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MINUTES ORANGE COUNTY BOARD OF HEALTH October 22, 1998 Board of Health Minutes Transcription completed by Patsy L. Bateman 5 October 22, 1998 what the State law says. Example: If we were going to clean up an ordinance to take out offending provisions, the way we would clean them up would be to make them conform to what the State law says. That’s the big picture I have of how that could be done. One of the things we don’t know is whether the Board of Health has the power to adopt smoking rules at all. That question wasn’t touched in the Halifax County case. The Halifax County court decision said that the set of rules they were looking at didn’t make the grade because they took economic impact, not just health effects into consideration and threw those rules out without deciding to question the power of the Board of Health to make rules. There were arguments made in that case throughout the litigation process that the Board of Health rule making power doesn’t extend to economic decisions. Those are some of the same arguments being made in Chatham County in context of the hog waste rules. If you do any kind of serious enforcement, you run the risk of somebody saying Boards of Health don’t have the power to do this. The other thing is if you tinker with the set of rules you already have, you also run some risk of somebody saying, “You tinkered with them, therefore you’ve lost what you had”. Probably the final idea would be that if you were to amend the rules to clean up some of the problems that we know are in our rules as a result of the Halifax County Rules decision, then you might be in the best position of all to begin some kind of rigorous enforcement. There are a couple of things that Rosie has talked about that might cause difficulty if a court challenge were to be initiated. The Halifax County Rules failed principally because they were deemed to be not health rules but more like the kind of laws that an elected government might have and that they balanced health and economics, which is something that county commissioners and town council people do all the time. The Halifax County Rules balance that by excluding certain things from their coverage. The exclusions we have [Orange County Smoking Rules] are private clubs, federal facilities, tobacco shops and jails. I think the only one that runs a risk of running a foul of the Halifax rules decision is probably the tobacco shop exclusion. Excluding private clubs is probably something we would have to do anyway, it would be the same as excluding your home. I doubt the Board of Health has the power to say nobody can smoke at home. I doubt they can say that nobody can smoke in my private club. Federal facilities are excluded because you don’t have the power to regulate federal facilities, so excluding those doesn’t do anything but rectify the obvious. Local governments can’t regulate federal facilities. Tobacco shops is the one vulnerable area as it is the only place where economics probably entered into the decision of the Board of Health. If you were to change the rules to make them applicable to tobacco shops, according to State rules, nothing would happen to the tobacco shop. It isn’t big enough to make a difference. There isn’t a lot of risk in cleaning up this tobacco shop thing. Even though it is causing some confusion, I would leave these date provisions that no longer apply in the regulations. There is some concern that in removing them, someone would say you need to change those sections in a way that conforms with State law and you don’t want to do that. Leave it alone and deal with it. The answer to the jail is that exempting the jails and confinement facilities is not an economic decision. Here you would be balancing other health issues. Requiring jails to be smoke-free is running the risk of having a jail uprising. It’s possible to make our jail smoke free. Klein -- The Orange County Jail has gone smoke free, this is new, when the new addition was put on. Gledhill -- The reason this was done probably had nothing to do with economics and you can leave that alone. If you change it, the only way I think you can change it would be to again make it conform to the State rules and I think it’s better off left alone and let Lindy Pendergrass manage the jail. Fixing tobacco shops eliminates the only economic decision you made in the rules. The State has said that we probably have the best set of rules in the book right now. The motion to proceed with the amendments to the rules regarding tobacco shops was made by Jonathan Klein, seconded by Brenda Crowder-Gaines and carried without dissent.