Nov 19 2020 . 14 min read

Elevating the Conversation with Tisha Black, President, Nevada Dispensary Association

Elevating the Conversation with Tisha Black, President, Nevada Dispensary Association

Attorney Tisha Black began her two-year term as NDA president in 2019 and plans to run for a second term in 2021. Black’s experience in the cannabis space includes being a Nevada Made Marijuana dispensary board member as well as regulatory council. She is the founding partner of Black and Wadhams Attorneys at Law and has been an active participant in the regulation and operations of the cannabis industry.

What was behind your decision to serve as Nevada Dispensary Association (NDA) president?

It was four years ago that my father, Randy Black, Sr., and I actually started the NDA. Neither he nor I had been officers because we were busy putting together Nevada Made Marijuana (dispensary) and I was also busy with my company, Black and Wadhams. Then after I had run for (Clark) County Commissioner, I didn't win that race, I liked the idea of being able to serve. And since I couldn't serve as Commissioner, and I had some time in my schedule from the campaign ending, I sort of rolled right into being the president. That election was two months later. I got involved because from a lawyer’s perspective, we need to implement best practices and try to establish standards. As a business attorney I’m a small business advocate on every level, so I felt like this was a good place for me to be. Not only to bring my network that I had achieved from campaigning, but also my skillset as an attorney and a small business attorney.

What would you like to accomplish as NDA president?

We're still working on pervasive best practices and always improving our training program. We are presently the largest trade association for cannabis in the state. We'd like to continue to grow that and perhaps expand into hemp. And, also, put more emphasis on our cultivation and production members and gain new membership in that area as well.

You were halfway through your NDA presidency when the Covid-19 pandemic hit. What has the NDA done to support its membership?

We worked with the Governor's Council helping marijuana entrepreneurs be deemed essential during Covid. So that was some critical assistance we gave the industry. We also continued with the education platforms, working with local jurisdictions on how we were going to conduct drive-up because we don't have drive-thru but we had curbside. We are continuing to liaise with the regulators and legislators to have them hear what our trials were and what we were going through. And they were quite responsive.

Initially in March and April the NDA put together guidelines for all of our members on social distancing and protocols to ensure that not only were our patients and patrons, but most importantly our employees, taken care of. So, the focus wasn’t always on us pivoting for sales to increase market share. It really was the safety and sanitization protocols for people who work in our industry. I am such a small business advocate. That’s my passion, caring about people.

In March when NDA lobbied to make cannabis essential what was your expectation? I honestly had no expectation. There are such constant tectonic shifts going on in belief systems and headlines. I know from California that Governor Newsome decided cannabis shops were not essential and there was a lot of backlash and then he changed his mind. So, coming right on the heels of that and knowing that Governor Sisolak was paying such close attention to what was happening in California, at least that was an arrow in our quiver. The other thought being we are a very consistent and important source of tax revenue for the state and the local municipalities so that was another arrow in our quiver. We have been very vocal at the Legislature since we were founded, and we've also been benefactors of the community in terms of our charitable contributions.

Lastly, all of those things are very smart, but not to be eclipsed by the fact that the science is starting to come along. Not only is the intelligence level with regard to opioids rising and their addictiveness but, also, conversely, it seems like there's an inverse relationship with them. A lot of the science regarding the positive effects of marijuana has increased on the benefit side of what it can do for you.

Being an attorney, did you have any hesitation about getting involved in a federally illegal industry?

Yes, I did and that is the interesting part of it. The Supreme Court wouldn't allow Nevada practitioners to be involved on an ownership level. They were kind of silent on whether we can practice but my opinion was we've legislated this and if anybody needs guidance in small business navigation and trying to make sure you're dotting your i's and crossing your t's and doing things the right way, it would be people in the cannabis industry. So as a small business attorney, at the time, there's no more valuable place in terms of legal counsel and regulatory counsel than then there was for small cannabis entrepreneurs. Because when we first started, we didn't have syndications and large corporate ownership, a lot of our corporate ownership is still small business. Nevada Made is still a small business. It was kind of unnerving, but I just took a deep breath and moved forward and expanded out. And now you see a lot of the other big firms getting involved. But I really do think that cannabis regulatory council is very state specific because we don't have any national standards or guidelines. I mean, we do in the Nevada Dispensary Association, we work with other like associations, cannabis-oriented trade associations in other jurisdictions and we're all very similar, but we're different.

The Marijuana Opportunity, Reinvestment and Expungement Act (MORE Act) would officially remove cannabis from the list of federally controlled substances. Do you think that will be passed in 2020?

In large part it depends on the presidential election. I thought we would have been able to get off the schedule some time ago because it seems so self-evident. I thought that we would have been able to get off the schedule, if for nothing else, but for banking. Because it's very difficult to run a business on a cash basis, and we're stuck with that. And that is a claim of failure for transparency on a lot of people that don't like the industry. And it's a complaint for a lot of people in the industry because we want to bank like normal businesses because we are, in our states, normal businesses, were legitimate. I thought we would have been off the schedule before. With so many states being involved in cannabis, it just doesn't make sense to me that you wouldn't allow traditional banking with regular business, you wouldn't really push research on a federal level because we have so many states that are using it. There's just so many failures and, unfortunately there's a lot at the political level, it just doesn't make sense to me because politics is not generally ever what's best for business.

What has been the most fascinating part of being on the ground floor of a brand-new industry?

I was a history major. I'm reading the Federalist Papers again. I'm also reading a book on Scalia and a book on RBG (Ruth Bader Ginsburg) and what's fascinating is the conflict between and the juxtaposition between state and federal. It's one thing being at the bottom floor, I started in cannabis in Nevada in late 2013, and it was largely because most of my clients were developers and construction people. There really wasn't much going on positive after 2008. It was foreclosures and bankruptcies and unemployment. And this just kind of piqued my interest as a new avenue. And I truthfully didn't really appreciate what I was getting into when I was getting into it as all good things happen. But it's just fascinating, the difference between state and federal. I've been a business attorney now for 24 years. At that point, having done business in a traditional sense, where you can bank and all the rest of it for 20 years, I love the challenge of figuring out how to start a business that has no regulatory foundation, no statutory foundation, or precedent that you can rely upon. Businesses that you can't traditionally bank, you can't traditionally advertise, you didn't really know who your market was and where it was going to come from.

Honestly, I love the intellectual challenge of it. I love the legal challenge of it. And I love the people. Oh my gosh, such diverse people from super highfalutin corporate ‘I’m the intellectual that’s going to change everything’ all the way down to ‘my shit’s the best because I've been growing it in my mom's closet for the last 55 years.’

There's really nothing about it I don't love as it relates to my practice and what I do in general because I really love the creative entrepreneurial spirit. I love people that have a vision and have the gumption to work toward it, that will take the risk to create something instead of standing by and either tearing things down or complaining. There's just nothing better than an entrepreneurial spirit and it's a privilege to be able to help people like that.

Since you've gotten involved in the industry, what's been the most surprising thing you've discovered about cannabis? This might just be naive, but how slow government reacts sometimes. We have laws on the books that even though both medical and recreational is legal in Nevada, if you partake and two days later it's still in your system and you happen to get in an accident, even if the accident is not your fault you could still be liable. Our laws have not caught up. And what's surprising to me is how sexy marijuana is for a lot of people in government to get involved or try to grab a headline off of it, how they've missed some of the fundamentals. We do not­­with all capsdo not put enough effort into regulation of, or enforcement of the black market. We have not gone after and cleaned up some of our statutes like DUIs. The fact that we still don't have banking, the fact that we're still on the schedule, it's ridiculous. That is surprising to me because actually the private sector moves at an exponential speed compared to the government sector. I haven't had such an interface before with it so that's surprising to me.

What do you see as the biggest challenge facing the Nevada cannabis industry right now?

I wouldn't say it's the biggest challenge, but certainly at our forefront for us in the industry is just working with the CCB (Cannabis Compliance Board) and not at all do I mean that as a challenge. But name an industry that has had three regulating bodies in five years? I'm glad to see that they (CCB) are really digging in deep, they're really paying attention. They're setting up parameters, they're getting on enforcement and most importantly, they are really, really working with us in the industry to make sure that they're not overregulating and underregulating.

But for us the most important thing is to continue to build a very strong relationship with the CCB and make sure that we are properly and zealously representing our membership with regard to the regulations and the enforcement of them and the manner in which they are enforced moving forward. So, we still have a lot of lags in support and operational things like agency cards and transfers and things like that. And they have been keen to get out in front of those and address those and work with us on what we as industry stakeholders deem to be our priority issues.

How much of a problem is the black market for Nevada dispensary operators?

I'm reticent to give a number but I wouldn't be surprised if it's 50 percent. I know it's a lot. And the irony is because so many people in the general public know that it's legal, they believe anybody they buy it from is a legal source. And then there's such a lack of enforcement on the black market. They have billboards up for heaven's sakes. They have websites that provide an illegal delivery service. And this is the thing that's crushing, they have a price point that is just an edge below legal price points so they legitimize themselves more. They're making a ton of money right now because we have a legal market. The illegal market is masquerading as legal and the general public doesn't know any different.

What is your takeaway from the retail marijuana licensing lawsuit that was tried over the summer? In some ways I don't consider it unique at all. I've been involved in application writing successfully in a number of different jurisdictions and without fail there's litigation that ensues afterward, period, period, period. So, the fact that the lawsuit was filed, in and of itself, is not surprising to me. I'm very glad that it's largely over. There's still appeals involved and there's still one portion of the three-part case that hasn't even been tried. And I don't expect that portion to be tried for a long, long time. But it doesn't relate so much to the application process which, you know, just concluded, in air quotes, because there's still appeal rights.

The application process is not a science. There's a lot of subjective and objective considerations that go into it. And I don't blame people whatsoever for litigating to ensure that there's no criminal element involved. And, indeed in our process there was no criminal element involved. And that was a lot of that conjecture going into the trial. And coming out of it, it was just a combination of a lot of imperfections. But it's not a perfect process. It had the potential of being extraordinarily divisive. And certainly, we had membership that was on both sides. So mostly, I'm glad that it's over.

Nevada Made was a successful applicant but that never affected my presidency, or even the membership when we would discuss the litigation because I can appreciate a lot of blood, sweat and tears goes into these applications. And when you have a finite amount of licenses, it's serious business. So, in some respects, I’m happy that it was challenged and happy that it made it through. I think the CCB is taking Judge Gonzalez’s 30-page order, which is basically an outline of all the things that were wrong, and I believe that they are probably using that as a guidepost of things they need to correct or make sure they don't repeat. Now we're past that so we need to move on and do a little kumbaya as an industry and get ready to get into the Leg (2021 Legislative Session) because it is going to be an unbelievably unique session, which matches the uniqueness of 2020.

Do NDA’s goals for the 2021 Legislative Session include consumption lounges? That's a super big topic. I know (Clark) Commissioner Segerblom is still talking about that. Obviously, the elephant in the room is that we are a cannabis legal state, but where do you partake? So, I'd like to answer that question responsibly. I think that would help the membership and it would alleviate some confusion for tourists.

Speaking as a small business advocate, what’s a unique issue the cannabis industry faces?

We have IRS 280E (tax code) to deal with. Our effective rate of taxation is 55 to 60 percent top line. And then we have the additional challengesout of 40 percent of revenuewe have to pay our rent and our employees and our cost of goods and all the rest of it. So just the challenge of having people understand that we are a legitimate business, that we are very transparent, that we are community partners, and that we pay our taxes.