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Nevada marijuana growers fear going out of business

Four Reno dispensaries begin sales of recreational marijuana.

Marijuana plant clones are seen at the Sparks-based cultivation center where Tahoe Reno Botanicals grow operation and Tahoe Reno Extractions lab is based on Feb. 24, 2017. (Photo: JASON BEAN/RGJ, RENO GAZETTE-JOURNAL-USA TODAY NETWORK) Buy Photo

Nevada marijuana growers are fearful of going out of business as the state moves forward with a set of permanent regulations that some cultivators say give dispensaries an economic advantage.

Cultivators before the Nevada Tax Commission on Tuesday lamented the number of dispensaries that have begun growing their own marijuana, saying that they had for years kept the medical marijuana market supplied with Nevada-grown weed.

But the new regulations could shut cultivators out of the industry, they argued. Cultivators traditionally grow marijuana to be sold to dispensaries, which in turn sell the product to the public.

If enough dispensaries get their cultivation licenses, for which there is no cap in Nevada, some of the growers may have to shutter their operations.

“We produce one of the best products on the market. We supplied a lot of the dispensaries product before they could cultivate. A lot of them no longer need us since they’re growing their own (product), and they’re getting bigger and bigger and shutting us out,” said Craig Romvough, co-owner of Mother Herb, based out of the Las Vegas area. “We need a free market.”

The commission on Tuesday was reviewing a 256-page set of permanent regulations likely to replace the industry’s current, temporary regulations set to expire in March. The commission unanimously approved the regulations, which address testing, labeling, packaging, delivery, security, taxation and a number of other issues. The regulations now are headed to the Legislative Commission for approval in February.

Cultivators asked the commission to consider changing the language in the regulations to give more power to cultivators by partnering them with dispensaries, or allowing more of them to open their own dispensaries. A handful even formed the For Fairness in the Cannabis Industry LLC, aimed at leveling out the competition for cultivators.

“A lot of dispensaries are going online with their own cultivation, and we go to them and they ask, ‘Why should we pay $2,500 a pound when we can grow our own for $700,'” said Mark Bradley, also a Las Vegas-based cultivator who applied for a retail dispensary license. “I’m worried that our business isn’t going to last another 18 months. These were mini-monopolies that were created.”

Nevada Department of Taxation Director Deonne Contine said that there was little that her department, which oversees the burgeoning industry, could do. The original ballot measure, Question 2, that legalized adult-use marijuana a year ago outlined strict rules for the license application process during the first 18 months of legalization. Those rules include a set of guidelines on how to rank applicants, and those guidelines tend to reward those who previously have operated a similar business.

Only medical marijuana establishments, for instance, are allowed to apply for recreational marijuana dispensary, cultivation and production licenses, Contine said.

While many medical marijuana cultivators applied for both a recreational marijuana cultivation license and a recreational marijuana dispensary license, there are far fewer of the latter licenses available. Because there is no cap, however, on the number of cultivation licenses allowed, many dispensaries were able to get cultivation licenses.

Many of Reno’s dispensaries, for instance, are vertically integrated, growing product in a warehouse facility separate from the storefront or they are soon to go online with their own cultivation.

“Everybody that has an issue with the application process today, is someone that didn’t get one,” Contine said.

She added that ultimately the department awarded all licenses based on a set of criteria outlined in the regulations, which set industry standards for things like testing, labeling, delivery and security for the recreational marijuana industry. The department favored establishments that had the best histories of compliance, taxation and overall experience.

“We have to have rules, we have to have rules that consider public health and safety. I always tell people, be competitive in your application,” Contine said. “We’ll give everything a fair look. There is no intention that this process not be fair and we will be mindful too of the regulations and the law.”

Other regulations discussed during the tax commission meeting included a ban on online-based platforms that coordinate home deliveries of recreational marijuana, though retail establishments will continue to work with contracted distributors to allow home deliveries to continue.

“The problem with going to an Amazon or an Uber (for marijuana delivery services) is we could see an issue with law enforcement not being able to identify which websites are legit and which are not,” said Riana Durett, executive director of the Nevada Dispensary Association. “The Amazon or Uber of marijuana also would not be required to pay taxes.”

Contine also discussed the requirements for testing recreational marijuana for a variety of molds, pesticides and other harmful toxins.

The state since debuting the retail marijuana program in July has collected more than $19 million in taxes, according to the state’s most recent data reported in early November. In the retail marijuana industry, there are currently 63 licensed retail stores, 96 cultivators, 67 producers and eight labs.

Nevada's marijuana cultivators say that they are being squeezed out of their own industry.

Nevada laws for “Cultivation of Marijuana” in Nevada (NRS 453.3393)

Updated July 1, 2020

Nevada marijuana law permits recreational marijuana cultivation of up to 6 plants (a maximum of 12 per household) only if the grower is more than 25 miles from the nearest licensed dispensary. Growing more than 12 plants is a felony, though the court typically grants probation instead of Nevada State Prison.

Common defenses to Nevada charges of cultivating weed include:

  1. The defendant had no knowledge the pot was growing on his/her property, or
  2. The defendant had a valid medical marijuana card, and he/she was too ill or lacked means to travel to a dispensary

Even though Nevada recently legalized recreational marijuana, courts still take cultivation crimes very seriously. And growing 50 lbs. or more of pot is prosecuted as trafficking, even if it is just for personal use.

In this article, our Las Vegas criminal defense attorneys answer frequently-asked-questions about Nevada laws for cultivating marijuana, including punishments, defense strategies, record seals, and immigration consequences. Click on a topic to jump to that section:

1. May I cultivate my own marijuana in Las Vegas, Nevada?

Recreational pot cultivation is permitted under very limited circumstances. Only people who live more than 25 miles from the nearest dispensary are allowed to grow pot. In reality, this rule outlaws anyone in Clark and Washoe Counties.

Furthermore, the few rural Nevadans who live more than 25 miles from a dispensary may grow no more than six (6) plants per person. And no household may have more than twelve (12) plants. Finally, the marijuana must be cultivated in an enclosed space not viewable by the general public (so not near a window where people from the street can see).

Note that “cultivation” comprises “growing” as well as the following actions:

  • manufacturing,
  • planting,
  • harvesting,
  • drying,
  • propagating, or
  • processing

Obviously, commercial growers with a valid registration card from the Nevada State Health Division operate by a different set of rules. 1

1.1. Medical Marijuana Patients

People with valid Nevada medical marijuana cards follow slightly laxer rules. They may grow their own marijuana plants only if:

  • the dispensary is unable to supply the marijuana to the cardholder, or
  • the cardholder is too ill to travel to the dispensary, or
  • the cardholder lacks transportation to travel to the dispensary, or
  • there is no dispensary within 25 miles of the cardholder

And cardholders may not possess more than 12 marijuana plants, mature or immature. 2

2. Can I go to jail for growing my own marijuana in Las Vegas, Nevada?

Usually not for a first offense. And it is often possible to get criminal charges reduced or dismissed through a plea bargain.

The specific penalties depend on the circumstances:

2.1. Growing more than 12 plants (but less than 50 lbs.)

Illegally growing more than 12 plants is a category E felony in Nevada. It carries probation and a suspended sentence and the cost of cleaning and disposing of the marijuana and cultivation facility. But if the defendant has at least two prior felony convictions, the court can order:

  • 1 to 4 years in Nevada State Prison, and
  • maybe up to $5,000 in fines

Note that growing 50 lbs or more of marijuana is automatically prosecuted as trafficking, which carries much harsher penalties and steep fines. 3

2.2. Violating other cultivation rules (NRS 453D.400)

Recreational growers face prosecution for either of the following acts:

  1. Cultivating marijuana within 25 miles of a licensed retail marijuana store;
  2. Cultivating marijuana plants where they are visible from a public place by normal unaided vision; or
  3. Cultivating marijuana on property not in the cultivator’s lawful possession, or without the consent of the property owner

The punishment for committing one of these offenses increases with each successive conviction: 4

2.3. Concentrated Cannabis

It is a category C felony for a recreational user to knowingly or intentionally extract concentrated cannabis. The penalty is 1 to 5 years in prison and possibly up to $10,000 in fines. 5

3. How do I fight the charges?

The defenses available to defendants facing charges for growing marijuana in Nevada depend on the circumstances of the case. Two common strategies include:

  1. Lack of intent: Cultivating marijuana is not illegal in Nevada if the person had no idea he/she was growing it. For example, a person with a wild marijuana plant growing in his/her background is committing no crime as long as he/she does not realize the plant is marijuana. If the prosecutor cannot prove beyond a reasonable doubt that the defendant knowingly or intentionally grew marijuana, the charges should be dropped.
  2. Medical Marijuana: Cultivating marijuana is legal as long as it is done in accordance with Nevada medical marijuana laws. If the grower is a patient, he/she can cultivate up to 12 marijuana plants as long as he/she cannot reasonably get marijuana from a dispensary and has a valid Nevada medical marijuana card. The charges should be dismissed as long as the defendant can show Nevada medical marijuana laws permitted them to cultivate marijuana.

Note that Nevada law enforcement often learns of illegal marijuana growers by satellite images showing greenhouses or by unusual electricity usage. When prosecuting cultivation cases, the D.A. often presents photographs of the plants and lab results confirming that the specimens are indeed marijuana.

4. Can I get my record sealed?

Usually, yes. The waiting period to begin the record seal process depends on the specific charge:

Classification of Cultivating Marijuana Charge Record Seal Wait Time
misdemeanor (NRS 453D.400) 1 year after the case closes
gross misdemeanor (NRS 453D.400) 2 years after the case closes
category E felony (NRS 453.3393) 2 years after the case closes
category C felony (NRS 453.3393) 5 years after the case closes

Note that any criminal charge that gets dismissed can be sealed immediately. 6

5. Can I get deported for growing marijuana?

Probably not for growing a small amount, but it is a gray area. Aliens who have been arrested should seek legal counsel from an attorney right away to discuss their options for safeguarding their resident status. Learn more about the criminal defense of immigrants in Nevada. 7

6. Related offenses

Additional marijuana crimes in Nevada are:

Call us if you are facing a drug charge…

Arrested for “cultivating marijuana” in Nevada? Contact our Las Vegas criminal defense attorneys to schedule a free meeting. We may be able to persuade the prosecutors to reduce or dismiss your charges without a trial.

¿Habla español? Obtener información acerca de las leyes de Nevada para el cultivo de marihuana.

Arrested in Colorado? Go to our article on Colorado marijuana laws.

Legal References:
  1. NRS 453D.110; NRS 453D.400.
  2. NRS 453A.200.
  3. NRS 453.3393.
  4. NRS 453.3363, NRS 453.580
  5. NRS 453.3393
  6. NRS 179.245; NRS 179.255.
  7. Immigration and Nationality ActINA § 237(a)(2)(B)(i); 8 USC 1227(a)(2)(B)(i).

Nevada Revised Statutes Blog Posts:

Updated July 1, 2020 Nevada marijuana law permits recreational marijuana cultivation of up to 6 plants (a maximum of 12 per household) only if the grower is more than 25 miles from the nearest licensed dispensary. Growing more than 12 plants is a felony, though the court typically grants probation instead of Nevada State Prison. .

Updated July 1, 2020 Nevada marijuana law permits recreational marijuana cultivation of up to 6 plants (a maximum of 12 per household) only if the grower is more than 25 miles from the nearest licensed dispensary. Growing more than 12 plants is a felony, though the court typically grants probation instead of Nevada State Prison. .

Updated July 1, 2020 Nevada marijuana law permits recreational marijuana cultivation of up to 6 plants (a maximum of 12 per household) only if the grower is more than 25 miles from the nearest licensed dispensary. Growing more than 12 plants is a felony, though the court typically grants probation instead of Nevada State Prison. .

Updated July 1, 2020 Nevada marijuana law permits recreational marijuana cultivation of up to 6 plants (a maximum of 12 per household) only if the grower is more than 25 miles from the nearest licensed dispensary. Growing more than 12 plants is a felony, though the court typically grants probation instead of Nevada State Prison. .

Only people more than 25 miles away from a licensed dispensary may grow marijuana in Nevada for recreational purposes. Those growers are limited to 6 plants per person and 12 per household. The marijuana plants may not be visible to the public. Depending on the facts, violations may carry fines or prison time.