A proposed health board rule in Haywood County has reignited a debate about how far officials can go when it comes to private property.
Public outcry crushed a nuisance ordinance considered by the county last spring. Now, it’s made a dent in the health board’s plans to amend a little known rule from 1970.
The rule spells out how to safely store garbage that can attract disease-carrying pests, like rodents and mosquitoes. With the new amendment, the health director is allowed to step onto private property if a property owner is uncooperative. Violators can be charged with a misdemeanor.
State law has long allowed health directors in North Carolina to abate public health risks by entering private property. They can even clean up the property if the owner refuses and recoup the cost through a lien.
The health board was ready to vote on the amendment with little ado in January. But a crowd of 75 rallied at the last minute and turned up to oppose it. The stunned board members decided to hold off on the vote.
A few changes to the rule change were announced last week after the board gathered for a work session. The rule now requires the health director to first obtain an administrative search warrant before entering private property — unless there’s an imminent hazard.
“Imminent hazard” means a situation that is likely to cause an immediate threat to human life, an immediate threat of serious physical injury, an immediate threat of serious adverse health effects, or a serious risk of irreparable damage to the environment if no immediate action is taken.
Haywood County Health Director Carmine Rocco said even in such an emergency case, he’d try to seek consent first.
Constitutional or not?
Many at the January meeting had cried that the health board rule was simply a back-door approach to passing a public nuisance ordinance they already defeated.
Jonnie Cure, who helped round up the opposition, argued that if neighbors were putting her health at risk, she could just take them to civil court.
“If somebody is putting my life in danger, I have remedy,” said Cure. “I don’t need to sic the health department on them.”
Lenise Paschke, pharmacist and chair of the Haywood health board, said the board didn’t have the time or the energy to police people’s yards.
“It is not our intention to go running through the county, entering people’s property. These statutes have been on the books quite a while. We haven’t done that yet,” said Paschke.
The health board maintains that the rule is a way to protect public health — not address aesthetic issues.
“It has nothing to do with how many bikes somebody has in their front yard or issues related to personal taste,” said Rocco.
The rule is more narrowly tailored than the nuisance ordinance considered by county commissioners last spring. The nuisance ordinance would have cracked down on junk on peoples’ property, prohibiting everything from outdoor storage of scrap metal to junked cars to non-maintained swimming pools.
County Attorney Chip Killian said the health board has gone out of its way to satisfy concerned citizens with recent changes. Killian considers the state law to be wholly constitutional.
“That’s really going the extra step, we feel,” said Killian.
But opponents argue the state law violates the Fourth Amendment of the Constitution, which protects citizens from unreasonable searches.
“The victim here is the property owner, not the person who’s supposedly put at risk,” said Cure.
Waynesville Attorney Russell McLean said a search warrant should be required every single time, despite state law saying otherwise.
“It’s not up to us to decide whether the state statute is unconstitutional or not,” Killian said. “I don’t believe it is, but if it is, that’s another matter. We’re supposed to proceed under guidelines of state law.”
Rarely used rule
Rocco has worked in public health in North Carolina for more than 20 years and has never stepped on private property without the owner’s cooperation.
Usually, the health director works with property owners and educates them on the public health risks lurking in their backyard.
Knowing the health director could enter their property or put a lien on their land might provide an incentive to cooperate.
“This just gives us one more tool for us to address public health concerns,” said Rocco. “I will do what I think is necessary to protect the public’s health.”
Storing garbage improperly can attract flies, rats, snakes or other disease-carrying animals. Property owners who allow standing water to collect provide a breeding ground for mosquitoes, which can also spread disease.
Lacrosse encephalitis is of particular concern in Western North Carolina, which sees a few cases every year. Last year, through November 2009, four cases of lacrosse encephalitis were reported to the health department in Haywood. A boy in Cherokee died last year from the mosquito-borne disease.
Other complaints included 33 sewage complaints, nine vector complaints and six trash complaints — all would fall under the rule in question. Vectors are disease-carrying animals.
The rule regulating solid waste has been on the books for 40 years but was sitting dormant for the past two decades until it was rediscovered last year.
A solid waste task force was created last summer to look at where modifications to the rule needed to be made. The task force worked for several months to amend the rule and held public meetings to discuss the issue before the vote in January.
“Unfortunately, nobody came,” said Rocco.
The health board will decide the next steps at its meeting on Wednesday, March 10.