Nevada Judge Says State Pharmacy Board’s Marijuana Scheduling Is Unconstitutional As Regulators Prepare To Approve Consumption Lounge Licenses
Nevada saw two significant marijuana policy developments on Wednesday, with a judge ruling that the Board of Pharmacy’s classification of the drug as a Schedule I substance violates the state Constitution—a decision that comes as regulators separately announced that they will soon begin accepting applications for on-site consumption lounge licenses.
The ACLU of Nevada filed a lawsuit earlier this year, alleging that despite voter-approved legalization police have continued to make marijuana-related arrests because the Board of Pharmacy has refused to remove cannabis from its controlled substances list. That has effectively created a legal “loophole” that the civil rights group says conflicts with long-standing constitutional protections for medical marijuana patients.
On Wednesday, Clark County District Court Judge Joe Hardy ruled that the board’s designation does, in fact, violate the state Constitution, though he’s still reserving judgment on whether the governmental body has regulatory authority over marijuana until both sides submit draft orders for him to review on that matter.
State had argued the standard should be “accepted medical use in treatment” in the U.S. and that the medical marijuana provision in the NV Constitution did not count.
“Medical use or value is enshrined in our Constitution,” the Judge said. “It’s clear to me that is correct.”
— ACLU of Nevada (@ACLUNV) September 14, 2022
“Medical use or value is enshrined in our Constitution,” the judge said, according to ACLU NV. “It’s clear to me that is correct.”
The board attempted to get the lawsuit dismissed, but Hardy rejected that motion in July.
ACLU NV is representing the Cannabis Equity and Inclusion Community (CEIC) and Antoinette Poole, a Nevada resident who was found guilty of a Class E felony for cannabis possession in 2017.
The organization contends that the legalization of marijuana for medical and recreational use through voter-approved ballot initiatives put regulatory authority over marijuana squarely in the jurisdiction of the state Cannabis Compliance Board (CCB)—and the refusal of the Board of Pharmacy to declassify marijuana has led to unconstitutional prosecutions.
Further underscoring the regulatory disconnect, CCB on Wednesday separately issued a notice of intent that it will be accepting applications for adult-use marijuana consumption lounge licenses starting October 14. There will be a 10 business day window for prospective licensees to submit their applications.
Today, the CCB issued a notice of intent to accept applications for cannabis consumption lounges. This notice includes details of the application period.
— Nevada Cannabis Compliance Board (@NevadaCCB) September 14, 2022
Gov. Steve Sisolak (D) signed a bill last year to create the marijuana license type, which is expected to be a boon for the state’s tourism industry. The governor touted the cannabis lounge law in a 4/20 op-ed for Marijuana Moment this year, writing that the “idea isn’t new, but no one is doing it like we are in Nevada.”
To be sure, Nevada’s marijuana market is thriving, with the state reporting late last year that retailers had sold more than $1 billion in medical and recreational marijuana over a one-year period.
Ten percent of tax revenue from recreational cannabis sales will support pubic education funding, as prescribed under a bill that Sisolak previously signed.
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There’s little question about where Sisolak’s administration stands on cannabis policy, regardless of the reported recalcitrance of the state Board of Pharmacy.
The governor has committed to promoting equity and justice in the state’s marijuana law. In 2020, for example, he pardoned more than 15,000 people who were convicted for low-level cannabis possession. That action was made possible under a resolution the governor introduced that was unanimously approved by the state’s Board of Pardons Commissioners.
Meanwhile, in August 2021, a former Las Vegas police officer who sued after facing termination for testing positive for marijuana scored a significant procedural victory, with a district judge denying the department’s request for summary judgement and agreeing that state statute protects employees’ lawful use of cannabis outside of work.
Photo courtesy of Martin Alonso.