In a NC county building shared by sheriff's office staff and other county business, who decides where people can smoke: the county commissioners or the sheriff?
Plain-English summary
NC sheriff's offices typically occupy county-owned buildings. The county commissioners own the building and run the budget. The sheriff is a constitutional officer with statutory custody of the jail and authority over law enforcement operations. Most of the time those authorities coexist without friction. But what happens when the commissioners want to ban smoking in the building and the sheriff disagrees? Whose call is it?
Lincoln County Attorney Don M. Pendleton asked the AG. Senior Deputy AG Ann Reed and Special Deputy AG Charles J. Murray drew the line.
The commissioners govern county property generally. G.S. § 153A-121 gives commissioners broad authority to adopt health ordinances. G.S. § 153A-169 gives them broad authority to supervise the use of county property. Combined, those statutes let commissioners regulate smoking in county buildings, including the office space used by sheriff's department employees.
The sheriff governs the jail specifically. G.S. § 162-22 provides that "the sheriff shall have the care and custody of the jail in his county." That specific statute about the jail controls over the commissioners' general property authority when the two would conflict over the jail's interior. The result: the sheriff decides smoking rules inside the jail; the commissioners decide everywhere else.
The AG also addressed two collateral points:
Sheriff as local, not state, officer. Even though Article VII, § 2 of the NC Constitution creates the office of sheriff, the sheriff is a local office, not a state office. Hull v. Oldham, 104 N.C. App. 29 (1991) settled that. The sheriff's constitutional status does not place the office above the commissioners on questions of county property control.
G.S. § 143-601 not directly applicable. The 1993 state smoking law (Chapter 143, Article 64) governs the relationship between state law and local rules. It does not assign authority between two co-existing local actors (commissioners and sheriff) over their respective domains. So § 143-601 is not the answer to Lincoln County's question.
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. NC smoking law has been substantially overhauled (notably by S.L. 2009-27); the specific-vs-general statutory canon applied here remains a foundational interpretive principle, but specific applications should be confirmed with current statutes.
Background and statutory framework
The specific-vs-general canon. When two statutes appear to conflict, NC courts apply the specific over the general. 12 Strong's North Carolina Index 3rd, Statutes § 5.8 (1978) is the source the AG cited. G.S. § 162-22 (specifically about the jail) controls over G.S. §§ 153A-121 and 153A-169 (general county authority) only at the point where they would conflict, i.e., inside the jail.
The sheriff's constitutional office. Article VII, § 2 of the NC Constitution preserves the office of sheriff. Sheriff is elected, not appointed, and exercises law enforcement authority within the county. Hull v. Oldham (1991) clarifies that the sheriff is a local officer, not a state officer, despite the constitutional pedigree.
County commissioners' general authority. G.S. § 153A-121 lets commissioners adopt ordinances to protect public health. § 153A-169 lets them supervise county property generally. These are broad grants intended to give counties the tools to manage their own affairs.
The jail as the sheriff's domain. Jails are unique because their operation is the sheriff's responsibility, including the safety and discipline of inmates and the supervision of jail staff. The legislature has consistently given sheriffs autonomy over jail operations.
Smoking specifically as a flashpoint in 1993. The new Article 64 was raising smoking rules to public attention. Many counties were considering bans. The Lincoln County question was timely.
The collateral point about § 143-601. § 143-601 deals with state preemption of local rules. It does not adjudicate intra-county allocation. The AG flagged that the local statute is not where Lincoln County would find its answer.
Common questions
Q: Can the county commissioners require the sheriff to put a smoking ban in the jail?
A: No. § 162-22 puts the jail under the sheriff's care and custody. The sheriff decides smoking rules there. The commissioners can use budget tools or political persuasion but cannot legally order the change.
Q: Can the sheriff allow smoking in the sheriff's office (non-jail) over the commissioners' objections?
A: Probably not. The commissioners have authority over county buildings generally; the sheriff's office space is not within the specific § 162-22 grant. The commissioners win on non-jail areas.
Q: What about courtrooms?
A: Courtrooms are county property but are also under the inherent authority of the presiding judge. The opinion did not address courtrooms; multiple authorities would interact.
Q: Could commissioners regulate the smoke from the jail that drifts into other parts of the building?
A: A practical question the opinion did not address. The general principle would be that commissioners can regulate everything outside the jail; if jail smoke is creating problems elsewhere, the remedy may run through ventilation or building-code authority rather than direct smoking regulation in the jail.
Q: Are inmates' smoking rights affected?
A: The opinion does not address the substantive smoking-rights question for inmates. It only addresses the authority allocation question.
Q: Does this principle apply to other shared county buildings (register of deeds, clerk of court, etc.)?
A: The principle is general: commissioners have broad property authority; specific statutory grants to other officers control where they conflict. Each office's specific statutes would need separate analysis.
Citations from the opinion
- N.C. Constitution Art. VII, § 2
- N.C.G.S. §§ 143-601; 153A-121; 153A-169; 162-22
- Hull v. Oldham, 104 N.C. App. 29, 407 S.E.2d 611, cert. denied, 330 N.C. 441, 412 S.E.2d 72 (1991)
- 12 Strong's North Carolina Index 3rd, Statutes § 5.8 (1978)
Source
- Landing page: https://ncdoj.gov/opinions/lincoln-county/
Original opinion text
The following is in response to your request for an opinion concerning the authority of county commissioners to regulate smoking in county buildings occupied by employees of the sheriff's department. It is the opinion of this office that with the exception of the county jail, the county commissioners may regulate smoking in county buildings, including office space used by employees of the sheriff's department, when that office space is not part of the county jail.
N.C.G.S. § 153A-121 grants to the county commissioners broad authority to adopt ordinances relating to health. N.C.G.S. § 153A-169 grants to the county commissioners broad authority to supervise the use of county property. N.C.G.S. § 162-22 states, in part, that "[t]he sheriff shall have the care and custody of the jail in his county . . . ." Because the specific provisions addressing the county jail control over the general provisions relating to all county property, the regulation of smoking within the county jail is within the jurisdiction of the sheriff. 12 Strong's North Carolina Index 3rd, Statutes § 5.8 (1978).
It may be worthwhile to mention two collateral issues raised in your letter and the enclosures thereto. First, while it is true that the office of sheriff is created by Section 2 of Article VII of the North Carolina Constitution, it is a local office and not a state office, Hull v. Oldham, 104 N.C. App. 29, 407 S.E.2d 611, cert. denied, 330 N.C. 441, 412 S.E.2d 72 (1991). Second, although the provisions of N.C.G.S. § 143-601 (1993) address local laws, rules or ordinances relating to smoking in local government buildings, those provisions do not address the relative authority of the county commissioners and the sheriff to regulate smoking over areas that they respectively control.
Ann Reed, Senior Deputy Attorney General
Charles J. Murray, Special Deputy Attorney General