May a board of health adopt a rule on any matter it deems important?
No. There are several limitations to a board of health’s rule-making authority. First, a board of health’s rule-making authority is specifically linked to its duty to protect and promote the public health. Therefore, the board does not have the authority to act on matters that are unrelated to health. This is reflected in a five-part test that a board of health rule must satisfy in order to be valid, as enunciated by the North Carolina Court of Appeals. A board of health rule must:
- be related to the promotion or protection of health,
- be reasonable in light of the health risk addressed,
- not violate any law or constitutional provision,
- not be discriminatory, and
- not make any distinctions based on policy concerns traditionally reserved for legislative bodies.[1]
State statutes impose additional limitations to board of health rule-making authority:
- A board of health may not adopt rules concerning the issuing of grades and permits to food and lodging facilities.[2]
- A board may issue its own regulations regarding on-site wastewater management only with the approval of the NC Department of Health and Human Services, which must find that the proposed rules are at least as stringent as state rules and are necessary and sufficient to safeguard the public health.[3]
- A board of health rule regulating smoking in public places must abide by statutory restrictions on this authority and must be approved by the applicable board(s) of county commissioners.[4]
Finally, if a board of health adopts a rule that addresses an issue that is already addressed by a state law, it is possible that the board of health rule will be preempted (overridden) by the state law. The North Carolina Supreme Court has held that a local board of health rule may be preempted by state law if the state has already provided “a complete and integrated regulatory scheme” in the area addressed by the local rule.[5] However, the state law that gives boards of health their rule-making authority specifically allows a local board of health to adopt rules that are more stringent than state rules if the local board determines that a more stringent rule is necessary to protect the public health.[6] The Supreme Court’s decision does not preclude this, but it means that a board of health that wishes to adopt a local rule that exceeds statewide standards must provide a rationale for doing so. To do this, the board likely needs to be able to demonstrate that conditions in the board’s jurisdiction are different from the rest of the state in a way that warrants the higher standards.
[1] City of Roanoke Rapids v. Peedin, 124 N.C. App. 578 (1996).
[2] G.S. 130A-39(b)
[3] G.S. 130A-39(b); 130A-335(c)
[4] G.S. 130A-498.
[5] Craig v. County of Chatham, 356 N.C. 40 (2002). This limitation is sometimes referred to as “implied preemption,” or preemption that is based on the existence of a comprehensive higher law. In comparison, the limitation imposed by the statute prohibiting local boards of health from adopting rules regarding the operation or permitting of restaurants is an example of “express preemption.”
[6] G.S. 130A-39(b).
