Delaware Adult-Use Cannabis Bill One Vote Shy of House Passage Amidst Key Lawmaker’s Absence
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Delaware Adult-Use Cannabis Bill One Vote Shy of House Passage Amidst Key Lawmaker’s Absence

With a colleague out sick, state Rep. Ed Osienski changed his vote to “no” to reserve the right for another roll call on his sponsored bill next month.

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May 20, 2022

A bill to legalize a commercial adult-use cannabis industry in Delaware gained majority support among House lawmakers May 19 but came one vote shy of the supermajority it needed to pass amidst a key supporter’s absence.

Since House Bill 372 would create a new tax—a 15% cannabis excise tax that would be levied on retail sales—the legislation needs three-fifths majority, or 25 votes, to pass the Democrat-controlled Delaware House.

But with Majority Whip John “Larry” Mitchell, a retired police officer who supports the bill, out sick from the floor vote on Thursday, the legislation came one vote shy of the 25 it needed to pass, The Associated Press reported.

Ultimately, the effort was defeated in a 23-15 vote—with two representatives absent and one choosing not to vote—because the bill’s sponsor, Rep. Ed Osienski changed his vote to “no” at the last minute, a procedural move that allows him, a member who voted with the prevailing side, to bring the legislation back to the floor for reconsideration when the chamber reconvenes from a two-week recess next month, according to the news outlet.

“Coming into today, I thought it was going to be a good day,” Osienski told the Delaware News Journal. “This whole thing has been up and down, up and down. This was a down.”

While Osienski, who thought he had the necessary votes for the Delaware Marijuana Control Act to pass, hit a bump on Thursday, he succeeded earlier this month in getting companion legislation, H.B. 371, passed out of the General Assembly and to Gov. John Carney’s desk.

Pending the governor’s ink, that legislation will legalize the possession of up 1 ounce of cannabis by adults 21 and older. Under current laws and penalties, possessing up to 1 ounce is a civil penalty punishable by a maximum fine of $100.

RELATED: Delaware General Assembly Passes Adult-Use Possession Bill

Osienski’s sponsorship of separate companion measures comes after an all-inclusive bill came two votes shy of passing the House in early March.

While Carney’s office has 10 days to review the possession bill, the governor opposes full legalization.

“The governor has been clear that he does not support the legalization of marijuana, and his position has not changed,” Carney spokeswoman Emily David Hershman said in an email to the AP prior to Thursday’s vote.

In addition to imposing a 15% excise tax, the Delaware Marijuana Control Act (the bill that came just shy of House passage May 19) intends to create a legal framework to license and regulate “a new industry that will create well-paying jobs for Delawareans while striking a blow against the criminal element which profits from the thriving illegal market for marijuana in our state,” Osienski said May 19 on the House floor.

Under the bill, a “marijuana commissioner” would have the power to establish regulations but must consult with the Division of Alcohol and Tobacco Enforcement before adopting enforcement policies.

Specifically, the bill would allow for the issuance of up to 30 retail licenses, 30 manufacturing licenses, 60 cultivation licenses and five testing licenses within 16 months of its effective date.

The commissioner would be responsible for issuing 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. In addition, the commissioner would issue 15 open licenses and 15 social equity licenses for retail operations.

Two of the testing licenses and one-third of the manufacturing licenses would also be reserved for social equity applicants.

“For the past two years, we have listened to concerns from communities that have for decades been negatively impacted by the prohibition of marijuana,” Osienski told his colleagues in the House before the defeated vote on Thursday.

“To try to undo some of the harm done, and ensure that these same communities will benefit from this new legal market, we have created a social equity license pool and the Justice Reinvestment Fund,” he said. “This pool is open to Delawareans who either live in a disproportionately affected area, or have either been convicted of a marijuana-related offense or are the children of a person convicted of a marijuana-related offense.”

Tax revenue collected from retail sales would be allocated to the Justice Reinvestment Fund for projects to improve the quality of life for communities most impacted by prohibition and drug war policies.