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Delaware to debate marijuana legalization again

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Marijuana legalization in Delaware will be back this session despite a dramatic veto fight that ended last year, its sponsor announced Friday. | PHOTO COURTESY OF ELSA OLOFSSON/UNSPLASH

DOVER – A year after Gov. John Carney torpedoed a movement toward marijuana legalization in Delaware with a rare veto, bills to legalize and tax and regulate the drug have been filed again in the General Assembly.

On Friday, Rep. Ed Osienski (D-Newark), who has unsuccessfully sponsored bills for legalization for several years now, filed House Bills 1 and 2 known collectively as the Delaware Marijuana Control Act that effectively mirror the 2022 failed effort. HB 1 would legalize possession of small amounts of marijuana for personal use, and HB 2 would regulate the legal industry of growing and selling cannabis.

After years of coming up short on a movement that has already been approved in 21 states and Washington, D.C., Osienski said that he felt responsible to introduce it yet again despite the governor’s opposition, especially as New Jersey’s legal market has taken off and Maryland prepares to open its own this July.

“Delaware has been missing an opportunity to participate in the adult recreational marijuana market. We’ve missed out on hurting the illegal market, creating a new industry with good-paying jobs, and bringing tax revenue into our state that is currently going to nearby states like New Jersey,” Osienski said in a statement. “We have spent the past several years educating members about the merits of this program and dispelling the misconceptions that have persisted. I’m optimistic that we have the support to make this effort a reality.”

Osienski told reporters Friday afternoon that the results of the 2022 election, which added one senator to the Democratic supermajority and saw several new progressives join the House, also gave him hope of overcoming past hurdles – one that would likely include the need to shepherd a three-fifths vote to override another veto by the governor.

Last year, the governor vetoed the legalization bill, and six representatives switched their votes between the original vote and the override attempt. Osienski said that he had not talked with those defectors, five of whom were re-elected last fall, about their votes. 

“It’s kind of in the past, so I kind of let it go. But I’ve had really good, positive conversations with all of them,” he added.

Osienski said that he had not yet reached out to House Republicans, a handful of whom have been open to the idea and could help the bills’ chances of passage, but said he was hopeful to gain their support.

One leader aside from Carney who will be a tough sell is longtime House Speaker Peter Schwartzkopf (D-Rehoboth Beach), who Osienski said is “still concerned and will not support legalization.” Like last year though, if legalization passes, Schwartzkopf has said he would be supportive of regulation and taxation of a legal sales market, according to Osienski.

What’s next

HB 1 has been assigned to the House Health & Human Development Committee while HB 2 has been turned over to the House Revenue & Finance Committee. They will both receive hearings next week.

The General Assembly’s roughly six-month session comes in broken pieces with weeks out of session nearly every month, leaving only a smaller number of legislative days to actually advance bills. Bills filed early in a session are more likely to be resolved before the June 30 deadline.

If advanced out of committee, HB 1 would require only a simple majority vote on the House (21) and Senate (11) floor for passage. HB 2, because it has a taxation or revenue aspect to it, would require a three-fifths majority, or 25 in the House and 13 in the Senate.

Carney told Delaware Business Times last month that he has not changed his mind on legalization, noting concerns over its impact on workplace usage and rising traffic fatalities. 

“I don’t think it’s the worst thing in the world. I don’t think people who smoke pot ought to be criminals, and we’ve decriminalized it. There’s obviously a benefit for those who use it for medical purposes, and I support that,” he said. “The question is really, is it good for young people? We went through this huge campaign, working alongside Gov. Minner who championed it, to get people to stop smoking, and smoking didn’t make you unable to drive a car and or maybe make other decisions that weren’t great. So, I just don’t think it’s the best thing.”

Should Carney again veto either bill after passage, it would require a three-fifths vote to override it.

What’s in the bills

While Carney approved decriminalizing marijuana in 2019, possession of a small amount of marijuana can still result in a fine. HB 1 would remove all penalties for possession of a personal use quantity of marijuana, except for those who are under 21 years of age.

Possession of more than a personal use quantity of marijuana and public consumption would remain unclassified misdemeanors. A personal use quantity would be defined as 1 ounce or less of leaf marijuana, 12 grams or less of concentrated cannabis, or cannabis products containing 750 milligrams or less of delta-9-tetrahydrocannabinol.

HB 2 would create a legal framework to regulate the cultivation, sale and possession of marijuana, provide opportunities for small businesses to be licensed, and ensure people disproportionately affected by the prohibition of marijuana have access to this new market. The legislation also contains a new framework for directing some of the state proceeds from sales and licensing to justice reform efforts.

HB 2 would regulate and tax marijuana in the same manner as alcohol. It would allow adults 21 and older to purchase a personal use quantity of marijuana from a licensed retail marijuana store. Under the bill, the Division of Alcohol and Tobacco Enforcement (DATE) would absorb marijuana enforcement and create a separate, administrative Office of Marijuana Control Commissioner within the Department of Safety and Homeland Security.

The legislation would allow for up to 30 retail licenses to be issued within 16 months of the bill’s effective date. It also would establish a competitive licensing process through the Office of Marijuana Control Commissioner using a scoring system that rewards applicants for paying a living wage, providing employer-paid health insurance, providing sick and paid leave to workers, hiring more full-time workers, focusing on diversity of workforce, and other factors.

HB 2 would establish a marijuana control enforcement fee assessed at point of sale, set at 15%.

The measure would direct 7% of the marijuana fee revenue to a Justice Reinvestment Fund. The proposed fund would be administered by the Department of Justice and would be used to facilitate grants, contracts, services, or initiatives that focus on the following:

  •       Restorative justice, jail diversion, workforce development, industry-specific technical assistance or mentoring services for economically disadvantaged persons in disproportionately impacted areas.
  •       Addressing the underlying causes of crime, reducing drug-related arrests, and reducing the prison population in this state.
  •       Creating or developing technology to assist with the restoration of civil rights and expungement of criminal records.

The bill allows municipalities to prohibit the operation of marijuana facilities within their borders through local ordinances that are not in conflict with municipal regulations enacted under this law.

Neither bill would change existing state law regarding driving under the influence of an illicit or recreational drug. They also would not allow individuals to grow their own plants. Public consumption of marijuana would still not be permitted.

Employer enforcement largely would not change. Employers would be permitted to drug test workers for marijuana to ensure any zero-tolerance policies are being followed. They also would be able to discipline workers for being under the influence at work, as well as prohibit the consumption of marijuana at work.

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