Categories
BLOG

nevada marijuana growing laws

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.

MARIJUANA ESTABLISHMENT & LICENSING

The attorneys at Connor & Connor PLLC are experienced Nevada business attorneys who have assisted their clients with navigating the complex marijuana laws and regulations in Nevada. Because the Nevada Marijuana program is strictly regulated, our clients often rely on us to form their business entities, to assist with applications, contracts, land use, licensing and regulatory compliance.

Marijuana Establishing & Licensing in Nevada

SB374 and the legalization of Medical Marijuana Establishments

Before the passage of SB374 (the bill that legalized Nevada’s marijuana industry) the only legal avenue for Nevada marijuana patients two acquire their medicine was to grow their own (of course state law did not provide a legal means to acquire clones or seeds). Unfortunately, this required investment in time and expensive equipment and often required renovations to patient’s homes. If a patient did not own their home, they faced eviction by landlords for violating the terms of their lease agreements. Patients were often contacted by law enforcement who would receive reports of possible illegal grow operations that were actual legal patient gardens. Patients also faced the risk of violent home invasion robberies by criminals looking to steal their medicine. As a result, many patients were unable to grow their own medicine legally and were forced to turn to the black or gray market.

After a long legal battle Nevada’s medical marijuana patients finally won the right to legally buy their medicine at a state licensed marijuana establishment thanks to state senators Tick Segerblom (D NV) and Mark Hutchinson (R NV) who sponsored SB374 and paved the way for a safe, legal, marijuana industry in Nevada. The Nevada Legislature passed SB 374 and on June 12, 2013, Governor Brian Sandoval signed the bill into law. SB374 made sweeping changes to Nevada’s medical marijuana laws.

Question 2 and the Legalization of Recreational Marijuana in Nevada

In November 2016, Nevadans voted yes on ballot Question 2 to legalize the recreational use of marijuana. The ballot required the state to begin sales by January 1, 2018, but the Nevada Tax Commission approved temporary regulations that would allow businesses launch as early as July 1, 2017. The “early start” program has been a resounding success generating revenue for marijuana establishments and millions of dollars of tax revenue for the state and local governments.

The Four Types of Medical Marijuana Establishments:

Nevada law provides for four types of medical marijuana establishment licenses. Under Nevada revised statutes 453A, the four types of medical marijuana establishment certificates are:

  • Medical Marijuana Dispensary
  • Medical Marijuana Cultivation Facility
  • Medical Marijuana Production Facility
  • Independent Testing Laboratory

Each medical marijuana establishment certificate only allows the specific type of activity permitted by the certificate. For example, a cultivation certificate only permits the holder to engage in the cultivation of marijuana, they cannot make retail sales to customers or produce marijuana infused products like edibles. Similarly, a production facility cannot cultivate marijuana. All transactions with a marijuana establishment must be made in accordance with Nevada law, any sales to unauthorized individuals or businesses are strictly forbidden and are subject to severe penalties including loss of licensure and criminal prosecution.

The following provides a brief description of each type of facility:

Medical Marijuana Dispensary

A marijuana dispensary certificate allows the holder to purchase marijuana from state licensed marijuana cultivation facilities and state licensed edible facilities. Dispensaries cannot purchase marijuana or marijuana infused products from any unauthorized sources, including out of state facilities regardless of whether or not those facilities are licensed in their jurisdiction (i.e. no importing from other states). A marijuana dispensary is the ONLY facility permitted to make sales to individual patients and customers. The number of dispensary licenses are held to a specific number by state law, meaning once they are all taken no more will be issued by the state unless the law were to be amended.

Medical Marijuana Cultivation Facility

A marijuana cultivation certificate allows the holder to cultivate marijuana. Marijuana cultivation facilities may acquire their initial plants from those patients authorized to possess marijuana plants. Marijuana cultivation facilities may sell the marijuana they cultivate to marijuana production facilities and dispensaries after such products have passed Nevada’s rigorous testing processes. Marijuana cultivation facilities, like all marijuana establishments in Nevada, are subject to very strict regulations regarding safety, security and cleanliness.

Medical Marijuana Production Facility

A marijuana production certificate allows the holder to produce marijuana infused products, including edibles and extracts. A marijuana production facility may only purchase marijuana cultivated at a Nevada licensed facility. A marijuana production facility may only sell its products to a Nevada licensed dispensary or another production facility. Like all marijuana establishments, marijuana production facilities are strictly regulated by the state for the safety and security of their products.

Independent Testing Laboratory

A marijuana independent testing laboratory certificate allows the holder to test marijuana grown at a state licensed facility, or products produced at a state licensed production facility, to test for the presence of banned or unsafe substances. Independent testing laboratories must remain truly independent. If you own any part of one of the other three types of marijuana licenses in the state of Nevada you may not own any part of an independent testing laboratory. The reason for this separation of ownership is to ensure that the labs remain objective in their analysis of the products.

Retail Marijuana Licenses:

When the voters passed Question 2, marijuana for adult-use became legal (called retail marijuana). This initiative petition was codified in Nevada Revised Statutes 453D. While some facilities are dual-licensed (medical and retail), each license should be treated separately.

The following license types exist in the retail program:

Retail Marijuana Store

A marijuana dispensary certificate allows the holder to purchase marijuana from state licensed marijuana cultivation facilities and state licensed edible facilities. Dispensaries cannot purchase marijuana or marijuana infused products from any unauthorized sources, including out of state facilities regardless of whether or not those facilities are licensed in their jurisdiction (i.e. no importing from other states). A marijuana dispensary is the ONLY facility permitted to make sales to individual patients and customers. The number of dispensary licenses are held to a specific number by state law, meaning once they are all taken no more will be issued by the state unless the law were to be amended.

Retail Marijuana Cultivation Facility

A marijuana cultivation certificate allows the holder to cultivate marijuana. Marijuana cultivation facilities may acquire their initial plants from those patients authorized to possess marijuana plants. Marijuana cultivation facilities may sell the marijuana they cultivate to marijuana production facilities and dispensaries after such products have passed Nevada’s rigorous testing processes. Marijuana cultivation facilities, like all marijuana establishments in Nevada, are subject to very strict regulations regarding safety, security and cleanliness.

Retail Marijuana Production Facility

A marijuana production certificate allows the holder to produce marijuana infused products, including edibles and extracts. A marijuana production facility may only purchase marijuana cultivated at a Nevada licensed facility. A marijuana production facility may only sell its products to a Nevada licensed dispensary or another production facility. Like all marijuana establishments, marijuana production facilities are strictly regulated by the state for the safety and security of their products.

Independent Testing Laboratory

A marijuana independent testing laboratory certificate allows the holder to test marijuana grown at a state licensed facility, or products produced at a state licensed production facility, to test for the presence of banned or unsafe substances. Independent testing laboratories must remain truly independent. If you own any part of one of the other three types of marijuana licenses in the state of Nevada you may not own any part of an independent testing laboratory. The reason for this separation of ownership is to ensure that the labs remain objective in their analysis of the products.

Marijuana Distributor License

A marijuana distribution license can be thought of as a fifth type of marijuana establishment certificate. The law regarding adult use or recreational marijuana in Nevada required that recreational marijuana be regulated like alcohol. Therefore, the system is modeled on Nevada’s three-tiered alcohol distribution system. Accordingly, any marijuana designated for adult use must be transported by an state licensed marijuana distributor. This system has created some confusion in the state and a lot of litigation due to the perceived availability of individuals eligible to apply for distributor licenses and their ability or lack thereof to service the needs of the marijuana industry. Medical-only marijuana may still be delivered to other marijuana facilities by the medical marijuana licensees.

Requirements for Opening a Marijuana Establishment:

Acquiring a marijuana establishment certificate in Nevada, like most parts of the industry, is subject to strict regulations. Applications are not open 365 days per year; you may only apply for a marijuana establishment license during periods when the state is accepting applications. By law, the state must announce when it is accepting applications so pay close attention to announcements made by the Nevada Department of Taxation and the news. If the application period is closed, there is NO WAY to legally apply to the state for a marijuana establishment certificate. Further, individuals or groups wishing to open a marijuana establishment must be able to demonstrate the following:

  • That they control $250,000.00 in liquid assets
  • That no member or owner of the proposed establishment has prior convictions for certain felonies or for distribution of a controlled substance (subject to certain exceptions)
  • That they have submitted all relevant fees (described below)
  • That physical address is located 1,000 feet from any school and 300 feet from any community facility such as religious institutions
  • Evidence that the applicant owns the proposed property where the establishment will be located, or that they have written notarized permission from the landlord to operate a marijuana establishment on the premises
  • Applicants must submit the name, address, date of birth and a complete set of fingerprints for each person who is proposed to be an owner or officer of the establishment
  • The name, address and date of birth of every proposed employee of volunteer of the establishment
  • Proposed policies and procedures consistent with the rules of the Department of Taxation and with the laws and administrative regulations
  • Each marijuana establishment must be located in a separate building or facility located in a commercial or industrial zone or overlay
  • Each marijuana establishment must comply with all state and local ordinances and rules pertaining to zoning, land use and signage (these rules vary from one jurisdiction to another, so check with the local governing authority and your lawyer before committing to any location)
  • Each marijuana establishment shall have discreet signage consistent with traditional medical offices and pharmacies
  • Each marijuana establishment shall have a professional interior in the traditional style of medical offices and pharmacies
  • Each marijuana establishment must have one secure entrance, notwithstanding relevant fire codes

In addition to the above, each medical marijuana establishment or retail marijuana establishment must follow very stringent regulations regarding the purchase, cultivation and production of marijuana infused products. All marijuana and marijuana products sold in dispensaries must be purchased from licensed medical marijuana establishments in the state of Nevada.

Licensing Fees

There will also be significant fees associated with opening a marijuana establishment. These fees are in addition to any fees relating to forming and registering a business or corporation with the Nevada Secretary of State and any local licensing fees (which vary from one jurisdiction to another). The fees for the separate types of establishments are as follows:

Medical

Dispensary Licensing Fees:

  • $5,000.00 nonrefundable application fee
  • $30,000.00 initial licensing fee
  • $5,000.00 annual renewal fee

Cultivation Facility Licensing Fees:

  • $5,000.00 nonrefundable application fee
  • $3,000.00 initial licensing fee
  • $1,000.00 annual renewal fee

Edibles Production Facility Licensing Fees:

  • $5,000.00 nonrefundable application fee
  • $3,000.00 initial licensing fee
  • $1,000.00 renewal fee

Independent Testing Laboratory Licensing Fees:

  • $5,000.00 nonrefundable application fee
  • $5,000.00 initial licensing fee
  • $3,000.00 annual renewal fee
Retail

Application fee of $5000 for all applications

  • For the initial issuance of a retail marijuana store license – $20,000 ($6,600 for the renewal)
  • For the initial issuance of a retail marijuana cultivation license – $30,000 ($10,000 for the renewal)
  • For the initial issuance of a retail marijuana production license – $10,000 ($3,300 for the renewal)
  • For the initial issuance of a marijuana distributor license – $15,000 ($5,000 for the renewal)
  • For the initial issuance of a marijuana testing facility license – $15,000 ($5,000 for the renewal)

In addition to the above fees each applicant for a marijuana establishment license must pay to the Department of Taxation the actual costs of processing the application including the costs of background checks. Putting together a quality application is very time consuming and can be very costly.

Marijuana Support Businesses:

In addition to business licenses for marijuana establishments, local governments require marijuana support business licenses for businesses that operate to support the marijuana industry. This could include consulting businesses, lighting companies, security companies, and staffing companies. It is important to know if your business will require a marijuana support business license in order to operate in compliance.

Additional Considerations:

In addition to the above fees and requirements each marijuana establishments are strictly regulated. All marijuana produced and sold in the state of Nevada must be strictly accounted for. The facility must track all marijuana produced from seed or clone all the way to the consumer. Each facility must enact strict policies to ensure that all marijuana distributed to patients and retail customers is accounted for to ensure that none of it is entering the illegal stream of commerce. Each facility must also utilize strict security measures including alarms and real-time monitoring systems in order to track the marijuana. In short, marijuana establishments will be subject to complex regulations and any violation will result in a loss of the establishments license or potentially criminal prosecution. As a result, we strongly recommend consulting with an attorney to ensure strict compliance with the regulations.

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 marijuana laws.

Nevada Marijuana Business Establishment & Licensing is complex. The Cannabis attorneys at Connor & Connor PLLC can help you get a Marijuana Business License in Nevada.