Sen. Margaret Rose Henry

This Act brings Delaware sex offender registration laws into compliance with the federal Sex Offender Registration and Notification Act ("SORNA") by standardizing the tier designation of sex offenders are assigned based upon offense of conviction. This Act removes discretion previously granted to the Board of Parole to redesignate sex offenders and standardizes designation in a manner consistent with established Superior Court precedent. See State v. Brown, 2013 WL 2149882 (Del. Super. 2013); Lane v. Board of Parole, 2012 WL 5509711 (Del. Super. 2012). Finally, this Act streamlines the designation process by directing review to the Superior Court in the first instance.

This Bill expands the offense of falsifying business records by including the act of altering or modifying and creating false medical records. Currently, no specific statute exists to prevent a person from falsely creating, altering, or modifying a medical record. Expanding the offense of falsifying business records to include medical records will be a useful tool for combating healthcare provider fraud, protecting patients, and assisting patients in ensuring the integrity of their medical records.

The Delaware Marijuana Control Act regulates and taxes marijuana in the same manner as alcohol. It allows adults over the age of 21 to legally possess and consume under 1 ounce of marijuana for personal use. It does not permit people to grow their own marijuana. Section 1: Amends Chapter 47 of Title 16 to provide that the offenses and penalties under Uniform Controlled Substances Act do not apply to marijuana-related conduct allowed under the Delaware Marijuana Control Act or the Delaware Medical Marijuana Act, Chapter 49A of Title 16. Section 2: Amends § 4764 of Title 16 to eliminate any penalty for possessing 1 ounce or less of marijuana for individuals over the age of 21 but maintains the existing civil penalty for possession of 1 ounce or less for adults age 18 to 21. Section 3: Amends § 4902A of Title 16 so that the definition of a registered safety compliance facility includes not just marijuana produced for medical use but also marijuana produced under the Delaware Marijuana Control Act. Section 4: This Act creates the Delaware Marijuana Control Act. Subchapter I contains definitions and general provisions. Where definitions or analogous provisions exist in the Delaware Code, the definitions are referenced and the language from existing statutes is used. This section of the Act permits individuals over age 21 to possess, use, purchase, or transport 1 ounce (28 grams) or less of marijuana, no more than 5 grams of which may be concentrated, by individuals 21 years of age or older if the individuals are in compliance with this chapter. It permits the operation of marijuana businesses if they operate under licenses granted under this chapter but imposes the same limits on hours and holiday sales as apply to sales of alcohol. It prohibits the use of marijuana in public, by drivers or passengers in vehicles, and prohibits the smoking of marijuana anywhere that smoking tobacco or ecigarettes is not permitted. Marijuana may not be sold in an establishment licensed to sell alcohol. Employers and some owners of residential housing can prohibit the use of marijuana. There are specific provisions imposing the same penalties as with alcohol sales, for individuals under the age of 21 using false identification to purchase marijuana, and for businesses that fail to verify the age of marijuana consumers. This Act creates the Delaware Marijuana Control Act Oversight Committee. This Oversight Committee will coordinate the implementation of this Act with the Medical Marijuana Program, the Division of Public Health, the Division of Substance Abuse and Mental Health, and the public. The Oversight Committee will review the effectiveness of the Delaware Marijuana Control Act in regard to the safe operation of facilities licensed under this Act, the impact of this Act on public safety, and the impact of this Act on public health. The Commissioner must submit an annual report to the Governor and the members of the General Assembly setting forth all matters of interest and all statistics concerning marijuana regulation and control in the State including: the number of licenses of each variety issued with the State; including the name and address of each person licensed to cultivate, manufacture, or sell marijuana or marijuana products in the State; the amount of marijuana and marijuana products sold within the State; and the number of licenses of each kind granted and the number cancelled during the year. Subchapter II creates the Division of Marijuana Control and Enforcement in the Department of Safety and Homeland Security. The powers and duties granted to this Division are substantially the same as those in Title 4 creating the Division of Alcohol and Tobacco Enforcement but revised to conform to the standards of the Delaware Legislative Drafting Manual. This includes the identical power to conduct hearings if neighbors protest the license application of establishments that sell marijuana and subpoena power. It requires the Commissioner to coordinate with the Delaware Economic Development Office so that potential businesses licensed under this Act have access to programs, particularly those that support small businesses owned by minorities, women, and veterans. Subchapter III provides the Marijuana Commissioner the authority to adopt regulations to implement this Act and includes specific requirements that marijuana establishments must meet to obtain licenses. Regulations must require that products containing marijuana use of a symbol and a standard measurement to be used on all marijuana products so they are easily identified as containing marijuana and consumers can identify the amount of marijuana in different products; be in opaque, child-resistant packaging; and contain a warning label explaining evidence-based harms from consuming marijuana, including the impact on developing brains. The regulations must also contain security requirements, testing requirements, advertising restrictions, and require that food products comply with State food safety laws. There are separate licensing requirements for retail marijuana stores, marijuana testing facilities, marijuana cultivation facilities, and marijuana product manufacturing facilities. The application fee for licenses is up to $5000, which is the same as the application fee for facilities under the Delaware Medical Marijuana program. There is a $10,000 biennial fee for each license issued under this Act, which is lower than the fee for compassion center under the Delaware Medical Marijuana program. Within 10 months of the effective date of this Act, applications will be accepted from compassion centers and safety compliance facilities registered under Chapter 49A of Title 16 to operate as retail marijuana stores, marijuana cultivation facilities, marijuana product manufacturing facilities, and marijuana testing facilities. Localities have the ability to license and set rules for marijuana establishments. The procedure for appeals and grounds to deny a license are the same as for applications to sell alcohol under Title 4, except that instead of prohibiting someone with any substance abuse felony from obtaining a license, the language from § 4902A(7)(b) of Title 16, is used, permitting an exception if the conviction and sentence served was 10 years or more in the past or the conviction was for something that would be legal under this Act. Subchapter IV creates the Marijuana Regulation Fund. This fund will consist of fees collected, penalties imposed, and taxes collected under this Act. It creates an excise tax on marijuana and apportions the revenue as follows: first to the administrative costs and expenses of the Division of Marijuana Control and Enforcement and then, of the amount that remains, 20% to the Department of Education, 10% to the Department of Health and Social Services for distribution to nonprofit organizations to address barriers to reentry for communities that have been disproportionally affected by past federal and state marijuana prohibition policies, 10% to the Department of Health and Social Services for use in evidence-based, voluntary programs for the prevention or treatment of alcohol, tobacco, and marijuana abuse, and 10% to the Department of Health and Social Services for a public education campaign educating youth and adults about the health and safety risks of alcohol, tobacco, and marijuana. Section 5: Creates a State tax deduction for all ordinary and necessary expenses paid or incurred by a marijuana establishment to reflect the inability of a business licensed under this Act to deduct these expenses from federal taxes and thus state taxes. This creates a more level playing field with other businesses. Section 6: Provides that the initial regulations required under this Act be adopted not later than 9 months after the effective date of this Act.

This bill is intended to facilitate the growth and expansion of Delaware licensed craft alcoholic liquor companies within the State by permitting them to ship product manufactured on their licensed premises to entities under common ownership and control, as defined. This bill is not intended to unconditionally except craft alcoholic liquor companies from the traditional “three-tier” system.

The Certification of Adoption of Sustainability and Transparency Standards Act (the “Act”) establishes a voluntary disclosure regime to foster dialogue around sustainability and responsibility among participating Delaware business entities and their various stakeholders. Because issues relating to sustainability and responsibility are fact-specific and fact-intensive and may vary greatly depending on, among other things, the size of the entity, the nature of its business and operations, and the industry in which it operates, the Act does not prescribe specific standards, measures of performance or criteria for evaluating performance. Rather, consistent with the enabling approach of Delaware business laws generally, the Act requires the governing body of each entity seeking certification under the Act to adopt principles, guidelines and standards to guide its business activities in a sustainable and responsible manner, as well as metrics for assessing whether it has met its objectives. Although Section 5003D of the Act grants the Secretary of State of the State of Delaware (the “Secretary of State”) the authority and discretion to provide the form of application for certification under the Act, the Act does not contemplate that State officers will make qualitative judgments regarding the standards or metrics that an entity adopts. The Act also does not contemplate or require that State officers determine qualitatively whether an entity has been operated in a sustainable and responsible manner. The Secretary of State's certification is focused on information acknowledged by an authorized representative of the entity regarding its adoption of procedures to operate sustainably and responsibly and its commitment to disclose, at least annually, such procedures. To that end, Section 5003D of the Act requires an entity applying for certification under the Act to make disclosures regarding the sustainability and responsibility standards it has adopted, the metrics it uses to evaluate whether it has met those standards, and its performance in meeting those standards. The Act is entirely voluntary. The decision whether to seek certification is in the sole discretion of each entity. The Act imposes no obligations on any Delaware entities that have not elected certification. (Of course, any person or entity that misrepresents an entity's certified status may be subject to civil or criminal fines or penalties.) The Act does not impose fines or penalties on entities that elect not to seek certification, nor does it impose penalties or fines on entities that, having become certified, fail to satisfy their own performance standards. Moreover, the Act specifies that fiduciary liability shall not be imposed as a result of, among other things, the decision whether or not to seek certification or the failure to meet specific sustainability and responsibility standards.

This Substitute Act incorporates House Bill No. 222, and also makes the following changes to House Bill No. 222: (1) Creates a new Chapter of Title 10, which permits a family member or a law enforcement officer to obtain a lethal violence protective order. (2) Permits a family member or law enforcement officer to obtain an emergency lethal violence protective order in Justice of the Peace Court if the Court finds probable cause to believe that a respondent poses an immediate and present danger of causing physical injury to self or others by owning, possessing, controlling, purchasing, having access to, or receiving a firearm. The order requires the relinquishment of firearms to law enforcement and may prohibit the individual from residing with others who possess firearms, and grant permission to law enforcement to search for and seize firearms. If an emergency order is issued, the Superior Court must hold a full hearing within 15 days. (3) Makes clear that the Justice of the Peace Court and the Superior Court may, as part of an lethal violence protective order, order an individual not to reside with a individual who owns, possesses, or controls firearms. However, the Courts may not impair or limit the right to keep and bear arms of an individual who is not subject to an order. (4) Permits a respondent to request termination of the order in Superior Court wherein the respondent has the burden of proving by clear and convincing evidence that the respondent does not pose a danger of causing physical injury to self or others by controlling, owning, purchasing, possessing, having access to, or receiving a firearm. (5) Creates sanctions for a person who provides false information in the affidavit or verified pleading in order to obtain a lethal violence protective order. (6) Creates sanctions for a person who violates a lethal violence protective order by adding lethal violence protective order to Section 1271A of Title 11, making a violation of the order Criminal contempt. (7) Changes the effective date of this Act to 6 months after its enactment.

This Act is the first leg of a constitutional amendment that modernizes the Delaware Constitution’s bail provision and clarifies the power of the General Assembly and the Courts to define certain felony offenses for which, or circumstances under which, pretrial release on bail may not be available. Upon enactment of the second leg of this constitutional amendment, Article I, § 12 of the Delaware Constitution proposed will do all of the following: (1) Retain the express declaration of a general right to have bail set in a criminal case. (2) Provide that the only crimes for which bail must be withheld are capital murder, where the evidentiary proof is positive and presumption of the accusation great, and other felony offenses determined by and under procedures prescribed by law where the evidentiary proof is clear and convincing. (3) Ensure that one condition precedent to bail being withheld in non-capital cases is a finding that no bail condition or combination of bail conditions other than detention will assure the safety of another person or the community, that the person will appear for future proceedings, or that the detention is necessary to prevent the person from obstructing justice. The proposed change to permit a person charged with a non-capital crime to be held without bail will not take effect until the General Assembly revises Chapter 21 of Title 11 of the Delaware Code to prescribe by law the circumstances and procedures under which detention without bail may occur. With this change, though, Delaware can move forward toward the type of modern bail system that has been increasingly adopted by our sister states, through amendment of their state constitutions, when needed, and the development of statutory procedures that provide, in extreme cases, pretrial detention without bail. Under current Delaware law, the only circumstance in which a person might be detained without bail is when the person is charged with capital murder. This Act would have no effect on bail procedures and standards in capital cases. The fact that bail can be withheld only in capital cases, however, is inconsistent with the evidence-based and informed decision-making that the General Assembly looked to adopt through the Justice Reinvestment Act and the findings and ongoing work of our Supreme Court's Access to Justice Commission. At present, a Delaware state court judge cannot order pre-conviction detention in any non-capital case. Instead the judge can only attempt to set the bail so high that a defendant cannot make it, which can result in dangerous defendants with wealth being able to obtain release even if they pose a risk of harm to the public or a specific person, such as a witness or victim. This Act is one step toward completing a pretrial release-detention continuum that requires specific evidence-based release-detention decisions. Any legislation subsequently enacted or court procedures adopted under this Act requires a court’s individualized, fact-governed decision-making regarding detention in order to pass muster under the United States and Delaware State Constitutions. And, under this Act, any statute defining offenses for which, or circumstances under which, a person can be subjected to pretrial detention without bail must be enacted by an act of the General Assembly that is separate from an act that creates or amends the offense or circumstances and receives the concurrence of a two-thirds majority of each House of the General Assembly.

This Act is the second leg of a constitutional amendment that would alter the continuity of government provisions of the Delaware Constitution to enable the effective continuance of government following a variety of emergency situations. The first leg of this amendment, House Bill No. 380 of the 148th General Assembly, passed both Houses with the two-thirds vote required by, and was publicized in accordance with, the Delaware Constitution. Currently, Article II, § 5 of the Delaware Constitution requires the General Assembly to meet in Dover, unless an emergency caused by insurrection, conflagration, or epidemic diseases occurs. And, Article XVII, § 1 of the Delaware Constitution provides the General Assembly with the power to enact laws providing for continuity of government following emergency situations, but only if the emergency results from an enemy attack. Section 2 of this Act extends the General Assembly's authority under Article XVII, § 1 to disasters involving terrorism, disease, accident, and other natural or man-made disasters. This would authorize the General Assembly to extend the provisions of Chapter 77 of Title 29 of the Delaware Code (relating to the emergency location of government), Chapter 17 of Title 29 (relating to emergency interim legislative succession), Chapter 78 of Title 29 (relating to interim executive succession), and Chapter 18 of Title 10 (relating to emergency interim judicial succession) to emergencies involving terrorism, disease, accident, or other natural or manmade disasters, as well as those involving enemy attack. This change is consistent with the approach taken in at least four states, New York, Louisiana, Montana, and Utah, which have adopted an "all hazards" approach to continuity of government planning. In addition, Section 2 of this Act makes changes to Article XVII, § 1 adopting the interpretation of this provision by the Delaware Supreme Court in Opinion of the Justices, 190 A.2d 521 (Del. 1963), so that it is clear that the General Assembly may provide for succession for those public offices that are not immediately filled by operation of the Constitution. Section 1 of this Act would harmonize Article XVII, § 1 and Article § 5 so that the emergency situations exempting the General Assembly from the requirement that it meet in Dover are similar to the emergency situation in which the General Assembly may enact laws or otherwise act to provide for the continuity of government. Finally, this Act makes technical corrections to confirm existing law to the guidelines of the Delaware Legislative Drafting Manual. Specifically, lines 17 through 19 of this Act remove unnecessary legalese in and make grammatical changes to the final sentence of Article XVII, §1.

This Act removes a derogatory term for Italian-, Spanish-, and Portuguese-American immigrants from the Delaware Code.

Both the Delaware Strategic Fund (Title 29, Chapter 87A, Subchapter II) and the Delaware Technical Innovation Fund (Title 29, Chapter 87A, Subchapter III) provide funding for Delaware businesses, including new businesses in growing technology-related fields. The Delaware Strategic Fund is intended to assist in the development of startup strategies such as seed capital and incubator programs. The Delaware Technical Innovation Fund is intended to promote coordination with Delaware’s institutions of higher education and the private sector to commercialize innovative products and processes developed by small businesses. This act encourages Delaware’s institutions of higher education to assist foreign-born, student entrepreneurs, who are engaged in the development of new businesses and technologies in Delaware, to provide them with assistance in maintaining proper legal status within the United States. Presently, thirteen universities in six states offer Global Entrepreneur in Residence Programs which have been successful in assisting foreign-born, student entrepreneurs in creating new businesses, new jobs, and attracting additional capital investment for their development and expansion. This act will add a provision comparable to those found in Global Entrepreneur Residence Programs within the existing frameworks provided by the Delaware Strategic Fund and the Delaware Technical Innovation Fund. This will encourage the creation and development of new businesses and new technologies in Delaware, without creating a new program with new funding needs.