The Delaware House of Representatives has approved a bill to legalize marijuana possession, with a complementary measure to establish basic regulations for a commercial adult-use market also advancing.
The full chamber passed the legalization legislation from Rep. Ed Osienski (D) on Tuesday in a 28-13 vote, sending it to the Senate for consideration. Osienski is also sponsoring the regulatory bill that moved through a committee in January but has one additional panel stop on its way to the floor.
“It is time for us to listen to our constituents and make Delaware the 22nd state to legalize adult-use, recreational marijuana,” Osienski said on the floor.
He added that there continue to be thousands of arrests over simple possession, despite the state’s existing decriminalization law, and that the burden of that criminalization falls disproportionately on minority communities.
The lawmaker took a similar, bifurcated approach for the reform last session and saw the legislature pass the basic legalization proposal while narrowly defeating the regulatory measure. Gov. John Carney (D) vetoed the former legislation, and the House didn’t have to votes for an override.
Here’s what the House-passed HB 1 legalization bill would accomplish:
State statute would be revised to legalize the possession, use, sharing and purchasing of up to one ounce of cannabis for adults 21 and older.
To avoid abuses of the “gifting” provision, the bill stipulates that “adult sharing” would not include giving away cannabis “contemporaneously with another reciprocal transaction between the same parties” such as an exchange of a non-marijuana item.
Public consumption and growing cannabis would remain prohibited.
People under 21 who engage in such activity would be subject to a civil penalty of up to $100 for a first offense. Police could use discretion and issue a citation in lieu of that fine, however.
Here’s an overview of the key provisions of the HB 2 regulatory bill:
The legislation would provide a basic framework to create a regulated system of cannabis commerce for adults in the state.
The Division of Alcohol and Tobacco Enforcement (DATE) would be responsible for regulating the market through a new Office of Marijuana Control Commissioner.
For the first 16 months of implementation, regulators could approve up to 30 cannabis retail licenses.
Applicants who show that they’d provide a living wage, health insurance coverage, sick and paid leave and focus on diversity in hiring would be prioritized in the licensing scoring process.
Seven percent of marijuana business fee revenue would go to a “Justice Reinvestment Fund” that supports restorative justice, workforce development, technical assistance for economically disadvantaged people and more.
That fund would also go toward “creating or developing technology to assist with the restoration of civil rights and expungement of criminal records.” However, the legislation itself doesn’t provide for automatic expungements.
In additional to conventional retail, cultivator, manufacturer and laboratory licenses, the bill would additional provide for social equity and microbusiness licenses (reserved for applicants with majority ownership by Delaware residents).
Localities would be able to prohibit marijuana businesses from operating in their area through ordinance.
Adult-use marijuana sales would be subject to a 15 percent sales tax. Medical cannabis products would not be taxed.
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“The House passing HB 1 with a veto-proof majority bodes well for the chances Delaware finally ends cannabis prohibition this year. We encourage the House to continue the momentum and pass HB 2 to legalize and regulate cannabis sales when it comes up for a vote later this week,” Olivia Naugle of the Marijuana Policy Project said. “Delawareans have made it clear they support legalization and it’s time for the legislature to bring this important policy change to the First State.”
While the regulatory bill has not yet been scheduled for consideration at its next stop, the House Appropriations Committee, Osienski recently filed an amendment to his legislation that would add language stipulating that employers wouldn’t be required to revise workplace cannabis policies and give the state Division of Revenue the authority to set rules concerning the manner and form of tax payments for marijuana.
The proposed amendment would also shift administrative responsibility for the Justice Reinvestment Fund from the state Department of Justice to the Criminal Justice Council. The amendment would further require the governor-appointed marijuana commissioner to submit quarterly reports to the legislature on implementation progress. Finally, it seeks to make a number of technical changes.
Advocates are increasingly optimistic about the legislation’s prospects given that last year’s election added more progressive lawmakers to the legislature. Regional developments, with surrounding states enacting legalization, are also putting pressure on Delaware lawmakers.
Because the regulatory bill includes tax components, it requires a three-fifths majority of lawmakers to approve it. The basic legalization measure only needs a simple majority.
Osienski made the calculated decision to break up the measures in the previous session after an earlier proposal that included both components was rejected in the House because it failed to reach the three-fifths vote requirement.
But while there are high hopes that the new legislation will make it through both chambers, it remains to be seen how the governor would approach it given his ongoing opposition to comprehensive legalization, or whether the votes are ultimately there to override a potential veto.
In October, Carney vetoed a more narrowly tailored bill that would have clarified that medical marijuana patients are not prohibited from buying, possessing or transferring firearms under state law
A strong majority of Delaware voters support legalizing marijuana—including nearly three in four Democrats who back the reform that the state’s Democratic governor vetoed last year, according to a poll released that month.
Photo courtesy of Mike Latimer.