Can a county board of health adopt a smoking rule that applies to a state university campus, and when does state preemption kick in?

Plain-English summary

UNC-Chapel Hill's Senior University Counsel, Susan H. Ehringhaus, asked the AG about a proposed Orange County Board of Health rule that would restrict smoking and, importantly, apply to the UNC-CH campus. Universities are state institutions; counties usually do not get to regulate them. The question was whether a local board of health had a different kind of authority than the county commissioners and could reach the campus through public-health rulemaking.

Chief Deputy AG Andrew A. Vanore, Jr., and Special Deputy AG Charles J. Murray, walked through the statutory hierarchy. Local boards of health operate under Article 2 of Chapter 130A. Under N.C.G.S. § 130A-39(b), a local board may adopt a more stringent rule in an area regulated by the Commission for Health Services or the Environmental Management Commission "where, in the opinion of the local board of health, a more stringent rule is required to protect the public health." Otherwise the state commission's rule prevails.

That hierarchy did not directly answer the UNC question. The follow-on statute was N.C.G.S. §§ 130A-29(a) and (b) and 130A-5(10), which the AG read as giving the Commission for Health Services clear authority to regulate health management for state institutions. Because the Commission had not issued any smoking rule for state institutions, there was no statewide rule that would preempt the local board. Under § 130A-39(b), the Orange County Board of Health could adopt and apply a smoking rule to the campus.

The opinion ended with a hard deadline. The 1993 General Assembly had passed Chapter 367 of the 1993 Session Laws, which added Article 64 to Chapter 143. Article 64 limited local government authority to restrict smoking and specifically preempted local boards of health from restricting smoking in buildings owned, leased, or occupied by state government. Article 64 took effect October 15, 1993, ten days after the AG sent the letter. To be effective on the UNC-CH campus, any local rule had to be adopted before that date.

The good news for Orange County: N.C.G.S. § 143-601 (a savings provision the AG read into the 1993 Act) protected rules adopted before October 15, 1993 from being voided by the new preemption. So a rule adopted in time would continue to bind state property going forward. The window was narrow, but it was a window.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Article 64 of Chapter 143 has been amended multiple times since 1993. The Smoke-Free Restaurants and Bars Law (S.L. 2009-27) altered the landscape considerably. State-government property is now subject to its own statutory restrictions. Anyone evaluating a county board of health smoking rule today should pull the current Article 64 (G.S. 143-595 et seq., in its current numbering) and the current G.S. 130A-39, along with any later AG opinions or court decisions on local-state preemption of smoking rules.

Common questions

Q: Why does a local board of health have authority that a board of county commissioners might not have?
A: Different statutory tracks. Local boards of health derive their powers from Article 2 of Chapter 130A, which is specifically designed for public-health regulation. County commissioners get their general regulatory power from Chapter 153A. The two tracks reach different areas; the public-health track sometimes touches activities (like sanitation, smoking, communicable disease) where general county authority would be preempted or absent.

Q: What did G.S. 130A-39(b) actually say?
A: It allowed a local board of health to adopt a more stringent rule than a Commission for Health Services or Environmental Management Commission rule, where the local board judged the stricter rule necessary to protect public health. Where the local board did not act, or where no state commission rule existed, the question turned to other statutory authority.

Q: What is the significance of October 15, 1993?
A: That was the effective date of Article 64 of Chapter 143 (added by 1993 Session Laws c. 367). Article 64 preempted local boards of health from restricting smoking in state-owned, leased, or occupied buildings. The AG read G.S. 143-601 as a savings clause protecting rules adopted before that date. So a county board that wanted to regulate smoking on a state campus had to get a rule on the books before October 15, 1993, or it could not regulate state property going forward.

Q: Did Orange County actually adopt a rule in time?
A: The opinion does not say. The AG was advising on what would be effective if the Board chose to act before the deadline.

Q: What happens if a local board adopts a smoking rule after October 15, 1993?
A: Under Article 64 as the AG described it, the rule would be preempted as to state-owned, leased, or occupied buildings. The local board could still regulate smoking on non-state property (subject to the rest of Article 64's restrictions on local government), but not on state buildings.

Q: Why was the Commission for Health Services's silence important?
A: Because § 130A-39(b) made the local board's authority to adopt a more stringent rule turn on whether a state commission had already acted. No state rule meant no state regulatory occupation of the field, which left room for a stricter local rule under § 130A-39(b).

Background and statutory framework

The North Carolina public-health regulatory framework distributes authority across state agencies (the Department of Environment, Health, and Natural Resources at the time, the Commission for Health Services, the State Health Director) and local agencies (county or district boards of health, local health directors). G.S. 130A-29 vests the Commission for Health Services with rulemaking authority on a range of public-health topics, including health management for state institutions. G.S. 130A-39 vests local boards of health with their own rulemaking authority, including the § 130A-39(b) "more stringent" track.

By the early 1990s, North Carolina was in the middle of the national tobacco-policy fight. Many states and localities were tightening smoking rules in public buildings, restaurants, and workplaces. The 1993 General Assembly's response, Chapter 367 (Article 64 of Chapter 143), pulled some of that authority back to the state. Article 64 capped local authority to restrict smoking and, in some categories, specifically restored statewide control.

The narrow window the AG identified, between the date of the opinion (October 5) and the effective date (October 15), reflects how the 1993 General Assembly drafted the statute. By placing the effective date 10 days after enactment, the legislature gave local boards a brief opportunity to lock in rules that would survive the new preemption. The AG was advising UNC-CH on the implications of that 10-day window for the campus.

Citations

• N.C.G.S. § 130A-5(10) (State Health Director powers)
• N.C.G.S. § 130A-29(a), (b) (Commission for Health Services rulemaking authority)
• N.C.G.S. § 130A-39(b) (local board of health may adopt more stringent rule)
• N.C.G.S. § 143-601 (savings provision for pre-October 15, 1993 local rules)
• Article 64 of Chapter 143 (1993 statewide smoking framework)
• Chapter 367 of the 1993 Session Laws (enacting Article 64)

Source

• Landing page: https://ncdoj.gov/opinions/authority-of-orange-county-board-of-health-to-adopt-rule-on-smoking-applicable-to-unc-ch/

Original opinion text

October 5, 1993

Ms. Susan H. Ehringhaus
Assistant to The Chancellor and Senior University Counsel
The University of North Carolina at Chapel Hill
CB #9100, 02 South Building
Chapel Hill, NC 27599-9100

Re: Advisory Opinion; N.C.G.S. § 130A-39; Authority of Orange County Board of Health to adopt rule on smoking applicable to UNC-CH.

Dear Susan:

The following is submitted in response to your letter dated September 24, 1993 requesting a review of the law regarding the applicability of a proposed Orange County Board of Health rule on smoking to the University of North Carolina at Chapel Hill's campus.

As you noted in your letter, the statutory authority for the local boards of health is different than the statutory authority for governing boards of cities and counties. Local boards of health are governed by Article 2 of Chapter 130A. Specifically, N.C.G.S. § 130A-39 lists the powers and duties of local boards of health in regard to the protection and promotion of the public health.

N.C.G.S. § 130A-39(b) reads, in part, as follows.

(b) A local board of health may adopt a more stringent rule in an area regulated by the Commission for Health Services or the Environmental Management Commission where, in the opinion of the local board of health, a more stringent rule is required to protect the public health; otherwise, the rules of the Commission for Health Services or the rules of the Environmental Management Commission shall prevail over local board of health rules.

The provisions of N.C.G.S. §§ 130A-29(a) and (b) and 130A-5(10) provide clear authority for the Commission of Health Services to regulate in the area of health management for state institutions. We have been advised that the Commission for Health Services has not adopted any rule regarding smoking for state institutions and, therefore, under the provisions of N.C.G.S. § 130A-39(b), the Orange County Board of Health may adopt and apply a smoking rule to the University's campus. To be effective on the University's campus any such rule should be adopted prior to October 15, 1993, the effective date of Article 64 of Chapter 143 of the General Statutes which was enacted by Chapter 367 of the 1993 Session Laws. The statutes in Article 64 limit the authority of local governments to restrict smoking and preempt the authority of a local board of health to restrict smoking in buildings owned, leased or occupied by state government. However, N.C.G.S. § 143-601 does allow for the adoption by local government of rules prior to October 15, 1993 and, therefore, if adopted prior to that date the rule should continue to be effective after that date.

If you wish to discuss this matter further, please do not hesitate to call.

Andrew A. Vanore, Jr.
Chief Deputy Attorney General

Charles J. Murray
Special Deputy Attorney General