By Brian Bahouth

Reno – There are currently 8 working groups developing recommendations for the Nevada Governor’s Task Force on the Implementation of Ballot Question 2, the voter approved initiative that would establish a system to regulate and tax adult use or “recreational” cannabis in Nevada.  The groups are meeting between now and the first week of May in forming their recommendations.  The Task Force is scheduled to deliver its finalized recommendations on May 30.

The state has retained the consulting firm Quantum Mark to facilitate the recommendation development process, and the Nevada Department of Taxation is charged with adopting and administering a working set of regulations by January 1, 2018, if not sooner, but there are many moving parts yet to reconcile.

Most of the changes required to implement Ballot Question 2 will require the Department of Taxation to revise regulations, which they can do with the approval of their governing body, but the thorough implementation of legal cannabis will also require various changes to Nevada laws.  Revisions to Nevada Regulatory Statutes can only be affected through the state Legislature, and several cannabis bills are active and meant to aid the implementation of Ballot Question 2, but lawmakers are nearly half way through their biennial, 120 day legislative session, and the window to make unexpected statutory revisions is tight.

Cannabis is a plant-based industry, an afternoon with the Cultivation Working Group

The Cultivation Working Group met on Tuesday April 4, and because the marijuana industry is irrevocably plant-based, the vigorous dialogue between disparate stakeholders working collaboratively to regulate the cultivation of cannabis in Nevada highlighted some the most essential challenges to safe and fair regulation.

Members communicated via conference call from Las Vegas and Carson City and elsewhere.  Lynn Hettrick is administrator of the Nevada Department of Agriculture’s plant industry division and member of the working group.  Hettrick served in the state Assembly from 1993 to 2005, and his seasoned knowledge of Nevada governance is an obvious asset to the group.  On Tuesday he gave a presentation on cultivation standards recommendations.

“The recommendation is to establish a buffer zone of at least five miles between marijuana cultivation facilities, unless the Nevada Department of Agriculture grants a variance,” Hettrick said.  “It will be necessary for the Department of Agriculture to be informed of the proposed site of the cannabis cultivation facility during the application process to ensure there is an adequate buffer zone to prevent cross pollination of cannabis crops.”

Hettrick’s statement initiated a fascinating give-and-take of information and perspective, but first a note on why cannabis crops need to be separated.

Commercial cannabis cultivators grow female plants and sedulously prevent them from becoming pollinated.  Fertilized flowers are a catastrophe for a commercial cultivator.  Buds become laden with undesirable seeds and contain less THC and are rendered all but useless as a discrete commercial product, so a 5 mile offset between outdoor farms would likely be effective if other legal states provide accurate guidance for how far cannabis pollen will travel in nature, but hemp, a legal crop in Nevada, must also be considered when establishing offsets.

Hemp is an intentionally low THC member of the cannabis family fully capable of pollinating the marijuana plant bred for adult use and medical purposes, and vice versa.  Hemp cannot be harvested if it contains more than 0.3 percent THC, so pollination from the adult use and medical varieties of cannabis is not desirable either.  Hemp is cultivated for the oil in its seeds as well as its astoundingly useful fiber, an annual crop well suited for cultivation in Nevada, but a field of heavily pollinated hemp poses a distinct threat to an outdoor plot of Sensimilla.

Amanda Connor is a Nevada attorney with a focus on cannabis law and a member of the Cultivation Working Group.

“The way this is written, which I understand why, but it doesn’t distinguish between outdoor and indoor cultivation, and we have 176 indoor cultivations, and most of those, at least in Clark County, do not have a 5 mile buffer, but this does not distinguish between indoor and outdoor.  This is for all cultivators,” Connor said from Las Vegas.

Lynn Hettrick responded.

“The real issue is outdoor, but … I mean, you’re making a good point … it’s going to be hard to write something, that’s why the variance could be granted.  We understand the 176, a whole bunch of them in Vegas are very close to each other, but the issue is that, not everybody has the same filters and same cleanliness requirements and all the same controls for people going in and out.  There are a lot of issues there that could affect somebody.”

John Ritter is a noted real-estate developer in southern Nevada and member of the Nevada Dispensary Association Board of Directors.

“I didn’t think our conversation around this applied to indoors at all.  I thought this was a separation for outdoor cultivation, either marijuana or hemp, from another cannabis outdoor facility, which could be marijuana or hemp, or from an indoor grow facility,” Ritter said.

A brief sub audible huddle occurred in Las Vegas before John Ritter encapsulated the new thinking.

“The language needs to make it clear, that outdoor cultivation needs to be 5 miles from each other and needs to be 5 miles from an indoor facility … that’s it.”

Armen Yemenidjian, founder of Essence Cannabis dispensary in Las Vegas shared his thoughts.

“I’m not proposing that we don’t allow outdoor.  I think it’s perfectly legitimate and I am fully supportive of initiative petition and executing and delivering on the will of the people.  My only concern is where they are located and if they  are going to affect businesses that have already spent a tremendous amount of money being where they are.  I don’t think that’s fair.”

John Ritter reiterated the proposed recommendation.

“The recommendation is to establish a buffer zone of at least 5 miles between outdoor cannabis cultivation facilities from each other or from indoor facilities,” Ritter said for the record.

Lynn Hettrick and others aid said they supported the new language, but the group agreed to reconsider the offset issue again next week once the new revisions are added to the draft recommendation language.

Cultivation Security

For discussion purposes, the starting recommendation was to apply the Nevada medical marijuana program security requirements to outdoor cultivation.  All medical cultivation is currently conducted indoors, and the proposal to transpose the regulations prompted a fruitful exchange of ideas and perspectives.

According to the ballot initiative language, the only security needed for a commercial outdoor grow of cannabis is a lockable 8 foot tall perimeter fence.  John Ritter pointed out that Nevada medical cultivators in Clark County must maintain a patrolled and electronically monitored fortress.

“In our facility in the county, we are required to have 24 hour security, and we’ve got solid block walls and almost 200 cameras in the facility,” Ritter said.”  “It just doesn’t seem fair when someone has a fence and no roof, that they would not need to provide security guards when at least some of have to provide 24 hour security in solid concrete warehouse buildings.  I don’t know how you would possibly monitor it without 24 hour security guards looking at the cameras, at least 24 hours looking the cameras for your facility, whether you are in a city or a rural area.  It seems to me, they are going to be major targets for crime.”

Lynn Hettrick drew a distinction between electronic surveillance and actual on site presence in a remote location.

“The people who spoke to me said what’s at issue is onsite.  You got a guy 40 miles from the nearest paved road in a county that has 3 law enforcement officers in it total.  They said they feel like if they have to put a security guard out there, they are in serious jeopardy from someone who really wants to steal it.  ‘We’d rather lose the product,’” Hettrick said.

John Ritter responded.

“You can’t just have a facility that’s sitting there like a sitting duck.  It’s not very difficult to find out where these facilities are, and I can tell you that people who know that you don’t have a security guard and that you don’t have a roof and you don’t have cameras and that somebody’s monitoring that’s 40 miles away, which is going to take them 45 minutes to get there … I just don’t understand the argument the other way, if you are 3 miles off the nearest paved road, you’re just a sitting duck at that point … if you don’t have a security guard there, I will guarantee you, that that’s even more of a reason that any sort of criminal is going to tag that place to go for first,” Ritter said.

Lynn Hettrick questioned what a single individual could do to deter theft from motivated robbers.

“You put a single guy out there, and these people are really wanting to steal that 40 acres of marijuana, is that single guy really going to stop somebody that is that intent on stealing marijuana?”

The debate continued until some asked to take a vote to see if members support the concept of mandating a 24 hour guard at outdoor grow facilities.  The vote was split with 6 voting in support and 3 against, but John Ritter asked Reno Police representative Mike Stewart why he voted no.

“I think we need to define what security guard is,” Stewart said.  “Is it going to be someone accredited to that business or is this just going to be a person they hold over, a cultivist or someone similar overnight, and what is the responsibility of that guard should something happen, a breach of the property.  Is that person to interfere and attempt to apprehend or just notify law enforcement.  I think there’s a few things that need to be worked out there.”

Armen Yemenidjian asked officer Stewart if he preferred to not have a guard stationed overnight in remote locations.

“The answer to that goes back to what’s the expectation of that employee.  I also have a fear that because of the commitment level of people who would like to take that product, that the product itself wouldn’t be the sitting duck, but it would be the security guard himself,” Stewart said.

Armen Yemenidjian asked the same question of Mike Stewart again, and Stewart said that control of ingress and egress points could make the job safer as could good lighting and remote surveillance, but in the end, he has safety concerns with stationing a single overnight security guard on remote outdoor cannabis farms.

“I have some real safety concerns about someone being there overnight.  Are they armed?  Are they not armed?  And what is their responsibility if a breach is achieved.”

Stewart added that a business would be free to hire whatever security force they deemed necessary, but the policeman reiterated his safety concerns.

“I don’t feel comfortable putting a single person, and I don’t know to what level they’ll be trained, but a single person out in the middle of the night, maybe outside 10 to 15 minutes of law enforcement response, really really is putting a liability on that person.”

Even though the group voted in favor of a round the clock security guard by a 6 to 3 margin, several members said they wanted to  better incorporate Mike Stewart’s concerns.  After more debate, John Ritter said he better understood officer Stewart’s thinking and then asked if they should limit the location of an outdoor cannabis grow to within a prescribed limit from law enforcement assistance.

“Does the Department have the authority to mandate that outdoor grows have to be within, could be a 15 minute response time from law enforcement or something like that, because they are absolutely attractive targets, and again one of the mandates of the Task Force is to prevent diversion of product to the black market and protect the public.  If the reason why we are saying we don’t want one security guard out there in a remote location is because it’s dangerous, then that means it’s dangerous for anybody working out there, at any time of the day.”

With other complex topics to discuss, the group agreed to carry forward consideration of the security recommendation to their next meeting, and with 7 other working groups grinding out regulations, there is a lot yet to settle, but so far the multi-faceted implementation of Ballot Question 2 appears to be on schedule and making good forward progress.