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House approves marijuana legalization

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Delaware may soon have legal marijuana possession after the measure cleared a major hurdle by passing the House of Representatives. | PHOTO COURTESY OF JEFF W/UNSPLASH.COM

DOVER – Possession of marijuana may be on its way to full legalization in the state after the Delaware House of Representatives approved the measure Thursday, overcoming one of its largest legislative hurdles after years of attempts.

The House voted 26-14 Thursday, with Democratic Rep. Stephanie Bolden absent, to approve the measure. Notably, Republican Reps. Michael Smith and Jeff Spiegelman joined Democrats in approving the measure, but Democratic House Speaker Peter Schwartzkopf continued his longtime opposition.

House Bill 371, sponsored by longtime legalization proponent Rep. Ed Osienski (D-Newark), would remove a $100 fine for possession of 1 ounce or less of marijuana by adults over age 21. Possession of more than an ounce would remain illegal, and possession of more than 175 grams, or roughly 6.25 ounces, would remain a felony.

Driving while impaired by marijuana would remain illegal and public use would remain prohibited. Employers can still set zero-tolerance policies for their workplaces.

Notably, HB371 also specifically does not allow the “gifting” of marijuana along with a commercial transaction of something else, a loophole that has allowed marijuana sales along with food or trinkets in Washington, D.C., and other legalized states that lacked a regulated sales framework. Marijuana could be gifted for free, but not as part of a combined sale.

The bill is part of a renewed attempt to push through marijuana legalization in Delaware while also creating a framework for recreational sales after the House shot down a comprehensive effort by two-votes in March. Seeking to push through at least half of the bill’s agenda, Osienski split the effort into two bills, House Bills 371 and 372, to try to gain approval during the current legislative session. An election in the fall may change the makeup of Legislative Hall.

HB 371, which essentially moves Delaware from a decriminalized to legalized model, only has to find bare majorities in both the House and Senate for passage – something that Osienski has been able to shepherd previously. HB 372, which essentially sets up the state’s retail sale and taxation framework that largely rehashes his earlier failed bill, would still need to find a three-fifths majority since it creates new taxes though.

Osienski has said he believes fully legalizing marijuana in the state first may help some votes come around on the idea of creating a regulatory framework for retail sales. It could also provide some cover for lawmakers who don’t want to vote for legalization, but support taxation and sales if legalization is approved.

HB371 is likely to pass a State Senate that has grown more progressive in recent years and where President Pro Tem David Sokola has already co-sponsored the bill, an important sign. It’s more uncertain that Gov. John Carney would sign a legalization measure, however, as he has steadfastly opposed legalizing new narcotic substances – he’s a rare Democratic governor in opposition.

It’s possible that Carney could let the bill become law via a “pocket veto,” where he would neither sign or veto it, or Osienski could shepherd enough votes to override a veto.

On Thursday evening, however, advocates were primarily celebrating the legislative win after several previous failures.

“During this very involved process, we have heard from numerous members of the public – advocates, veterans, retired law enforcement officers, educators and even faith leaders – who have overwhelmingly voiced support for legalizing adult recreational marijuana. Delaware is more than capable of successfully enacting policies for safe and legal cannabis. I’m grateful to the House for passing this bill and look forward to continuing this effort until Delaware is poised to establish a new, legal industry in our state,” Osienski said in a statement after the vote.

“This progress is nine long years in the making! Delaware CAN thanks the Prime Sponsor Ed Osienski for his years of dedication work and diligence to get this legislation through the House … We still have a ways to go, but this is a huge day for our cannabis policy reform movement in Delaware,” wrote the Delaware Cannabis Advocacy Network after the bill’s passage.

The last-ditch effort with just weeks left in the legislative session comes as New Jersey has begun recreational marijuana sales while Marylanders will consider legalization in a ballot initiative this November, where the measure is widely popular.

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