As the Delaware House voted to approve a bill to legalize marijuana possession on Tuesday, a committee in the chamber also passed a complementary measure to create regulations for an adult-use cannabis market—with a floor vote expected on Thursday.
The House Appropriations Committee cleared the regulations legislation from Rep. Ed Osienski (D), 4-0 on the merits. That marked the second panel to advance the bill and came on the same day that the full House approved the separate legalization proposal, HB 1, from the same sponsor.
HB 2, the regulations bill, will head to the floor on Thursday. Assuming passage, the next stop for both measures would be the Senate Health Committee, which would take them up next Wednesday, according to Sen. Trey Paradee (D), sponsor of the Senate companion version of the legalization legislation.
Paradee also told WRDE that he feels “strongly that I have the votes in the Senate already lined up” to not just pass the legislation but override the anti-legalization governor if he vetoes it again.
Osienski 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.
This time, the simple legalization bill cleared the House this week with more than enough votes to override a potential veto.
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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Ahead of Tuesday’s committee vote, Osienski filed an amendment to HB 2 that adding language stipulating that employers wouldn’t be required to revise workplace cannabis policies upon legalization and that the state Division of Revenue would be given the authority to set rules concerning the manner and form of tax payments for marijuana.
The amendment also shifts administrative responsibility for the Justice Reinvestment Fund from the state Department of Justice to the Criminal Justice Council. It further requires the governor-appointed marijuana commissioner to submit quarterly reports to the legislature on implementation progress.
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.
While certain lawmakers are expressing confidence in their ability to get the bill enacted, it seems likely that the governor would exercise his veto power if either arrive on his desk. It remains to be seen if there would be enough votes this session for an override.
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.
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