The Gray Area in Nevada’s Green: How Nevada is Struggling to Navigate Marijuana
November 2022 | Floyd Velasquez (Staff Writer and Editor) and Britannia Woodhouse (Associate Editor)
In 2012, Colorado and Washington became the first two states in the nation to officially legalize the recreational use of marijuana. [1] Following suit in 2016, Nevada passed Ballot Question #2, named the “Nevada Marijuana Legalization Initiative”, which legalized the recreational use of one ounce or less of marijuana by individuals 21 and over. [2] Since then, Las Vegas has become a hub for recreational marijuana use, incredibly expanding access to tourists—and more importantly—to everyday Nevadans. Four years after Ballot Question #2 was passed, however, a situation arose which raised questions about marijuana’s recreational use in regards to maintaining employment. In 2020, Danny Ceballos, a table game dealer at the Palace Station Resort and Casino, slipped and fell in the employee break room. This prompted his manager to have him submit a drug test and, after Ceballos tested positive for marijuana, Palace Station terminated his employment. [3]
Following his termination, Danny Ceballos sued Palace Station, claiming that they violated Nevada’s “Off-Duty Conduct” law (NRS 613.333). The Nevada statute prohibits employers from discriminating based on an employee’s off-duty, recreational use of products such as marijuana. Put simply, if the employee’s use of the product is outside of working hours and does not affect job performance or safety, then the employer cannot employ their use of the product as a reason to not hire or to terminate the employee. [4] Nevada Revised Statute (NRS) 613.333 “creates a private right of action in favor of an employee who is discharged from employment for engaging in the lawful use in this state of any product outside the premises of the employer during the employee’s nonworking hours”. [5] This statute applies to all Nevada employees. Ceballos’ termination then leaves the question of whether or not an employee’s recreational marijuana use qualifies as lawful “off-duty conduct” under NRS 613.333.
Ceballos brought his complaint to the district court, where it was dismissed with no explicit reason given. The case was then brought before Nevada’s Supreme Court, where the Court decided that his recreational marijuana use did not qualify as lawful “off-duty conduct”. The reasoning for this opinion stated that, although adult recreational marijuana use has been decriminalized in Nevada, it is nevertheless illegal under federal law. Because federal law still prohibits marijuana possession, the Court ruled that marijuana use does not support a private right of action under the statute, even though it is a Nevada specific statute. [6] The conclusion of the case begs the question of when, or if, federal law can be applied in cases where the petitioner is referring to state-specific law. Can the case be appealed under these circumstances? The likely answer is that it can—and it should be.
Not only was Ceballos completely sober at the time of his fall in the break room, but he had not even used marijuana within the 24 hours before his shift. When he did use marijuana, he was at home. These reasons alone satisfy the requirements for NRS 613.333, which only says that the employee’s use of the product must take place outside of work hours and cannot inhibit their ability to work safely and effectively. The case was filed in Nevada, based on a Nevada statute that is separate from federal marijuana legislation. There’s a wide gray area around marijuana laws in Nevada and how, if at all, they resemble federal legislation. It is unclear when certain cases will or will not refer to federal legislation over NRS, and in Ceballos’ case, federal legislation was referenced in the opinion.
Outside of the inconsistencies of the ruling in Ceballos v. NP Palace, LLC (2022), there is legislation recently passed in California and legal action within Nevada that could further affect the viability of the case. In September of this year, California Governor Gavin Newsom passed AB 2188, which prohibits employers from discriminating against employees for their use of cannabis away from the workplace and outside their work hours, as well as prohibiting discrimination based on a drug test that has found the employee to have any non-psychoactive cannabis substances within their screening results. [7] This bill, which was passed by a majority of California Assembly members, is able to provide state protections for employees’ recreational use of cannabis despite the federal opposition, a model in which Nevada could—and likely will—choose to follow.
Additionally, in the case of CEIC v. Nevada Board of Pharmacy (2022), Clark County District Court Judge Joe Hardy ruled that the listing of marijuana under Schedule 1 misaligns with the Nevada Constitution. [8] This case involved the American Civil Liberties Union (ACLU) of Nevada, on behalf of the Cannabis Equity and Inclusion Community (CEIC), who successfully won their claim that the classification of cannabis under Schedule 1 is incongruent with the Nevada Medical Marijuana Act. The aforementioned act, which was a ballot initiative passed by Nevadans in 1998, amended the Nevada Constitution to legalize medical use of marijuana across the state of Nevada. However, Schedule 1 substances are characterized as serving no medicinal purposes and cannot be safely distributed, placing marijuana among the likes of methamphetamines, heroin, and cocaine – ultimately contradicting the added language of the act in the Nevada Constitution. [9] This new ruling holds the potential to reverse Ceballos, as it mitigates the severity of marijuana as a controlled substance, thus lessening the legitimacy of the Nevada Supreme Court’s deference to federal law. With a rise in efforts contradicting the Ceballos decision, there exists a strong possibility for a much clearer path to be paved in regards to recreational marijuana and how it operates in Nevadans’ everyday lives.
Sources
Coffman, Keith, and Nicole Neroulias. "Colorado, Washington first states to legalize recreational pot." Reuters. Last modified November 6, 2012.
“Nevada Marijuana Legalization, Question 2 (2016),” Ballotpedia, accessed November 27, 2022,
Reynolds, Lindsay, "Ceballos v. NP Palace, LLC, 138 Nev. Adv. Op. 58 (August. 11, 2022)" (2022). Nevada Supreme Court Summaries. 1527.
"CHAPTER 613 - EMPLOYMENT PRACTICES." NRS: Titles and Chapters - Nevada Legislature.
Ibid.
Reynolds, Lindsay, "Ceballos v. NP Palace, LLC, 138 Nev. Adv. Op. 58 (August. 11, 2022)" (2022). Nevada Supreme Court Summaries. 1527.
Discrimination in Employment: Use of Cannabis, A. 2188, 2022d Leg. (Cal.).
Cannabis Equity and Inclusion Community (CEIC) v. State of Nevada, et al., No. A-22-851232-W (Eighth Judicial District Court, Clark County, Nevada 2022).
Ibid.