RETAIL MARIJUANA

The attorneys at Connor & Connor PLLC defend Nevada residents and companies who are facing charges, or need legal advice relating to retail marijuana. In order to assist our potential clients we have provided the following list of frequently asked questions and a summary of Nevada’s retail marijuana laws.

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Retail Marijuana in Nevada

Nevada voters passed the Nevada Marijuana Legalization Initiative on November 8, 2016 rendering retail marijuana sale and use legal in Nevada. Since then, Nevada regulations regarding the implementation and enforcement of the sale and use of retail marijuana have been dynamic, particularly at local levels. As retail marijuana law in Nevada becomes more refined, you might be left wondering where this leaves you as a patron or business owner.

Connor & Connor PLLC is a law firm specializing in the field of Nevada marijuana law, both medical and recreational. Its attorneys provide legal services and expertise to constituents of the marijuana industry ranging from eminent businesses to patrons and patients. Throughout their dealings, they have found that some questions about retail marijuana recur more than others. The following is a list of frequently asked questions regarding retail marijuana law.

Is Retail Marijuana Legal in Nevada?

The short answer to this question is yes, however the legality of retail marijuana in Nevada is subject to several constraints. Perhaps a better way to pose this question would be “for whom is retail marijuana legal in Nevada?” and “according to whom?”

Legal For Whom?

The 2016 Ballot Initiative, or Question 2, mandated that only persons over the age of 21 may consume or purchase retail marijuana. This restriction has remained consistent since the inception of legal retail marijuana in Nevada. Nevada’s commitment to keeping marijuana out of the hands of minors is reflected in its imposition of a felony conviction on those who sell or otherwise distribute marijuana to minors.

Additionally, an individual who is not a medical marijuana patient cardholder is not permitted to carry more than one ounce of marijuana flower on their person at a time or 1/8th of an ounce of marijuana concentrate. Generally, individuals are not permitted to grow their own marijuana in Nevada, except that those residing more than 25 miles from their nearest retail marijuana store may cultivate up to six plants. Regardless of how one is permitted to acquire marijuana, no individual may consume or display marijuana in public in Nevada.

Businesses permitted to sell, produce, or cultivate retail marijuana (and independent testing laboratories) are required to have a marijuana establishment license conferred by the Nevada Department of Taxation. The screening process for a marijuana establishment license is intensive, licenses are highly coveted, and currently there are only a finite number of licenses outstanding. In other words, one cannot simply come to Nevada, set up shop, and start growing and selling marijuana.

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Legal according to Whom?

According to Nevada state law, the consumption and sale of marijuana is permitted, subject to the conditions outlined above. However, according to federal law, the sale and use of Marijuana is prohibited pursuant to the Controlled Substance Act (CSA), which lists marijuana as a schedule one drug. If you’re unfamiliar with the United States constitution, Article VI includes a Supremacy Clause declaring federal law to be the “supreme law of the land” superseding all state law that may conflict with it.

Despite this apparent conflict between federal and state law, it was in virtue of the Cole Memo, issued by then Attorney General James M. Cole in the summer of 2013, that the federal government tolerated states’ medical marijuana ballot initiatives and their subsequent recreational marijuana ballot initiatives. Essentially, although marijuana remained a schedule one drug on the CSA, the Cole Memo directed federal prosecutors to enforce the CSA with specific goals in mind (such as keeping marijuana away from minors, ensuring the industry did not support criminal enterprises, etc.) rather than prosecuting all violations pertaining to marijuana indiscriminately. The result: states that had medical and/or recreational marijuana programs were effectively permitted to facilitate and support marijuana industries.

The Cole Memo has since been rescinded. On January 4, 2018, Attorney General Jeff Sessions directed prosecutors that they should no longer enforce the CSA in consonance with the goals of the Cole Memo. Instead, Prosecutors are now to “follow the well-established principles that govern all federal prosecutions.” However, federal prosecutors retain their prosecutorial discretion to choose whether or not to bring charges for marijuana-related violations of the CSA. Federal prosecutors in states like Colorado, for example, have declared that they would continue to uphold the goals of the Cole Memo.

While Nevada’s federal prosecutors have remained silent as to their attitude towards the rescindment of the Cole memo and how they will proceed in the post-Cole Memo United States, they have yet to bring charges against businesses or persons in a way that would indicate that they have abrogated the goals of the Cole Memo.

Thus, while according to federal law the sale and consumption of marijuana is prohibited, prosecutorial discretion enables Nevada to persist in permitting the sale and consumption of both medical and retail marijuana.

Although there appears to be no imminent threat to Nevada’s marijuana program, federal law will invariably be enforced in certain situations, which may include (but not be limited to):

  • When marijuana is transported across state lines, even between states where retail marijuana is legal. In no case are persons permitted to bring marijuana with them into airports or onto airplanes.
  • When marijuana is given to minors.
  • When marijuana is brought onto federal lands, including any national parks in Nevada.

What Types of Marijuana Are Legal?

Marijuana may be consumed in any form consistent with Nevada law. As you navigate the marijuana industry, you will find that consumable marijuana and marijuana products come in many different forms or “types.” You may purchase tinctures, which contain THC dissolved in alcohol administered via a “dropper.” You may purchase and consume edibles, which are food products infused with marijuana. You may consume marijuana concentrates, including wax, shatter, or oils. And you may even buy topical products like lotions or lip balms that administer THC when applied to the skin. These are but a few of the methods of consumption permitted by Nevada law. As the industry grows, new avenues of consumption will be developed, and Nevada lawmakers will have to decide whether they will allow products capitalizing on these avenues to be sold.

In terms of taxonomy (the science of classifying organisms), any species of the genus “cannabis” may be consumed in Nevada, whether directly by smoking, or in the form of a product derived from a cannabis species. These species include cannabis sativa, cannabis indica, and the lesser-known cannabis ruderalis, although cannabis ruderalis is less promulgated due to its low THC (the active ingredient in marijuana that causes intoxication, or the “high”) content.

In terms of the marijuana products that are legal, individuals are free to consume marijuana in any form made available to them. Producers and dispensaries/retail marijuana stores conversely have limits on what products, or “types” of marijuana they may sell.

For example, marijuana production companies and dispensaries/retail marijuana stores may not produce or sell:

  • Any product containing more than 10 milligrams of THC per dose, or more than 100 milligrams of THC per package.
  • Any product taking the form of products marketed to children, including (but not limited to) lollipops and ice cream.
  • Any product resembling a fictional character or cartoon that may appeal to children.
  • Beyond these restrictions, production companies and dispensaries/retail marijuana stores must obtain approval from the Department of Taxation before producing or selling any product.

I have an idea for a retail marijuana business venture. How do I acquire a license?

The Department of Taxation only issues licenses for a limited time after a call for applications is issued. However, only a finite number of licenses will be issued, and determining who will receive the newly minted licenses is a competitive process. Your best bet would be to find someone who currently possesses a license and make them an offer for ownership interest. Be warned: they do not come cheap.

Is Consuming Retail Marijuana Safe?

Whether or not marijuana is safe to consume is a highly debated and contentious issue. While consuming marijuana cannot be said to be safe withal, as many choose to consume it with tobacco or through inherently unsafe means, some methods are certainly safer than others. Smoking arguably damages your lungs whether filtered through water or smoked as a marijuana cigarette (“joint”). Consuming marijuana in the form of an edible avoids contact with your lungs altogether, circumventing any harm—at least as far as your lungs are concerned.

Studies show that THC levels in marijuana products and flower today are at an all-time high, at exponentially greater levels than their 20th century counterparts. Because the higher levels of THC are a new development, the long-term psychological effects of marijuana are speculative and disputed.

One thing is for certain, however. Legal retail (and medical) marijuana in Nevada will always be safer to consume than marijuana purchased from the black market. All marijuana flower and products must pass stringent health requirements prescribed by Nevada law, including testing conducted by independent testing laboratories. These laboratories screen for trace amounts of heavy metals, bacteria like E. Coli, and other microscopic substances down to parts per million. Those selling marijuana on the black market can never ensure this level of scrutiny. If you consume marijuana purchased from the black market rather than a dispensary/retail marijuana store, make no mistake: you have no guarantee of quality assurance. Even after the marijuana has been tested and distributed to dispensaries/retail marijuana stores, Nevada law prescribes proper methods of storage to continue effectuating quality assurance.

Is there any difference between retail and medical marijuana?

Medical marijuana and retail marijuana differ only in name. For the most part, if you purchase marijuana from a dispensary/retail marijuana store, you are purchasing the same flower or product that otherwise could have been sold to a medical patient.

The difference lays not with the marijuana or products legally available, but in the amount of flower or product a medical patient can purchase as opposed to a recreational user, in the rate at which the sale will be taxed, and in the age at which one may purchase marijuana. Medical Marijuana patients with a valid medical card may purchase up to 2.5 ounces of marijuana or marijuana concentrate within a two-week period whereas recreational customers may only purchase up to one ounce at a time or 1/8th of an ounce of marijuana concentrate. An excise tax of 10% will be added to every retail purchase; this tax will not be added to medical purchases. Finally, a patient may acquire a medical card at at any age, and caregivers can acquire licensure in the form of a medical card to administer marijuana products to persons under 18 years of age.

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What can a holder of a medical marijuana card do without being prosecuted by the State of Nevada?

This is a critical question for holders of medical marijuana cards in Nevada, in essence this is what a patient can do without violating Nevada state law (remember, patients and caregivers are always subject to federal prosecution). The acts permitted are defined in Chapter 453 of the Nevada Revised Statutes. According to Nevada Statute, a person who is a holder of a valid marijuana is exempt from criminal prosecution for the following acts:

  1. Possession, delivery or production of marijuana;
  2. Possession or delivery of drug paraphernalia;
  3. Aiding and abetting another in the possession, delivery or production of marijuana;
  4. Aiding and abetting another in the possession or delivery of drug paraphernalia;
  5. Any combination of the acts described in paragraphs (a) to (d), inclusive; and
  6. Any other criminal offense in which the possession, delivery or production of marijuana or the possession or delivery of drug paraphernalia is an element.

What acts are prohibited by holders of medical marijuana cards?

Again, this is a critical issue for holders of medical marijuana cards. Nevada law specifically prohibits card holders from engaging in the following acts:

  • Driving or operating a vehicle (including boats, aircraft or an ATV) while under the influence of marijuana
  • Driving or operating a commercial vehicle while under the influence of marijuana
  • Possessing a firearm while under the influence of marijuana in violation of paragraph (b) of subsection 1 of NRS 202.257
  • Possessing or using marijuana in (1) Any public place or in any place open to the public or exposed to public view; or (2) Any local detention facility, county jail, state prison, reformatory or other correctional facility, including, without limitation, any facility for the detention of juvenile offenders.
  • Delivering marijuana to another person who he or she knows is not lawfully allowed to possess marijuana.
  • Delivering marijuana for consideration to any person, regardless of whether the recipient lawfully holds a registry identification card issued by the Division or its designee pursuant to NRS 453A.220 or 453A.250.
  • Except as otherwise provided in NRS 453A.225 and in addition to any other penalty provided by law, if the Division determines that a person has willfully violated a provision of this chapter or any regulation adopted by the Division to carry out the provisions of this chapter, the Division may, at its own discretion, prohibit the person from obtaining or using a registry identification card for a period of up to 6 months.

Again it is important to understand that a person may still face prosecution under a litany of Federal Laws as the Federal Government does not recognize Nevada medical marijuana laws. State law will not protect you on federal property.

If an individual is licensed in another state can they possess marijuana for medical reasons in Nevada?

Effective April 1, 2014, Nevada has granted reciprocity to valid medical marijuana cardholders from other states. Nonresident patients with active marijuana patient cards in their home jurisdiction will be able to purchase marijuana from a Nevada marijuana dispensary as a medical patient under certain conditions. However, you must abide by Nevada’s laws while you are within the state of Nevada, including the maximum possession limits and restrictions on transfers.

Are employers required to make accommodations for medical marijuana users?

Pursuant to Nevada law employers must make reasonable accommodations to medical marijuana patients. However, there are some exceptions to this rule and remember that Nevada is an at-will employment state.

How much marijuana can patients possess?

Some Patients with valid cards may cultivate up to twelve (12) marijuana plants irrespective of the plant’s maturity or gender. However, the right to grow will be limited once state licensed dispensaries open up. Patients may also possess up to two ounces of usable marijuana or an equivalent amount of edibles or extracts as determined by the Nevada Division of Health.

Will your health insurance compensate you for costs associated with medical marijuana use?

No, Nevada law does not require health insurers to compensate their clients for any costs associated with producing or consuming marijuana for medical reasons.

Can you be evicted from housing for producing or using medical marijuana?

Nevada does not presently have a specific law governing whether you may be evicted from your residence as a result of the production or consumption of marijuana for medical reasons. However, people living in federally subsidized home (HUD Homes) may be evicted. Further, many residential lease contracts include restrictions on the use or production of illegal substances on the premises. Thus, you could be subject to a civil eviction by your landlord, but again this would be an area where you would need to seek the advice of an attorney.

What do you do if you are charged with marijuana possession?

If you are charged with possession of marijuana, you should contact one of the attorneys at Connor & Connor PLLC. immediately.

What if you need legal advice regarding medical marijuana?

If you have questions regarding medical marijuana possession, consumption or production you should contact the attorneys at Connor & Connor PLLC. immediately.

The attorneys at Connor & Connor PLLC. provide legal advice and services to Nevada businesses and patients regarding Nevada’s medical marijuana laws and administrative regulations.