Delaware to legalize recreational marijuana sales

Delaware will become the 22nd state to legalize recreational marijuana and tax and regulate its public sale for adults, without Gov. John Carney’s support.

DOVER – Delaware will become the 22nd state to legalize recreational marijuana and tax and regulate its public sale for adults, but not with Gov. John Carney’s support.

In a Friday statement, less than 48 hours before a decision was legally required on a potential veto in a second consecutive year on legalization, Carney announced that he will utilize a “pocket approval” on the measures, letting them become law without him signing them.

Legalization becomes effective at midnight Saturday, April 22, but recreational sales in the state aren’t likely to begin before Thanksgiving 2024, or about 19 months from the effective date of that bill when retailer licenses can be issued by the state. A lengthy regulatory setup must get underway within the next 90 days.

The governor has consistently opposed legalization efforts in recent years, but an emboldened Democratic-controlled legislature likely held enough votes to overturn a veto this year.

“As I’ve consistently said, I believe the legalization of recreational marijuana is not a step forward. I support both medical marijuana and Delaware’s decriminalization law because no one should go to jail for possessing a personal use quantity of marijuana. And today, they do not,” the governor wrote. “I want to be clear that my views on this issue have not changed. And I understand there are those who share my views who will be disappointed in my decision not to veto this legislation. I came to this decision because I believe we’ve spent far too much time focused on this issue, when Delawareans face more serious and pressing concerns every day. It’s time to move on.”

The bills that make recreational marijuana legal here and tax and regulate its sale, House Bills 1 and 2, respectively, were required to be considered by the governor by April 22 and 24 after being approved by the Delaware General Assembly, including a few Republican votes in the House.

The governor said in a statement that he remains “concerned about the consequences of a recreational marijuana industry in our state,” especially regarding the illegal use by children, and impaired driving.

“I recognize that many legislators disagree – and I respect the legislative process. I also do not believe prolonging debate on this issue best serves Delawareans. Delaware families want great schools for their kids. They want good jobs and affordable, safe communities free of crime,” he said.

“My goal will be to ensure that Delaware has a robust regulatory system that protects the interests of the most vulnerable Delawareans, to avoid the many challenges we’ve seen in other states, and to get back to focusing on issues that are most important for Delaware families,” he added.

 While Carney approved decriminalizing marijuana in 2019, possession of a small amount of marijuana can still result in a fine. HB 1 will 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 will remain unclassified misdemeanors. A personal use quantity will 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 will 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 will regulate and tax marijuana in the same manner as alcohol. It will 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 will allow for up to 30 retail licenses to be issued within 16 months of the bill’s effective date. It also will 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 will establish a marijuana control enforcement fee assessed at point of sale, set at 15%.

The measure will direct 7% of the marijuana fee revenue to a Justice Reinvestment Fund. The proposed fund will be administered by the Department of Justice and will 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 changes existing state law regarding driving under the influence of an illicit or recreational drug. They also will not allow individuals to grow their own plants. Public consumption of marijuana will still not be permitted.

Employer enforcement largely will not change. Employers will be permitted to drug test workers for marijuana to ensure any zero-tolerance policies are being followed. They also will 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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