UNC School of Government

Frequently Asked Questions

Questions and Answers: Local Government Authority

Aimee N. Wall
UNC School of Government

July 2009

What changes will the public see when the new statewide smoking law goes into effect in January 2010?
How will a restaurant, bar or lodging establishment know if it is required to comply with the new smoking law?
How will a member of the public know if a restaurant or bar is required to comply with the new smoking law?
Will convenience stores and other places that sell food also need to be smoke-free?
Does the new smoking law apply only to cigarette smoking?
What do people in charge of restaurants, bars and lodging establishments need to do to comply with the new smoking law?
What do smokers need to do to comply with the new law?
What do local governments (cities and counties) need to do?
How will the new state law be enforced?
Are there restaurants and bars that will not be required to comply with the smoking law?
Are there lodging establishments that will not be required to comply with the smoking law?
May a local government adopt a local law that differs from the statewide smoking law?
What types of local government entities can adopt these local laws?

What changes will the public see when the new statewide smoking law goes into effect in January 2010?

Under current state law, smoking is already prohibited in the following locations:

Inside state government buildings. There is a limited exception that allows smoking for scientific or medical research. GS. 130A-493.
Inside state government vehicles. G.S. 130A-493.
Elementary and secondary schools. This law is not a statewide prohibition but rather a law directing local boards of education to adopt policies prohibiting tobacco use in school buildings and facilities, on school campuses, in or on any property owned by the school, and at school-sponsored events at other locations. There is a limited exception that allows the use of tobacco products in conjunction with certain instructional or research activities. G.S. 115C-407.
State correctional facilities (i.e., prisons). There is a limited exception that allows the use of tobacco products for religious purposes. G.S. 148-23.1.
Long-term care facilities, such as nursing homes, adult care homes, rest homes, and facilities licensed to provide services for mental health, developmental disabilities or substance abuse. G.S. 131D-4.4; 131E-114.3; 131E-143; 122C-6.M

Beginning January 2, 2010, smoking wall be prohibited in many more public places.

Smoking will not be allowed in enclosed areas of almost all restaurants and bars.
Smoking will not be allowed in most enclosed areas of lodging establishments, such as hotels, motels, bed and breakfasts, and inns, if the establishment prepares and serves food or drink. A lodging establishment may designate 20% of its guest rooms as smoking rooms.
Smoking will not be prohibited by state law in unenclosed areas of restaurants, bars, and lodging establishments. An area is considered to be enclosed if it has (1) a roof or other overhead covering and (2) walls or side coverings on all sides or on all sides but one. For example, a patio with a solid roof but no walls would be considered unenclosed but a patio that has a canvas roof and canvas walls on three of its four sides would be considered enclosed.

In addition to the new statewide law, local governments, such as cities and counties, will have new authority to adopt local laws regulating smoking in public places. A local law may not change the state law to allow smoking in restaurants, bars and lodging establishments, but it could prohibit smoking in more places. There are several limitations on and exceptions to this new local authority. See Questions 12-13 for additional details.

How will a restaurant, bar or lodging establishment know if it is required to comply with the new smoking law?

The law prohibits smoking in “all enclosed areas of restaurants and bars.” But before assuming that that all restaurants and bars are subject to the law and that lodging establishments are not subject to the law, one has to take a closer look at the definitions of some key terms.

In this law, the term “restaurant” is defined as “a food and lodging establishment that prepares and serves drink or food as regulated by the Commission [for Public Health] pursuant to Part 6 of Article 8 of [Chapter 130A].” This definition basically encompasses any food service establishment that is required to comply with state public health laws related to sanitation. It also, somewhat awkwardly, encompasses any lodging establishment that (1) serves food or drink for pay and (2) is required to comply with state public health laws related to food and drink sanitation.

Therefore, most restaurants and bars are included in this definition. If the restaurant or bar is required to comply with the state’s sanitation laws, it must apply for a permit from the local health department and cooperate with regular inspections from the local public health staff. If it applies for and receives this type of sanitation permit, it must also comply with the smoking law. If the restaurant or bar is not required to apply for such a permit, the smoking law would likely not apply. See Question 10 below for a full discussion of exemptions from both the smoking law and the state’s sanitation laws.

For lodging establishments, the key question is whether the food or drink services provided by the establishment are subject to sanitation inspections by the health department. The state has some sanitation laws that address only the lodging related sanitation, such as cleanliness of sleeping rooms and linens. It is a different set of state laws that address sanitation related to food and drink service. If the lodging establishment is required to comply with the latter groups of laws, it must also comply with the smoking law. If a lodging establishment is unsure of its status under either the sanitation laws or the smoking law, it should contact the local health department to request assistance.

How will a member of the public know if a restaurant or bar is required to comply with the new smoking law?

Any restaurant or bar that is inspected and permitted by a local health department must comply with the smoking law. When a representative of the local health department has conducted a sanitation inspection, the representative must post a sanitation score or “grade card” “in a conspicuous place …where it may be readily observed by the public upon entering the establishment….” G.S. 130A-249. Therefore, if a patron of a restaurant or bar sees a sanitation grade card posted, the patron will know that the restaurant or bar must comply with the smoking law.

If, upon entering a restaurant or bar, no grade card is visible, the facility either (1) is not complying with the requirement to post the grade card or (2) is subject to one of the exceptions either in the sanitation law or the smoking law. See Question 10 below for further discussion of the exceptions. If a restaurant or bar is required to comply with the law but does not have a grade card posted, the local health department can pursue various enforcement approaches, including charging the owner of the venue with a misdemeanor. G.S. 130A-25.

Will convenience stores and other places that sell food also need to be smoke-free?

It depends. If the store or other place is required to comply with the state’s public health laws governing sanitation in food establishments, it will likely need to comply with the new prohibition on smoking. A convenience store that has a hot food bar where a person can buy a hot dog, chili and other similar types of food will be inspected and graded by staff from a local health department. That store will need to comply with the new smoking law. The convenience store across the street, however, may not serve such food and therefore would not need to comply with the new smoking law.

Does the new smoking law apply only to cigarette smoking?

No. It applies to the “use or possession of a lighted cigarette, lighted cigar, lighted pipe, or any other lighted tobacco product.” G.S. 130A-492(9). Note, however, that the law would not apply to the smoking of any product that does not include tobacco, such as electronic cigarettes.

What do people in charge of restaurants, bars and lodging establishments need to do to comply with the new smoking law?

A person in charge of a restaurant, bar or lodging establishment that is subject to the new law will need to

Post no-smoking signs in conspicuous locations,
Remove indoor ashtrays and other smoking receptacles, and
Direct a person who is smoking to extinguish the cigarette, cigar or other item.

What do smokers need to do to comply with the new law?

A person who smokes will need to be aware of and attentive to signs indicating that smoking is prohibited. If a person is smoking and is asked by the person in charge of the venue to extinguish the cigarette, cigar or other item, the smoker should immediately extinguish it.

What do local governments (cities and counties) need to do?

Local governments should review the state law and determine how it will allocate resources for enforcing the law and educating the public and regulated establishments about the new law. Local governments should also evaluate whether more stringent local laws governing smoking in public places are appropriate within their jurisdictions. As discussed below in Questions 12-13, local governments now have some additional authority to act in this area.

How will the new state law be enforced?

A few different enforcement tools are available:

If a person in charge of a restaurant, bar or lodging establishment does not comply with the new law, the local health director may impose a fine of up to $200 per violation. The health director must provide two written warnings before imposing such a fine. The person may not be charged with a misdemeanor. G.S. 130A-22(h1); 130A-497.
If a smoker refuses to extinguish a lighted product after receiving oral or written notice from the person in charge of the venue, the smoker can be issued an infraction and fined up to $50. A law enforcement official would need to issue the infraction. The smoker may not be charged with a misdemeanor. G.S. 130A-497.
A state or local public health official could also go to court and ask the judge to order a noncompliant smoker or venue to comply with the law (i.e., issue an injunction). G.S. 130A-18.

Are there restaurants and bars that will not be required to comply with the smoking law?

Yes. The following types of restaurants and bars are not required to comply with the new smoking law:

Cigar bars: In order to qualify for this exception and allow smoking, the cigar bar must satisfy the following criteria:

Gross revenue: The bar must generate 60% or more of its quarterly gross revenue from the sale of alcoholic beverages and 25% or more from the sale of cigars.
Humidor: The bar must have a humidor – which is a box or room with constant humidity designed to store cigars or pipe tobacco – on the premises.
Minors: The bar must not allow minors (individuals under age 21) to enter.
Smoke: Smoke from the bar must not migrate from the bar to an enclosed area where smoking is prohibited under the state law, such as a restaurant.
New construction: If the cigar bar begins operation after July 1, 2009, it must be located in a freestanding structure occupied solely by the bar.
Reporting: The bar must submit quarterly revenue reports to the Department of Health and Human Services.

Private clubs: In order to qualify for this exception, the club must satisfy the following criteria:

Membership: The club must maintain selective members.
Operations: The club must be operated by the members.
Restricted service: The club must not provide food or lodging for pay to anyone who is not a member or a member’s guest.
Nonprofit status: The club must either be

incorporated as a nonprofit corporation under state law (found in G.S. Chapter 55A) or
exempt from paying federal income tax under federal Internal Revenue Code.

Country clubs: The law is unclear with respect to country clubs. The term is included in the definition of “private club” but it is not clear how all of the parts of the definition fit together. As currently drafted, one could conclude that either of the following interpretations apply:

A country club is exempt if it satisfies all four of the criteria identified above under “private clubs” or
Any country club is exempt (and the term “country club” is undefined).

Establishments that are exempt from the state’s sanitation laws: If a restaurant or bar is not required to comply with the state’s sanitation laws (found in G.S. Chapter 130A, Article 8, Part 6), it will not be required to comply with the new smoking law. This category includes:

Private clubs: The definition in the sanitation law parallels the definition in the smoking law except that it does not include any specific reference to country clubs. Because the two definitions overlap, this provision in the sanitation law does not expand the number or type of exceptions to the smoking law in any way. To restate, the criteria that a private club must satisfy are:

Membership: The club must maintain selective members.
Operations: The club must be operated by the members.
Restricted service: The club must not provide food or lodging for pay to anyone who is not a member or a member’s guest.
Nonprofit status: The club must either be

Incorporated as a nonprofit corporation under state law (found in G.S. Chapter 55A) or
exempt from paying federal income tax under federal Internal Revenue Code.

Curb markets operated by the State Agricultural Extension Service.
Certain nonprofit establishments or political committees: In order qualify for this exemption, the establishment must satisfy both of the following requirements:

First, the establishment must be (1) incorporated ad a nonprofit under state law, (2) exempt from federal income tax or (3) a political committee as defined in state law. See G.S. 163-278.6(14).
Second, the establishment must prepare or serve food or drink for pay

No more frequently than once a month and
For a period not to exceed two consecutive days at a time.

State nutrition program for the elderly: A nutrition program for the elderly is exempt if it

Is administered by the state Division of Aging of the Department of Health and Human Services,
Prepares and serves food or drink on the premises where the program is located in connection with a fundraising event, and
Food and drink are prepared and served no more frequently than one day each month.

Beverages only: Establishments that serve only beverages that use single service containers. In order to qualify for the exemption, the beverages must not be (1) beverages made from raw apples or (2) potentially hazardous beverages made from raw fruits or vegetables.
Meat and poultry markets: An establishment is exempt if it (1) prepares and sells meat food products or poultry products and (2) is inspected by either the North Carolina Department of Agriculture and Consumer Services or the U.S. Department of Agriculture.
Certain pork products: An establishment is exempt if it (1) sells uncooked cured country ham or uncooked cured salted pork and (2) engages in minimal preparation such as slicing, weighing or wrapping the ham or pork.
Food and drink establishments regulated by the N.C. Department of Agriculture and Consumer Services

Are there lodging establishments that will not be required to comply with the smoking law?

Yes. The following lodging establishments will not be required to comply with the smoking law:

Lodging establishments that do not serve food or drink for pay;
Lodging establishments that are exempt from the state’s sanitation laws, including those that:

Have four or fewer lodging units,
Are condominiums,
Prepare or serve food or provide lodging to regular boarders or permanent houseguests only, except if there are 13 or more regular boarders or permanent houseguests who are either (1) disabled or (2) 55 years of age or older, or
Are private homes that occasionally offer lodging accommodations for two weeks or less to persons attending special events. It is important to remember that even if a lodging establishment is required to comply with the smoking law, it may still designate 20% of its guest rooms as smoking rooms.

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 zmore 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 only 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”).

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 (as provided in the state law, see Question 10 for additional details), and
Private clubs, including country clubs (as provided in the state law; see Question 10 for additional details).

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 statutory authority to enact 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.

North Carolina Public Health Law

Frequently Asked Questions

Questions and Answers: Local Government Authority