What is the difference between a local public health rule and a local ordinance?
A local public health rule is adopted by the board of health, while a local ordinance is adopted by the governing bodies of local governments, either counties or cities. Both ordinances and rules are local laws adopted by local governing bodies, but there are two important differences.
Territorial jurisdiction: A major difference between local public health rules and local ordinances is their territorial jurisdiction. Typically, county ordinances apply only in the unincorporated areas of the county, not inside the municipalities (unless the municipalities consent to be governed by the county ordinance).[1] Similarly, municipal ordinances typically apply only within the municipality.[2] In contrast, a board of health rule applies throughout the board’s territorial jurisdiction—the county or counties represented by the board of health and all the municipalities contained in them.[3]
Scope of authority: Another major difference is that boards of health are subject to some limitations on their authority that do not apply to elected boards of commissioners. First, boards of health may adopt only rules that are related to the protection and promotion of health.[4] Boards of county commissioners are allowed to adopt ordinances that address a much wider range of issues and concerns.
The second and perhaps more significant limitation is that boards of health must not “make distinctions based upon policy concerns traditionally reserved for legislative bodies.”[5] This limitation was explained by the North Carolina Court of Appeals and is grounded in the board of health’s status as an appointed body rather than a legislative (elected) body. By contrast, because the members of a board of county commissioners are elected, the commissioners may make distinctions based on policy concerns having nothing to do with health. So, for example, a board of county commissioners could enact an ordinance imposing certain requirements generally on businesses in the community, but exempting small businesses for whom the requirements might pose economic hardship. In contrast, a local board of health could not craft exceptions to a general public health rule that were based on businesses’ economic concerns and had no health-based rationale.
Enforcement: Board of health rules are enforced using the specific methods set forth in the public health laws. The laws provide for the possibility of a criminal charge, a civil action, or, in limited cases, the imposition of administrative penalties (fines).[6] Ordinances may also be enforced using similar methods, but in general a board of county commissioners has broader authority to impose administrative fines or to make violation of an ordinance an infraction.[7]
[1] G.S. 153A-122.
[2] A municipal ordinance may extend to property or rights-of-way outside the municipality if they are owned by the municipality. G.S. 160A-176.
[3] G.S. 130A-39(c). Whether this general principle extends to local board of health rules regulating smoking has been questioned by some municipalities. The state law that authorizes boards of health to adopt local smoking rules, G.S. 130A-498, also requires the board of county commissioners to approve the rules by ordinance. Some attorneys believe the commissioners’ approval ordinance narrows the territorial jurisdiction of the rules. Others take the position that the approval ordinance is a procedural step that does not affect the jurisdiction of the board of health’s rule. In an advisory letter, the North Carolina Attorney General concluded that a local board of health rule regulating smoking applies within municipalities. Advisory Letter, Robert Hargett and Mabel Bullock, Special Deputy Attorneys General, to Colleen Bridger, Orange County Health Director (Feb. 20, 2013).
[4] G.S. 130A-39(g); City of Roanoke Rapids v. Peedin, 124 N.C. App. 578 (1996).
[5] Peedin, 124 N.C. App. at 587.
[6] See G.S. 130A-25 (providing that violation of most local board of health rules is a misdemeanor); 130A-18 (authorizing local health directors to seek injunctive relief for violation of local board of health rules); 130A-22 (authorizing the imposition of administrative penalties for violations of smoking rules or on-site wastewater rules adopted by a local board of health).
[7] G.S. 153A-123.
