JOHN, Judge.
In this declaratory judgment action, plaintiffs are the City of Roanoke Rapids, the Towns of Weldon, Enfield, Hobgood, and Scotland Neck, all located within Halifax County, and Jerry Hamill and Beth Workman, Halifax County residents and taxpayers (plaintiffs). The individual defendants are members of the Halifax County Board of Health (the Board), sued only in their capacities as members of the Board. The remaining defendants are Frank L. Bradham (Bradham), Halifax County Health Director at the time the complaint was brought, and Halifax County.
Plaintiffs appeal the trial court's grant of summary judgment to defendants, effectively dismissing plaintiffs' multiple challenges to the validity of the Board's 12 October 1993 enactment of the Halifax County Smoking Control Rules (HCSCR). We reverse the trial court and remand for entry of summary judgment in favor of plaintiffs.
For purposes of this action, plaintiffs and defendants have stipulated to the following pertinent factual and procedural information: Bradham published a Notice of Public Hearing in the Roanoke Rapids Daily and Sunday Herald on 30 September, 3 October, 6 October, and 10 October 1993 stating:
Relevant sections of the HCSCR are as follows:
Prior to the 12 October 1993 meeting, the Halifax County Board of Commissioners, as well as the municipalities designated as plaintiffs herein, communicated to the Board either by letter or by resolution a desire that regulation of smoking of tobacco products be left to the elected governing bodies of the individual governmental units. Also prior to adoption of the HCSCR, the City Council of Roanoke Rapids had passed "An Ordinance Regulating Smoking in Municipal Buildings," and the Board of Town Commissioners of the Town of Weldon had adopted a policy governing smoking within its Town Hall and Police Department.
Plaintiffs filed the present declaratory judgment action 14 January 1994. Plaintiffs' complaint alleged that: (1) the Board failed to adhere to procedural notice requirements for enacting health rules; (2) in enacting the HCSCR, the Board exceeded its statutory authority; (3) any purported statutory grant of authority to enact the HCSCR was an unconstitutional delegation of legislative powers; (4) the Board's action deprived plaintiffs of property interests in the form of lost business and profits without due process of law; and (5) the express terms and provisions
The parties also stipulated that
Plaintiffs filed a Motion for Summary Judgment pursuant to N.C.G.S. § 1A-1, Rule 56 on 5 October 1994. At the hearing conducted 23 January 1995 on plaintiffs' motion, defendants likewise moved for summary judgment. On 16 February 1995, the trial court entered an Order and Judgment denying plaintiffs' motion and granting that of defendants. Plaintiffs filed Notice of Appeal to this Court 10 March 1995.
Prior to discussing plaintiffs' arguments, it is appropriate that we enunciate the role of this Court in resolving the instant appeal. In the words of the Court of Appeals of New York when confronting a similar matter:
Boreali v. Axelrod, 71 N.Y.2d 1, 523 N.Y.S.2d 464, 467-68, 517 N.E.2d 1350, 1353 (1987). The only issues before us involve the authority of the Board to enact the HCSCR and whether the regulations enacted comprised a valid exercise of such authority. "Accordingly, we address no other issue[s] in this appeal." Id.
Plaintiffs challenge the Board's adoption of the HCSCR, inter alia, as being in excess of its statutory authority. The relevant statutes provide:
N.C.G.S. § 130A-34 (1995).
G.S. § 130A-35(a)(1995).
G.S. § 130A-39 (1995).
Plaintiffs maintain the statutory rule making authority of the Board is limited to areas regulated by the Commission for Health Services or the Environmental Management Commission. A review of legislation concerning these two agencies reveals that neither have expressly been delegated the authority to regulate smoking or the use of tobacco products.
Plaintiffs also rely on the principle enunciated in Dillon's Rule:
Defendants respond that broad rule making authority to preserve public health is necessary, citing the rationale of the court in Cookie's Diner, Inc. v. Columbus Bd. of Health, 65 Ohio Misc.2d 65, 640 N.E.2d 1231 (Mun.Ct.1994):
Id. 640 N.E.2d at 1236. Thus, "[r]ule-making bodies must be allowed a wide discretion.. . ." Id. (citation omitted). Defendants also maintain the application of Dillon's Rule has been abolished with respect to municipal governments, citing the Homebuilders decision of our Supreme Court. See 336 N.C. at 44, 442 S.E.2d at 50.
We note in passing at this juncture that our General Assembly has enacted "An Act to Regulate Smoking in Public Places and to Establish Standards for Local Governments Electing to Regulate Smoking." 1993 N.C. Sess. Laws ch. 367; N.C.G.S. §§ 143-595 et seq. (1996). This legislation specifically prohibits local governments after 15 October 1993 from enacting regulations more stringent than those contained within the Act. G.S. § 143-601. Because the HCSCR were passed prior to 15 October 1993, we are not called upon to determine whether the Board's action was violative of this statute.
In any event, it is unnecessary for purposes of our opinion to resolve the parties' dispute as to whether the statutory sections set out above empowered the Board to adopt the HCSCR. Assuming arguendo the Board was accorded statutory authority to establish rules regulating public smoking, we hold enactment of the HCSCR exceeded the general limitations imposed upon rule making powers of boards of health.
Our courts have not previously specifically enunciated restrictions on the legislative grant of rule making authority to boards of health. However, based upon previous holdings in related areas, as well as the holdings of courts in other jurisdictions, we conclude a board of health acts within its rule making powers when it enacts a regulation which (1) is related to the promotion or protection of health, (2) is reasonable in light of the health risk addressed, (3) is not violative of any law or constitutional provision, (4) is not discriminatory, and (5) does not make distinctions based upon policy concerns traditionally reserved for legislative bodies. See, e.g., State v. Curtis, 230 N.C. 169, 171, 52 S.E.2d 364, 365 (1949) (health board not delegated power to pass laws); Clark's Charlotte, Inc. v. Hunter, 261 N.C. 222, 229, 134 S.E.2d 364, 369 (1964) (enactment of Sunday regulations generally legitimate exercise of police power and "will be upheld, provided the classification is founded upon reasonable distinctions, affects all persons similarly situated or engaged in the same business without discrimination, and has some reasonable relation to the public peace, welfare, and safety"); see also Cookie's Diner, 640 N.E.2d at 1236 (health boards' "regulations designed to promote the general policy of the General Assembly to protect the public health, and [which] are reasonable, nondiscriminatory, and not contrary to constitutional rights and to legislation, ... would be valid"); Weber v. Board of Health, 148 Ohio St. 389, 74 N.E.2d 331, 336 (1947) ("[administrative] bodies must not legislate or make rules which are unreasonable, discriminatory or contrary to constitutional rights"); Boreali, 523 N.Y.S.2d at 468, 517 N.E.2d at 1353 ("Even under the broadest and most open-ended of statutory mandates, an administrative agency may not use its authority as a license to correct whatever societal evils it perceives."); and Matter of Council for Owner Occupied Housing v. Abrams, 125 A.D.2d 10, 511 N.Y.S.2d 966, 969 (N.Y.App.Div.1987) ("Administrative officers may not act `solely on their own ideas of sound public policy, no matter how excellent such ideas might be.'"); see also generally 39A C.J.S. Health & Environment § 14 (1976).
Boreali, 523 N.Y.S.2d at 470, 517 N.E.2d at 1355.
One stated purpose of the HCSCR is to "protect and promote the public welfare by regulating smoking in public places, restaurants, and places of employment to minimize the public's exposure to ETS [environmental tobacco smoke]." For this purpose to be achieved in a manner which does not infringe upon the General Assembly's legislative power to make policy-based distinctions, the HCSCR must, for example, treat similarly situated patrons and employees of all restaurants equally. Compare Boreali, 523 N.Y.S.2d at 469-70, 517 N.E.2d at 1355, with Fagan v. Axelrod, 146 Misc.2d 286, 550 N.Y.S.2d 552, 559 (Sup.Ct., Albany County 1990)(substantially similar regulatory scheme struck down in former case when enacted by executive agency, but upheld in latter when passed by legislature which court stated had authority to accommodate competing health, economic and social concerns). To act otherwise would expose some employees and patrons to a health risk that other similarly situated employees and patrons do not face. Without dispute, such distinctions involve the balancing of factors other than health.
Sections VI and VII of the HCSCR differentiate between the regulation of smoking in restaurants seating fewer than thirty patrons (small restaurants) and those seating thirty or more patrons (large restaurants). Large restaurants must provide a nonsmoking area that will eventually comprise 80% of the restaurant's seating capacity. Section VII, on the other hand, allows small restaurants to establish a nonsmoking area, or to post a sign indicating the restaurant is entirely smoking or entirely nonsmoking. Thus, workers and patrons may be exposed to ETS in some restaurants, while being protected from it in others.
Moreover, greater protection from ETS is afforded under Section IV to those businesses defined as "public places" in Section III(17) than to those places which are excluded from the rules in Section VIII(B) (restaurants as well as conference and meeting rooms).
In addition, "bars" as defined in the HCSCR are neither included within the definition of "public place" nor "restaurant," and are regulated solely with small restaurants under the provisions of Section VII. Bars are thus allowed to provide no non-smoking section whatsoever.
Finally, the Board under Section III(2) may extend the fifteen foot spatial requirement defining a "bar" so that unrestricted smoking is permitted in a retail business "primarily devoted to the serving of alcoholic beverages," whatever its size or seating capacity.
Having designated as the purpose of the HCSCR the protection and promotion of the public health and welfare by minimizing the public's exposure to environmental tobacco smoke, and having emphasized "that where individual needs conflict, the need to breathe smoke-free air shall have priority," the Board nonetheless created numerous exceptions within the HCSCR. Neither the HCSCR nor the record contain any explanation as to why these distinctions exist, nor indeed do we discern any health-related explanation for such disparate treatment in defendants' appellate brief. Such classifications—for example, that allowing unconfined smoking so long as the primary focus of a business is the dispensation of alcoholic beverages—cannot be said to have their "foundation in considerations of public health," Boreali, 523 N.Y.S.2d at 470, 517 N.E.2d at 1355, but
Assuming arguendo, as we have, that G.S. § 130A-139 and other relevant sections may be read to have authorized the Board to regulate smoking in public, the statutes cannot be held to permit the Board to consider factors other than health in promulgating its rules. While a legislative body arguably may direct that distinctions be based on factors other than public health when authorizing the promulgation of rules by health boards, such factors may not be considered sua sponte. See Adams v. Dept. of N.E.R. and Everett v. Dept. of N.E.R., 295 N.C. 683, 698, 249 S.E.2d 402, 411 (1978) ("important policy choices" should be made by elected officials); see also Boreali, 523 N.Y.S.2d at 471, 517 N.E.2d at 1356 ("Manifestly, it is the province of the people's elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends.").
In two recent cases invalidating smoking control regulations, courts in other jurisdictions have found that the health board impermissibly considered non-health related factors in crafting the regulations. See Boreali, 523 N.Y.S.2d at 469, 517 N.E.2d at 1355 (enacting anti-smoking regulations "laden with exceptions based solely upon economic and social concerns" impinged upon legislative function to strike proper balance among health concerns, costs, and privacy interests), and Cookie's Diner 640 N.E.2d at 1241-42 (allowing bars to choose between "smoking" and "nonsmoking" because of difficulty in enforcing regulations, and permitting some businesses to obtain variances because of practical difficulties or other special conditions, "represent[s] classic public policymaking—the balancing of competing interests to arrive at a result that will be accepted by the majority").
At the hearing below, plaintiffs bore the burden of demonstrating the invalidity of the HCSCR. 39 Am.Jur.2d Health § 21 at 359 (1968); see also Miles City v. Board of Health, 39 Mont. 405, 102 P. 696, 698 (1909). Plaintiffs having shown the HCSCR were invalid as providing exceptions unattributable to health-related factors, the burden shifted to defendants to meet plaintiffs' showing. First Citizens Bank v. Holland, 51 N.C. App. 529, 531-32, 277 S.E.2d 108, 110 (1981). None of the materials offered by defendants raised an issue of fact as to any health-related basis for the disparate treatment of similarly situated commercial establishments. Allowance of defendants' summary judgment motion was thus improper and summary judgment should have been entered in favor of plaintiffs.
Prior to concluding, however, we consider the effect of the severability clause set out in Section XIV of the HCSCR which provides:
It is well-established that when a provision of a statute or ordinance is held to be invalid, the constitutional provisions will be given effect if separable from the unconstitutional provision and if the legislative intent is for the remaining provisions to stand. Commissioners v. Boring, 175 N.C. 105, 111, 95 S.E. 43, 46 (1918). We observe, however, that neither a statute nor an ordinance is involved herein, but rather administrative rules.
Further,
Boreali, 523 N.Y.S.2d at 471, 517 N.E.2d at 1356-57. The result would itself constitute a regulatory scheme crafted by "the judicial branch of government [acting] as part of the legislative branch of government." Cookie's Diner, 640 N.E.2d at 1244. Like the New York and Ohio courts, we therefore decline
In sum, the trial court's grant of defendants' summary judgment motion is reversed, and this case remanded for entry of summary judgment in favor of plaintiffs.
Reversed and remanded with directions.
JOHNSON and LEWIS, JJ., concur.
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