December 29, 1993
Mr. Don M. Pendleton Lincoln County Attorney
P.O. Box 159 Lincolnton, NC 28093-0159
Re: Advisory Opinion; Lincoln County; N.C. Constitution, Art. VII, Sec. 2; N.C.G.S. § 143-601;
N.C.G.S. § 153A-121; N.C.G.S. § 153A-169; N.C.G.S. § 162-22.
Dear Mr. Pendleton:
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