As the 2018 NFL season comes to an end, we approach the holy grail of the sport, the Super Bowl. The 53rd installment of the “most expensive ticket in town” will feature the Los Angeles Rams vs. New England Patriots, on February 3, 2019 in the beautiful home of the Atlanta Falcons, Mercedes-Benz Stadium. Whether you’re tuning in for the commercials, the half-time show or the actual game, you should be in for a treat.
After the Super Bowl, the offseason begins, and for the players who have been piling up the injuries all season long, the off-season proves itself to be the time for recovery, getting the body ready to do it all over again come September. With all of those injuries come an immense amount of pain, so what’s a player to do if they don’t want to take prescription pills? What is their alternative? Can a player, looking to combat their pain, use marijuana?
As the United States moves forward with their drug laws, and specifically marijuana, we are beginning to see a change in the landscape. There are currently 10 states that have legalized the recreational use of marijuana, while 33 states have legalized the medical use of marijuana in varying forms.
The NFL and Marijuana
Every NFL team resides in a city that has legalized marijuana in some capacity at the state level. However, according to the Controlled Substance Act, marijuana remains a Schedule 1 drug and is federally illegal. Effectively, the NFL is saying that their “workers”, the players, are unable to participate in a state legal activity, no matter the reason, due to their stringent drug policies.
The NFL, through their collective bargaining agreement (“CBA”), specifically states that, “the illegal use of drugs and the abuse of prescriptions drugs, over-the-counter drugs, and alcohol is prohibited for players in the NFL. Players will be tested for drugs coinciding with the NFL Drug Panel including, cocaine, marijuana, amphetamine, opiates, opioids, PCP, MDMA and alcohol.”
All players who are under contract with an NFL Club will be tested once during the period, beginning on April 20, continuing through August 9. Based on the results, they are either free to go about their business, not being tested again until the following season or, upon a failed test, are placed into the NFL intervention program. Through the intervention program, a player who tests positive for a drug on the NFL’s banned substance list will undergo testing at a frequency so determined by either the Medical Advisor or Medical Director. If while in the intervention program a player again has a failed test, they will be subject to stage two or three of the program, whichever is applicable. A player who enters into stage two will be subject to unannounced testing at the sole discretion of the Medical Advisor. If, while in stage two, a player again tests positive for a drug on the NFL drug panel, they will enter into stage three of the treatment program and again undergo unannounced testing at the sole discretion of the Medial Advisor. While in stage two or three a player who is being tested may not be tested more than ten (10) times in a calendar month. A player who tests positive in stage three of the intervention program will banished from the NFL for a minimum period of one (1) calendar year.
A player who has tested positive will be subject to a fine or suspension dependent upon the number of positive tests. The fines come in the form of 11.76, 17.6 or 23.5 percent of the player’s annual salary (two, three, or four game checks); and suspensions can be four, six or ten games, unpaid. The strongest of disciplinary actions for repeat offenders will be either an unpaid, one-year suspension from the league or an indefinite ban subject to a formal proceeding and a necessary reinstatement into the league.
The NFL Players and Marijuana Use
Many players have faced fines or suspensions due to their use of marijuana, no matter the purpose of their consumption. In 2018, the NFL levied almost $4,000,000 in fines related to substance abuse.
Josh Gordon, a former New England Patriots wide receiver, has a well-documented substance abuse problem. Unfortunately for him, his marijuana use has occurred before a reform in the NFL drug policy, which is likely to occur when the CBA is renegotiated in 2020. Martavis Bryant, faces the same problem, consistently running into problems with marijuana and how the NFL CBA and Drug Policy treat the use of the plant. Although these players are in violation of the current NFL CBA there are many players who would benefit from a change in the policies.
Seantrel Henderson is one such player. Henderson, who played the 2018 season with the Houston Texans, was diagnosed in 2015 with Crohn’s disease. Doctors recommended that Henderson use marijuana to treat the pain as an alternative to prescription pills: Henderson said that he hoped the NFL would understand that he was a human, “I’ve got doctors telling me this is the No. 1 medicine that would help your disease,” Henderson said, “You try to tell that to the league and it seems like they didn’t care too much.” Ultimately, doctors removed roughly 2 ½ feet of Henderson’s large and small intestines. During recovery, his doctors again recommended marijuana as the source of pain relief instead of prescription pills and Henderson took their advice. Henderson notes that he thought his playing career was over due do the surgery so he used marijuana for the pain, “At the time, I thought I was done playing,” Henderson said. “I didn’t think I was coming back. At the time, I was using that for pain” Henderson was initially suspended for the first four games of the 2016 season for his marijuana use. He was then drug tested regularly in accordance with the league drug policy which he was found to be in violation of again shortly after his first suspension, resulting in a 10-game suspension. All in all, Henderson was suspended 14 games during the 2016 season and fined $523,580 for following his doctor’s recommendations.
Former Super Bowl champion quarterback Jim McMahon has been outspoken in his support for a change in the NFL’s drug policy relating to marijuana. McMahon, who played for the Chicago Bears, San Diego Chargers, Philadelphia Eagles, Arizona Cardinals and Green Bay Packers throughout his 15-year NFL career, has dealt with numerous injuries during his time in the NFL and has noted how marijuana could have helped him through all of them. He suffered numerous concussions as a player, and currently battles early onset dementia, severe headaches, depression, vision and speech problems. He was taking almost 100 Percocet a month to manage the pain he was suffering from until he began the use of medical marijuana, “They were doing more harm than good,” he said. “This medical marijuana has been a godsend. It relieves me of the pain.” McMahon is a prime example of how the rigors of the NFL can affect a person for years after they hang-up their cleats and how the use of medical marijuana can help them get through that pain.
Impact in the State of Nevada
Nevada is at the forefront of the legalization train having had medical marijuana legalized since the year 2000 and recreational marijuana since 2017. The NFL has shown quite a bit of love to the state of Nevada in recent months, specifically to the City of Las Vegas. Las Vegas is in the headlines related to their new titles as, the “Future Home the Raiders” and “Home of the 2020 NFL Draft”. The Raiders coming to Las Vegas is big news for the city. The love affair with the NHL’s Golden Knights has been a sight to see, and the Raiders are building the same type of excitement.
With the excitement comes many questions, will a player in the NFL be able to consume marijuana like a resident or tourist or, are they barred by the CBA of the NFL. After a bit of investigating and understanding of the facts mentioned above the answer at the moment is no. There is no built-in exception to the NFL’s CBA that has anything to do with marijuana consumption in legal states, or the use of marijuana as a medical alternative. The NFL simply says no. Players cannot use and they will be fined and suspended accordingly.
Through continuing education coinciding with the end of the current CBA and the negotiation of a new CBA, it is possible that we will see the NFL move away from their archaic policy, align with the progressive States, and implement a system that allows their players to consume marijuana instead of opioids. This stance could be in motion sooner than we think, as more information becomes readily available to both the NFL and the NFL Players Association (NFLPA). In regards to marijuana and the NFL’s stance, Brian McCarthy, the spokesman for NFL Commissioner Roger Goodell, recently stated “This is an area of research we are looking to develop further, along with the NFLPA…to determine whether those substances could be used as an effective and safe pain-management tool for players.”
The NFL is a huge part of the sports and entertainment world and the current and future health of their players is paramount to its continued success. Conversations discussing how to better manage the pain that this contact sport causes will bode well to seeing that success come to fruition.
- NFL POLICY AND PROGRAM ON SUBSTANCES OF ABUSE, https://nflpaweb.blob.core.windows.net/media/Default/PDFs/Agents/2016SOAPolicy_v2.pdf
- NFL POLICY AND PROGRAM ON SUBSTANCES OF ABUSE, https://nflpaweb.blob.core.windows.net/media/Default/PDFs/Agents/2016SOAPolicy_v2.pdf
- SPOTRAC, https://www.spotrac.com/nfl/fines-suspensions/
- HOUSTON CHRONICLE, https://www.houstonchronicle.com/sports/texans/article/Seantrel-Henderson-gets-fresh-start-with-Texans-13132409.php
- ESPN, http://www.espn.com/nfl/story/_/id/18147079/seantrel-henderson-buffalo-bills-faces-10-game-suspension-substance-abuse-violation
- HOUSTON CHRONICLE, https://www.houstonchronicle.com/sports/texans/article/Seantrel-Henderson-gets-fresh-start-with-Texans-13132409.php
- SPOTRAC, https://www.spotrac.com/nfl/houston-texans/seantrel-henderson-14648/fines/
- DENVER POST, https://www.denverpost.com/2016/03/03/mike-ditka-knew-his-chicago-bears-players-got-high-says-jim-mcmahon/
- CHICAGO TRIBUNE, https://www.chicagotribune.com/news/local/breaking/ct-chicago-bears-jim-mcmahon-medical-marijuana-met-20160128-story.html
- BLEACHER REPORT, https://bleacherreport.com/articles/2771410-the-worlds-best-athletes-smoke-weed-heres-proof-what-now
Thirty states and the District of Columbia currently have laws broadly legalizing marijuana in some form. However, marijuana remains illegal under Federal law, and this creates an uncertain landscape for marijuana businesses in the preparation of their Federal income tax returns and in handling an IRS audit. In addition, marijuana businesses must be aware of cash handling issues. This article addresses a few of the common tax issues facing marijuana businesses and why these businesses should seek the advice of a tax lawyer in any communications with the Internal Revenue Service.
Section 280E, Business Expenses, and Costs of Goods Sold
In very general terms, the Internal Revenue Code (IRC) allows businesses to deduct “ordinary and necessary” expenses incurred during the taxable year in carrying on a trade or business. See specifically IRC Section 162.
However, under IRC Section 280E, businesses are prohibited from deducting business expenses or taking credits related to income from the sale of federally controlled substances, including marijuana. Interpreted strictly, IRC Section 280E prohibits a marijuana business from deducting any business expenses – even salaries, wages, employee benefits, training, rent, travel, advertising, and depreciation.
Attempts to fight Section 280E in Tax Court have been unsuccessful. For example, the IRS audited Canna Care Inc., a California medical marijuana dispensary, and denied Canna’s deductions for operating expenses, including significant amounts for employee salaries and vehicle expenses. The company appealed the IRS’ findings to the United States Tax Court. Relying on section 280E, the Court upheld the IRS’ determination and denied all of Canna’s deductions. See Canna Care, Inc. v. Commissioner, T.C. Memo 2015-206.
However, in Californians Helping to Alleviate Medical Problems, Inc., v. Commissioner, 128 T.C. 173 (2007)(“CHAMP”), the government acknowledged that Section 280E does not prohibit a taxpayer from claiming costs of goods sold (COGS). Footnote 4 of the opinion provides as follows: “respondent [the IRS] concedes that the disallowance of sec. 280E does not apply to costs of goods sold, a concession that is consistent with the caselaw on that subject and the legislative history underlying sec. 280E.” The CHAMP Court also allowed business expense deductions related to the taxpayer’s separate counseling and caregiving business. According to the Court, “section 280E does not preclude petitioner from deducting expenses attributable to a trade or business other than that of illegal trafficking in controlled substances simply because petitioner also is involved in the trafficking in a controlled substance.”
Most recently, on June 13, 2018, the United States Tax Court issued its opinion in Alterman & Gibson v. Commissioner, T.C. Memo. 2018-83.
During the years before the Court, the taxpayers owned a medical marijuana dispensary in Colorado. The dispensary sold smokable marijuana as well as edibles. It also sold marijuana paraphernalia such as pipes, papers, and other items used to consume marijuana. The IRS audited taxpayers and allowed their costs of goods sold, but disallowed all business expense deductions (under Section 280E) except depreciation.
The Tax Court upheld the IRS’ disallowance of all business expense deductions, even those related to that portion of the taxpayers’ business that sold non-marijuana products such as marijuana paraphernalia. Specifically, the Court stated:
Under the circumstances, we hold that selling non-marijuana merchandise was not separate from the business of selling marijuana merchandise. First, Altermeds, LLC, derived almost all of its revenue from marijuana merchandise. Second, the types of non-marijuana products that it sold (pipes and other marijuana paraphernalia) complemented its efforts to sell marijuana. Altermeds, LLC, had only one unitary business, selling marijuana. If, however, selling non-marijuana merchandise were considered a separate business, then the expenses of that business would be deductible. See CHAMP, 128 T.C. at 183-185.
In sum, the Alterman Tax Court opinion reemphasizes the Court’s past rulings related to marijuana businesses: (1) business expenses are not deductible under Section 280E; (2) costs of goods sold are allowable, as long as they are calculated correctly; and (3) business expenses may be deductible if a marijuana business also conducts a second, ancillary business that is completely separate from the sale of marijuana.
The challenges inherent in fighting back against an IRS audit were also exposed in the Tax Court case of Feinberg v. Commissioner, T.C. Memo. 2017-2011. In that case, the IRS audited a Colorado business licensed for the cultivation and sale of medical marijuana. The IRS disallowed business expense deductions under 280E and also made adjustments to the business’ claimed costs of goods sold. The COGS adjustment was the main issue before the Tax Court. Interestingly, the IRS actually reclassified some of the business’ deductions as COGS, giving the taxpayers greater COGS than originally claimed on its returns. At trial, the business produced no business records pertaining to its operations. Instead, it chose to rely exclusively on an expert report provided by an accountant who specializes in marijuana industry cost accounting. The business contended that its expert report established that the COGS allowed by the IRS were incorrect.
The Tax Court concluded that under Federal Rule of Evidence 702, the expert report was not admissible. Specifically, the Court stated: “The conclusions in the [expert] report are an attempt to present reconstructed income tax returns as evidence of petitioners’ correct tax liabilities. The report is not based on personal knowledge of THC’s business. To determine the correct COGS for THC, substantiation of THC’s expenses is necessary. A reconstructed income tax return based on industry averages does not take the place of substantiation and does not help determine a fact in issue.”
The marijuana business also argued that it should be allowed greater COGS than what the IRS allowed under the Cohan rule. Under Cohan, the Tax Court may estimate the amount of a deductible expense if a taxpayer establishes that an expense is deductible but is unable to substantiate the precise amount. The Cohan rule also applies to COGS. However, in Feinberg, the Tax Court found that even under Cohan, there must be sufficient evidence in the record to provide a basis upon which an estimate can be made; because the business provided no evidence to support COGS higher than what the IRS allowed, the Court upheld the IRS’ final COGS adjustment. The Feinberg case highlights the importance of retaining a competent tax attorney when dealing with any IRS audit, especially if the audit results in litigation in U.S. Tax Court.
IRS Audits of Gross Receipts
Marijuana businesses must also be concerned with IRS audits of their gross receipts, specifically, the IRS’ use of indirect methods of proof. Although neither the Tax Code nor Treasury regulations define or specifically authorize the use of indirect methods of proof, case law has held that indirect methods of proof are acceptable and they need not be exact, but must be reasonable in light of surrounding facts and circumstances. Holland v. United States, 348 U.S. 121, 134 (1954).
The IRS will use indirect methods of proof under various circumstances, including: books and records do not accurately reflect total taxable income received and the revenue agent has established the likelihood of unreported income; expenses appear to exceed income; irregularities in the taxpayer’s books and records; gross profit percentage changes significantly from one year to another; taxpayers’ bank accounts have unexplained deposit items; taxpayer does not make regular deposits and uses cash; tax returns show significant increase in taxpayer’s net worth which is not supported by recorded income; and no method of accounting has been regularly used or the method does not clearly reflect income.
The IRS uses a variety of indirect methods of proof including: the bank deposits analysis (most common), net worth analysis, cash-t analysis, and the mark-up method.
Anytime the IRS intends to perform an indirect method of proof audit of gross receipts, the taxpayer should consult with a tax attorney, as there are exposure risks including a potential IRS criminal investigation or civil fraud referral. A competent tax attorney can advise of these risks and can help limit the taxpayer’s exposure. A tax attorney can also defend against the conclusions drawn by the IRS agent after he or she completes an indirect method of proof audit.
Marijuana businesses must also be concerned with the Financial Crimes Enforcement Network (FinCEN), a bureau of the U.S. Department of Treasury that collects and analyzes information about financial transactions in order to combat money laundering and other financial crimes. FinCEN’s self described mission is to safeguard the nation’s financial system from illicit use and money laundering and to promote national security by collecting, analyzing, and disseminating financial intelligence. To that end, the Bank Secrecy Act (BSA) requires financial institutions to file currency transaction reports (CTRs) for cash transactions exceeding $10,000 (daily aggregate amount) with FinCEN. It also requires institutions such as banks, money services businesses, securities firms, insurance companies, casinos, and loan and finance companies, to file suspicious activity reports (SARs) anytime a transaction doesn’t make sense, is unusual for that particular client, appears to be done for the purpose of hiding or obfuscating a transaction, or show deposits structured to avoid CTR requirements (i.e., multiple deposits totaling over $10,000 but divided up to avoid the $10,000 threshold). CTRs and SARs are important tools that FinCEN uses and shares with other regulatory agencies – including the IRS – in its attempt to combat money laundering and the use of Federally backed financial institutions to hide illicit monetary transactions.
A 2014 FinCEN memo stated as follows: “Because federal law prohibits the distribution and sale of marijuana, financial transactions involving a marijuana-related business would generally involve funds derived from illegal activity. Therefore, a financial institution is required to file a SAR on activity involving a marijuana-related business (including those duly licensed under state law) in accordance with this guidance and FinCEN’s suspicious activity reporting requirements and related thresholds.” Therefore, in no uncertain terms, under Federal law, a bank must file a SAR whenever it conducts a transaction with a marijuana-related business, even when the transaction is below the CTR $10,000 threshold.
In addition, because marijuana businesses deal largely in cash, they must be aware of Form 8300 requirements. Any business that receives more than $10,000 in cash in a single transaction or related transactions must complete a Form 8300, Report of Cash Payments Over $10,000 Received in a Trade or Business. Form 8300 is a joint form issued by the IRS and FinCEN. Marijuana businesses, especially wholesalers, must be cognizant of Form 8300 filing requirements.
The IRS began auditing Colorado marijuana businesses related to their Form 8300 filing requirements in 2016. One business owner, who wished to remain anonymous, reported that some of the marijuana business directed audits came from the IRS’ fraud division. In all of the Colorado Form 8300 audits, the IRS used a questionnaire and posed questions unrelated to Form 8300 requirements. For example, the questionnaire asked the following questions: How did you get started in the business? Who are your competitors in the wholesale marijuana industry? If a bank account exists is all of the cash deposited into the bank account? Asking beyond the audit scope, open-ended questions is a tactic commonly used by IRS revenue agents and why it is important to retain an experienced tax attorney whenever the IRS conducts an audit or investigation, no matter how well the business has maintained its books and records, and stayed in compliance with federal tax obligations and Form 8300 filing requirements.
If you own a business selling, growing, or producing marijuana, you need to work with an experienced tax lawyer to understand your tax rights and responsibilities. The landscape is changing so quickly that you need a legal advocate on your side to help you navigate it all. If your business is audited and you don’t have detailed information about every single transaction, you risk forfeiting your COGS claim and you could be subject to penalties for filing an inaccurate tax return.
Silver Law PLC operates in Arizona and Nevada and all of its lawyers are former trial attorneys for the IRS. A tax lawyer from our team can help you understand how the complex Tax Code applies to your marijuana business operations. We’ll help you ensure that you are meeting your obligations. If you have been audited or are facing collections, we are also in a position to help you navigate that process. We can either find ways to bring down your tax debt or can negotiate a settlement for you. Call us today and talk with a tax lawyer in Las Vegas or Phoenix to learn more.
Silver Law PLC
7033 E Greenway Pkwy #200
Scottsdale, AZ 85254
Silver Law PLC (Las Vegas)
410 S Rampart Blvd Suite 390
Las Vegas, NV 89145
Good record keeping is essential to ensuring your marijuana business runs smoothly. Not only does it allow you to track your business’ progress and stay organized, it also helps your business remain in compliance, as some records are required to be kept by law and can be subject to inspection by government officials.
In addition to maintaining financial records for accounting purposes, your business should also be keeping the following for at least 5 years:
Personnel records include: applications, documentation of training, performance reviews and any disciplinary actions taken against an employee.
This includes documentation of all taxes paid to state and federal entities. You should also maintain documentation of all license fees paid to state and local jurisdictions.
All receipts from financial transactions made by your business need to be kept, including, but not limited to: contributions, reimbursements, reasonable compensation, and expenses. Additionally, if your business sells or transfers marijuana or marijuana products, you must retain the receipts, in addition to the corresponding electronic tracking inventory reference.
These records should include: dates, amounts, and testing results of all marijuana or marijuana products that is cultivated, produced, sold, or destroyed by your business. Additionally, you should always be tracking and recording the amount of marijuana that is stored at your business. Marijuana should be tracked from seed to sale with various points of information as required by regulations.
Transfer logs should include the amount of marijuana product transferred, the date of the transfer, in addition to the full name of the person(s) who is transferring and receiving the marijuana product.
Other records that should be kept by your business include: transportation logs, maintenance/cleaning/sanitation logs, advertising approvals, packaging approvals, as well as a record of any inspections conducted at your business. You should also always maintain a visitor log, which includes the full name of the visitor, the date and time of the visit, as well as the reason for the visit.
Basically, any records relating to the marijuana or marijuana products or the operations of your business should be maintained and kept for 5 years.
The Nevada Dispensary Association (“NDA”), a non-profit trade association, was formed in 2014 with a mission to develop and promote best practices in Nevada’s medical marijuana industry. Medical marijuana use was legalized in Nevada in 2000, but no mechanism for legal sales of marijuana existed at that time. Then, in 2013, Senator Tick Segerblom sponsored a bill that was later passed by the Nevada legislature. This bill allowed a limited number of dispensary, cultivation, production, and laboratory establishments to operate in Nevada.
The History of Medical Marijuana Legalization in Nevada
Once medical marijuana establishments became legal, many of the business owners who applied and were ultimately awarded medical marijuana establishment licenses were long-time Nevada residents with deep roots in the community. A number of medical marijuana business owners initiated their involvement in the industry because they had family members with serious medical problems who were being treated with medical marijuana. Many others were drawn to the unique opportunity to build a new industry in Nevada from the ground up, approaching the opportunity as an interesting and rewarding challenge.
Who Does the Nevada Dispensary Association Represent?
The Nevada Dispensary Association currently represents more than 90 percent of the dispensaries in Nevada, including establishments located in both Northern and Southern Nevada. Many NDA members also hold cultivation and production licenses and operate those establishments, which has helped the association to stay mindful of a wide cross-section of interests and issues throughout Nevada’s marijuana industry. The NDA’s Board includes:
- President: Andrew Jolley, Founder and CEO of The Source
- Secretary: David Goldwater, Co-owner of Inyo Fine Cannabis
- Treasurer: Ben Sillitoe, Co-founder and CEO of Oasis Cannabis
- Board Member: John Ritter, Chairman of the Board, The Grove
- Board Member: Brett Scolari, General counsel to Tryke
In 2014, the NDA hired attorney Riana Durrett, Esq. to direct its government affairs initiatives. The association promoted Durrett to the position of Executive Director in 2015. Durrett graduated from Boyd School of Law in 2008 and practiced law in Nevada and California before choosing to dedicate her efforts to the NDA full-time.
Recreational Marijuana Legalization in Nevada
Nevadans passed the ballot initiative to Regulate Marijuana like Alcohol in 2016, which legalized recreational marijuana possession and sales for adults over 21 years of age. The NDA urged lawmakers to allow sales of marijuana to begin earlier than mandated by the ballot initiative, which otherwise would have allowed sales to start on January 1, 2018. This allowed for a bump in tax revenue the State would not have collected otherwise. Nevada’s first recreational marijuana sales occurred on July 1, 2017.
Nevada Dispensary Association’s Contribution to the Medical Marijuana Program
The vast majority of the NDA’s efforts have aimed at protecting Nevada’s medical marijuana program from being minimized with the legalization of adult-use sales, as well as promoting the development and implementation of a strict regulatory framework. In 2017, the Association supported legislation aimed at preserving the medical marijuana program for patients by reducing the cost of patient cards, streamlining the process to obtain a patient card, and extending the period for which the card would be valid. This legislation also improved operations in the medical marijuana program, including establishing the first “single stream” of medical and adult-use marijuana in order to streamline the program and reduce costly inefficiencies. The Association also supported legislation that implemented consumer safety rules, such as limits on servings and requiring child-resistant packaging.
In March 2017, Nevada Governor Brian Sandoval enacted a Task Force to develop and make recommendations on how to regulate adult-use sales in Nevada. The Governor appointed NDA Board Member John Ritter, along with other stakeholders such as law enforcement officials, local government representatives, youth drug use prevention organizations, legislators, and staff from the Governor’s office, among others. NDA’s board, members, Executive Director, and representatives of NDA members were chosen to participate in “working groups,” along with the stakeholders mentioned above, to assist the Governor’s Task Force in thoughtful deliberation on efficient and effective regulation. NDA members also participated in a series of additional public workshops to provide feedback on what would become the strict regulatory framework that is now in place in Nevada. NDA members have stepped up to the plate each time the industry faced a challenge, providing credibility and reliability as the program has developed.
The Future of The Nevada Dispensary Association
Through the cooperation and leadership of its members, along with its efforts to collaborate with non-member industry stakeholders, the NDA has become the voice of Nevada’s marijuana industry. Looking forward, the NDA and its members look forward to continuing to help foster a stable and reliable industry that contributes to Nevada and its communities. For further information on the NDA, or to reach out to the organization, visit nvdispense.com.
In 2017, over 42 million people visited Las Vegas.1 With such a large volume of tourists, and with the legalization of medical and adult-use marijuana in Nevada, the question of whether or not marijuana can be brought into or out of the state arises. Despite more states continuing to legalize marijuana for medical and/or adult use, it is important to know that there are still limitations on traveling with marijuana. As it is widely known, marijuana is still federally illegal.2 This means that while local law enforcement in states that have legalized recreational use may be more forgiving if someone of the legal age is in possession of the legal amount, federal prosecutors are still encouraged to pursue those in possession following the repeal of the Cole Memo.3 Federal prosecutors were not necessarily prohibited from pursuing marijuana possession and related crimes during the implementation of the Cole Memo, but it was re-classified as a low priority to prosecutors, with eight specific instances still being of concern to the Department of Justice. However, if one state has legalized recreational marijuana can it legally be carried from one state to another? No. One should refrain from packing marijuana away in a film canister and carrying it on a plane, period. There are two main prohibitions to packing marijuana onto airplanes when travelling. First, as mentioned above, it is still federally illegal.4 Second, airports may, and do, pass rules prohibiting the possession of marijuana on their premises.5 This blog will examine some of the finer points as to why flying with marijuana is still illegal.
Marijuana is Still Federally Illegal
The main obstacle to carrying marijuana in your carry-on is that possession is still federally illegal.6 Although McCarran International Airport is located in Nevada, a state that has legalized recreational and medical marijuana, the Department of Homeland Security, a federal entity, is responsible for security through the Transportation Security Administration (TSA).7 Because federal employees are responsible for screening every flyer in the United States, and because the possession of marijuana is still federally illegal, then by the very fact, passing through security to board an airplane subjects flyers to federal scrutiny, making carrying marijuana onto airplanes illegal.
However, in Welch v. Huntleigh United States Corp., the Court stated that TSA employees do not have the authority to “detain individuals and must call law enforcement officers to search, seize, and arrest individuals if illegal items are found. . . Since the . . . screeners were only able to perform consensual searches, and had no authority to arrest, [screeners] cannot be considered law enforcement officers.”8 The Welch court also stated that “screeners are able to conduct consensual administrative searches for items which are prohibited entry into the airport’s sterile areas.”9 On top of TSA agents’ limited authority, the scope of items screened for is further limited. According to 49 U.S.C. § 44902, a TSA agent’s screening is limited to “establishing whether the passenger is carrying unlawfully a dangerous weapon, explosive, or other destructive substance.”10 Therefore, while TSA agents cannot directly arrest passengers, it falls on them to inform airport police or other law enforcement officers in the area of any prohibited substance, if necessary.
Airports Outlaw Possession of Marijuana
This leads to a second obstacle: airports passing rules specifically outlawing possession of marijuana on their premises. McCarran International Airport is owned and operated by Clark County. The County chooses to prohibit patrons who “possess, consume, use, display, transfer, distribute, sell, transport, or grow marijuana in or upon any Airport or any property or facility owned by the department of aviation.”11 One of the first airports to take such a stance in a state with legal recreational marijuana was Denver International Airport in Colorado. In December of 2013, the Denver International Airport became the first city facility to prohibit marijuana possession on its property, citing the fact that it is still illegal under federal law and that the federal government regulates the aviation industry.12 In some instances, federal funding may be used to coerce states and entities to comply with federal goals.13 One way that the federal government may dictate how states should legislate is through the withholding of federal funds.14 The federal government’s control over airport policies effects how law enforcement responding to marijuana possession plays out. Despite possession being legal in Nevada, if a traveler is found to have marijuana on their person inside McCarran International Airport, then even local law enforcement may cite them because it is prohibited through Clark County ordinance on airport property.15 However, according to The Cannabist-an affiliate of the Denver Post-in the first five months following Denver International’s ban on possession, “Denver police have not cited anyone for possession and have not confiscated any marijuana products.”16 In context, there were 21,105,942 passengers through Denver International in the first five months of 2014.17
Interstate Travel with Marijuana is Against Nevada Law
While it may not be actively enforced by the TSA, it is still illegal to fly with any amount of marijuana. Even prior to the Cole Memo being repealed, it was illegal to transport marijuana across state lines.18 Listed as one of eight exceptions, the Cole Memo stated the Department of Justice aimed to continually enforce “Preventing the diversion of marijuana from states where it is legal under state law in some form to other states.”19 Not only is it federally illegal, it is against the Nevada Revised Statutes to bring marijuana from outside Nevada into the state, and vice-versa.20
The City Council of Las Vegas has taken small steps to join a handful of other cities across the western United States to license and regulate consumption of marijuana and marijuana products outside of private residences. On June 27th, 2018 the City Council hosted a Social Use Workshop to discuss drafted changes to the City Municipal Code. While there is a long way to go before social use venues come to fruition, the proposed changes are good news for the Las Vegas marijuana community.
Regulations and Restrictions for Social Use Venues
Currently, only consumption in private residences is allowed, however, these proposed ordinances would allow businesses to apply for a privileged business license from the City of Las Vegas to allow consumption on the business premises. A social use venue would come with many regulations and restrictions. Most notably, consumption would be restricted to indoors only and could not be visible to the general public from outside the establishment. Other restrictions to social use venues during business hours would prohibit: allowing anyone under the age of twenty-one to be employed by the establishment, allowing anyone under the age of twenty-one inside of the establishment, selling or providing any marijuana or marijuana products on the premises, allowing the use of any paraphernalia or equipment that does not comply with the fire safety plan, or storing marijuana or marijuana products on the premises.
Potential Business Combinations with Social Use
A decision by the City Council to license social use as a privileged business license opens the possibility to different combinations of businesses and social use. For example, the drafted ordinance would allow the sale and service of alcohol with under eleven percent alcohol content if the establishment is approved for a beer and wine room license as well. Social use venues could also sell, provide or distribute marijuana paraphernalia, with sales being subject to a general retail license.
Documents Required when Applying for a Social Use License
Due to the nature of applying for a privileged business license, applicants for a social use venue would need to submit additional documentation to the City when applying. Some of these additional documents include: written statements acknowledging all applicable laws and the penalties for violating these laws, a written statement to the Director releasing liability of the City to issuing a license to the establishment, acknowledgement that the issuance of a privileged license is at the discretion of the City Council, a security plan designed to ensure compliance with the ordinance, a fire safety plan designed to ensure the safety of employees, patrons and the public.
Additional Responsibilities for Marijuana Social Use Establishments
As some current members of the marijuana industry in Las Vegas and surrounding areas are aware, the operation of a marijuana establishment comes at a price and with unique requirements. Obtaining a social use venue license would be no different. While currently the number of social use venue permits is not restricted, the available locations, fees and application process may restrict some businesses from obtaining permits. Currently, the annual fee for a social use venue is set at $5,000. Similar to current marijuana establishments, a social use venue would not be allowed within 1,000 feet of any school, or within 300 feet of any of the following: city park, church/house of worship, individual care family/group home, individual care center, community recreational facility (public), or any facility whose primary function is to provide recreational opportunities to minors. Social use venues would also be responsible for: complying with odor control and disposal requirements in the Las Vegas Municipal Code, following the approved fire and security plans, maintaining and conducting all activities, in addition to providing security and security measures, upon the premises, providing a twenty-four-hour surveillance system to monitor the interior and exterior of the premises (with a live feed which must be accessible to authorized law enforcement at all times and in real-time), not knowingly allowing the violation of any applicable laws or regulations, and the venue must ensure that at least one qualified person is on the premises at all times during the hours of operation.
Furthermore, because the privileged business licenses may be paired with other business licenses, the parking requirement will be that of the principal use of the site. If, however, it were to be a sole social use business, then it would be necessary to require one parking space for each 250 square feet of gross floor area. Additionally, pursuant to the City of Las Vegas Municipal Code 6.86, each employee of a social use venue must first obtain and maintain a valid work card.
It is important to remember that this is a draft and there will be revisions prior to a vote by the City Council. This is a great leap forward for the City of Las Vegas and the marijuana industry in the Las Vegas Valley.
What’s the First Step in Applying for a “Marijuana Consumption Lounge”?
If you’re interested in applying for a consumption lounge, Connor and Connor can help you identify what the first steps might be. We have years of experience helping people start businesses, specifically in the marijuana industry. Contact us today to schedule a consultation.
In Nevada’s marijuana industry, it is crucial to keep up-to-date with current events and the ever-evolving laws and regulations. Much like the state’s gaming industry, Nevada’s marijuana industry is strictly regulated; those who fail to comply with the regulations can face serious consequences (such as the loss of one’s license).
The Connor & Connor team has written several articles discussing the various legal aspects of the marijuana industry. While the articles below certainly do not encompass every law and regulation, they can serve as a starting point for anyone interested in learning more.
If you have any questions regarding how a specific law or regulation applies to you and your marijuana business, contact us today.
Featured in Nevada Lawyer Magazine:
This article examines the legal and ethical concerns of marijuana advertising on social media sites such as Facebook. This article was also featured on the State Bar of Nevada’s Facebook page.
This article discusses how being a medical marijuana patient affects a person’s right to bear firearms.
Featured in Elevate Magazine’s ‘Legalese’ column:
Conflict between state and federal cannabis laws create tension for cannabis patients and their employers
Can an employer fire you for marijuana use? What if you have a medical marijuana patient card? This article discusses the legal aspects of marijuana use in the Nevada workplace.
It is important to remain in compliance with the Nevada Department of Taxation’s marijuana advertising requirements, as violations of the guidelines can be met with severe consequences. This article discusses the various Nevada marijuana advertising restrictions.
Although there is no specific law prohibiting marijuana use while pregnant, Child Protective Services may still get involved, as marijuana is still classified as a federally illegal substance. This article examines the potential legal consequences of consuming marijuana while pregnant.
This blog post was written by Corrina Esquivel, one of Connor & Connor’s talented team members. Part of Corrina’s job is processing Agent Registration Card Applications. Read Corrina’s post below to learn more about obtaining an Agent Registration Card.
So, would you like to work in a marijuana facility? First, you will need to obtain an Agent Registration Card.
Who – Who needs an Agent Registration Card?
Any employee, contractor, volunteer, owner, officer or board member of a marijuana cultivation, production, dispensary, laboratory or distributor facility will need to obtain an Agent Registration Card before starting work or becoming an owner, officer or board member of a marijuana facility.
What – What is an Agent Registration Card?
An Agent Registration Card is similar to a work card, such as a Sheriff’s Card (which is required for positions in a gaming establishment). An Agent Registration Card is required for positions or ownership interest in marijuana facilities. Similar to a Sheriff’s Card, a background check will be required as part of the Agent Registration Card Application.
Where – Where do I obtain an Agent Registration Card?
In the state of Nevada, any Department of Taxation 1location will process an Agent Registration Card Application.
When – When do I need an Agent Registration Card?
An Agent Registration Card is required to be in the possession of the Agent at all times when entering marijuana facilities. An Agent Registration Card is valid for one (1) year; therefore it is required to renew an Agent Registration Card each year.
Why – Why do I need an Agent Registration Card?
Similar to work cards such as a Sheriff’s Card, TAM Card or Health Card, an Agent Registration Card is required by law 2to obtain in order to secure a position or ownership interest in marijuana facilities.
How – How do I obtain an Agent Registration Card?
The Department of Taxation will provide a Nevada Marijuana Enforcement Division Agent Card Application3, in which an applicant is required to complete. Applicants will need to provide the following items to complete the Agent Card Application:
- Applicants will need to obtain two fingerprints, (one for medical and one for recreational) from a fingerprint agency. The fingerprint agency will electronically submit the applicant’s fingerprints to the Nevada Department of Public Safety and a fingerprint representative will also sign the Agent Applicant Fingerprint Submission Form, Page 13, of the Nevada Marijuana Enforcement Division Agent Card Application. The applicant will need to provide Page 13, completed by a fingerprint representative, with their Agent Card Application.
If the applicant is from out-of-state, the applicant will need to provide two physical fingerprint cards and mail them to the Nevada Department of Public Safety. A fee of $36.25 for each fingerprint card, made payable to the Nevada Department of Public Safety, will need to be included with the applicant’s physical fingerprint cards. The physical fingerprint cards will need to be completed with the reason fingerprinted, MNU account number and ORI number on each card; the above-mentioned information can be obtained from Pages 12 & 13 of the Nevada Marijuana Enforcement Division Agent Card Application.
- Applicants will need to obtain a standard United States passport photograph that is 2 inches in both height and width.
- A copy of an applicant’s government identification is required, such as a driver’s license or passport.
- A fee of $75.00 per card will need to be made payable to the Department of Taxation, i.e. an applicant applying for both cultivation and production agent registration cards will need to pay the Department of Taxation a total of $150.00.
- The Department of Taxation will provide a temporary agent card letter the same day; the temporary letter can be used to enter the marijuana facilities until the applicant receives their physical agent registration card in the mail, provided the applicant is not denied an agent registration card.
There are generally a couple of routes marijuana establishments take to getting insured; owners may use insurance companies that specifically cater to the cannabis industry or, alternatively, they may secure insurance through more traditional insurers willing to carry the risk. Some companies may also choose to self-insure, but that is relatively rare.
Popular Marijuana Insurance Companies
Big name cannabis insurers include OG Cannabis Insurance and Cannasure. Cannasure is a popular cannabis-based insurance company used by many of the marijuana establishments in Nevada. Unfortunately, premiums remain high compared to other industries.
Insurance Requirements for Marijuana Businesses
In terms of insurance coverage, dispensaries are largely treated the same as any other business. Pursuant to state law, dispensaries are required to carry certain types of insurance. In Nevada, businesses MUST be covered for premises liability and worker’s compensation. Additionally, all businesses with at least one employee are required to carry worker’s compensation insurance. Worker’s compensation insurance serves the purpose of covering employees that are injured or become ill during the course of employment. Nevada is a no-fault insurance state, which means that workers will be covered regardless of how the injury was caused, as long as it occurred at work. Failure to carry worker’s compensation can result in severe legal penalties.
Legal Issues with Insuring Marijuana Establishments
Despite the fact that marijuana is illegal at the federal level, marijuana establishments are still able to get insurance. Unlike banking (which poses different challenges), there are no restrictions when it comes to marijuana businesses being insured. When it comes to paying insurance companies, however, marijuana establishments may be stuck dealing only in cash. Therefore, businesses will likely need to make payments using money orders (similar to the way some establishments pay for utility bills).
It is likely that private insurers would also cover lounges (should they become legal at some point) the same as they do other marijuana businesses. Because a lounge is still considered a business, they would be required to carry insurance pursuant to state law, such as premises and worker’s compensation.
Marijuana Lounges and Insurance
Consumption lounges have yet to be implemented by states, therefore it is unknown which companies in particular would insure them and the exact cost of doing so. Lounges would require similar protections as other marijuana establishments in terms of employees, product coverage, and property coverage. As with all insurance companies, they would be required to determine the risk involved with the particular industry and establishment looking for coverage, in addition to the consideration of dram shop liability.
Marijuana first became legal for medical use in Nevada in 2000, but patients had to grow their own. In 2013, the Nevada Legislature authorized a state regulated commercial marijuana industry and since then it’s been a rapidly growing business. There are, however, a lot of pitfalls to avoid, and those who enter this industry should be aware of the risks.
Before you consider jumping into this new and emerging industry, there are a number of important things that should know. Let’s explore the top five things you must know about marijuana law in Nevada, and why it’s a good idea to have a knowledgeable lawyer in your corner.
Things to Know about Marijuana Law in Nevada
There are five important things that every business owner should know about marijuana law in Nevada before undertaking this venture. First, it’s still federally illegal even though the state permits it. Second, you require an Agent Card to work in the industry or to hold a license. Third, it’s under the auspices of both the state and local governments. Fourth, it’s very highly regulated. Finally, the laws are constantly changing.
Marijuana is Still Federally Illegal
That’s right; marijuana is still federally illegal. As a schedule 1 drug under controlled substances act, it is illegal to use, possess, grow or sell marijuana under federal law. State law cannot trump federal law pursuant to the Supremacy Clause in the United States Constitution. Understand that being involved in the marijuana industry could land you in serious trouble.
You Need an Agent Card
You must have an Agent Card to work in the industry or to hold a license to do so. This card is issued to those who have passed a criminal background check and paid the relevant fees. To pass, you must have no felony offenses or drug trafficking charges where the term of probation or incarceration was not completed more than ten years ago. Thus, if you had a felony conviction in 2000, and you were released from incarceration, probation or parole in 2005, you should be eligible to hold an agent card by 2015.
Regulated at State and Local Levels
At the state level, cannabis is regulated by the Department of Taxation. This department oversees the issuing of licenses and Agent Cards, as well as the regulation of businesses. Local governments also grant zoning and land use permits and inspect and oversee business operations. Since there are a number of local jurisdictions, businesses operate differently in different places so take the time to learn what regulations apply to your business in each jurisdiction that you operate.
Cannabis is Highly Regulated
Nevada takes regulation very seriously, our marijuana industry is regulated similar to our famous gaming industry. Like the gaming industry, owners and employees of cannabis businesses are thoroughly vetted. Inventory is regulated and tracked from seed through sales through a comprehensive reporting system. You need to know all the rules that apply to your business, and failure to obey them can result in losing your license as well as other penalties.
Constantly Evolving Laws
Marijuana law in Nevada is often a moving target. Since the inception of this program in 2013, regulations are regularly drafted, revised, and new policies published by the dept. of health and the tax department.
Work with a Qualified Attorney
For these reasons and more, it’s essential to have a team working with you who are well-versed in marijuana laws to keep you above board, and make sure that you’re always in compliance with these laws. In Nevada, that’s the law firm of Connor & Connor, PLLC. Give us a call for a consultation about your business today.