County weeds out some pot dispensaries

The 5-1 action, with Commissioner Tom Collins opposed, sets the county up to have 10 dispensaries in unincorporated areas instead of the 18 allowed under state law. County officials said they are hopeful the state will grant provisional certificates to applicants who already have county permits but currently lack state approval.

The move was made against the backdrop of a Clark County District Court order issued Friday in a lawsuit filed by dispensary applicants who got approval from the county, but not the state. The plaintiffs asked the court to rule the state improperly approved applicants who lacked county zoning approval. But District Judge Kathleen Delaney found the state Division of Public and Behavioral Health had followed the law in choosing which applications to approve.

“The Legislature clearly did not intend for the local jurisdictions … to have de facto authority to dictate to the Division whom it may consider for registration,” the judge wrote.

Nearly 80 applicants for dispensaries made a run for one of the coveted 18 county slots, after a 2013 state law laid the groundwork for regulated sales and distribution of medical marijuana in Nevada.

The county granted special-use permits to 18 dispensary applicants in June. But when the state announced its picks in November, they didn’t all match up.

Only 10 applicants got the needed approval from both the state and the county. That left two other groups that have become known as the “county eight” (those who got approval from the county but not the state) and the “state eight” (those who got state approval but were rejected by the county Monday).

The commissioners’ vote rejected all applications they had previously held “in abeyance” — 57 in all, including those of the state eight. Commissioners could have approved the eight applications with state certificates, putting the county forward with 18 dispensaries.

Instead, Monday’s action ultimately left it up to the state to determine if Clark County will get more than 10 dispensaries.

Legal questions remain as the state and county wrestle with the issue.

The county, pointing to prior statements from state officials in public meetings about the role of local governments, previously asked the state if it would select additional applicants if its initial choices lacked approval from local jurisdictions. But the division’s response was that it’s done issuing provisional certificates, as the limited 90-day period for reviewing applications is over.

But county officials appeared hopeful that the state may budge on that position.

Clark County’s legal counsel, Mary-Anne Miller, said the state is revisiting whether its interpretation of the 90-day rule was appropriate, adding that the state also could potentially open up a new application process for the eight remaining slots.

“Nothing will happen unless and until the county takes action,” she said.

Commission Chairman Steve Sisolak said he hopes the state will take action, noting that in the worst-case scenario, patients will still have 10 dispensaries in unincorporated areas.

“I don’t think it leaves any patients in limbo whatsoever,” he said, adding that the county took the decisions very seriously.

Collins, before the vote, noted that the county has no guarantee or commitment from the state.

State officials had no immediate comment on the county’s action or on whether they are revisiting their stance on the 90-day review period. Laura Freed, deputy administrator of the Division of Public and Behavioral Health, said in a statement that her agency will first need to evaluate the county’s denials and determine if any dispensaries with provisional state approval “have exhausted all their appeal rights with the county.”

As for opening up the state’s application process, that can’t happen until 2015, with the 45-day notice required by law, Freed said.

“However, at the present time, there are no open dispensary slots in unincorporated Clark County,” she said. “Therefore, there are no provisional registrations for the State to issue.”

Jared Kahn, a lawyer for one of the applicants rejected by the county Monday, said his client, Naturex LLC, and others were trying to figure out how to respond and haven’t decided whether to go to court.

Kahn said the logic the county relied on — that the state could decide to grant new licenses to bring the number up to 18 — is at odds with the stance the attorney general’s office has taken in court.

Linda Anderson, chief deputy attorney general, has said the state cannot grant new licenses because the law gave it only 90 days to review applications. That period has ended.

Kahn called the decision “very disappointing” and added, “Millions of dollars are at stake that have been jeopardized by potentially uninformed … misstatements that we cannot have the opportunity to refute.”

He said his client and others could lose their licenses if they don’t open within 18 months of getting state approval.

“So every day of delay is biting away at that 18 months’ time frame we have,” Kahn said. “We’ve just been having to sit every day since Nov. 4. We’ll be sitting further … waiting to know what we’ll be doing.”

Trevor Hayes, an attorney for Wellness Connection of Nevada, said his client is willing to work with the county on addressing any concerns, including moving the location. His client has a state provisional certificate, but lacks county approval.

“They certainly could have taken a look now at the state eight group a little more closely,” he said, adding that he understands the county’s in a tough spot.

But now that the county’s no longer reviewing hundreds of applications, Hayes said, a hearing examining the merits of the state eight would be productive.

Medical marijuana advocates at the meeting were critical of the move, telling commissioners it reduces access.

“We’re sick and tired of waiting, sir,” said Raymond Fletcher, chairman of the board of Wellness Education Cannabis Advocates of Nevada. “Patients have waited far too long for safe access to medication. Are we going to get these other eight dispensaries that are outlined? We don’t know.”

Fletcher wasn’t alone in his frustration.

“We as advocates are so frustrated with this,” said Vicki Higgins, a medical marijuana advocate who uses it to relieve her symptoms of fibromyalgia. “We’re down to 10 when we were supposed to have 18.”

Higgins added: “It’s sad. Let’s reevaluate this process for next time. … Thank you for making the effort. I’m just sorry it came to this.”

Commissioner Chris Giunchigliani was absent.

Eric Hartley contributed to this report.

Contact Ben Botkin at bbotkin@reviewjournal.com or 702-405-9781. Find him on Twitter: @BenBotkin1.