Preemption occurs when a law at one level of government, such as the state, does not allow stronger laws at a lower level, such as local counties, cities and towns. The interplay of federal, state and local laws can make passing smoke-free laws or rules complicated.
Here are some questions and answers regarding North Carolina's smoke-free law, and what is allowed at the local level.
May a local government adopt a local law that differs from the statewide smoking law?
Yes. A local government may adopt a local law restricting or prohibiting smoking that is more restrictive than the state law. In other words, the local law can place more restrictions on smoking or prohibit smoking in more places than is currently provided for in the state law. The local law may not reduce or take away restrictions and prohibitions provided for in the state law. This local authority extends to the following locations:
- Local government buildings,
- Unenclosed areas owned, leased, or occupied by the local government,
- In passenger-carrying vehicles owned, leased, or otherwise controlled by local government and assigned permanently or temporarily by local government to local government employees, agencies, institutions, or facilities for official local government business, and
- Enclosed areas to which the public is invited or in which the public is permitted (i.e., “public places”).
The local governments may not, however, adopt a local law that restricts or prohibits smoking in the following places:
- A private residence,
- A private vehicle,
- A tobacco shop (subject to limitations provided for in the law),
- Property of a tobacco leaf grower or tobacco products processer or manufacturer,
- A motion picture, television, theater, or other live production set, with respect to the actor or performer portraying the use of tobacco products during the production,
- Designated smoking guest rooms in lodging establishments (up to 20% of the guest rooms),
- Cigar bars (see the Exceptions questions group, then "Cigar bars"), and
- Private clubs, including country clubs
Can my county or municipality pass a local ordinance that allows smoking in bars or for-profit private clubs?
No. A local law cannot be less strict than the state law.
What are some examples of other areas in which smoking could be prohibited by a local ordinance?
A local law can be more restrictive than the state law regarding local government grounds and certain public places. "Grounds” are defined in the law as an unenclosed area owned, leased, or occupied by State or local government. Public places are defined by the law as an enclosed area to which the public is invited or in which the public is permitted. Examples of other areas that a community can make smoke-free include: government controlled parks and beaches, government grounds, retail stores, all convenience stores, laundry-mats, shopping malls, sports arenas, theaters, public transportation vehicles and facilities and common areas of multi-unit housing buildings.
What types of local government entities can adopt these local laws?
The term “local government” is defined in the law as “a local political subdivision of this State, an airport authority, or an authority or body created by an ordinance, joint resolution, or rules of any such entity.” G.S. 130A-492(4). The clause “local political subdivision of this State” is often seen as referring primarily to cities and counties, but there are other types of local government entities that have authority to pass local laws and likely fall within this definition. The types of local government entities that are most likely to become involved in local lawmaking with respect to smoking include:
- A board of county commissioners, which may adopt an ordinance governing smoking in the unincorporated areas of the county (i.e., areas of the county that are not part of a city or town),
- A city council, which may adopt an ordinance governing smoking within the city or adopt a resolution agreeing to have a county ordinance apply within the city limits;
- A local board of health, which may adopt a rule governing smoking throughout the entire county,
- A district board of health governing multiple counties, which may adopt a rule governing smoking throughout all of the counties represented in the district, or
- An airport authority, which may adopt a rule governing smoking on property owned or controlled by the authority.
One unique characteristic of the smoking law is that it requires boards of county commissioners to adopt an ordinance approving any smoking rule adopted by a local board of health after July 1, 2009. Local boards of health are not required to have this type of approval for any other types of rules that they adopt.