lots 422 and 424 on Assessor’s Plat 10 on the northwesterly corner of Lloyd Avenue and Thayer Street and the westerly side of Thayer Street (150 Lloyd Avenue) in a Residence R-1 Zone; on January 24, 1955, filed an application for permission to make minor alterations to present three-story building; first floor to be used for two doctors’ offices, one apartment on the second floor and one apartment on the third floor …
RESOLVED: That the Zoning Board of Review does hereby make a variation of the use district regulations under the Zoning Ordinance and does hereby grant the application of Dr. Ralph H. Hankins on condition that Lots 422, 424 and 458 on said Assessor’s Plat 10 shall be merged into one lot, and that the parking of at least four vehicles shall be confined to the northerly end of the present lot 458; and on further condition that the parking area shall be made to conform with Paragraph E of Section 24 of the Zoning Ordinance. …
Proposed Suboxone Dispensary
A complete chronology of the occupants of 150 Lloyd Avenue, also known as the Tillinghast Mansion, is not available at this writing. From press reports, it appears that the mansion at various times housed the medical practice of a Dr. William E. Connor, a beauty salon/massage business called The Ivy Spa, and allegedly a consulate of the United Nations. Most recently, on April 11, 2016, prior owner Deborah Zaki sold the property for $1,600,000 to Oxford Investments, an entity that had been newly registered on March 1, 2016 as managed by Ricky Dion of Johnston, Rhode Island. No mortgage was recorded with the transaction.
In late December 2016, GoLocal Prov published two reports (on December 26 and 28) that the Tillinghast Mansion was being converted into a dispensary for Suboxone, a drug that can be prescribed to treat opioid narcotic dependence. The second GoLocal report quoted City Councilman Samuel Zurier, who had been unaware of the proposed dispensary. “I look forward to consulting with the College Hill Neighborhood Association to learn their assessment of local impacts and concerns,” said Zurier. “I also will discuss the proposal at a regularly scheduled meeting of the Ward 2 Committee which will take place in a couple of weeks. Based on that feedback and a better understanding of the regulatory process, I will develop a position and a plan that best addresses the legitimate concerns of my constituents.”
College Hill Neighborhood Association Meeting
On January 9, 2017, according to a subsequent article by GoLocal Prov reporter Kate Nagle, about fifty people showed up at a meeting of the College Hill Neighborhood Association (CHNA) to hear about the proposed Suboxone dispensary. I was one of the attendees. A representative from Mayor Elorza’s office commented that she would get on top of the issue. CHNA President Josh Eisen articulated many neighbors’ concerns about the appropriateness of a Suboxone dispensary at the 150 Lloyd Avenue location. “There are 4 parking spots on the property,” said Eisen. “They’re talking about 500 patients, they’ll fight for parking with everyone else coming into the neighborhood.” Addressing questions about zoning, Jeffrey L. Lykins, Director of the Providence Department of Inspection and Standards, commented, “This is considered use by a special permit.”
Zurier’s Cure
Although the City of Providence has not issued any formal written findings, it appears that the Department of Buildings and Inspections has concluded that the proposed Suboxone dispensary is a doctor’s office within the meaning of the 1955 resolution of the Zoning Board of Review.
In his February 19 Ward Letter, Councilman Zurier conceded as much. “As part of the recent discussions regarding the possible location of a doctor’s office for suboxone patients in a residential zone,” wrote Zurier, “we learned that the zoning variance permitting this use remained valid despite many years of abandonment. In contrast, the City’s zoning ordinance provides that any nonconforming use that pre-exists a zoning change remains in effect [only] as long as it is not abandoned for a year or more.” Rather than address neighbors’ current concerns about the proposed Suboxone dispensary, Zurier announced he would propose an ordinance to close the loophole on abandonment to address future cases.
On March 13, 2017, residents of College Hill met at Blue State Coffee on 300 Thayer Street to sign a letter to Mayor Elorza opposing the proposed dispensary. Another letter-signing meeting is set for March 20.
Who is Ricky Dion?
In its December 28, 2016 article, GoLocal Prov reported that Ricky Dion, the manager of Oxford Investments, had a criminal record, including a 1999 conviction for distributing cocaine, racketeering and extortion. There is documented evidence that a Richard A. Dion was indeed sentenced for such crimes, but I have seen no confirmation that such an individual is in fact the Ricky Dion of Oxford Investments.
Section of Providence Base Zoning Map identifying 150 Lloyd Avenue in a residential R-1 zone.
The Sign and The Mystery: “Suboxone Available Spring 2017”
By the time of the January 9, 2017 neighborhood meeting, a freestanding sign had been posted in front of the Tillinghast Mansion with the words “Suboxone Available Spring 2017.” The legality of the sign, however, has been called into question. Unless the City designates the forthcoming Suboxone dispensary as a “healthcare institution, ” the sign would be illegal under Section 1607(E)(Table 16-1) of the Providence Zoning Ordinance, which permits a freestanding sign in an R-1 residential district only for “institutional use.”
What’s more, the sign does not say, “Doctors’ offices coming spring 2017.” Yet section 1603(D)(1) requires, “All sign copy shall relate to the name or nature of the business or establishment on the site.”
To go one step further, section 1601(C) of the Providence Zoning Ordinance requires that a sign posted on a property in a historic district is subject to approval by the Providence Historic District Commission. Yet 150 Lloyd Avenue, which is situated within a historic district, was not on the January 10, January 23 or February 27 agendas of the Historic District Commission (HDC).
Now for the mystery. On February 28, 2017, the City’s Department of Inspection and Standards issued a Second Building Inspection Notice of Violation and Correction Order against the new owner of 150 Lloyd Avenue, referring to an initial inspection on January 10. The notice stated that the violator “installed a sign in the front yard of the property without an HDC approval and without the proper plans, permits and documentation.” The notice further stated, “A cumulative civil penalty of fifty ($50) per day for each day each violation continues has now been imposed.” According to the notice, a lien was recorded on the property, and the City would seek a court order to remove the sign unless the owner corrected the violation within 30 days.
Yet on March 10, without explanation, the Department of Inspections and Standards issued a Release of Building Inspection Notice. The release was requested by Ted J. Isabella, the same inspector who issued the original notice of violation, and signed by Deputy Director Kevin W. Mahoney. As of this writing, the sign still remains in place. (See photo above.)
A Plausible Legal Argument
Contrary to Councilman Zurier’s conclusion, there is an entirely plausible legal argument that the proposed Suboxone dispensary is in fact prohibited by the Providence Zoning Ordinance. Here are the key elements. First, the Zoning Board of Appeal in 1955 actually granted Dr. Hankins a special-use permit for two doctors’ offices, along with a dimensional variance on parking spaces. Second, a special-use permit for a Suboxone dispensary would not be approved by the Zoning Board of Review under today’s legal standards and thus constitutes a non-conforming use. And third, the non-conforming use has been abandoned and is thus invalid.
As Rhode Island’s zoning enabling legislation makes clear, the basis of a variance is a hardship. But Dr. Hankins never claimed that the property at 150 Lloyd Avenue could be used only for doctors’ offices. In modern zoning terminology, he had proposed an alternative use for the property and was asking for a variance on parking to accommodate the proposed alternative use. That’s exactly what Director Jeffrey Lykins was hinting at during the January 9, 2017 meeting when he referred to “use by a special permit.”
Combined applications for a special-use permit and a dimensional variance were briefly outlawed by a 1998 Rhode Island Supreme Court decision. But in 2002, the legislature amended the state’s zoning enabling legislation, as codified in R.I. Gen. Laws § 45-24-42(c): “If the special use could not exist without the dimensional variance, the zoning board of review shall consider the special use permit and the dimensional variance together…” If the owner of 150 Lloyd Avenue today applied for a special-use permit along with a variance on parking, he would invoke precisely this provision of the law, which is codified in section 1901(C) of the Providence Zoning Ordinance.
If the owner of 150 Lloyd applied for a special-use permit for a Suboxone dispensary today, he would have to convince the Zoning Board of Review that the proposed use “will not be detrimental or injurious to the general health or welfare of the community.” He would further have to convince the Board that he was not operating a “healthcare institution,” a use that would trigger additional requirements under section 1901(B)(3)(c) of the Zoning Ordinance, including a master plan.
A Suboxone dispensary is not a doctor’s office.
The fact that properly certified physicians can prescribe Suboxone on an outpatient basis does not automatically mean that a Suboxone dispensary is a doctor’s office. Under the Drug Addiction Treatment Act of 2000, qualified doctors can dispense Suboxone directly rather than write prescriptions as office-based physicians ordinarily do. The dispensing of Suboxone in an outpatient setting requires a comprehensive care plan and “contingency plans for patients who may not be appropriate candidates for this treatment.” In addition, “[s]taff members should be trained and educated about opioid addiction, addiction treatment, patient confidentiality …, medication treatments, nonpharmacological treatments, behavioral characteristics of addiction, and the medical approach to addiction treatment.”
An outpatient dispensary for Suboxone must establish treatment linkages with other medical professionals. “Because patients addicted to opioids commonly have coexisting medical and psychiatric conditions, most physicians will need to establish linkages with other medical and mental health specialists, particularly those specializing in the evaluation and treatment of common comorbid conditions (e.g., hepatitis B and C, HIV, tuberculosis, mood disorders, anxiety disorders, personality disorders, risk of suicide and homicide).” That includes timely physical examinations and laboratory evaluations. What’s more, the dispensary will need to maintain detailed records of compliance with federal limits on the number of Suboxone patients that each provider can treat at any one time. These requirements, taken together, turn a Suboxone dispensary into a healthcare provider very different from a conventional doctor’s office of the type contemplated in the Providence Zoning Ordinance.
Abandonment of a Non-Conforming Use
The special-use permit that Dr. Hankins obtained in 1955 is therefore a non-conforming use that would not pass muster before the Zoning Board of Review in 2017. Under Section 2001 of the Providence Zoning Ordinance, this non-conforming use has not been continuously maintained and, accordingly, it must be reviewed by the Zoning Board of Review as an entirely new application. In short, the so-called variance permitting the use of the Tillinghast Mansion as a Suboxone dispensary is invalid.
The Suboxone Shuffle
So, where have the Mayor and the local City Councilman been during the continuing Suboxone ordeal? After sending a representative to the January 9 meeting, the Mayor appears to have kept silent and ducked the issue. The Department of Inspections and Standards has decided that the proposed Suboxone dispensary is just another doctor’s office without putting anything in writing. Instead, the Department files a citation against a Suboxone-Available-Spring-2017 sign and then mysteriously retracts it. Councilman Zurier’s response was to concede prematurely that the sloppy, undocumented position of the Department of Inspections and Standards was correct and then promise that it won’t happen again.
Has the Zoning Board of Appeal or the Planning Department asked for a business plan to determine whether the proposed dispensary will do anything more than simply hand out Suboxone for cash? Meanwhile, serious allegations concerning the possible criminal background of the manager-owner of the proposed Suboxone dispensary need to be either corroborated or disproved.
If Providence is to become a world-class city, it cannot keep doing the Suboxone Shuffle. We need a definitive response from our timid Mayor and his evasive administration. We need a definitive legal opinion on the relevance of Dr. Hankins’ 1955 special-use permit. We need definitive fact-finding on the operation of the proposed dispensary and the background of its owner-manager. We need a representative on the City Council who can fix things now, not next time.
We need people who will get their backs up off the wall and do the real dance of leadership.
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