Is Delaware close to legalizing marijuana for recreational use?
Well, that depends on whom you ask.
Advocates are optimistic. Lawmakers worry there is just not enough legislative support.
The First State was among the first on the East Coast to weigh legalization for adult use. But last year, legalization came up short four “ayes.”
The latest version of the bill, HB 110, advanced from the House Revenue and Finance Committee last week to the House Appropriations Committee. There is optimism that the new version of the bill might win over some holdouts.
“Our goal is not the tax revenue, but eliminating the black market,” said State Rep. Ed Osienski (D., Newark). “Then you’d have a safe, new, regulated industry, with good-paying jobs and personal income taxes rolling in.”
But with only three weeks left in the current legislative session — and a state budget that still needs to be hashed out — getting it to the General Assembly for a full vote is looking unlikely before the end of the year.
“I’m still short on votes,” said Osienski. “I need 25 votes in the House to move it to the Senate. Right now I don’t have them.”
Persuading up to four potential holdouts may take the entire summer, Osienki said, but his counterpart in the Senate appeared less concerned.
“I think we’re real close. Legalization is inevitable. That’s the thing,” said State Sen. Trey Charles Paradee (D., Dover), one of the bill’s cosponsors. “It’s going to happen and it’s just a matter of when. However, if we’re not confident that we have the votes, we’ll just take it back up in January.”
Currently three growers and four medical-marijuana dispensaries operate in the state. The new Marijuana Control Act would increase the number of cannabis businesses, adding 50 new indoor and outdoor farms, 30 manufacturing and processing facilities, and 15 new retail stores.
Zoë Patchell, president of the Delaware Cannabis Advocacy Network, said that despite the hurdles, there’s still a chance the bill could pass before the summer break. The state can’t afford to wait, she said. Enormous numbers of residents still are being charged with petty marijuana offenses.
“Even with decriminalization, we still had over 5,400 people charged with possession last year,” she said. “That’s a lot of damaged lives. This bill would remove civil and criminal penalties for possession up to an ounce, or 5 grams of concentrates.”
Legalization could entice residents of Pennsylvania — where several legalization bills are pending with little promise of passing anytime soon — to drive south, much as they do now for no-tax liquor. It also might prompt New Jersey, where a bill to legalize stalled after a political war broke out between Gov. Phil Murphy and South Jersey power broker George Norcross. Stymied, Murphy has instructed the New Jersey Department of Health to greatly expand the state’s medical-marijuana program in the meantime.
If Delaware votes to legalize, it becomes part of a national trend. On May 31, Illinois became the 11th state to approve weed for adult recreational use. Illinois residents can purchase and hold up to 30 grams (just over an ounce) of cannabis. Nonresidents can possess up to half that amount.
Paradee calls the Delaware bill a “very modest, measured rollout.” But for some, it doesn’t go far enough.
“We’re getting quite a bit of pushback from cannabis advocates because there’s no home-grow in the bill,” Osienski said. “We felt it could feed into the black market. We wanted to do every thing we could to avoid it getting to minors. How do you police that? With homegrown that’s tough to do.”
Paradee said he would have liked to see homegrown included, especially for medical patients.
"But following conversations with other legislators, we felt that we’d lose votes,” he said. “Perhaps we can have home-grow added down the road if we get this passed. It could be something we’ll try to do a year or two later, or just for medical patients.”
The new bill will put regulation under the control of the state’s Division of Alcohol & Tobacco Enforcement. Osienski said that under the preexisting agency, a recreational program would be faster and less expensive to set up.
Patchell said that’s a good idea.
“Who would you rather have control the largest cash crop in Delaware?” she said. “The criminal market, or licensed business owners under the state’s Department of Homeland Security?”
Still, there are several potential stumbling blocks. Before the bill is sent on to the governor’s desk, Paradee and Osienski need to muster a “super majority” of votes in each House. That’s because any law creating a new tax or incurring a new expense to the state requires the backing of three-fifths support of the legislators.
“If it was a simple majority, it would be a slam dunk to get it through,” Paradee said.
The odds of passage improved with the election of 12 new members in the House, Osienski said. But the bill faces strong headwinds from law enforcement, the state Medical Society, the Chamber of Commerce, the AAA, and Gov. John Carney.
“Carney has said he is not a fan,”said Osienski. Carney, however, has three choices: He can sign it, veto it, or let it become law without his signature. The governor’s office did not respond to a request for comment.
Edibles would be allowed under the proposed bill. All cannabis products would be taxed at a rate of 15 percent. Home delivery is not under consideration.
The bill does not require new cannabis businesses to be owned by Delaware residents and it does not prevent big, multistate operators from buying up local producers and retailers. However, there is strong language about how the licensees will be chosen, Paradee said.
Lawmakers want employers who offer benefits, pensions, and 401(k)s. “We don’t want minimum-wage jobs,” Paradee said.
“The reality is marijuana is already here,” Paradee said. “The question is, are we going to allow the cartels and criminals to control the market, or have the government do it and generate some revenue and guarantee the product is safe?
“I think we all know what would be the better choice.”