(Reprinted with amendments adopted on April 24, 2023)
FIRST REPRINT S.B. 328
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SENATE BILL NO. 328–SENATORS TITUS AND NGUYEN
MARCH 20, 2023
____________
Referred to Committee on Commerce and Labor
SUMMARY—Eliminating the exemption of the Cannabis
Compliance Board from the provisions of the
Nevada Administrative Procedure Act.
(BDR 56-519)
FISCAL NOTE: Effect on Local Government: No.
Effect on the State: Yes.
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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.
AN ACT relating to cannabis; eliminating the exemption of the
Cannabis Compliance Board from the provisions of the
Nevada Administrative Procedure Act; revising
procedures governing disciplinary proceedings conducted
by the Board; and providing other matters properly
relating thereto.
Legislative Counsel’s Digest:
Existing law sets forth the Nevada Administrative Procedure Act, which 1
establishes the procedures for state agencies to adopt, amend or repeal 2
administrative regulations and adjudicate contested cases. (Chapter 233B of NRS) 3
Existing law exempts the Cannabis Compliance Board from the provisions of the 4
Act. (NRS 233B.039) Existing law instead sets forth specific procedures for the 5
Board to: (1) adopt, amend or repeal regulations; and (2) take disciplinary action 6
against a person who holds a license or registration card issued by the Board. (NRS 7
678A.460, 678A.500-678A.640) Section 5 of this bill eliminates the exemption of 8
the Board from the provisions of the Act, thereby requiring the Board to adopt, 9
amend and repeal regulations and adjudicate contested cases in the same manner as 10
other state agencies subject to the provisions of the Act. Section 6 of this bill 11
repeals the specific procedures for the Board to adopt, amend or repeal regulations 12
set forth under existing law. Sections 1-3 of this bill revise the procedures for the 13
Board to take disciplinary action to conform with the procedures for the 14
adjudication of contested cases set forth in the Act. 15
Existing law sets forth procedures by which a person aggrieved by a final 16
decision of the Board in a disciplinary proceeding may obtain judicial review of the 17
decision. (NRS 678A.610-678A.640) Section 6 eliminates those procedures. 18
Section 4 of this bill instead authorizes a person aggrieved by a final decision of the 19
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Board in a disciplinary proceeding to obtain judicial review of the decision in the 20
manner provided in the Act. 21
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 678A.510 is hereby amended to read as 1
follows: 2
678A.510 1. If the Executive Director transmits the details of 3
a suspected violation to the Attorney General pursuant to NRS 4
678A.500, the Attorney General shall conduct an investigation of 5
the suspected violation to determine whether it warrants proceedings 6
for disciplinary action of the licensee or registrant. If the Attorney 7
General determines that further proceedings are warranted, he or she 8
shall report the results of the investigation together with a 9
recommendation to the Executive Director in a manner which does 10
not violate the right of the person charged in the complaint to due 11
process in any later hearing on the complaint. The Executive 12
Director shall transmit the recommendation and other information 13
received from the Attorney General to the Board. 14
2. The Board shall promptly make a determination with respect 15
to each complaint resulting in an investigation by the Attorney 16
General. The Board shall: 17
(a) Dismiss the complaint; or 18
(b) Proceed with appropriate disciplinary action in accordance 19
with NRS 678A.520 to 678A.600, inclusive, chapter 233B of NRS 20
and the regulations adopted by the Board. 21
Sec. 2. NRS 678A.540 is hereby amended to read as follows: 22
678A.540 1. At all hearings before the Board: 23
(a) Oral evidence may be taken only upon oath or affirmation 24
administered by the Board. 25
(b) Every party has the right to: 26
(1) Call and examine witnesses; 27
(2) Introduce exhibits relevant to the issues of the case; 28
(3) Cross-examine opposing witnesses on any matters 29
relevant to the issues of the case, even though the matter was not 30
covered in a direct examination; 31
(4) Impeach any witness regardless of which party first 32
called the witness to testify; and 33
(5) Offer rebuttal evidence. 34
(c) If the respondent does not testify in his or her own behalf, 35
the respondent may be called and examined as if under 36
cross-examination. 37
(d) The hearing need not be conducted according to technical 38
rules relating to evidence and witnesses [.] , except that those 39
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prescribed in NRS 233B.123 apply. Any relevant evidence that is 1
not immaterial or unduly repetitious may be admitted and is 2
sufficient in itself to support a finding if it is the sort of evidence on 3
which responsible persons are accustomed to rely in the conduct of 4
serious affairs, regardless of the existence of any common law or 5
statutory rule which might make improper the admission of such 6
evidence over objection in a civil action. 7
(e) The parties or their counsel may by written stipulation agree 8
that certain specified evidence may be admitted even though such 9
evidence might otherwise be subject to objection. 10
2. The Board may take official notice of any generally accepted 11
information or technical or scientific matter within the field of 12
cannabis, and of any other fact which may be judicially noticed by 13
the courts of this State. The parties must be informed of any 14
information, matters or facts so noticed, and must be given a 15
reasonable opportunity, on request, to refute such information, 16
matters or facts by evidence or by written or oral presentation of 17
authorities, the manner of such refutation to be determined by the 18
Board. 19
3. Affidavits may be received in evidence at any hearing of the 20
Board in accordance with the following: 21
(a) The party wishing to use an affidavit must, not less than 10 22
days before the day set for hearing, serve upon the opposing party or 23
counsel, either personally or by registered or certified mail, a copy 24
of the affidavit which the party proposes to introduce in evidence 25
together with a notice as provided in paragraph (c). 26
(b) Unless the opposing party, within 7 days after such service, 27
mails or delivers to the proponent a request to cross-examine the 28
affiant, the opposing party’s right to cross-examine the affiant is 29
waived and the affidavit, if introduced in evidence, must be given 30
the same effect as if the affiant had testified orally. If an opportunity 31
to cross-examine an affiant is not afforded after request therefor is 32
made in accordance with this paragraph, the affidavit may be 33
introduced in evidence, but must be given only the same effect as 34
other hearsay evidence. 35
(c) The notice referred to in paragraph (a) must be substantially 36
in the following form: 37
38
The accompanying affidavit of (here insert name of 39
affiant) will be introduced as evidence at the hearing set for 40
the ........ day of the month of ………. of the year …… (Here 41
insert name of affiant) will not be called to testify orally and 42
you will not be entitled to question (here insert name of 43
affiant) unless you notify the undersigned that you wish to 44
cross-examine (here insert name of affiant). To be effective 45
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your request must be mailed or delivered to the undersigned 1
on or before 7 days from the date this notice and the enclosed 2
affidavit are served upon you. 3
4
.................................................. 5
(Party or Counsel) 6
.................................................. 7
(Address) 8
Sec. 3. NRS 678A.590 is hereby amended to read as follows: 9
678A.590 1. Within 60 days after the hearing of a contested 10
matter, the Board shall render a written decision on the merits . 11
[which] Except as otherwise provided in subsection 5 of NRS 12
233B.121, the written decision must contain findings of fact [,] and 13
conclusions of law which are separately stated, a determination of 14
the issues presented and the penalty to be imposed, if any. The 15
Board shall thereafter make and enter its written order in conformity 16
to its decision. No member of the Board who did not hear the 17
evidence may vote on the decision. The affirmative votes of a 18
majority of the whole Board are required to impose any penalty. 19
Copies of the decision and order must be served on the parties 20
personally or sent to them by registered or certified mail. The 21
decision is effective upon such service, unless the Board orders 22
otherwise. 23
2. The Board may, upon motion made within [10] 15 days after 24
service of a decision and order, order a rehearing before the Board 25
upon such terms and conditions as it may deem just and proper if a 26
petition for judicial review of the decision and order has not been 27
filed. The motion must not be granted except upon a showing that 28
there is additional evidence which is material and necessary and 29
reasonably calculated to change the decision of the Board, and that 30
sufficient reason existed for failure to present the evidence at the 31
hearing of the Board. The motion must be supported by an affidavit 32
of the moving party or his or her counsel showing with particularity 33
the materiality and necessity of the additional evidence and the 34
reason why it was not introduced at the hearing. Upon rehearing, 35
rebuttal evidence to the additional evidence must be permitted. After 36
rehearing, the Board may modify its decision and order as the 37
additional evidence may warrant. 38
Sec. 4. NRS 678A.610 is hereby amended to read as follows: 39
678A.610 [1.] Any person aggrieved by a final decision or 40
order of the Board made after hearing or rehearing by the Board 41
pursuant to NRS 678A.520 to 678A.600, inclusive, and whether or 42
not a motion for rehearing was filed, [may obtain a] is entitled to 43
judicial review [thereof in the district court of the county in which 44
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the petitioner resides or has his, her or its principal place of 1
business. 2
2. The judicial review must be instituted by filing a petition 3
within 20 days after the effective date of the final decision or order. 4
A petition may not be filed while a motion for rehearing or a 5
rehearing is pending before the Board. The petition must set forth 6
the order or decision appealed from and the grounds or reasons why 7
petitioner contends a reversal or modification should be ordered. 8
3. Copies of the petition must be served upon the Board and all 9
other parties of record, or their counsel of record, either personally 10
or by certified mail. 11
4. The court, upon a proper showing, may permit other 12
interested persons to intervene as parties to the appeal or as friends 13
of the court. 14
5. The filing of the petition does not stay enforcement of the 15
decision or order of the Board, but the Board itself may grant a stay 16
upon such terms and conditions as it deems proper.] of the decision 17
or order in the manner provided by chapter 233B of NRS. 18
Sec. 5. NRS 233B.039 is hereby amended to read as follows: 19
233B.039 1. The following agencies are entirely exempted 20
from the requirements of this chapter: 21
(a) The Governor. 22
(b) Except as otherwise provided in NRS 209.221 and 209.2473, 23
the Department of Corrections. 24
(c) The Nevada System of Higher Education. 25
(d) The Office of the Military. 26
(e) The Nevada Gaming Control Board. 27
(f) Except as otherwise provided in NRS 368A.140 and 463.765, 28
the Nevada Gaming Commission. 29
(g) Except as otherwise provided in NRS 425.620, the Division 30
of Welfare and Supportive Services of the Department of Health and 31
Human Services. 32
(h) Except as otherwise provided in NRS 422.390, the Division 33
of Health Care Financing and Policy of the Department of Health 34
and Human Services. 35
(i) Except as otherwise provided in NRS 533.365, the Office of 36
the State Engineer. 37
(j) The Division of Industrial Relations of the Department of 38
Business and Industry acting to enforce the provisions of 39
NRS 618.375. 40
(k) The Administrator of the Division of Industrial Relations of 41
the Department of Business and Industry in establishing and 42
adjusting the schedule of fees and charges for accident benefits 43
pursuant to subsection 2 of NRS 616C.260. 44
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(l) The Board to Review Claims in adopting resolutions to carry 1
out its duties pursuant to NRS 445C.310. 2
(m) The Silver State Health Insurance Exchange. 3
[(n) The Cannabis Compliance Board.] 4
2. Except as otherwise provided in subsection 5 and NRS 5
391.323, the Department of Education, the Board of the Public 6
Employees’ Benefits Program and the Commission on Professional 7
Standards in Education are subject to the provisions of this chapter 8
for the purpose of adopting regulations but not with respect to any 9
contested case. 10
3. The special provisions of: 11
(a) Chapter 612 of NRS for the adoption of an emergency 12
regulation or the distribution of regulations by and the judicial 13
review of decisions of the Employment Security Division of the 14
Department of Employment, Training and Rehabilitation; 15
(b) Chapters 616A to 617, inclusive, of NRS for the 16
determination of contested claims; 17
(c) Chapter 91 of NRS for the judicial review of decisions of the 18
Administrator of the Securities Division of the Office of the 19
Secretary of State; and 20
(d) NRS 90.800 for the use of summary orders in contested 21
cases, 22
prevail over the general provisions of this chapter. 23
4. The provisions of NRS 233B.122, 233B.124, 233B.125 and 24
233B.126 do not apply to the Department of Health and Human 25
Services in the adjudication of contested cases involving the 26
issuance of letters of approval for health facilities and agencies. 27
5. The provisions of this chapter do not apply to: 28
(a) Any order for immediate action, including, but not limited 29
to, quarantine and the treatment or cleansing of infected or infested 30
animals, objects or premises, made under the authority of the State 31
Board of Agriculture, the State Board of Health, or any other agency 32
of this State in the discharge of a responsibility for the preservation 33
of human or animal health or for insect or pest control; 34
(b) An extraordinary regulation of the State Board of Pharmacy 35
adopted pursuant to NRS 453.2184; 36
(c) A regulation adopted by the State Board of Education 37
pursuant to NRS 388.255 or 394.1694; 38
(d) The judicial review of decisions of the Public Utilities 39
Commission of Nevada; 40
(e) The adoption, amendment or repeal of policies by the 41
Rehabilitation Division of the Department of Employment, Training 42
and Rehabilitation pursuant to NRS 426.561 or 615.178; 43
(f) The adoption or amendment of a rule or regulation to be 44
included in the State Plan for Services for Victims of Crime by the 45
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Department of Health and Human Services pursuant to 1
NRS 217.130; 2
(g) The adoption, amendment or repeal of rules governing the 3
conduct of contests and exhibitions of unarmed combat by the 4
Nevada Athletic Commission pursuant to NRS 467.075; 5
(h) The adoption, amendment or repeal of regulations by the 6
Director of the Department of Health and Human Services pursuant 7
to NRS 447.335 to 447.350, inclusive; 8
(i) The adoption, amendment or repeal of standards of content 9
and performance for courses of study in public schools by the 10
Council to Establish Academic Standards for Public Schools and the 11
State Board of Education pursuant to NRS 389.520; 12
(j) The adoption, amendment or repeal of the statewide plan to 13
allocate money from the Fund for a Resilient Nevada created by 14
NRS 433.732 established by the Department of Health and Human 15
Services pursuant to paragraph (b) of subsection 1 of NRS 433.734; 16
or 17
(k) The adoption or amendment of a data request by the 18
Commissioner of Insurance pursuant to NRS 687B.404. 19
6. The State Board of Parole Commissioners is subject to the 20
provisions of this chapter for the purpose of adopting regulations but 21
not with respect to any contested case. 22
Sec. 6. NRS 678A.460, 678A.560, 678A.620, 678A.630 and 23
678A.640 are hereby repealed. 24
Sec. 7. This act becomes effective upon passage and approval. 25
LEADLINES OF REPEALED SECTIONS
678A.460 Regulations: Procedure for adoption, amendment
and repeal.
678A.560 Hearings: Limitations on communications.
678A.620 Judicial review: Record on review.
678A.630 Judicial review: Additional evidence taken by
Board; review confined to record; court may affirm, remand or
reverse.
678A.640 Judicial review: Appeal to appellate court;
exclusive method of review for disciplinary hearings; certain
actions not subject to judicial review.
H