There are generally a couple of routes marijuana establishments take to getting insured; owners may use insurance companies that specifically cater to the cannabis industry or, alternatively, they may secure insurance through more traditional insurers willing to carry the risk. Some companies may also choose to self-insure, but that is relatively rare.
Popular Marijuana Insurance Companies
Big name cannabis insurers include OG Cannabis Insurance and Cannasure. Cannasure is a popular cannabis-based insurance company used by many of the marijuana establishments in Nevada. Unfortunately, premiums remain high compared to other industries.
Insurance Requirements for Marijuana Businesses
In terms of insurance coverage, dispensaries are largely treated the same as any other business. Pursuant to state law, dispensaries are required to carry certain types of insurance. In Nevada, businesses MUST be covered for premises liability and worker’s compensation. Additionally, all businesses with at least one employee are required to carry worker’s compensation insurance. Worker’s compensation insurance serves the purpose of covering employees that are injured or become ill during the course of employment. Nevada is a no-fault insurance state, which means that workers will be covered regardless of how the injury was caused, as long as it occurred at work. Failure to carry worker’s compensation can result in severe legal penalties.
Legal Issues with Insuring Marijuana Establishments
Despite the fact that marijuana is illegal at the federal level, marijuana establishments are still able to get insurance. Unlike banking (which poses different challenges), there are no restrictions when it comes to marijuana businesses being insured. When it comes to paying insurance companies, however, marijuana establishments may be stuck dealing only in cash. Therefore, businesses will likely need to make payments using money orders (similar to the way some establishments pay for utility bills).
It is likely that private insurers would also cover lounges (should they become legal at some point) the same as they do other marijuana businesses. Because a lounge is still considered a business, they would be required to carry insurance pursuant to state law, such as premises and worker’s compensation.
Marijuana Lounges and Insurance
Consumption lounges have yet to be implemented by states, therefore it is unknown which companies in particular would insure them and the exact cost of doing so. Lounges would require similar protections as other marijuana establishments in terms of employees, product coverage, and property coverage. As with all insurance companies, they would be required to determine the risk involved with the particular industry and establishment looking for coverage, in addition to the consideration of dram shop liability.
Marijuana first became legal for medical use in Nevada in 2000, but patients had to grow their own. In 2013, the Nevada Legislature authorized a state regulated commercial marijuana industry and since then it’s been a rapidly growing business. There are, however, a lot of pitfalls to avoid, and those who enter this industry should be aware of the risks.
Before you consider jumping into this new and emerging industry, there are a number of important things that should know. Let’s explore the top five things you must know about marijuana law in Nevada, and why it’s a good idea to have a knowledgeable lawyer in your corner.
Things to Know about Marijuana Law in Nevada
There are five important things that every business owner should know about marijuana law in Nevada before undertaking this venture. First, it’s still federally illegal even though the state permits it. Second, you require an Agent Card to work in the industry or to hold a license. Third, it’s under the auspices of both the state and local governments. Fourth, it’s very highly regulated. Finally, the laws are constantly changing.
Marijuana is Still Federally Illegal
That’s right; marijuana is still federally illegal. As a schedule 1 drug under controlled substances act, it is illegal to use, possess, grow or sell marijuana under federal law. State law cannot trump federal law pursuant to the Supremacy Clause in the United States Constitution. Understand that being involved in the marijuana industry could land you in serious trouble.
You Need an Agent Card
You must have an Agent Card to work in the industry or to hold a license to do so. This card is issued to those who have passed a criminal background check and paid the relevant fees. To pass, you must have no felony offenses or drug trafficking charges where the term of probation or incarceration was not completed more than ten years ago. Thus, if you had a felony conviction in 2000, and you were released from incarceration, probation or parole in 2005, you should be eligible to hold an agent card by 2015.
Regulated at State and Local Levels
At the state level, cannabis is regulated by the Department of Taxation. This department oversees the issuing of licenses and Agent Cards, as well as the regulation of businesses. Local governments also grant zoning and land use permits and inspect and oversee business operations. Since there are a number of local jurisdictions, businesses operate differently in different places so take the time to learn what regulations apply to your business in each jurisdiction that you operate.
Cannabis is Highly Regulated
Nevada takes regulation very seriously, our marijuana industry is regulated similar to our famous gaming industry. Like the gaming industry, owners and employees of cannabis businesses are thoroughly vetted. Inventory is regulated and tracked from seed through sales through a comprehensive reporting system. You need to know all the rules that apply to your business, and failure to obey them can result in losing your license as well as other penalties.
Constantly Evolving Laws
Marijuana law in Nevada is often a moving target. Since the inception of this program in 2013, regulations are regularly drafted, revised, and new policies published by the dept. of health and the tax department.
Work with a Qualified Attorney
For these reasons and more, it’s essential to have a team working with you who are well-versed in marijuana laws to keep you above board, and make sure that you’re always in compliance with these laws. In Nevada, that’s the law firm of Connor & Connor, PLLC. Give us a call for a consultation about your business today.
With the legalization of both recreational and medical marijuana in Nevada, it is important to understand when and where consumption is appropriate. Although legal at the state level, there are still restrictions on where you can consume marijuana. In addition to following state regulations, you must also pay attention to workplace policies, as your employers are not required by law to allow marijuana use.
Can Employers in Nevada Legally Restrict Marijuana Use?
Current Nevada law states that an employer (public or private) can maintain, enact, and enforce policies that prohibit or restrict marijuana use in the workplace, regardless of its legality at the state level. Simply put: your boss does not have to allow marijuana use in the workplace and is within his or her rights to enforce such policies, even if it means terminating an employee.
But, what if you have a Nevada medical marijuana card? Can your boss still fire you? The answer to that question is not so clear cut.
The Nevada Revised Statutes do not require employers to allow medical marijuana in the workplace, however, an attempt must be made on the employer’s end to make “reasonable accommodations” for employees who hold a valid identification card. Such accommodations should not endanger any person or property, interfere with employees’ work responsibilities, or prohibit law enforcement officials from doing their jobs.
Can Medical Marijuana Patients be Fired for Failing a Drug Test?
Based solely on these regulations, it seems that if you hold a valid Nevada medical marijuana card, then you are entitled to reasonable accommodations from your boss and would therefore be safe from termination (within reason). Unfortunately, as an ongoing lawsuit involving Sunrise Hospital illustrates, it’s not that simple.
In February 2017, Scott Nellis was fired from his nursing position at Sunrise Hospital after a routine drug test revealed that he had marijuana in his system. Hospital officials believed that Nellis was working while under the influence (a violation of hospital policy) and subsequently fired him. At the time, Nellis possessed a valid Nevada medical marijuana card due to injuries incurred while on the job. Additionally, Nellis argued that he was never impaired while working and that “marijuana shows up in tests as long as a month after the substance is ingested,” which could explain the drug test results. By firing him, Nellis’ lawsuit claims that the hospital violated Nevada law by failing to provide reasonable accommodations for an employee who had a valid medical marijuana card. Recently, Sunrise Hospital attempted to file a motion to dismiss Nellis’ lawsuit, however, Clark County District Court Judge Mark Bailus rejected it.
As the lawsuit moves forward, several questions regarding medical marijuana use and the workplace will take center stage:
- When is firing an employee for medical marijuana use appropriate?
- What constitutes “reasonable accommodations?”
- How can employers accurately test for marijuana impairment?
The result of this lawsuit could finally provide a definitive answer to these questions and more.
As a Medical Marijuana Card Holder, How Can I Protect Myself?
In the meantime, if you are an employee who has a valid Nevada medical marijuana card, it is imperative that you review your employer’s policies regarding marijuana use. As a rule of thumb, it is never okay to work while under the influence of any type of drug, as you are potentially putting yourself and others at risk. If you are unsure of how a certain policy affects you, contact a qualified attorney today.
With marijuana becoming either decriminalized or straight-up legalized in states all over the nation, marijuana licenses are becoming a very hot commodity. A lot of people are starting up businesses, and just as many are looking to buy or sell a business. Unfortunately, some very specific issues apply to buying and selling a marijuana business in Nevada that you will need to address. Buying or selling a marijuana business is not the same as buying or selling a typical business, there are strict rules and regulations that need to be considered in your transaction.
What exactly are these issues, and how can you address them to be sure that you’re getting a clean business where everything is completely above-board and ready to go? Let’s examine the ins and outs of selling or buying a marijuana business in Nevada, and the steps you’ll need to take, to ensure that everything goes smoothly.
Buying a Marijuana Business in Nevada
Right now marijuana is a hot business, with a lot of people looking to buy in. There are, however, certain unique factors that come into play with these licenses. Among the most prominent of these issues is that while marijuana is legal in the state of Nevada, it is still illegal at the federal level. Issues like illegality defenses, contracts for real property and labor issues can all be affected by the federal prohibition of marijuana. Due to the federal prohibition of marijuana, you may not be able to access traditional channels of banking and financing your transaction.
Licenses and Regulations
Marijuana business licenses are also very heavily regulated, which requires a detailed vetting process. This process is very similar to that which Nevada gaming companies have to go through, and includes background checks for owners related to financial records and criminal charges. It’s not a bad idea to have all partners in the venture undergo background checks and seek such clearances before even beginning the purchase process.
You also have to get approvals from state and local governments, and this can require an attorney who knows the ins and outs of such transactions. Buying a marijuana business requires very detailed work, and it is always better to spend some money up front to be sure you know exactly what you’re getting right off the bat. Hiring an attorney who is experienced in the state and local rules can actually save you money and headaches in the long run.
Due Diligence Period
Like with the purchase of any business, a proper due diligence period is critical. You need to be sure the license is transferable, that it is in good standing, and there aren’t any hidden issues. Be sure that there aren’t statements of deficiency, landlord tenant issues, pending litigation, or other issues that can hold you up from the purchase. Due diligence is a process by which you investigate every aspect of the business you’re buying. You investigate its financial performance, operations, tax issues, legal compliance, contracts, assets, intellectual property and other aspects, which you outline in a letter of intent.
It’s far better to spend the time and money doing due diligence than to find out too late that there are all kinds of problems in the way of a clean transaction. Make sure that you work with competent professionals and do your full due diligence to be sure that the license and business you’re purchasing is completely clean.
Working with an Attorney
Selling or buying a marijuana business in Nevada carries a number of specific and unique issues. It’s best to work with a qualified attorney who is knowledgeable about these issues specifically. For help in this area, call Connor & Connor, PLLC, today.
As of 2017, approximately 2 billion people are active users on Facebook and over 1 billion people use Facebook daily. There are a reported 1.5 billion active users on YouTube and 700 million on Instagram. With these statistics, it is no surprise that businesses around the globe are using social media to market their products and services, as it is one of the easiest ways to reach customers.
With the legalization of marijuana (medical, recreational, or both) in 30 states and the District of Columbia, legal cannabis businesses have also started using social media sites such as Facebook for marketing purposes. However, this has not come without its own set of challenges. Although marijuana has been legalized at the state level in several places, it is still federally illegal, which complicates social media use.
Cannabis on Facebook
According to Facebook’s Advertising Policies, businesses cannot promote illegal products. Additionally, their Community Standards state: “To help balance the needs, safety, and interests of a diverse community […] we may remove certain kinds of sensitive content or limit the audience that sees it.” These policies appear to be inconsistently enforced when marijuana businesses choose to advertise on Facebook. Some businesses have had their pages shut down or their advertisements rejected due to their promoting of an “illicit substance,” while other marijuana businesses have never experienced issues with their accounts. This inconsistency can, in part, be blamed on Facebook’s algorithms, which are programmed to flag accounts that contain marijuana content, regardless of a business’s legality. However, these algorithms don’t appear to be effective one hundred percent of the time, as some cannabis-related businesses still continue to promote themselves on Facebook without consequence.
How Can Marijuana Businesses Use Social Media?
How are marijuana businesses overcoming these marketing challenges? Some are turning to different social media applications outside of Facebook, such as Duby, which is advertised as a safe, anonymous and cannabis-friendly social networking site. Other businesses have tried to get more creative with their marketing strategies on Facebook by avoiding certain terminology (i.e. using the words “weed” and “pot”), or by sharing content that is more educational in tone. While these strategies can certainly help to destigmatize the use of marijuana, it is still uncertain whether sites like Facebook will continue to enforce strict, and oftentimes inconsistent, policies relating to cannabis businesses.
However marijuana businesses choose to market themselves, it is important that they continue to be responsible in their social media use. Marijuana businesses should never create advertisements or posts that might appeal to children, nor should they post threatening or violent content. Additionally, it is important that businesses continuously review and adhere to social media sites’ community and advertisement policies, as this could help reduce the chances of an account or page being shut down.
Voters in the state of Nevada approved Question 2 in November 2016 which effectively legalized marijuana for recreational use by adults twenty-one and older. While the sale and adult use of marijuana is now legal, public use remains illegal. This leaves many visitors unsure about where they can safely use the marijuana they purchase here while on vacation. Visitors who attempt to use marijuana in their hotel rooms or on casino floors are in for a rude awakening.
Why isn’t public marijuana use allowed in Nevada?
Despite projections to become one of the top revenue producers for the state, marijuana is presently in conflict with the heart of Nevada’s tourism industry, gaming. In addition to the restrictions on public use, marijuana use and consumption is prohibited at both restricted and non-restricted gaming establishments-even in hotel rooms. This includes local gaming joints, downtown casinos, and strip resorts. Casino patrons and guests are not even allowed to possess marijuana in a gaming establishment.1 If a person if found to be in possession or using marijuana at a gaming establishment, they will almost certainly be kicked off the property.
The Gaming Control Board’s Stance on Marijuana
In addition to the restrictions on possession and use, gaming licensees are also prohibited from involvement in the marijuana industry. The Nevada Gaming Control Board (GCB) is the state regulatory body responsible for gaming. The GCB’s hard stance on marijuana dates back to 2014 when it issued a ruling banning gaming licensees from involvement in the marijuana business.2 NRS 463.0129 provides that the continued growth and success of gaming is dependent upon public confidence and trust that licensed gaming establishments will be free from criminal and corruptive elements.3 The GCB believes that allowing gaming licensees to have ties to the marijuana industry would discredit the gaming industry and undermine the public confidence in gaming. Further, because marijuana is presently a cash-only business, there are concerns that marijuana companies could attempt to launder money through the casinos. It is unknown when the GCB will soften or change its stance on marijuana.
Nevada is fashioned as the ultimate adult playground, a city that embraces sin with virtually no limits. However, as far as gaming is concerned, marijuana remains forbidden for the foreseeable future.
Attorney General Sessions Terminates the Cole Memo: What does this mean for Nevada’s marijuana industry?
After apparently solving every other pressing issue at a federal criminal level, U.S. Attorney General Jeff Sessions has officially rescinded the so-called “Cole Memo”, which was largely credited with allowing the marijuana industry to flourish in states where it is legal. So, what exactly was the Cole Memo and what does Sessions’ action have to do with Nevada’s marijuana industry going forward?
The Cole Memo was a memorandum distributed to all U.S. Attorneys by Deputy Attorney General James Cole on August 29, 2013. The Cole Memo was not binding legal authority; it did not legalize marijuana at a federal level, it simply provided guidance to federal prosecutors in states where marijuana is legal. The Cole Memo provided eight priorities for the enforcement of federal marijuana laws including:
- Preventing the distribution of marijuana to minors;
- Preventing revenue from the sale of marijuana from going to criminal gangs and cartels;
- Preventing the diversion of marijuana from states where it is legal under state law to other states;
- Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
- Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
- Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
- Preventing the growing of marijuana on public lands;
- Preventing the possession of marijuana on federal property.
The Cole Memo presumed that states would enact strict regulatory schemes to ensure that the above listed activities were curtailed. By and large, most U.S. Attorneys adhered to the terms of the Cole Memo and prosecution of state legal marijuana entrepreneurs and customers was relatively rare. While it did not change marijuana’s status under federal law, the Cole Memo was the first major step by an arm of the federal government to relax its policies towards marijuana.
So what does the rescission of the Cole Memo mean for Nevada’s marijuana industry and consumers moving forward? The short answer is that we really don’t know. In the near term, it is likely to be business as usual; long term is anybody’s guess. What we can be certain of is that the cultivation, possession, and distribution of marijuana (and products derived therefrom) remains illegal pursuant to United States federal law. Nevada state law cannot trump (no pun intended) state law when the two are in conflict pursuant to the supremacy clause in the United States Constitution. See, U.S. Const. art. VI, cl. II. We also know that the individual U.S. Attorneys have a lot of prosecutorial discretion in their districts. Consequently, even with the Cole Memo’s demise, U.S. Attorneys in states where marijuana is legal could continue to take a hands-off approach. Of course, the opposite is also true.
So what is Nevada’s U.S. Attorney likely to do? Well, we don’t really know because we don’t have a permanent U.S. Attorney in place right now. With the change in the presidential administration, many U.S. Attorneys either resigned, were requested to resign, or were fired by the incoming administration; one of those states is Nevada. Our longtime U.S. Attorney, Daniel Bogden, who was originally appointed by President G.W. Bush (and reappointed by President Obama), was asked to resign during the transition to the new Trump administration. In March 2017 First Assistant U.S. Attorney Steven Myhre took Mr. Bogden’s place in the interim.1 Then in January 2018, Attorney General Sessions appointed federal prosecutor, Dayle Elieson, out of Texas to act as the interim U.S. Attorney for Nevada. Ms. Elieson has prosecuted cases in both state and federal court, she received her J.D. from Brigham Young University and her B.A. in English from University of Texas at Austin.2 Some news outlets saw Ms. Elieson’s appointment as a slap in the face to Nevada’s Republican Senator Dean Heller.3 It is unclear what actions Ms. Elieson will take with regard to marijuana enforcement during her tenure in Nevada, but if she chooses to pursue criminal prosecution against marijuana entrepreneurs, there is very little that can be done to prevent such prosecutions. It should be noted however, that Ms. Elieson is currently serving in an interim capacity pursuant to Mr. Sessions’ authority and full-time appointments are subject to Senate approval.
Moving forward, most marijuana entrepreneurs and consumers will likely take a wait and see approach. Until we have some guidance from the U.S. Attorney’s office in Nevada it is likely to be business as usual at state legal marijuana establishments. Hopefully, we will see some action by Congress to reform marijuana laws at the federal level so the threat of criminal prosecution will cease.
If you have questions about how Mr. Sessions’ decision will impact you, please contact us at (702) 750-9139 or visit www.connorpllc.com
- 1See Reno Gazette Journal retrieved from http://www.rgj.com/story/news/politics/2017/03/13/us-attorney-nevada-gone-after-mass-resignation-request/99145454/ on January 8, 2018
- 2See, Department of Justice retrieved from https://www.justice.gov/usao-nv/pr/attorney-general-jeff-sessions-appoints-dayle-elieson-interim-united-states-attorney on January 8, 2018
- 3See Las Vegas Review Journal retrieved from https://www.reviewjournal.com/local/local-nevada/choice-of-texan-as-nevada-us-attorney-breaks-from-tradition/ on January 8, 2018
Attorney General Jeff Sessions has rescinded the Obama administration’s Cole Memo1, which has largely been credited with allowing the marijuana industry to flourish in states where marijuana is legal under state law. While the Cole Memo was not binding legal authority, federal law enforcement authorities did generally adhere to its terms. Mr. Sessions announcement indicates that he will allow the individual US Attorneys to utilize prosecutorial discretion with regard to enforcing federal marijuana laws in their districts. Mr. Sessions announcement2 does not change any existing federal laws as marijuana has been and remains illegal under federal law.
News of Mr. Sessions memorandum sent marijuana stocks tumbling just a day after many had rallied in part due to the recent start of recreational sales in California.3 With the termination of the Cole Memo, many marijuana users and entrepreneurs will be left with uncertainty. Those seeking guidance on the termination of the Cole Memo should contact legal counsel to discuss their options.
With medical and recreational marijuana on the rise throughout the nation, many have wondered how it will affect our large military population. After all, as a potential treatment for many debilitating conditions, medical marijuana could benefit veterans and service members.
Before diving in, it is important to reiterate that marijuana is still illegal on the federal level (medical or otherwise), and the military is generally a federal entity. Thus, any marijuana usage is still strictly prohibited by members of the military. However, the debate over whether or not that rule is fair is ongoing, and many are still discussing the possibility of legalization in the near future.
The shortest discussion of the military and marijuana is reserved for those who are active duty. The zero tolerance policy is still in effect for those currently serving, and branches regularly issue drug tests to ensure the rules are being followed.1 But there has been a recent push to change the status quo. In 2016, an active duty marine sought approval to begin treatment with marijuana for several brain injuries he suffered over the course of his seven-year career. The marine has already been prescribed an abundance of prescription pills for his injuries, but wants to pursue marijuana as a safer option.2 Unfortunately the military branches retain a zero tolerance policy for marijuana usage, with no differentiation between recreational and medical use. Service members can still be discharged, court-martialed or endure nonjudicial punishment over possession of marijuana or positive drug tests, but it will be interesting to see opinions and discussions shift over the next few years with marijuana gaining wider acceptance.
There is more of a gray area concerning veterans and their treatment after being discharged or retiring from the military. Marijuana is being explored as a safe, and welcomed treatment solution for many debilitating diseases or conditions, and may be a viable option for many veterans. And since veterans are no longer active, should marijuana still be precluded?
Many say no, and believe veterans should get the treatment they deserve, including access to medical marijuana. There are ongoing studies on whether marijuana is a treatment solution for Post Traumatic Stress Disorder, which unfortunately affects many retired or discharged service members. Recent polls also show the large majority of Americans, and a large majority of veterans, support medical marijuana. As a result of these studies, a legislative measure was put forth as recently as July of 2017 to allow veterans to use medical marijuana, and this bipartisan effort was the fourth consecutive attempt to pass the amendment.3
The issue gained even more traction when the Secretary of Veteran’s Affairs, David Shulkin, argued in favor of medical marijuana use, stating, “I believe everything that could help veterans should be debated by Congress and medical experts . . . If there is compelling evidence that is helpful, I hope the people look at this and come up with a right decision, and we will implement that. There may be some evidence this is beginning to be helpful.” 4Shulkin’s statement, released in May of 2017, showed openness from officials in considering alternative treatment options for our veterans.
Past Recreational Use for Applicants
Those who have applied to the military in recent years are familiar with the questions concerning drug use. Traditionally, any history of marijuana use was a disqualifier for many prospects, but there is a growing movement towards relaxing those standards.
The United States Air Force was the first to announce they would no longer be asking potential recruits about past marijuana use.5 It can be inferred that with the growing use of marijuana usage around the nation, disqualifying candidates on that basis would inhibit growth of the Air Force. Other branches appear to allow minor experimentation with marijuana, and take into consideration the amount used, the circumstances, the individual’s lifestyle, and other factors.
However, the Air Force did make clear that testing positive for marijuana after official accession into the branch would be grounds for discharge. Prior substance abuse, dependency, or other disorders may also be an issue. While the exact number of times is a little unclear, it appears that somewhere between the range of 15 to 25 times of marijuana use, or more, may be disqualifying depending on the branch.
Overall, there is still much progress to be made for all types of service members, whether active duty, retired, or prospective applicants. However, the dynamic discussions and debates over the topic show a glimmer of hope for the medical marijuana industry, and it will be a topic sure to be re-addressed in the years to come.
Hawaii, one of the 29 States in the U.S. with laws permitting the sale of medical marijuana, has elected to make its marijuana industry cashless through an app called CanPay. CanPay enables customers to use debit payments to purchase marijuana and marijuana products at dispensaries. Dispensaries set up accounts with Safe Harbor Private Banking, a Colorado-based credit union, and payments made through CanPay are deposited in those accounts. Safe Harbor will be providing banking services to all of Hawaii’s dispensary licensees under this model1.
CanPay presents itself as the first real debit solution for cannabis markets looking to achieve cashless transactions. It would be incorrect however to say that CanPay marks the first time dispensaries have processed debit or credit cards in exchange for marijuana or marijuana products. Many dispensaries have found means of setting up merchant accounts or misleading banks in order to facilitate credit and debit transactions. Creative as these solutions may be, they tend to only last as long as it takes for banks and credit/debit card companies to catch on, at which point the accounts are closed. CanPay alternatively has the endorsement of Safe Harbor Private banking and requires no creative circumnavigation to achieve debit transactions. It is therefore real in the sense that it is secure and transparent2.
CanPay is currently available in seven states and anticipates expansion into others. For licensees across the 29 states with medical programs, CanPay stands as an attractive up-and-coming means of surmounting state banks’ unwillingness to open and maintain accounts on the industry’s behalf. If local banks won’t facilitate the industry, it seems Safe Harbor and other banks partnered with CanPay are able and willing to take on the risk from afar, upon state regulators’ approval—and dispensaries choosing to open accounts with these banks can expect the same quality and legitimacy as they would with any other federally insured bank.
Safe Harbor currently banks more than one billion dollars in cannabis funds and stays compliant with the Federal Financial Crimes Enforcement Network’s (FinCEN) requirement that banks servicing marijuana businesses must file quarterly suspicious activity reports (SAR) pursuant to the Bank Secrecy Act. Typically, suspicious activity reports are the vehicle by which FinCEN reviews accounts and orders that they be shut down; however, so long as banks facilitating the marijuana industry continue to submit these reports and stay in compliance with the guidelines FinCEN announced following the issuance of the Cole Memo, they have FinCEN’s blessing—for now. All banks partnered with CanPay follow these guidelines, but as any professional in the marijuana industry will tell you: no bank can guarantee the federal government will be as tolerant of marijuana business banking tomorrow as it is today3.
CanPay and Nevada
CanPay likely won’t be available in Nevada any time soon. This is because CanPay requires dispensaries to have an account with one of the banks with which it is partnered in order to deposit funds from debit transactions. This is not limited to Safe Harbor alone, and includes banks in Washington and Oregon. Despite the array of banks available to accommodate CanPay, few Nevada marijuana businesses have sought relationships with these banks in particular.
Second, Nevada’s cannabis industry is strictly regulated, and any prospect of allowing purchases made through the app would have to be approved by the Nevada Department of Taxation, which oversees Nevada’s marijuana program. Though no concerted efforts by Nevada’s cannabis industry have been made pushing for CanPay to be allowed and accommodated, if such an effort was made, the Department of Taxation might find its features unpalatable. Sending proceeds from sales out of state could make collecting taxes on transactions difficult, for example. Not to mention it might make tax evasion easier altogether.
Finally, Hawaii integrated CanPay into its cannabis industry as a joint effort between CanPay, Safe Harbor and its State Department of Health at the beginning of statewide medical sales. Nevada has already established the infrastructure for its industry and is relatively entrenched in its way of doing things, so it is unlikely that Nevada will experience a government push to mirror Hawaii’s cashless system.
Nevertheless, CanPay is undoubtedly a pioneer in the Cannabis industry’s push for cashless transactions. While the outlook for CanPay’s availability may be hazy at the moment, there was once a time when medical and recreational marijuana sales shared similar discouraging prospects in Nevada. As far as cashless marijuana sales go in general however, rest assured that in Nevada, the relevant question is not will we ever have cashless transactions, but rather when cashless transactions will be available.