                            IN THE SUPREME COURT OF THE STATE OF NEVADA


                    LAS VEGAS CLUB HOTEL & CASINO,                         No. 67725
                    LLC, A DOMESTIC LIMITED
                    LIABILITY COMPANY,
                    Appellant,
                    vs.
                    THE STATE OF NEVADA
                    EMPLOYMENT SECURITY DIVISION;
                                                                                  FILED
                    RENEE OLSON, IN HER CAPACITY AS                                MAY 1 9 2016
                    ADMINISTRATOR OF THE                                    cLETRACE K LINDEMAN
                    EMPLOYMENT SECURITY DIVISION;                                 RK,..9F   SUPREME COURT

                    KATIE JOHNSON, IN HER CAPACITY                          BY---"Yj3St&jf  4
                                                                                 DEPUTY CLERK         z----.
                    AS CHAIRPERSON OF THE
                    EMPLOYMENT SECURITY DIVISION;
                    AND JEFFREY SIMMONS, AN
                    EMPLOYEE,
                    Respondents.

                                            ORDER OF AFFIRMANCE

                                This is an appeal from a district court order denying a petition
                    for judicial review in an unemployment benefits matter. Eighth Judicial
                    District Court, Clark County; Jennifer P. Togliatti, Judge.
                                Appellant Las Vegas Club Hotel & Casino (the Las Vegas
                    Club) employed Jeffery Simmons (Simmons) from August 11, 2004, to
                    February 27, 2014, as a surveillance technician. In 2013, Simmons began
                    using medical marijuana to treat a disability. In 2014, Simmons filed an
                    industrial injury claim with the Las Vegas Club and was directed to report
                    for a drug test. Simmons tested positive for marijuana and was
                    terminated by the Las Vegas Club for violation of its drug and alcohol
                    policy. Simmons applied for unemployment benefits, which the Las Vegas
                    Club opposed. The Employment Security Division (the ESD) denied

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                Simmons' application, concluding that Simmons was discharged for
                misconduct under NRS 612.385 for violating the Las Vegas Club's drug
                and alcohol policy. Simmons appealed, and an evidentiary hearing was
                held before an administrative tribunal (referee). The referee issued a
                decision reversing the determination that Simmons' use of medical
                marijuana was misconduct and concluded that Simmons was eligible for
                benefits. The referee concluded that the Las Vegas Club failed to provide
                a copy of its drug and alcohol policy and so it was unknown what the
                specifics of the policy were and whether Simmons actually violated the
                policy. The Las Vegas Club filed an appeal and the ESD's Board of' Review
                affirmed the referee's decision. Thereafter, the Las Vegas Club filed a
                petition for judicial review, which the district court denied.
                             On appeal, the Las Vegas Club argues that the ESD's
                conclusion that Simmons' off-site medical marijuana use was not
                misconduct under NRS 612.385 was arbitrary and capricious because
                Simmons violated the Las Vegas Club's drug and alcohol policy, and
                because Simmons failed to seek clarification about his medical marijuana
                use in violation of the Las Vegas Club's drug and alcohol policy. We
                disagree. The Las Vegas Club failed to provide the drug and alcohol policy
                to the ESD. Thus, the content of the policy and whether Simmons'
                conduct violated the policy are unknown. Accordingly, we affirm the
                district court's order.
                             This court's role in reviewing an administrative agency's
                decision is identical to that of the district court. Therefore, "[t]his court is
                limited to the record before the agency and cannot substitute its judgment
                for that of the agency on issues concerning the weight of the evidence on


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                questions of fact." Bob Allyn Masonry v. Murphy,      124 Nev. 279, 282, 183
                P.3d 126, 128 (2008). "We review an administrative agency's factual
                findings for clear error or an arbitrary abuse of discretion and will only
                overturn those findings if they are not supported by substantial evidence."
                Elizondo v. Hood Mach. Inc., 129 Nev., Adv. Op. 84, 312 P.3d 479, 482
                (2008) (internal quotations omitted). "Substantial evidence exists if a
                reasonable person could find the evidence adequate to support the
                agency's conclusion. . . ."   Law Offices of Barry Levinson, P.C. v. Milko,
                124 Nev. 355, 362, 184 P.3d 378, 384 (2008). This court will "not reweigh
                the evidence or revisit an appeals officer's credibility determination." Id.
                             We conclude that substantial evidence supports the ESD's
                determination that Simmons' actions did not amount to wrongful
                misconduct for the purposes of NRS 612.385. The referee determined that
                the Las Vegas Club provided no probative evidence to show that Simmons
                violated a known drug and alcohol policy. Although the Las Vegas Club
                provided Simmons' termination form and discipline report, which
                generally refer to its drug and alcohol policy, it failed to provide a copy of
                the policy itself such that the referee could make any conclusions
                regarding the specific details of the policy or whether Simmons knowingly
                or willfully violated the policy. Additionally, the Las Vegas Club provided
                no evidence to show that Simmons was aware that his conduct constituted
                a violation of the policy. Accordingly, there is substantial evidence in the
                record to support the referee's conclusion that, under these facts,




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                 Simmons' actions did not amount to misconduct under NRS 612.385.
                 Accordingly, we
                            ORDER the judgment of the district court AFFIRMED.'



                                                          a-96
                                                  Parraguirre


                                                              t-eat-tx          J.
                                                  Hardesty


                                               c-D011-1        La
                                                  Douglas




                                                  Saitta




                                                  Gibbons




                        'We have considered the parties' remaining arguments and conclude
                 that they are without merit.




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                cc:   Hon. Jennifer P. Togliatti, District Judge
                      Ara H Shirinian, Settlement Judge
                      Cohen-Johnson, LLC
                      State of Nevada/DETR
                      Richard Segerblom
                      Eighth District Court Clerk




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