Gracie Summerlin Lawsuit

Electronically Filed
12/10/2021 5:52 PM
Steven D. Grierson
CLERK OF THE COURT
1 HAYES | WAKAYAMA
DALE A. HAYES, JR., ESQ.
2 Nevada Bar No. 9056
JEREMY D. HOLMES, ESQ.
3
Nevada Bar No. 14379
4 5798 S. Durango Dr., Suite 105 CASE NO: A-21-845277-J
Las Vegas, Nevada 89113 Department 29
5 dhayes@hwlawNV.com
jholmes@hwlawNV.com
6 Attorneys for Petitioner
7
DISTRICT COURT
8 CLARK COUNTY, NEVADA
9 GRACIE SUMMERLIN, LLC, a Nevada limited

liability company;
10 Case No.
Petitioner, Dept. No.
11 vs.
12
CLARK COUNTY BOARD OF COUNTY
TEL: (702) 656-0808 | FAX: (702) 655-1047
COMMISSIONERS, a political subdivision of

HAYES | WAKAYAMA
13
5798 South Durango Drive, Suite 105
the State of Nevada;

14
Las Vegas, Nevada 89113
Respondent,
15
5335 SFA PROPCO, LLC, a Nevada limited
16
liability company;
17
Real Party in Interest.
18
19
PETITION FOR JUDICIAL REVIEW OR, IN THE ALTERNATIVE, PETITION FOR
20
WRIT OF MANDAMUS
21
Petitioner GRACIE SUMMERLIN, LLC (“Petitioner”), by and through its counsel,
22
DALE A. HAYES, JR., ESQ. of the law firm of HAYES | WAKAYAMA, hereby submits its
23
Petition for Judicial Review or, in the Alternative, Petition for Writ of Mandamus concerning a
24
25 final decision entered by Respondent CLARK COUNTY BOARD OF COUNTY
26 COMMISSIONERS (“Board”) approving a special use permit to allow the operation of a retail
27 (drive-through) marijuana store in southwest Las Vegas. Petitioner alleges as follows.

28
Page 1 of 16
Case Number: A-21-845277-J

1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. FACTS COMMON TO ALTERNATIVE PETITIONS. 1

3 A. THE PARTIES.
4 Petitioner owns and operates a Brazilian Jiu-Jitsu academy located at 5375 S. Fort
5
Apache Road in Las Vegas, Nevada (the “Academy”). Petitioner provides martial arts training
6
to over 200 children at the Academy, and has done so for years. The Academy’s services and
7
programs are heavily dedicated to children, adolescents and teenagers. Hundreds of children
8
train at the Academy on a weekly basis. Within the same shopping plaza as the Academy is a
9
10 tobacco smoke shop, a grocery store, a nail salon and a gas station. Upon information and belief,
11 at some point in 2021, Real Party in Interest 5335 SFA Propco, LLC (“Applicant”) submitted an
12 application for a design review and special use permit (the “Application”) to allow a retail
TEL: (702) 656-0808 | FAX: (702) 655-1047
HAYES | WAKAYAMA
13
marijuana store with a drive-thru at 5335 S. Fort Apache Road in Las Vegas, Nevada (the
14
“Proposed Location”). The Proposed Location is within the same shopping plaza as the Academy
15
and is approximately 147 feet from the Academy.
16
17 B. THE APPLICATION AND UNAUTHORIZED/FALSE LETTER. 2
18 As part of the Application, a special use permit separation study was performed on or
19 about February 2, 2021, that measured, amongst other variables, whether any community
20 facilities were within 300 feet of the Proposed Location (the “Study”). 3 The Study concluded
21 that the Academy was/is within 300 feet of the Proposed Location but cited to a letter that was
22
allegedly drafted by Mica Cipili (“Mica”) allegedly on behalf of Petitioner (“Mica’s Letter”) that
23
24 1
The Affidavit of Andre Almeida in support of the instant Petitions is attached as Exhibit 1.
25 2
At the time of the submittal of this Petition, Petitioner has been unable to obtain a complete copy of the
record that was before the Board at the time the decision was made. The only documents that have been
26 made available to Petitioner include a Justification Letter submitted to the Board by the Applicant, a
Special Use Permit Separation Study, a Cannabis Compliance Board Letter, an Agenda Sheet and the
27 Notice of Final Action.
28 3
A true and correct copy of the Study is attached hereto as Exhibit 2.
Page 2 of 16
1 falsely indicated that Mica was authorized to send the letter and falsely advised that the
2 Academy/Petitioner did not object to the use permit being approved. 4 Mica’s Letter allegedly
3
stated as follows:
4
To whom it may concern,
5 I am writing this letter with regard to the proposed Lone Mountain
partners, LLC DBA Zen Leaf Dispensary at 5335 S. Fort Apache
6 Road, Las Vegas NV. [Petitioner’s] primary purpose is not to
provide recreational services to children or adolescents and
7
therefore has no objections to the proposed use at this location. Our
8 primary focus is competition for aspiring jiu jitsu students to
compete at the highest level possible. [Petitioner] instructs students
9 of all levels and all ages. Accordingly, the proposed adult cannabis
retail store will not adversely affect our business. Should you have
10 any questions or concerns please feel free to call met [sic] at (702)-
11 214-5414. 5
12 On August 11, 2021, Applicant’s counsel submitted a letter in support of the Application
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13 to the Board (the “Justification Letter”). 6 The Justification Letter claimed that the Proposed
14
Location of the store was more than 300 feet from a community facility. 7 In support of this
15
claim, the Justification Letter stated the following: “The State of Nevada Cannabis Compliance
16
Board confirmed that the existing jiu-jitsu studio is not considered a community facility,” and
17
referenced an attached letter dated March 25, 2021. 8 The letter authored by the Cannabis
18
19 Compliance Board (“CCB”) is dated March 25, 2021, after the Study was submitted, simply
20 concludes that the Academy is not a community facility (the “CCB Letter”). 9 Nowhere in the
21
22 4
See Ex. 1 at note 1. Petitioner has been unable to obtain a copy of Mica’s alleged letter.
23 5
Id.
24 6
A true and correct copy of the Justification Letter is attached hereto as Exhibit 3.
25 7
Id., at 2.
26 8
Id., at 3. Petitioner has been unable to secure a copy of the Application to which this letter was allegedly
attached.
27
9
A true and correct copy of the CCB Letter is attached hereto as Exhibit 4.
28
Page 3 of 16
1 CCB Letter is it explained how or why the Academy, whose primary purpose is to provide
2 martial arts training to hundreds of children, is not a community facility.

3
After submitting a public records request, Petitioner has been unable to obtain any other
4
documents relating to the CCB’s unsupported decision. However, it is Petitioner’s belief that the
5
CCB’s decision was necessarily based on the result of the Study. Further, it is clear that the
6
Study only found that the Proposed Location was compliant with Nevada Law due to Mica’s
7
8 Letter. Mica, however, does not represent Petitioner, has previously sold any interest he had in
9 Petitioner, and was never authorized to author the letter. Petitioner was unaware this letter was
10 ever sent, and steadfastly disputes the truth of Mica’s assertions contained therein. 10 Moreover,
11
contrary to Mica’s assertions, providing recreational services is one of the Academy’s primary
12
purposes.
TEL: (702) 656-0808 | FAX: (702) 655-1047
HAYES | WAKAYAMA
13
C. THE HEARING BEFORE THE BOARD AND THE BOARD’S DECISION.

14
After learning of the Application just two days before it was set to be considered by the
15
Board, Petitioner’s representative, Andre Almeida (“Andre”), appeared to argue against the
16
Application during the public hearing on the matter. Prior to the public hearing, Petitioner
17
informed Applicant that Mica was not affiliated with Petitioner, and had no authority to issue the
18
letter relied upon by Applicant. At the November 3, 2021, hearing, Andre and other attendees
19
complained of the improper notice and requested additional time to organize their objections.
20
These reasonable requests were oddly rejected. Andre informed the Board that Mica was not
21
affiliated with Petitioner and had no authority to issue the letter on Petitioner’s behalf. Andre
22
also advised the Board that there are hundreds of children that take classes at the Academy,
23
rendering the Proposed Location inappropriate for a cannabis dispensary, as it would be within
24
300 feet of a community facility. In addition, Andre informed the Board that his students’
25
parents were vehemently opposed to Applicant’s relocation to the Proposed Location.
26
27 10
Micas has admitted that he was unknowingly persuaded into preparing the letter by an affiliate of
Applicant’s and further indicated that he would be willing to retract the same.
28
Page 4 of 16
1 Applicant’s response to Mica’s lack of authorization was to merely point out that at some
2 point in time in the past Mica was a member of Petitioner according to the Secretary of State
3 database. The information Applicant relied upon to make this representation was last updated in
4 2019. 11 Indeed, during its presentation, Applicant’s counsel admitted that they had been
5 informed that Mica was not affiliated with Petitioner in any way. Applicant presented no
6 argument as to why the Academy should not be considered a community facility.
7 In response to the foregoing statements, a Board member, apparently mistaking himself
8 for the Nevada Legislature, stated that he did not feel that a cannabis dispensary was any more
9 damaging to children than the smoke shop or grocery store where liquor can be purchased
10 already near the Academy. The Board did not take into consideration whether the Academy
11 constituted a “community facility,” and instead arbitrarily inserted its own opinion that a
12 dispensary would not negatively impact the children at the Academy. Accordingly, the Board
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13 granted Applicant’s Application and approved the Proposed Location as meeting all the distance
14 requirements mandated by Nevada law. This decision was made final by way of the Board’s
15 Notice of Final Action (the “Notice”) issued on November 16, 2021. 12
16 D. THE IRREGULAR PROCEEDINGS BELOW.
17 NRS 278.3195, which governs the appeal of decisions made by the Board, states in
18 pertinent part as follows:

19
1. Except as otherwise provided in NRS 278.310, each governing
20 body shall adopt an ordinance providing that any person who is
aggrieved by a decision of:
21
(a) The planning commission, if the governing body has
22 created a planning commission pursuant to NRS 278.030;
(b) The board of adjustment, if the governing body has
23
created a board of adjustment pursuant to NRS 278.270;
24 (c) A hearing examiner, if the governing body has appointed
a hearing examiner pursuant to NRS 278.262; or
25 (d) Any other person appointed or employed by the
26 11
A true and correct copy of the Gracie Summerlin, LLC entity information page is attached hereto as
Exhibit 5.
27
12
A true and correct copy of the Notice is attached hereto as Exhibit 6.
28
Page 5 of 16
1 governing body who is authorized to make administrative
decisions regarding the use of land,
2
may appeal the decision to the governing body. . . .
3
4 ...
5 4. Any person who:

6 (a) Has appealed a decision to the governing body in
accordance with an ordinance adopted pursuant to subsection 1;
7
and
8 (b) Is aggrieved by the decision of the governing body,
9 may appeal that decision to the district court of the proper county
by filing a petition for judicial review within 25 days after the date
10 of filing of notice of the decision with the clerk or secretary of the
11 governing body, as set forth in NRS 278.0235. (Emphasis added).
12 In other words, Nevada law mandates that governing bodies adopt ordinances establishing a two-
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13 tier system for appellate review of a planning or zoning decision. NRS 278.3195. First, an
14
aggrieved person is entitled to appeal the decision of a planning commission, board of

15
adjustment, hearing examiner or any other appointed person. NRS 278.3195(1). Any appeal
16
from the foregoing reviewing entities is made to the specific governing body. Id. Next, if a
17
person is aggrieved by a decision of the governing body, the person can appeal to the district
18
19 court by filing a petition for judicial review. NRS 278.3195(4). In an unpublished opinion, the
20 Nevada Supreme Court recently affirmed a ruling dismissing a petition for judicial review
21 “[b]ecause appellants did not appeal to the governing body.” Holt-Still v. Washoe County Bd. of
22
County Commissioners, 466 P.3d 937, 2020 WL 3570377 at *1 (Nev. 2020) (Docket No. 78784,
23
Filed June 30, 2020) (unpublished opinion). The Holt-Still Court ruled that because the
24
petitioner did not appeal to the governing body, it “lacked standing to petition for judicial
25
review.” Id. The appellant proffered a liberal interpretation of the statute as it had prevailed at
26
27 the planning-commission level (meaning it had no cause to appeal to the governing board). Id.,
28 at 1. The Holt-Still Court rejected the foregoing argument, ruling that NRS 278.3195 was clear
Page 6 of 16
1 on its face and that “a party who wins at the planning-commission level but loses at the
2 governing-body level may petition for extraordinary relief.” Id.

3
In this case, Petitioner was denied mandated appellate rights as Respondent skipped the
4
planning-commission level of review entirely and instead had the application reviewed before
5
the Board in the first instance. The subject application was presented before the Board on
6
November 3, 2021. During the hearing, Petitioner objected to the special use permit being issued
7
8 as the proposed marijuana retail store would violate NRS 678B.250 by being well within 300
9 feet of a community facility. Petitioner further informed the Board that the parents of its
10 students objected to the marijuana store relocating to the Proposed Location. On November 16,
11
2021, the Board issued its Notice of Final Action approving the application with conditions.
12
It is unknown why the Board violated the governing statutes. Whatever the reason,
TEL: (702) 656-0808 | FAX: (702) 655-1047
HAYES | WAKAYAMA
13
Petitioner’s inability to appeal to the board pursuant to NRS 278.3195(1) was clearly not its
14
15 fault. Petitioner should not be denied the statutory right to appeal because the Board unilaterally
16 chose to ignore mandated procedure. Statutes should be construed in a manner that does not lead
17 to an absurd result. Simmons Self-Storage Partners, LLC v. Rib Roof, Inc., 130 Nev. 540, 546,
18 331 P.3d 850, 854 (2014). It would be absurd to permit an adverse party (the Board), through its
19
own internal and unilateral procedure decisions, to effectively block an aggrieved party from
20
seeking appellate review. This would lead to the Board controlling all planning and zoning
21
decisions without being subject to appellate review.
22
23 E. PETITIONER’S ALTERNATIVE PETITIONS.
24 Given the purpose behind NRS 278.3195 and its interpreting case law, out of an
25 abundance of caution, Petitioner submits alternative petitions for relief. Because Petitioner was
26 denied the opportunity to appeal to the Board through no fault of its own, a reasonable
27
interpretation of NRS 278.3195 would permit Petitioner to petition this court for judicial review.
28
Page 7 of 16
1 Petitioner therefore submits the instant Petition for Judicial Review. However, a strict reading of
2 NRS 278.3195 as adopted in Hold-Still would require Petitioner to “petition for extraordinary
3
relief.” Holt-Still, 2020 WL 3570377 at 1. Petitioner therefore alternatively petitions this Court
4
for a writ of mandamus.
5
The label of the petition/writ a party seeks should not be used as a means for an opponent
6
to escape the review process. Such would be the epitome of elevating form over substance,
7
8 something that the Nevada Supreme Court has repeatedly eschewed. Perry v. Terrible Herbst,
9 Inc., 132 Nev. 767, 770, 383 P.3d 257, 260 (2016) (“The nature of the claim, not its label,
10 determines what statute of limitations applies.”); Bally's Grand Hotel & Casino v. Reeves, 112
11
Nev. 1487, 1488, 929 P.2d 936, 937 (1996) (“This court has consistently looked past labels in
12
interpreting NRAP 3A(b)(1)[.]”). Petitioner is clearly aggrieved by the Board’s erroneous
TEL: (702) 656-0808 | FAX: (702) 655-1047
HAYES | WAKAYAMA
13
decision and should therefore not be denied appellate review predicated upon procedural
14
15 technicalities, particularly where the Board has been in sole control of said technicalities.
16 II. PETITION FOR JUDICIAL REVIEW.
17 A. LAW AND ARGUMENT.
18 1. Standard Of Review.
19 When reviewing an agency’s decision, a court must “determine whether the agency's
20 decision was arbitrary or capricious and was thus an abuse of the agency's discretion.” Bob Allyn
21 Masonry v. Murphy, 124 Nev. 279, 282, 183 P.3d 126, 128 (2008) (quoting Weaver v. State,
22 Dep't of Motor Vehicles, 121 Nev. 494, 498, 117 P.3d 193, 196 (2005)). Further, when
23 considering factual findings, “we defer to an agency's findings of fact as long as they are
24 supported by substantial evidence.” Rio All Suite Hotel & Casino v. Phillips, 126 Nev. 346, 349,
25 240 P.3d 2, 4 (2010) (citing Law Offices of Barry Levinson v. Milko, 124 Nev. 355, 362, 184
26 P.3d 378, 383–84 (2008)). However, the substantial evidence requirement is not met by
27 “statements of counsel for interested parties” or “opinions of council members, unsupported by
28 proof.” City Council of City of Reno v. Travelers Hotel, Ltd., 100 Nev. 436, 439, 683 P.2d 960,
Page 8 of 16
1 961 (1984). “A decision that lacks support in the form of substantial evidence is arbitrary or
2 capricious, and thus an abuse of discretion that warrants reversal.” Tighe v. Las Vegas Metro.
3 Police Dept., 110 Nev. 632, 634, 877 P.2d 1032, 1034 (1994) (internal citations omitted).
4 Substantial evidence has been defined as that which “a reasonable mind might accept as adequate
5 to support a conclusion.” State, Emp. Security Dep’t v. Hilton Hotels, Corp., 102 Nev. 606, 608,
6 729 P.2d 497, 498 (1986). Significantly, questions of statutory interpretation are reviewed de
7 novo. Valenti v. State, Dep't of Motor Vehicles, 131 Nev. 875, 878, 362 P.3d 83, 85 (2015).
8 2. The Board Abused Its Discretion And Did Not Base Its Decision On
Substantial Evidence, But Rather The Unsupported Opinion Of One
9 Board Member.
10
Under Nevada law, a cannabis dispensary cannot be operated within 300 feet of a
11
“community facility.” NRS 678B.250(3)(a)(2)(II). A “community facility” is defined as:
12
[a] center or facility, the primary purpose of which is to
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provide recreational opportunities or services to children or

HAYES | WAKAYAMA
13
adolescents. NRS 678B.250(8)(e) (emphasis added)

14
No part of NRS 678B exempts a relocating dispensary from meeting the distance requirements
15
from a “community facility” set forth in NRS 678B.250(3)(a)(2)(II).
16
Nevada law prohibits a dispensary from being placed within 300 feet of a community
17
facility. There is no exemption to this requirement where a County Commissioner subjectively
18
believes that a dispensary will not negatively impact children at a community facility. The
19
Board was presented with testimony that Mica was not affiliated with Petitioner and was never
20
authorized to waive or concede the Academy’s proper classification as a community facility.
21
Not only did Applicant not attempt to dispute this fact, its lawyer admitted that he was made
22
aware that the Mica Letter was not valid during the hearing. Further, upon information and
23
belief, the CCB’s finding that the Academy was not a community facility was similarly based on
24
Mica’s improper letter, rather than a legitimate factual inquiry and legal analysis.13
25
26
13
As stated previously, Petitioner has not been able to obtain any records relating to the CCB’s decision,
27 and bases this belief on the results of the Study which justified the Proposed Location because of Mica’s
Letter.
28
Page 9 of 16
1 Nevertheless, upon being advised that Petitioner did train hundreds of children and did object to
2 the marijuana store relocating to its shopping plaza, the Board simply disregarded the same and
3 instead rested its subjective decision entirely on whether a dispensary is any more harmful to
4 children than tobacco or alcohol retailers. The Board’s decision was not based on substantial
5 evidence as no admissible/credible evidence was presented concerning the Academy’s
6 qualifications as a community facility. The Board simply ignored the law barring its approval in
7 derogation of its charged duties. Over multiple objections, the Board simply remarked that they
8 did not feel that a dispensary was any more dangerous to children than a smoke shop or grocery
9 store that sells liquor. This is clearly an abuse of discretion as it was wholly arbitrary and
10 capricious as nothing more than a commissioner’s personal feelings towards dispensaries. See
11 City Council of City of Reno, 100 Nev. at 439, 683 P.2d at 961 (1984) (the substantial evidence
12 requirement is not met by “statements of counsel for interested parties” or “opinions of council
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13 members, unsupported by proof.”).

14 Further, the Board’s ruling demonstrates a clear disregard for the actual/legal location
15 requirements which prohibit a dispensary from being within 300 feet of a community facility.
16 There is no discretion left to the Board under this statute. Applicant even acknowledged that this
17 separation requirement was “nonwaivable” at the hearing. The Board’s findings and approval
18 were and are clearly erroneous in light of the evidence presented. Reversal of the Board’s
19 action/decision is therefore appropriate. The substantial rights of Petitioner have been prejudiced
20 because the Board’s final decision was and is:
21 (a) In violation of constitutional or statutory provisions;

(b) In excess of the statutory authority of the agency;
22 (c) Made upon unlawful procedure;
(d) Affected by other error of law;
23
(e) Clearly erroneous in view of the reliable, probative
24 and substantial evidence on the whole record; and/or
(f) Arbitrary or capricious or characterized by abuse of
25 discretion or a clearly unwarranted exercise of discretion. See NRS 233B.135(3).
26 III. PRAYER FOR RELIEF.
27 WHEREFORE, Petitioner prays that the Court issue an order reversing the Board’s final
28
Page 10 of 16
1 decision and rejecting Applicant’s efforts at relocating its marijuana store to a location Nevada
2 law clearly prohibits.

3
IV. ALTERNATIVELY, PETITION FOR WRIT OF MANDAMUS.
4
A. LAW AND ARGUMENT.
5
1. Standard.
6
This Court has jurisdiction to issue writs of mandamus pursuant to the Nevada
7
Constitution as well as Nevada statutory law. Nev. Const., Art. 6, § 6; 34.160. Writs of
8
mandamus may be issued by district courts:
9
to compel the performance of an act which the law especially enjoins as a duty
10
resulting from an office, trust or station . . . NRS 34.160.
11
A writ of mandamus is available to compel the performance of an act that the law requires or to
12
control an arbitrary or capricious exercise of discretion. Int’l Game Tech, Inc. v. Second Judicial
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HAYES | WAKAYAMA
13
14 Dist. Court, 124 Nev. 193, 197 (2008). Whether to consider a writ of mandamus is within the
15 Court’s sound discretion. Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677 (1991). A
16 writ shall issue when there is no plain, speedy and adequate remedy in the ordinary course of
17 law. NRS 34.170; Sims v. Eighth Judicial Dist. Court, 206 P.3d 980, 982 (Nev. 2009). “That
18
writ also is available to correct a manifest abuse of discretion by the governing body, and
19
occasionally has been so utilized in zoning cases.” Bd. of Com'rs of City of Las Vegas v. Dayton
20
Dev. Co., 91 Nev. 71, 75, 530 P.2d 1187, 1189 (1975) (citing State ex rel. Johns v. Gragson, 89
21
22 Nev. 478, 515 P.2d 65 (1973); Henderson v. Henderson Auto, 77 Nev. 118, 359 P.2d 743
23 (1961)).
24 2. Petitioner Has No Plain, Speedy, Or Adequate Remedy In The

Ordinary Course Of Law.
25
26 NRS 278.3195, which governs the appeal of decisions made by the Board, states in
27 pertinent part as follows:
28
Page 11 of 16
1 1. Except as otherwise provided in NRS 278.310, each governing
body shall adopt an ordinance providing that any person who is
2 aggrieved by a decision of:
3
(a) The planning commission, if the governing body has
4 created a planning commission pursuant to NRS 278.030;
(b) The board of adjustment, if the governing body has
5 created a board of adjustment pursuant to NRS 278.270;
(c) A hearing examiner, if the governing body has appointed
6 a hearing examiner pursuant to NRS 278.262; or
(d) Any other person appointed or employed by the
7
governing body who is authorized to make administrative
8 decisions regarding the use of land,
9 may appeal the decision to the governing body. . . .

10 ...
11
4. Any person who:
12
(a) Has appealed a decision to the governing body in
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13 accordance with an ordinance adopted pursuant to subsection 1;

and
14
(b) Is aggrieved by the decision of the governing body,

15
may appeal that decision to the district court of the proper county
16 by filing a petition for judicial review within 25 days after the date
of filing of notice of the decision with the clerk or secretary of the
17 governing body, as set forth in NRS 278.0235. (emphasis added).
18 Pursuant to NRS 278.3195, it is clear that Petitioner has no right to seek judicial review of the
19
Board’s decision due to the fact that, for some unknown reason, the Application was heard
20
initially by the Board itself, rather than any of the entities or persons listed under NRS
21
278.3195(1). This peculiar decision by the Board to consider the Application in lieu of its lower
22
23 bodies then prohibited Petitioner from appealing that decision to the governing body, which is
24 the Board itself. While it may seem to lead to an absurd result, the Nevada Supreme Court has
25 held that a party who is aggrieved by a decision of the Board, but was not responsible for
26
bringing that claim in front of the Board, has no right to seek judicial review of the Board’s
27
decision. Holt-Still, 2020 WL 3570377 at *1. Instead, the Court noted that in such an instance
28
Page 12 of 16
1 where judicial review is unavailable under NRS 278.3195, a party “may petition for
2 extraordinary relief,” as no other remedy at law is available in such a situation. Id. Accordingly,
3
writ relief is appropriate in this case, as Petitioner does not meet the requirements necessary to
4
seek judicial review, and there is no remaining administrative remedies that Petitioner can
5
pursue.
6
B. STANDARD OF REVIEW OF AGENCY’S DECISION.
7
When reviewing an agency’s decision, a court must “determine whether the agency's
8
decision was arbitrary or capricious and was thus an abuse of the agency's discretion.” Bob Allyn
9
Masonry v. Murphy, 124 Nev. 279, 282, 183 P.3d 126, 128 (2008) (quoting Weaver v. State,
10
Dep't of Motor Vehicles, 121 Nev. 494, 498, 117 P.3d 193, 196 (2005)). Further, when
11
considering factual findings, “we defer to an agency's findings of fact as long as they are
12
TEL: (702) 656-0808 | FAX: (702) 655-1047
supported by substantial evidence.” Rio All Suite Hotel & Casino v. Phillips, 126 Nev. 346, 349,
HAYES | WAKAYAMA
13
240 P.3d 2, 4 (2010) (citing Law Offices of Barry Levinson v. Milko, 124 Nev. 355, 362, 184
14
P.3d 378, 383–84 (2008)). However, the substantial evidence requirement is not met by
15
“statements of counsel for interested parties” or “opinions of council members, unsupported by
16
proof.” City Council of City of Reno v. Travelers Hotel, Ltd., 100 Nev. 436, 439, 683 P.2d 960,
17
961 (1984). “A decision that lacks support in the form of substantial evidence is arbitrary or
18
capricious, and thus an abuse of discretion that warrants reversal.” Tighe v. Las Vegas Metro.
19
Police Dept., 110 Nev. 632, 634, 877 P.2d 1032, 1034 (1994) (internal citations omitted).
20
Substantial evidence has been defined as that which “a reasonable mind might accept as adequate
21
to support a conclusion.” State, Emp. Security Dep’t v. Hilton Hotels, Corp., 102 Nev. 606, 608,
22
729 P.2d 497, 498 (1986). Significantly, questions of statutory interpretation are reviewed de
23
novo. Valenti v. State, Dep't of Motor Vehicles, 131 Nev. 875, 878, 362 P.3d 83, 85 (2015).
24
C. THE BOARD ABUSED ITS DISCRETION AND DID NOT BASE ITS
25 DECISION ON SUBSTANTIAL EVIDENCE, BUT RATHER THE
UNSUPPORTED OPINION OF ONE BOARD MEMBER.
26
Under Nevada law, a cannabis dispensary cannot be operated within 300 feet of a
27
“community facility.” NRS 678B.250(3)(a)(2)(II). A “community facility” is defined as any of
28
Page 13 of 16
1 the following:
2 (a) A facility that provides day care to children.

(b) A public park.
3 (c) A playground.
(d) A public swimming pool.
4
(e) A center or facility, the primary purpose of which is to
5 provide recreational opportunities or services to children or
adolescents.
6 (f) A church, synagogue or other building, structure or place used
for religious worship or other religious purpose. (emphasis added)
7
Should a licensed cannabis dispensary wish to relocate elsewhere within the same jurisdiction
8
after initially obtaining a license pursuant to NRS 678B, the dispensary must obtain the approval
9
of the local government. NRS 678B.500(2). No part of NRS 678B exempts a relocating
10
11 dispensary from meeting the distance requirements from a “community facility” set forth in NRS
12 678B.250(3)(a)(2)(II).
TEL: (702) 656-0808 | FAX: (702) 655-1047
As stated above, Nevada law prohibits a dispensary from being placed within 300 feet of
HAYES | WAKAYAMA
13
14 a community facility. There is no exemption to this requirement where a County Commissioner

15 subjectively believes that a dispensary will not negatively impact children at a community
16 facility. The Board was presented with testimony that Mica was not affiliated with Petitioner
17 and was never authorized to waive or concede the Academy’s proper classification as a
community facility. Not only did Applicant not attempt to dispute this fact, its lawyer readily
18
admitted that he was made aware that the letter was not valid during the hearing. Further, upon
19
information and belief, the CCB’s finding that the Academy was not a community facility was
20
similarly based on Mica’s improper letter, rather than a factual and legal consideration of the
21
Academy and the recreational services it provides to hundreds of children. 14 Indeed, this is the
22
only conclusion that makes sense, as it would be absurd to believe that a martial arts academy
23
that trains hundreds of children would not qualify as a community facility. Nevertheless, upon
24
being advised that Petitioner did train hundreds of children and did object to the marijuana store
25
26
14
As stated previously, Petitioner has not been able to obtain any records relating to the CCB’s decision,
27 and bases this belief on the results of the Study which justified the Proposed Location because of Mica’s
Letter.
28
Page 14 of 16
1 relocating to its shopping plaza, the Board simply disregarded the same and instead rested its
2 subjective decision entirely on whether a dispensary is any more harmful to children than
3 tobacco or alcohol retailers.
4 The Board’s decision was not based on substantial evidence as no evidence was ever
5 presented concerning the Academy’s qualifications as a community facility. In fact, the entire
6 basis for the Board’s approval emanated from a letter the Applicant ultimately admitted was not
7 valid or authorized. Further, when making its decision, the Board did not reference the Mica
8 Letter, the definition of a community facility or the legal distance requirement codified in NRS
9 678B.250(3)(a)(2)(II). The Board simply ignored the law barring its approval in derogation of
10 its charged duties. Indeed, it appears that whether or not the Academy was a community facility
11 was not part of the Board’s formal decision at all. Instead, over multiple objections, the Board
12 simply remarked that they did not feel that a dispensary was any more dangerous to children than
TEL: (702) 656-0808 | FAX: (702) 655-1047
HAYES | WAKAYAMA
13 a smoke shop or grocery store that sells liquor. This is clearly an abuse of discretion as it was
14 wholly arbitrary and capricious as nothing more than a commissioner’s personal feelings towards
15 dispensaries. See City Council of City of Reno, 100 Nev. at 439, 683 P.2d at 961 (1984) (the
16 substantial evidence requirement is not met by “statements of counsel for interested parties” or
17 “opinions of council members, unsupported by proof.”).
18 Further, the stated basis for the Board’s decision illustrates a clear disregard for the actual
19 location requirements which prohibit a dispensary from being within 300 feet of a community
20 facility. There is no discretion left to the Board under this statute. The Applicant even
21 acknowledged that this separation requirement was “nonwaivable” at the hearing. There is no
22 allowance provided for a Board member’s personal feelings concerning the impact of a
23 dispensary being approved for location to an area in close proximity to where young children
24 frequent. Accordingly, this Court should issue a writ of mandamus directing the Board to reject
25 the Application, as approving it would place a cannabis dispensary within 300 feet of a
26 community facility, which is flatly prohibited by Nevada law.
27 V. PRAYER FOR RELIEF.
28 For the reasons set forth above, this Court should grant Petitioner’s Petition and issue a
Page 15 of 16
1 writ mandating that the Board deny the Application as it would result in a violation of the
2 separation requirements enacted by the legislature in NRS 678B.250.
3 DATED this 10th day of December, 2021.
4 HAYES | WAKAYAMA
5
6 By /s/ Dale A. Hayes, Jr., Esq.

DALE A. HAYES, JR., ESQ.
JEREMY D. HOLMES, ESQ.
9 5798 S. Durango Dr., Suite 105
10 dhayes@hwlawNV.com
jholmes@hwlawNV.com
11 Attorneys for Petitioner
12
TEL: (702) 656-0808 | FAX: (702) 655-1047
HAYES | WAKAYAMA
13
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Page 16 of 16
Exhibit 1
Exhibit 2
Exhibit 3
Exhibit 4
Exhibit 5
Exhibit 6

Gracie Summerlin Lawsuit

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Gracie Summerlin Lawsuit

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Electronically Filed

9 GRACIE SUMMERLIN, LLC, a Nevada limited

COMMISSIONERS, a political subdivision of

the State of Nevada;

25 final decision entered by Respondent CLARK COUNTY BOARD OF COUNTY

27 (drive-through) marijuana store in southwest Las Vegas. Petitioner alleges as follows.

Case Number: A-21-845277-J

2 I. FACTS COMMON TO ALTERNATIVE PETITIONS. 1

17 B. THE APPLICATION AND UNAUTHORIZED/FALSE LETTER. 2

2 martial arts training to hundreds of children, is not a community facility.

C. THE HEARING BEFORE THE BOARD AND THE BOARD’S DECISION.

6 argument as to why the Academy should not be considered a community facility.

7 In response to the foregoing statements, a Board member, apparently mistaking himself

15 Notice of Final Action (the “Notice”) issued on November 16, 2021. 12

16 D. THE IRREGULAR PROCEEDINGS BELOW.

18 pertinent part as follows:

5 4. Any person who:

aggrieved person is entitled to appeal the decision of a planning commission, board of

2 governing-body level may petition for extraordinary relief.” Id.

23 E. PETITIONER’S ALTERNATIVE PETITIONS.

16 II. PETITION FOR JUDICIAL REVIEW.

17 A. LAW AND ARGUMENT.

27 “statements of counsel for interested parties” or “opinions of council members, unsupported by

provide recreational opportunities or services to children or

adolescents. NRS 678B.250(8)(e) (emphasis added)

5 evidence as no admissible/credible evidence was presented concerning the Academy’s

13 members, unsupported by proof.”).

20 because the Board’s final decision was and is:

21 (a) In violation of constitutional or statutory provisions;

2 law clearly prohibits.

24 2. Petitioner Has No Plain, Speedy, Or Adequate Remedy In The

27 pertinent part as follows:

9 may appeal the decision to the governing body. . . .

13 accordance with an ordinance adopted pursuant to subsection 1;

(b) Is aggrieved by the decision of the governing body,

2 (a) A facility that provides day care to children.

14 a community facility. There is no exemption to this requirement where a County Commissioner

3 tobacco or alcohol retailers.

17 “opinions of council members, unsupported by proof.”).

26 community facility, which is flatly prohibited by Nevada law.

27 V. PRAYER FOR RELIEF.

2 separation requirements enacted by the legislature in NRS 678B.250.

3 DATED this 10th day of December, 2021.

6 By /s/ Dale A. Hayes, Jr., Esq.

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