Cities Can Prohibit Smoking in Nursing Homes, Court Says

Despite the unusual objection of health officials, a state appeals court has ruled that California cities may prohibit smoking in nursing homes.

State health officials, who usually discourage people from smoking, have argued that San Jose does not have the right to enforce a smoking ban at the Westgate Rehab and Specialty Care Center.

“On the face of it, it would be a good thing if all nursing home residents chose not to smoke,” said Ken August, a spokesman for the California Department of Health Services. “But for nursing home residents, a nursing home is their home . . . and we’re also responsible for protecting the rights of nursing home residents.”

But the 6th District Court of Appeals ruled Tuesday that state law does not preempt a city’s ability to ban smoking in nursing homes.

In passing a 1994 law prohibiting smoking in workplaces, the Legislature allowed cities to approve bans more restrictive than the state’s, the appeals court said.

The state law exempts “patient smoking areas in long-term health care facilities,” although a parallel San Jose ordinance prohibiting workplace smoking contains no such exemptions.

The Legislature “clearly indicated its intent to leave to the local authorities the matter of regulating the smoking of tobacco in their respective jurisdictions,” Judge Eugene Premo wrote.

The court’s unanimous decision stems from the case of a nursing home resident who wanted to be able to sit in a smoke-free TV room.

Officials argued that they were protecting the rights of a far larger number of nursing home residents and employees who do not smoke.

New patients at the San Jose nursing home, formerly the Westgate Convalescent Center, are told that smoking is only allowed in a designated area outside.

Administrators said they have had no complaints since the policy was enacted.