Separate marijuana bills introduced

Second attempt this year for industry regulation, reduced penalties for possession
April 5, 2022

Three weeks after Rep. Ed Osienski’s latest marijuana bill was defeated, he has filed a new one, this time with a slight revision.

Introduced March 31, House Bill 372 is Osienski’s latest version of the Marijuana Control Act, which would regulate the marijuana industry in Delaware. This time, though, the part about allowing adults 21 and older to possess an ounce or less with no penalties has been spun off into a separate bill. HB 371, also introduced March 31, does away with those penalties for adults, but more importantly, only needs a simple majority to pass.

The marijuana bill defeated March 10 needed a super majority of 25 votes in order to pass because of tax and fee provisions placed within the bill, and it was defeated when only 23 representatives voted for it. Another 14 voted against, and four did not vote at all.

“In my discussions with colleagues, I learned that some members did not support legalizing marijuana, but they would support the legal framework to regulate and tax marijuana if it was already legal,” said Osienski, a Newark-area Democrat. “This two-step approach would allow

those who have concerns about the act of legalizing marijuana to vote for the regulation aspect, which hopefully will give us the support we need to pass this proposal.”

Under HB 371, civil penalties for possession by those under 21 are a $100 fine for a first offense, $200 to $500 for a second offense, then back to $100 for third and subsequent offenses. Possession of more than one ounce of marijuana and public consumption remain unclassified misdemeanors.

HB 372 is now Osienski’s fourth try at creating a legal, regulated marijuana industry in Delaware. 

His second attempt, HB 150, was pulled in 2021 before ever making it to a floor vote, and in 2018, his original Marijuana Control Act was defeated on the House floor. 

Changes, however, have been happening slowly. Delaware decriminalized marijuana in 2015, reducing penalties from criminal charges to civil citations for smaller amounts of the drug.

HB 372 awaits action in the House Revenue and Finance Committee; HB 371 awaits action in the House Health & Human Development Committee.

Marijuana Control Act

The wording of HB 372 is similar to the previous Marijuana Control Act, which creates a fee schedule for businesses involved in the marijuana industry, a tax structure for the product, and a fund to help people who have been penalized for marijuana use/possession when the drug was illegal. The bill would allow adults 21 and older to purchase up to one ounce of marijuana from a licensed retail marijuana store, and it also removes possession of marijuana from the list of activities that prohibit a person from at the same time possessing a handgun.

HB 372 would regulate and tax marijuana in the same manner as alcohol. The Division of Alcohol and Tobacco Enforcement 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, and focusing on diversity of workforce.

HB 372 would set a 15 percent marijuana control enforcement fee assessed at point of sale, and would direct 7 percent of the marijuana tax 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:

  • 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 would create a social equity applicant license pool limited to those who either live in a disproportionately affected area, or have either been convicted of a marijuana-related offense (barring selling to a minor) or are the child of a person convicted of a marijuana-related offense.

These applicants would have access to technical assistance programs, reduced fees, an adjusted points scale and a waiver of the physical location requirement.

A microbusiness applicant pool would be limited to applicants with majority ownership held by Delaware residents. These applicants would have reduced fees, though higher than social equity applicants, and an adjusted points scale. These applicants would have access to cultivation and product manufacturing licenses.

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, and public consumption of marijuana would still not be permitted. Employer enforcement largely would not change, allowing them to drug test workers or mandate zero-tolerance policies. Employers would be able to discipline workers for being under the influence at work, and prohibit the consumption of marijuana at work.


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