HOUSE OF REPRESENTATIVES

H.B. NO.

7

THIRTY-FIRST LEGISLATURE, 2021

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO MARIJUANA.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


SECTION 1. The legal history of cannabis or marijuana in the United States primarily addresses the regulation of marijuana for medical use, and secondarily the use of marijuana for personal or recreational purposes. By the mid-1930s cannabis was regulated as a drug in every state, including thirty-five states that adopted the Uniform State Narcotic Drug Act which was subsequently replaced in 1970 with the federal Uniform Controlled Substances Act, which classifies marijuana and tetrahydrocannabinol as schedule I controlled substances.

Notwithstanding the prospect of federal prosecution, several states, including Hawaii, have enacted medical marijuana laws. Chapter 329, part IX, Hawaii Revised Statutes, was enacted to create a medical use of marijuana exemption from criminal sanctions. Other jurisdictions, such as Alaska, Arizona, Arkansas, California, Colorado, Connecticut, District of Columbia, Delaware, Florida, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington, also allow the use of marijuana for medicinal purposes. Furthermore, chapter 329D, Hawaii Revised Statutes, was enacted to establish medical marijuana dispensaries that were authorized to operate beginning in July 2016. As Hawaii expands its medical marijuana program through the use of highly regulated and monitored dispensaries, more patients are anticipated to consider medical marijuana as a viable treatment, knowing that the medicine will be regulated and tested.

In addition to medicinal marijuana laws, some states have legalized or decriminalized marijuana. Alaska, California, Colorado, Connecticut, Delaware, District of Columbia, Illinois, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New York, North Carolina, Ohio, Oregon, Rhode Island, Vermont, and Washington have decriminalized marijuana in small amounts. In 2019, Hawaii enacted Act 273, which decriminalized the possession of marijuana in the amount of three grams or less. In each of these states, marijuana users no longer face arrest or jail time for the possession or use of marijuana in an amount permitted by statute. Most places that have decriminalized possession of small amounts of cannabis have replaced incarceration or criminal charges with civil fines, confiscation, drug education, or drug treatment, or have made various cannabis offenses the lowest priority for law enforcement.

The legislature further finds that the legalization of marijuana for personal or recreational use is a natural, logical, and reasonable outgrowth of the current science of marijuana and attitude toward marijuana. In 2012, voters in Colorado and Washington voted to legalize and regulate the production, possession, and distribution of marijuana for persons age twenty-one and older. Following Colorado and Washington's lead, Alaska, California, District of Columbia, Maine, Massachusetts, Michigan, Nevada, Oregon, and Vermont also legalized small amounts of marijuana for adult recreational use. Colorado was the first state to remove the prohibition on commercial production of marijuana for general use. Most recently during the 2020 election, Arizona, Montana, New Jersey, and South Dakota legalized recreational marijuana use.

States that have legalized marijuana use have increased their tax collections. For example, Colorado collected $67,594,323 from medical and retail cannabis taxes and fees during the first year of retail cannabis sales in 2014, $302,458,426 during the 2019 calendar year, and a total of $1,411,274,770 in revenues as of July, 2020. Most industry experts estimate that New Jersey and Arizona will be billion dollar markets in a few years.

The legislature further finds that the virus known as "SARS-CoV-2" causes a disease named "coronavirus disease 2019" (COVID-19), which spread globally and was declared a pandemic by the World Health Organization on March 11, 2020. Upon reaching Hawaii's shores, the COVID-19 outbreak disrupted the economy, resulting in an estimated $2,300,000,000 budget shortfall as of August, 2020. A new source of revenue is necessary to allow the State to meet its strategic goals, including the provision of quality early learning and preschool programs for Hawaii's children. The legislature further finds that marijuana cultivation and sales hold potential for economic development, increased tax revenues, and reduction in crime.

The purpose of this Act is to:

(1) Decriminalize and regulate small amounts of marijuana for personal use;

(2) Establish a licensing scheme for the cultivation, sale, and use of small amounts of marijuana for personal use;

(3) Tax marijuana sales in the same manner as state excise taxes; and

(4) Subject income derived from marijuana sales to state income taxes.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

LEGALIZATION OF MARIJUANA FOR PERSONAL USE

"Department" means the department of taxation.

"License" means a license issued by the department to authorize the operation of a marijuana establishment.

"Marijuana" shall have the same meaning as provided in sections 329-1 and shall include marijuana concentrate. "Marijuana" shall not include "industrial hemp" as defined in section 141-31.

"Marijuana accessories" means any equipment, products, or materials of any kind that are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, composting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, vaporizing, or containing marijuana, or for ingesting, inhaling, or otherwise introducing marijuana into the human body.

"Marijuana concentrate" shall have the same meaning as provided in section 712-1240.

"Marijuana cultivation facility" means an entity licensed to cultivate, prepare, and package marijuana and sell marijuana to retail marijuana stores, marijuana product manufacturing facilities, and other marijuana cultivation facilities, but not to consumers.

"Marijuana establishment" means a marijuana cultivation facility, marijuana testing facility, marijuana product manufacturing facility, or retail marijuana store.

"Marijuana product manufacturing facility" means an entity licensed to purchase marijuana; manufacture, prepare, and package marijuana products; and sell marijuana and marijuana products to other marijuana product manufacturing facilities and retail marijuana stores, but not to consumers.

"Marijuana products" means marijuana concentrate products and products that comprise marijuana and other ingredients intended for use or consumption and include but are not limited to edible products, ointments, and tinctures.

"Marijuana testing facility" means an entity licensed to analyze and certify the safety and potency of marijuana.

"Personal use" means an amount of marijuana not exceeding one ounce that is used for private, personal, or recreational purposes by persons age twenty-one years or older. The term personal use includes display, possession, sale, transport, transfer, or processing of marijuana or marijuana products.

"Retail marijuana store" means an entity licensed to purchase marijuana from marijuana cultivation facilities, purchase marijuana and marijuana products from marijuana product manufacturing facilities, and sell marijuana and marijuana products to consumers.

   -2 Personal use of marijuana. (a) Notwithstanding any law to the contrary, the personal use of marijuana is permitted.

(b) Personal use of marijuana shall not be the basis for arrest, seizure, or forfeiture of assets.

(c) The possession, use, display, purchase, transfer, or transport of marijuana, marijuana accessories, or marijuana paraphernalia for personal use shall be immune from criminal prosecution.

(d) The possession, growing, processing, or transporting of not more than six marijuana plants, with three or fewer being mature, flowering plants, and possession of the marijuana produced by the plants on the premises where the plants are grown shall not be subject to criminal prosecution; provided that the growing takes place in an enclosed and locked space and is not conducted openly or publicly, and that the plants are not made available for sale.

(e) The transfer or sale of one ounce or less of marijuana with or without remuneration to a person who is twenty-one years of age or older is permitted.

(f) The consumption of marijuana products is permitted.

(g) Assisting, advising, or abetting another person who is twenty-one years of age or older in any actions described in this section is permitted.

   -3 Lawful operation of marijuana establishments; license required. Notwithstanding any law to the contrary, the following acts are permitted and shall not constitute a criminal offense or be the basis for search, seizure, or forfeiture of assets of a person age twenty-one years or older:

(1) Manufacturing, possessing, or purchasing marijuana accessories or selling marijuana accessories to a person who is twenty-one years of age or older;

(2) Possessing, displaying, or transporting marijuana or marijuana products; purchasing marijuana from a marijuana cultivation facility; purchasing marijuana or marijuana products from a marijuana product manufacturing facility; or selling marijuana or marijuana products to consumers; provided that the person conducting the activities described in this paragraph has obtained a current, valid license to operate a retail marijuana store or is acting in the capacity of an owner, employee, or agent of a licensed retail marijuana store;

(3) Cultivating, harvesting, processing, packaging, transporting, displaying, or possessing marijuana; delivering or transferring marijuana to a marijuana testing facility; selling marijuana to a marijuana cultivation facility, marijuana product manufacturing facility, or retail marijuana store; or purchasing marijuana from a marijuana cultivation facility; provided that the person conducting the activities described in this paragraph has obtained a current, valid license to operate a marijuana cultivation facility or is acting in the capacity of an owner, employee, or agent of a licensed marijuana cultivation facility;

(4) Packaging, processing, transporting, manufacturing, displaying, or possessing marijuana or marijuana products; delivering or transferring marijuana or marijuana products to a marijuana testing facility; selling marijuana or marijuana products to a retail marijuana store or marijuana product manufacturing facility; purchasing marijuana from a marijuana cultivation facility; or purchasing marijuana or marijuana products from a marijuana product manufacturing facility; provided that the person conducting the activities described in this paragraph has obtained a current, valid license to operate a marijuana product manufacturing facility or is acting in the capacity as an owner, employee, or agent of a licensed marijuana product manufacturing facility;

(5) Possessing, processing, repackaging, storing, transporting, displaying, transferring, or delivering marijuana or marijuana products; provided that the person has obtained a current, valid license to operate a marijuana testing facility or is acting in the capacity as an owner, employee, or agent of a licensed marijuana testing facility; and

(6) Leasing or otherwise allowing the use of property owned, occupied, or controlled by any person, corporation, or other entity for any of the activities conducted lawfully in accordance with this section.

   -4 Regulation of marijuana; rules. (a) No later than July 1, 2022, the department shall adopt rules, pursuant to chapter 91, necessary for implementation of this chapter. The rules shall not require such a high investment of risk, money, time, or any other resource or asset that the operation of a marijuana establishment is not worthy of being carried out in practice by a reasonably prudent business person. The rules shall include:

(1) Procedures for the application, issuance, renewal, suspension, and revocation of a license to operate a marijuana establishment; provided that any license to be issued shall be issued no later than ninety days after receipt of an application;

(2) A schedule of application, licensing, and renewal fees; provided that application fees shall not exceed $5,000, adjusted annually for inflation, unless the department determines a greater fee is necessary to carry out its responsibilities under this section;

(3) Qualifications for licensure that are directly and demonstrably related to the operation of a marijuana establishment;

(4) Security requirements for the premises of marijuana establishments;

(5) Requirements to prevent the sale or diversion of marijuana and marijuana products to persons under the age of twenty-one;

(6) Labeling requirements for marijuana and marijuana products sold or distributed by a marijuana establishment;

(7) Health and safety regulations and standards for the manufacture of marijuana products and the cultivation of marijuana;

(8) Restrictions on the advertising and display of marijuana and marijuana products; and

(9) Civil penalties for the failure to comply with rules adopted pursuant to this section.

(b) In order to ensure that individual privacy is protected, the department shall not require a consumer to provide a retail marijuana store with personal information other than government-issued identification to determine the consumer's age. A retail marijuana store shall not be required to acquire and record personal information about consumers.

(c) If an application for a license under this section is denied, the applicant shall be notified in writing of the specific reason for the denial. The applicant may be entitled to resubmit the application at any time after denial of the initial application.

   -5 Effect on employers. This chapter shall not be construed to:

(1) Require an employer to permit or accommodate the use, consumption, possession, transfer, display, transport, sale, or growing of marijuana in the workplace; or

(2) Affect the ability of an employer to have policies restricting the use of marijuana by employees.

   -6 Effect on intoxicated driving laws. This chapter shall not be construed as a defense, exemption, or immunity from chapter 291E.

   -7 Effect on medical cannabis law. This chapter shall not be construed to affect medical use of cannabis as provided in chapter 329 and shall not be deemed to expand the medical use of cannabis beyond the uses provided in chapter 329.

   -8 Effect on medical cannabis dispensary law. This chapter shall not be construed to affect the dispensing of medical cannabis as provided in chapter 329D and shall not be deemed to expand the dispensing of medical cannabis beyond the uses provided in chapter 329D.

   -9 Effect on property rights. This chapter shall not be construed to prohibit a person, employer, school, hospital, detention facility, corporation, or any other entity who occupies, owns, or controls a property from prohibiting or otherwise regulating the possession, consumption, use, display, transfer, distribution, sale, transportation, or growing of marijuana on or in that property.

   -10 Taxes. A marijuana establishment shall be subject to payment of income taxes on gross receipts under chapter 235 and payment of excise taxes under chapter 237 for each transaction conducted by the marijuana establishment."

SECTION 3. Chapter 712, Hawaii Revised Statutes, is amended by adding a new section to part IV to be appropriately designated and to read as follows:

"712-    Legalization of marijuana. The following acts shall be exempt from arrest, prosecution, and criminal culpability under this part:

(a) Any act permitted under section    ‑2;

(b) Any act permitted under section    ‑3; and

(c) An act of any person who is appropriately and currently licensed if the act requires a license under chapter    ."

SECTION 4. Section 706-622.5, Hawaii Revised Statutes, is amended by amending subsection (5) to read as follows:

"(5) Upon motion from a person convicted for the possession of marijuana under section 712-1249 arising from a set of facts and circumstances that resulted in no other criminal charge, the court shall grant an expungement order pertaining to the conviction for the offense; provided that the amount of marijuana for which the person was convicted of possessing or promoting was [three grams] one ounce or less."

SECTION 5. Section 712-1244, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of promoting a harmful drug in the first degree if the person knowingly:

(a) Possesses one hundred or more capsules or tablets or dosage units containing one or more of the harmful drugs or one or more of the marijuana concentrates[,] in an amount greater than one ounce, or any combination thereof;

(b) Possesses one or more preparations, compounds, mixtures, or substances, of an aggregate weight of one ounce or more containing one or more of the harmful drugs or one or more of the marijuana concentrates[,] in an amount greater than one ounce, or any combination thereof;

(c) Distributes twenty-five or more capsules or tablets or dosage units containing one or more of the harmful drugs or one or more of the marijuana concentrates[,] in an amount greater than one ounce, or any combination thereof;

(d) Distributes one or more preparations, compounds, mixtures, or substances, of an aggregate weight of one- eighth ounce or more, containing one or more of the harmful drugs [or one or more of the marijuana concentrates, or any combination thereof]; or

(e) Distributes any harmful drug or any marijuana concentrate in any amount to a minor."

SECTION 6. Section 712-1245, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of promoting a harmful drug in the second degree if the person knowingly:

(a) Possesses fifty or more capsules or tablets or dosage units containing one or more of the harmful drugs or one or more of the marijuana concentrates[,] in an amount greater than one ounce, or any combination thereof;

(b) Possesses one or more preparations, compounds, mixtures, or substances, of an aggregate weight of one- eighth ounce or more, containing one or more of the harmful drugs [or one or more of the marijuana concentrates, or any combination thereof]; or

(c) Distributes any harmful drug in any amount or any marijuana concentrate in [any] an amount[.] greater than one ounce."

SECTION 7. Section 712-1246, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of promoting a harmful drug in the third degree if the person knowingly possesses twenty-five or more capsules or tablets or dosage units containing one or more of the harmful drugs or one or more of the marijuana concentrates in an amount greater than one ounce, or any combination thereof."

SECTION 8. Section 712-1247, Hawaii Revised Statutes, is amended by amending subsection (1) to read follows:

"(1) A person commits the offense of promoting a detrimental drug in the first degree if the person knowingly:

(a) Possesses four hundred or more capsules or tablets containing one or more of the Schedule V substances;

(b) Possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of one ounce or more, containing one or more of the Schedule V substances;

(c) Distributes fifty or more capsules or tablets containing one or more of the Schedule V substances;

(d) Distributes one or more preparations, compounds, mixtures, or substances of an aggregate weight of one- eighth ounce or more, containing one or more of the Schedule V substances;

(e) Possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of one pound or more, containing [any] marijuana[;] in an amount greater than one ounce;

(f) Distributes one or more preparations, compounds, mixtures, or substances of an aggregate weight of one ounce or more, containing [any] marijuana[;] in an amount greater than one ounce;

(g) Possesses, cultivates, or has under the person's control twenty-five or more marijuana plants; or

(h) Sells or barters [any] marijuana in an amount greater than one ounce or any Schedule V substance in any amount."

SECTION 9. Section 712-1248, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of promoting a detrimental drug in the second degree if the person knowingly:

(a) Possesses fifty or more capsules or tablets containing one or more of the Schedule V substances;

(b) Possesses one or more preparations, compounds, mixtures, or substances, of an aggregate weight of one- eighth ounce or more, containing one or more of the Schedule V substances;

(c) Possesses one or more preparations, compounds, mixtures, or substances, of an aggregate weight of one ounce or more, containing any marijuana; or

(d) Distributes [any] marijuana in an amount greater than one ounce or any Schedule V substance in any amount."

SECTION 10. Section 712-1249, Hawaii Revised Statutes, is amended to read as follows:

"712-1249 Promoting a detrimental drug in the third degree. (1) A person commits the offense of promoting a detrimental drug in the third degree if the person knowingly possesses any marijuana in an amount greater than one ounce or any Schedule V substance in any amount.

(2) Promoting a detrimental drug in the third degree is a petty misdemeanor; provided that possession of [three grams or less of] marijuana in any amount greater than one ounce but less than three ounces is a violation, punishable by a fine of $130."

SECTION 11. Section 712-1249.4, Hawaii Revised Statutes, is amended to read as follows:

"[[]712-1249.4[]] [Commercial] Unlicensed promotion of marijuana in the first degree. (1) A person commits the offense of [commercial] unlicensed promotion of marijuana in the first degree if the person knowingly:

(a) Possesses, with the intent to distribute, marijuana having an aggregate weight of twenty-five pounds or more;

(b) Distributes marijuana having an aggregate weight of [five] ten pounds or more;

(c) Possesses, cultivates, or has under the person's control one hundred or more marijuana plants;

(d) Cultivates on land owned by another person, including land owned by the government or other legal entity, twenty-five or more marijuana plants, unless the person has the express permission from the owner of the land to cultivate the marijuana or the person has a legal or an equitable ownership interest in the land or the person has a legal right to occupy the land; or

(e) Uses, or causes to be used, any firearm or other weapon, device, instrument, material, or substance, whether animate or inanimate, which in the manner used is capable of causing death, serious bodily injury, substantial bodily injury, or other bodily injury, as defined in chapter 707 in order to prevent the theft, removal, search and seizure, or destruction of marijuana.

(2) [Commercial] Unlicensed promotion of marijuana in the first degree is a class A felony.

(3) Any marijuana seized as evidence in violation of this section in excess of an aggregate weight of twenty-five pounds as stated in subsection (1)(a), or in excess of an aggregate weight of [five] ten pounds as stated in subsection (1)(b), or in excess of one hundred marijuana plants as stated in subsection (1)(c), or in excess of twenty-five marijuana plants as stated in subsection (1)(d) may be destroyed after the excess amount has been photographed and the number of plants and the weight thereof has been recorded. The required minimum amount of the marijuana needed to constitute the elements of this offense shall remain in the custody of the police until the termination of any criminal action brought as a result of the seizure of the marijuana. Photographs duly identified as accurately representing the marijuana shall be deemed competent evidence of the marijuana involved and shall be admissible in any proceeding, hearing, or trial to the same extent as the marijuana itself; provided that nothing in this subsection shall be construed to limit or restrict the application of rule 901 of the Hawaii rules of evidence."

SECTION 12. Section 712-1249.5, Hawaii Revised Statutes, is amended to read as follows:

"712-1249.5 [Commercial] Unlicensed promotion of marijuana in the second degree. (1) [A] Except as otherwise provided by law, a person commits the offense of [commercial] unlicensed promotion of marijuana in the second degree if the person knowingly:

(a) Possesses, with the intent to distribute, marijuana having an aggregate weight of [two] five pounds or more;

(b) Distributes marijuana having an aggregate weight of [one pound] two pounds or more;

(c) Possesses, cultivates, or has under the person's control fifty or more marijuana plants;

(d) Cultivates on land owned by another person, including land owned by the government or other legal entity, any marijuana plant, unless the person has the express permission from the owner of the land to cultivate the marijuana or the person has a legal or an equitable ownership interest in the land or the person has a legal right to occupy the land; or

(e) Sells or barters any marijuana or any Schedule V substance in any amount to a minor.

(2) [Commercial] Unlicensed promotion of marijuana in the second degree is a class B felony.

(3) Any marijuana seized as evidence in violation of this section in excess of an aggregate weight of [two] five pounds as stated in subsection (1)(a), or in excess of an aggregate weight of [one pound] two pounds as stated in subsection (1)(b), or in excess of twenty-five marijuana plants as stated in subsection (1)(c) may be destroyed after the excess amount has been photographed and the number of plants and the weight thereof has been recorded. The required minimum amount of the marijuana needed to constitute the elements of this offense shall remain in the custody of the police until the termination of any criminal action brought as a result of the seizure of the marijuana. Photographs duly identified as accurately representing the marijuana shall be deemed competent evidence of the marijuana involved and shall be admissible in any proceeding, hearing, or trial to the same extent as the marijuana itself; provided that nothing in this subsection shall be construed to limit or to restrict the application of rule 901 of the Hawaii rules of evidence."

SECTION 13. Not withstanding any other law to the contrary, a court shall dismiss any charge against a person that was filed prior to, and that would not be chargeable after, the effective date of this Act, which involves any marijuana offense arising from a set of facts and circumstances that resulted in no criminal charge other than the marijuana offense that is covered by this Act.

SECTION 14. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 15. This Act shall take effect upon its approval.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Marijuana; Legalization; Personal Use

 

Description:

Legalizes the personal use, possession, and sale of marijuana in a specified quantity. Requires licensing to operate marijuana establishments. Subjects marijuana establishments to excise taxes and income taxes. Amends certain provisions of the criminal code relating to marijuana.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.