By Rachel Sawicki

DOVER — Legislation to legalize recreational marijuana in Delaware was defeated by just two votes in the House of Representatives Thursday.

“I think we’re going to have to start from scratch,” said House Bill 305 sponsor Rep. Ed. Osienski, D-Newark. “The next move will probably look a little different, but I’m going to keep on fighting and we’re going to have to figure this out.”

HB 305 needed 25 votes to meet the three-fifths majority required to pass. But with the loss of Rep. Michael Smith, R-Pike Creek, who claimed he was going to vote in favor, and three Democratic caucus members, the bill fell short.

House Bill 305 received a vote of 23 for, 14 against and four not voting.

Rep. Smith introduced three amendments Tuesday, which were all defeated.

HA 3 would have added felony convictions for violations of the Controlled Substances Act. HA 4 would have added felony criminal convictions for violations of the tax code and HA 5 would have prohibited an applicant for a Social Equity license from having a conviction of, or an adjudicated delinquency, for a marijuana-related offense if the offense involved a Tier 2 (1,500 grams or more) or Tier 3 (5,000 grams or more) quantity of marijuana.

The roll call for HA 3 was 15 in favor, 23 against and two not voting. The roll for HA 4 and 5 was 15 in favor, 24 against, and one not voting.

One other amendment introduced by Rep. Smith, to ensure that the Delaware Marijuana Control Act does not impact or impose requirements on employers with respect to terms and conditions of employment including but not limited to accommodation, policies or discipline, was passed.

HB 305 was the fourth version of an adult-use cannabis reform bill presented in Delaware with the first by Rep. Helen Keeley, D-South Wilmington, and Sen. Margaret Rose Henry, D-Wilmington, who have since retired. Rep. Osienski, D-Newark, has sponsored the last three bills.

“I came here today to vote for the legalization of marijuana,” Rep. Smith said.

“I told (Rep. Osienski) that … I told my own caucus that. And I went to roll call on those amendments just to prove that you guys do not care about bipartisanship and this state needs to change. And I hope people will remember this moment because you killed the legalization of marijuana.”

Rep. Osienski said he was blindsided by the amendments introduced by Rep. Smith, who allegedly promised a “yes” vote on the bill, but abstained from voting after three of the four amendments he introduced were defeated.

“I think his comments were disingenuous,” Rep. Osienski said. “I’ve been working with the Republicans on all versions of this bill. I have always kept them involved in a conversation and I knew which ones we’re considering and who were my best possibilities to get. So I focused on that and I thought I was doing very well with Rep. Smith. But I was not expecting him to come down here today and hand me four amendments. This was the first time I saw his amendments and that upset some of my caucus members.”

The bill would have allowed marijuana to be sold, taxed and regulated in the same manner as alcohol. Only people 21 years of age and older would be able to purchase and use up to one ounce for personal use.

The bill also would have opened up a new market for marijuana in Delaware, permitting the operation of marijuana businesses if they operate under a license, but would have imposed the same limits on hours and holiday sales as apply to sales of alcohol. Marijuana would not be sold in an establishment licensed to sell alcohol, per the legislation.

Last session, a couple of hours before a scheduled vote on June 10, a bill to allow adults to buy and use cannabis in Delaware was pulled from the House agenda, stalling the legislation until January.

Rep. Osienski said he will not stop fighting for all of the advocates who have so adamantly supported his efforts to pass the legislation.

“A lot of the pushback was about illegal activity,” Rep. Osienski said. “Not all Delawareans are criminals, and there’s many good, law-abiding Delawareans that want to be able to buy regulated cannabis. They’re not going to abuse it and be a danger or safety issue for everybody. If you keep focusing on a small minority of people that are, unfortunately, misusing things like that, it’s a shame. If we keep going to the illegal market, there is still going to be tons of crime.”

Rep. Osienski said he could not vote to attach Amendments 3, 4 and 5 to the bill because he would then lose votes from his caucus. Those amendments, Rep. Osienski said, negatively affected the social equity part of the legislation, and thus knew they would be problematic.

He also noted that he and his colleagues have been under immense pressure this week from law enforcement and from the office of Gov. John Carney, who has asserted as recently as last month that he does not support recreational marijuana use. He has not affirmed whether he would veto a bill like HB305 if it did come across his desk.

Rep. Osienski also noted that if Delaware continues to stall the legalization of recreational marijuana, the potential revenue lost will be “quite a bit.”