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Delaware General Assembly Passes Adult-Use Possession Bill

Delaware Gov. John Carney has expressed opposition to legalizing adult-use cannabis, but the democratic executive’s resistance might not matter—at least when it comes to possession.

That’s because legislation to legalize the possession of up to 1 ounce of cannabis for adults 21 and older got the thumbs up from the state Senate May 12, when the body’s members voted, 13-7, to send the bill to Carney’s desk.

The legislation, House Bill 371, also cleared the House on a 26-14 vote May 5, meaning each chamber showed the three-fifths majority support necessary to override a possible veto from the governor, who has 10 days to review the legislation.

Following the Senate’s passage, Carney’s Communications Director Emily David Hershman did not say whether the governor would veto the bill, The Associated Press reported.

“We’ll review the bill, but the governor’s position hasn’t changed,” Hershman said after Thursday’s vote.

Sponsored by Democratic Rep. Ed Osienski, H.B 371 specifically adds a provision to the state’s Uniform Controlled Substances Act that provides that there will be no criminal or civil penalty for transfers of 1 ounce or less of cannabis between those 21 and older, as long as no money is involved in the transfer.

Under current Delaware laws and penalties, possessing up to 1 ounce of cannabis is a civil penalty punishable by a maximum $100 fine with no possibility of incarceration.

Meanwhile, using or consuming cannabis in public or in a moving vehicle would remain a misdemeanor punishable by up five days of imprisonment with a maximum $200 fine, according to the bill’s text.

While the General Assembly’s passage of H.B. 371 does not legalize a commercial market for cultivation and retail, complementary legislation, H.B. 372, also sponsored by Osienski, made its way out of committee May 10 and was placed on the ready list for House floor consideration.

That legislation, the Delaware Marijuana Control Act, aims to regulate and tax cannabis in the same manner as alcohol. Specifically, the legislation would create a “marijuana commissioner” who would have the power to establish regulations and who must consult with the Division of Alcohol and Tobacco Enforcement before adopting enforcement policies.

In addition, H.B. 372 would establish licensing requirements for cannabis cultivation, manufacturing, retail and testing facilities, with the requirements differing among open licenses, social equity licenses and microbusiness licenses, including a $10,000 biennial fee for most open licenses and reduced fees for the other two license types.

Beginning 15 months after the bill’s effective date, the commissioner would issue 20 open licenses and 10 social equity licenses for cultivation facilities 2,500 square feet or larger, and 20 microbusiness licenses and 10 social equity licenses for cultivation facilities smaller than 2,500 square feet, according to the bill’s text. Thirty manufacturing licenses evenly divided among the three license types are also included in the bill.

Beginning 19 months after the bill’s effective date, the commissioner would issue 15 open licenses and 15 social equity licenses for retail operations. A 15% excise tax would be levied on retail sales, with 7% of the tax revenue collected allocated to a Justice Reinvestment Fund for projects to improve the quality of life for communities most impacted by prohibition and drug war policies.

Osienski’s attempt at passing complementary legislation—with separate bills for personal possession and a regulated commercial industry—comes on the heels of an all-inclusive proposal, H.B. 305, coming up short of House passage in early March.

RELATED: Delaware Adult-Use Bill Two Votes Shy of House Passage

“I still firmly believe that Delaware is more than capable of successfully enacting policies for safe and legal cannabis, and I will continue working on this issue to win the support to make it a reality,” he said in a public statement following that defeat. “Throughout my time in the House, I’ve seen advocates sway opponents to various bills, and I believe legal recreational marijuana for adult users is no different.”

While Osienski is partway there following Thursday’s possession bill passage, Carney remains an unknown hurdle in crossing the finish line. The governor has called cannabis legalization a “bad idea,” the Delaware News Journal reported.

The last successful override of a governor’s veto in Delaware came in 1977, the news outlet reported—and the last attempt to override a veto came in 1990.

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