A Delaware Senate committee has approved a pair of House-passed bills to legalize marijuana and create regulations for adult-use sales.
Both pieces pieces of legislation from Rep. Ed Osienski (D) cleared the Senate Health & Social Services Committee on Wednesday.
Sen. Trey Paradee (D), who is carrying the bill in the Senate, told members of the panel that the state’s existing law that merely decriminalizes low-level cannabis possession is inadequate.
“The arrests have continued and, as a result, lives have been turned upside down,” he said. “Although the civil offense is not as harmful as an arrest, the citations cannot be expunged and still appear in public record searches. This gap has caused a number of Delawareans to miss out on life-changing job opportunities due to the appearance of citations on background checks.”
He noted that ongoing enforcement falls disproportionately on people of color, adding that Delaware is increasingly “an island of prohibition” as neighboring states move to enact cannabis reforms.
I was proud to preside at today’s hearing, to release these bills today, and I’m looking forward to voting for both on the floor of the Senate.
— Sen. Sarah McBride (@SarahEMcBride) March 15, 2023
A Delaware Division of Public Health representative testified at the hearing to share concerns about broader legalization’s potential impact on the state’s current medical cannabis program.
“In other states, the medical marijuana programs were decimated once adult use laws were passed with some states finding that over 75 percent of patients did not renew their cards,” she said. “Revenue from card and licensure fees are the only funding mechanism for the medical marijuana program… DPH wants to ensure that patients have continued access to extensively tested marijuana products, regardless of the availability of recreational marijuana.”
Osienski, the House sponsor, 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.
Osienski recently told 47 ABC News that if the governor seeks to veto the legislation again this time, he’s “optimistic” and feels “pretty good” that they have the votes for an override.
“I think my colleagues are saying, ‘OK, you know, you had one shot at vetoing this, you did and you were successful, but don’t count on us supporting that veto again,’” he said.
Both the simple legalization bill and the sales regulation measure cleared the House this month with more than enough votes to override any potential veto.
In the Senate, the legal possession measure’s next stop is a floor vote, while the commercial bill heads to the Finance Committee first.
Here’s what the 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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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.
Shortly after the House passed the latest versions of the legalization measures last week, the Senate approved a resolution that urges the state’s congressional representatives to support legislation to end federal cannabis prohibition.
Separately, 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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Photo courtesy of Philip Steffan.