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