Secondhand Smoke Legislation: Preemption of Local Laws

Related: 

• Local Government Smoke-Free Implementation Toolkit
• Legislation and Policy
• House Bill 24 (Effective January 1, 2008; Local government smoking regulations possible)

North Carolina’s Smoking in Public Places (PDF) legislation¹, enacted April 15, 1993, allows a complete ban of smoking in state-controlled buildings but requires the rest of state-controlled buildings² to reserve at least 20% of the interior space for indoor smoking, unless physically impracticable.³

Preemption of Local Ordinances

Starting October 15, 1993, the legislation prohibited local governments from imposing smoking restrictions more stringent that the state’s limited rules, even in non-state-controlled buildings, with a narrow list of exceptions.⁴

Prior to October 15, 1993, the legislation permitted local governments to enact restrictions that exceeded the smoking regulations in the state’s Smoking in Public Places legislation, but such ordinances were still required to stay within certain pre-existing state law parameters.

Exempted Buildings

Certain buildings are not subject to the legislation at all: primary and secondary schools (except teacher’s lounges), childcare centers (except teachers’ lounges), public school buses, hospitals, nursing homes, local health departments, nonprofit agencies whose primary purpose is to discourage tobacco use, tobacco processing and administrative facilities. Exempted buildings do not have to reserve an indoor smoking area, and local governments are free to impose more stringent smoking restrictions than those provided in the state legislation.

Window of Opportunity

After the legislation was enacted, but before October 15, 1993, many North Carolina counties took advantage of a chance to enact smoking regulations that would otherwise have been preempted.

Lawsuits

In November 1993, several companies sued the local boards of health in four counties to contest the new local smoking ordinances that were passed before October 15, 1993:

• Guilford County: Under threat of suit, the local board of health withdrew its ordinance without contest.
• Buncombe County: The local board of health litigated and won its case at the local level.
• Wake County: The local board of health suspended enforcement of its ordinance.
• Halifax County: The local board of health lost its case and its ordinance was declared null and void.

(The Halifax District Court held that the Halifax Board of Health had the right to pass only “health-related” rules, and that it had exceeded its authority by taking economic factors into consideration when it enacted the ordinance. After the court’s ruling, the board of health was unable to enact revised rules, because October 15, 1993, had already passed.)

Impact

The state’s preemptive legislation and the threat of lawsuits against local boards of health have become a barrier that impedes local health departments’ efforts to enact or enforce smoking regulations in public places, such as bars and restaurants.

Recent Exemptions

In the 2003 legislative session, the NC General Assembly passed a law exempting certain University of North Carolina campus buildings from the 20% law.⁵

In the 2005 legislative session, the NC General Assembly passed laws exempting the following from the state law: local health departments and departments of social services, including indoors and up to 50 feet from buildings, the Greensboro Coliseum, and NC prison buildings.

In the 2006 legislative session, the NC General Assembly passed a law banning smoking in the Legislative buildings.⁶

References

1. NC General Statutes. Chapter 143 Article 64, "Smoking in Public Places," subsection 143-595.
2. Public libraries, public museums, and educational facilities involved in health care instruction.
3. Even when full compliance is physically impracticable, if part of the building is designated as non-smoking, the facility is required to provide “an adequate smoking area within the facility as near as feasible to 20% of interior space.”
4. Local governments may exceed state restrictions in the following: buildings owned or leased or occupied by local government, public meeting places, auditoriums and arenas, and public transportation owned or leased by local government.
5. Exempted buildings include: health service facilities, wellness centers, enclosed P.E. facilities, enclosed student recreation centers, labs, residence halls, provided “reasonable effort” is made to provide smoking dorm rooms for those that demand them.
6. NC General Statutes, Chapter 143 Article 64, "Smoking in Public Places," subsection 143-597(a1).

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