THE STATE OF NEVADA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF PUBLIC AND BEHAVIORAL HEALTH MEDICAL MARIJUANA ESTABLISHMENT PROGRAM, Appellant,
SAMANTHA INC., D/B/A SAMANTHA'S REMEDIES, A DOMESTIC CORPORATION, Respondent.
from a district court order denying a petition for judicial
review. Eighth Judicial District Court, Clark County; Douglas
Paul Laxalt, Attorney General, and Linda C. Anderson, Chief
Deputy Attorney General, Carson City, for Appellant.
Levenson, P.A., and Kimberly R. Maxson-Rushton, Las Vegas,
for Respondent. BEFORE THE COURT EN BANC.
Nevada Department of Health and Human Services appeals from
an order granting the petition for judicial review filed by
respondent Samantha Inc. under NRS Chapter 233B, the Nevada
Administrative Procedure Act (APA). NRS 233B. 130 limits the
right to petition for judicial review under the APA to
"contested cases." Because the application process
provided by NRS 453A.322');">453A.322 does not constitute a contested case
as defined by NRS 233B.032, the district court did not have
authority to grant APA-based relief. We therefore vacate the
district court's order granting the petition for judicial
review and remand with instructions to grant the
Department's motion to dismiss Samantha's petition
for judicial review.
Division of Public and Behavioral Health, Medical Marijuana
Establishment Program is a part of Nevada's Department of
Health and Human Services. The Department evaluates
applications to operate medical marijuana dispensaries and
issues "registration certificates" to successful
applicants. NRS 453A.322');">453A.322 (governing the registration of
medical marijuana establishments); see NRS
453A.ll6(4) (including medical marijuana dispensaries in the
definition for "medical marijuana establishment").
A "[m]edical marijuana establishment registration
certificate" is "a registration certificate that is
issued by the Department pursuant to NRS 453A.322');">453A.322 to
authorize the operation of a medical marijuana
establishment." NRS 453A.119. The Department accepts
applications for registration certificates once a year over
the course of 10 business days. NRS 453A.324');">453A.324(5). The
Department can issue up to 40 certificates for Clark County
dispensaries, NRS 453A.324');">453A.324(1)(a), but only 12 of those
certificates can be allotted to establishments located in the
City of Las Vegas. NRS 453A.326');">453A.326(1).
Department evaluates and ranks applications according to
considerations set forth in NRS 453A.328');">453A.328 and accompanying
regulations. See NRS 453A.322');">453A.322; NRS 453A.328');">453A.328; NRS 453A.37');">453A.37O;
see also NAC 453A.3O6; NAC 453A.310; NAC
453A.3l2(1). The highest scoring applicants receive
registration certificates until the available permits are
exhausted. NAC 453A.3lO(1); NAC 453A.3l2(1). Samantha
submitted an application, but its score did not rank high
enough to receive a Las Vegas registration certificate.
petitioned for judicial review of the Department's
decision not to issue it a registration certificate. Its
petition was based exclusively on the Nevada Administrative
Procedure Act, stating: "This Petition for Judicial
Review is filed pursuant to [NRS] 233B.130, which provides
for judicial review of contested final decisions in
Administrative Agency Cases. See, NRS
233B.O32." Only the Department, not any of the other
applicants, was named as the respondent.
response, the Department moved to dismiss, arguing that the
APA only affords judicial review in contested cases, which
the marijuana dispensary application process does not
involve. The district court denied the Department's
motion and ordered the Department to submit its confidential
protocols for reviewing applications. The district court then
re-reviewed Samantha's application and concluded that the
Department's scoring of Samantha's application was
not based on substantial evidence and that the
Department's application process, particularly its review
of Samantha's application, was arbitrary and capricious.
In its order granting judicial review, the district court
directed the Department to reevaluate Samantha's
application using criteria different from those used for
other applicants and to issue a registration certificate to
Samantha if the revised score placed Samantha in the top 12
Las Vegas applicants.
Department appeals, challenging both the district court's
denial of its motion to dismiss and its decision on the
merits. We sustain the Department's challenge to the
district court's denial of its motion to dismiss and
vacate the district court's decision on that basis,
without reaching the merits.
seeking to challenge an administrative agency's decision
may pursue such judicial review as is available by statute
or, if appropriate, equitable relief. Compare Crane v.
Confl TeL Co.,105 Nev. 399, 401, 775 P.2d 705, 706
(1989) ("Courts have no inherent appellate jurisdiction
over official acts of administrative agencies except where
the legislature has made some statutory provision for
judicial review, "), with Richard J. Pierce
Jr., Administrative Law Treatise, 1700 (5th ed.
2010) ("[Equitable remedies] have become the most common
nonstatutory remedies for unlawful agency action."). The
availability of a legal remedy depends on the statutes
comprising the jurisdiction's Administrative Procedure
Act and the agency-specific statutes involved.
Crane, 105 Nev. at 401, 775 P.2d at 706 ("When
the legislature creates a specific procedure for review of
administrative agency decisions, such procedure is
controlling."); see Mineral Cty. v. State, Bd. of
Equalization,121 Nev. 533, 536, 119 P.3d 706, 707-08
(2005) (harmonizing judicial review provisions in Nevada APA
and NRS Chapter 361). ...