Kristen S. Swift, Esq. Partner
Brandon R. Herling, Esq. Associate
Weber Gallagher Simpson Stapleton Fires & Newby, LLP
On March 10, 2022, H.B. 305, which would have become the “Delaware Marijuana Control Act,” was narrowly struck down on the floor of the Delaware House of Representatives, despite receiving majority support. The bill, which included taxes and fees, received 23 yes votes against 14 no votes, falling just short of the 25-vote supermajority required for tax-and-fee bills to pass.
H.B. 305’s untimely demise comes at a time when Delaware’s nearest neighbors are moving forward with legalized cannabis; Virginia now allows adults to possess, cultivate, and share small amounts of cannabis and New Jersey’s dispensaries opened their doors to recreational buyers to much fanfare on April 21, 2022.
After H.B. 305 was voted down, the bill’s sponsor Rep. Edward Osienski (D-Newark) adopted a new strategy: divide and conquer. Osienski is the primary sponsor of two new bills introduced on March 31, 2022: H.B. 371 and 372, respectively. H.B. 371 seeks to legalize the sharing and possession of one ounce or less of cannabis by those 21 or older, while H.B. 372 again seeks to establish a legal framework for the sale, manufacture, and taxation of recreational cannabis.
The hope is that H.B. 371, which lacks any tax or fee elements and thus only requires a simple majority, will pass first. If it does and cannabis is legalized, H.B. 372 may garner additional “yes” votes from representatives who do not necessarily favor legalization but favor the state maintaining some control by regulating and taxing cannabis once legalized. A similar strategy was successful in Vermont; possession was legalized in 2018, with regulation and legalized sales coming later.
H.B. 371 (“An Act to Amend Title 16 of the Delaware Code Relating to Marijuana” or the “Act”) (https://legis.delaware.gov/BillDetail?LegislationId=99297) is significantly limited in scope. The Act would amend Subchapter IV, Chapter 47 of Title 16 of the Delaware Code as it pertains to cannabis (called “marijuana” in the Delaware Code and the Act).
The Act would repeal two current provisions under § 4764(c) in their entirety. Section 4764(c)(1) prohibits knowing or intentional possession of a “personal use quantity” of cannabis, for which it prescribes a mandatory civil penalty of $100 and forfeiture. Section 4764(c)(2) penalizes use or consumption of a “personal use quantity” in the same manner. These alterations to § 4764(c)(1-2) were present in some form or another in the text of H.B. 305.
The Act would leave largely untouched § 4764(c)(3), which penalizes possession or consumption of a personal use quantity of cannabis by individuals under 21 years of age with an escalating penalty structure. First offence violations result in a $100 civil penalty and second offences result in a penalty between $200 and $500, with subsequent violations constituting an unclassified misdemeanor.
Notably, the Act would also leave in place § 4764(d), which pertains to use or consumption of personal use quantities of cannabis in moving vehicles or in an “area accessible to the public.” Use in public or a moving vehicle would remain an unclassified misdemeanor punishable by fine of up to $200 and five days imprisonment.
The Act introduces two additional changes that were not present in H.B. 305. First, the Act adds a new section to Title 16: § 4764A “Adult sharing of marijuana.” This new section introduces provisions, not included in H.B. 305, protecting adult sharing of cannabis. “Adult sharing” is the transferring of cannabis between persons twenty-one or older without remuneration. The Act prohibits the imposition of any civil or criminal penalties for adult sharing of a personal use quantity of cannabis. However, this carve-out is smaller than it might initially seem. Sharing does not include any form of bartering, contingent gifts, or where cannabis is given away “contemporaneously with another reciprocal transaction between the parties.”
The Act makes a second new change to Title 16. The Act would remove § 4764(h), which was left in place in H.B. 305. § 4764(h) read that “[n]othing contained herein shall be construed to repeal or modify any law or procedure regarding search and seizure.” This change, highlighted in the official synopsis of the bill, may have a mainly symbolic effect; it is unclear what practical impact the provision would have, as no positive provisions exist in § 4764 as amended by the Act that would enlarge or curtail search and seizure activities.
Barring some unforeseen committee catastrophe, the Act is almost certain to be passed by the State House: the Act’s sponsors and co-sponsors alone total twenty-one, one more than the simple majority needed for the Act to pass. A step beyond mere decriminalization, the full-scale legalization of use and possession or personal-use quantities cannabis is likely to start Delaware down the path to regulation, taxation, and legalized sale.
Osienski’s divide-and-conquer plan appears to have worked; multiple press outlets have reported that State House Speaker Peter Schwartzkopf (D-Rehoboth)—the lone democrat to vote against H.B. 305—has indicated that while he would not vote to legalize cannabis use, once legalized, he may vote in favor of regulating and taxing legal cannabis.
If passed by the Delaware House, H.B. 371 would then need to pass both a Senate Committee hearing and a Senate floor vote before landing on the desk of Governor John Carney.