The view that marijuana use is illegal aligns with the opinion of the Nevada Gaming Control Board (NGCB) and Nevada Gaming Commission (NGC), which believe there is no room in the current legal framework for any casino gaming licensee to be involved in the marijuana industry. But is that the most practical approach?
Until there is a change in federal law or more clearly-defined policies of what is permissible, the NGCB appears ready to take a hard stance against any involvement in the marijuana industry by gaming licensees to protect the integrity and stability of the gaming industry. In fact, the Nevada Gaming Control Act and Gaming Commission Regulations require strict adherence by gaming licensees to all local, state and federal requirements and restrictions—including the illegality of marijuana use or possession under federal law. Therefore, NGCB representatives have been vocal in their position that even tenuous involvement in the marijuana industry by gaming licensees has the potential to negatively affect the gaming industry. All of this has spurred a general opposition to the presence of marijuana in casinos
However, the parameters of permissible involvement of gaming licensees in the marijuana industry are in limbo and will remain there, until further guidance is provided. To that end, Nevada Governor Brian Sandoval recently tasked the Nevada Gaming Policy Committee (NGPC) with providing recommendations on what the best policy is for Nevada’s gaming future as it relates to the marijuana industry. Specifically, Gov. Sandoval’s executive order instructs the NGPC to address the propriety of:
• Events such as conventions that cater to or promote the use of marijuana;
• Gaming licensees doing business with a company involved in the marijuana industry; and
• Gaming licensees receiving or providing financing to a company involved in the marijuana industry.
NOT A WHIFF
Meanwhile, until the NGPC provides its recommendations, the NGCB and NGC’s opinions are unlikely to change. Gaming licensees and casinos are likely to and should take a cautious approach towards any involvement in the marijuana industry. Moreover, the gaming industry should take a proactive approach to limit the use and possession of marijuana on their properties. To comply with the current policies, gaming licensees should be aware of the various federal and state marijuana-related laws. Specifically, due to the complicated execution of conflicting state and federal laws, there are key differences in the enforcement rules pertaining to the recreational and medical use versus the employee and guest use of marijuana.
An employee of a gaming establishment may be strictly prohibited from using marijuana recreationally, and a zero-tolerance policy may be implemented. Employees may be subject to both pre-employment screening and random/under-suspicion tests during their employment. Additionally, employees are prohibited from possessing the substance on casino properties. Regarding medical marijuana use, an employer is required to do its best to accommodate the needs of an employee that is registered as a medical marijuana patient and holds a current medical marijuana card so long as the accommodation provided will not negatively affect the casino business. Despite this requirement to provide an accommodation, an employer is encouraged and permitted to disallow the possession or use of medical marijuana in the workplace.
Guests of a gaming establishment, on the other hand, are subject to different regulations. Because of the casino’s legal position as a privately-owned property, a casino may and should prohibit the use or possession of marijuana on its premises, including in the hotel rooms located on casino property. Furthermore, the use of marijuana in a public place is considered a misdemeanor, and a casino—although a privately-owned property—is considered a public place since a casino is an area where the public is invited. Therefore, although recreational use is now legal, casino guests may be prosecuted for consuming marijuana on casino property, or in any other public place. Concerning the medical use of marijuana for guests, a casino is not required to make a reasonable accommodation like it is for a casino employee, and the use of medical marijuana by a guest on casino property is considered a misdemeanor just as with recreational use.
As a result of the newfound popularity of marijuana use in states that have legalized the substance, it is likely that gaming establishments will be obliged to train their security to recognize and punish the use of marijuana on casino property. Also, the banning of the recreational use of marijuana on casino properties has begun to raise concern over how this will be enforced when it comes to edibles, which are candies or baked goods that contain marijuana and are much harder to detect but have the same influence on consumers.
Nevertheless, casinos are granted the authority to prohibit not only the use but also the possession of marijuana, despite its recreational or medical status on casino properties. Although employers are required to attempt to provide a reasonable accommodation to employees with a need for medical marijuana consumption, casinos are encouraged to prohibit the use and possession of marijuana on their properties. Casinos may prohibit the use and possession if the consumption of medical marijuana would interfere with the business purposes of the casino or would pose a threat to persons or property in the casino.
SEEING THROUGH THE SMOKESCREEN
While marijuana is quickly growing in popularity in states in which it has already been legalized, casinos must take a firm stance against the consumption of marijuana on their premises to comply with federal law and the requirements and restrictions of the NGCB and NGC. There might be uncertainty surrounding federal enforcement of marijuana-related laws and the extent to which casinos may be involved in or promote events, activities and other business related to the marijuana industry, but casinos could face substantial fines or the loss of their license if they are not in compliance with all local, state and federal rules.
Pursuant to Gov. Sandoval’s executive order, the NGPC must meet prior to Dec. 15, 2017, and provide its recommendations before June 15, 2018. In the meantime, while the gray area surrounding the permissible extent, if any, of gaming licensees’ involvement with and in the marijuana industry remains uncertain, casinos are likely to and should take a cautious approach. Stay tuned as this fluid area of the law continues to develop.