Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
                  Introduced Senate Bill 386                            FISCAL
                                                        NOTE
                 By Senator Caputo [Introduced January 12, 2024; referred to the Committee on the Judiciary; and then to the Committee on Finance]
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  A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article,
         designated §16A-17-1, §16A-17-2, §16A-17-3, §16A-17-4, §16A-17-5, §16A-17-6, §16A-
         17-7, §16A-17-8, and §16A-17-9, all relating to legalizing cannabis production, sales, and
         adult consumption; providing legislative purpose and findings; defining terms; legalizing
         the possession of one ounce or less of cannabis and cannabis products by adults;
         authorizing production, sales, transfer, and transport of cannabis upon passing county
         referendums; providing procedure for county commissions to authorize county referendum
         on legislation of production and sales;       establishing mechanisms for permitting and
         licensing production and sales facilities by the Bureau for Public Health and localities;
        authorizing the Bureau for Public Health to promulgate rules, establish licensing, and
        administrative penalties relating to the production, sales, transfer, and transport of
        cannabis in authorizing counties; authorizing the Department of Revenue to promulgate
        rules and administer tax collections; authorizing localities to regulate manufacturing and
        sales locations; authorizing a special excise tax on cannabis; creating a new fund and
        dedicating proceeds of the fund; authorizing county local sales tax to be collected and used
        for the benefit of county and municipal governments; providing current laws relating to
        employment, vehicle operation, underage use, or private property use preserved; and
        establishing that the operation of this article is not intended to alter the West Virginia
        Medical Cannabis Act.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE         17.     LEGAL         ADULT          CONSUMPTION            OF       CANNABIS.
     §16A-17-1.                       Purpose and findings.
         (a) In the interest of the efficient use of law-enforcement resources, enhancing revenue for
  public purposes, and individual freedom, the Legislature finds and declares that the use of
  cannabis should be legal for persons 21 years of age or older.
         (b) In the interest of the health and public safety of our citizenry, the Legislature further
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  finds and declares that cannabis should be regulated in a manner similar to alcohol so that:
         (1) Individuals will have to show proof of age before purchasing cannabis;
         (2) Selling, distributing, or transferring cannabis to minors and other individuals under the
  age of 21 remains illegal;
         (3) Driving under the influence of cannabis remains illegal;
        (4) Legitimate, taxpaying business people, and not criminal actors, will conduct sales of
 cannabis; and
        (5) Cannabis sold in this state will be labeled and subject to additional regulations to
 ensure that consumers are informed and protected.
        (c) The Legislature finds and declares that it is necessary to ensure consistency and
 fairness in the application of this article throughout the state and that, therefore, the matters
 addressed by this article are, except as specified herein, matters of statewide concern.
     §16A-17-2.                                                                             Definitions.
         As used in this article, unless the context otherwise requires,
         "Cannabis" means all parts of the plant of the genus cannabis whether growing or not, the
  seeds thereof, the resin extracted from any part of the plant, and every compound, manufacture,
  salt, derivative, mixture, or preparation of the plant, its seeds, or its resin, including marijuana
  concentrate. Cannabis does not include industrial hemp, nor does it include fiber produced from
  the stalks, oil, or cake made from the seeds of the plant, sterilized seed of the plant which is
  incapable of germination, or the weight of any other ingredient combined with cannabis to prepare
  topical or oral administrations, food, drink, or other product;
         "Cannabis accessories" means any equipment, products, or materials of any kind which
 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 cannabis,
 or for ingesting, inhaling, or otherwise introducing cannabis into the human body;
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           "Cannabis cultivation facility" means an entity licensed to cultivate, prepare, and package
 cannabis and sell cannabis to retail cannabis stores, to cannabis product manufacturing facilities,
 and to other cannabis cultivation facilities, but not to consumers;
           "Cannabis establishment" means a cannabis cultivation facility, a cannabis testing facility,
 a cannabis product manufacturing facility, or a retail cannabis store;
           "Cannabis product manufacturing facility" means an entity licensed to purchase cannabis;
 manufacture, prepare, and package cannabis products; and sell cannabis and cannabis products
 to other cannabis product manufacturing facilities and to retail cannabis stores, but not to
 consumers;
           "Cannabis products" means concentrated cannabis products and cannabis products that
 are comprised of cannabis and other ingredients and are intended for use or consumption, such
 as, but not limited to, edible products, ointments, and tinctures;
           "Cannabis testing facility" means an entity licensed to analyze and certify the safety and
 potency of cannabis;
           "Consumer" means a person 21 years of age or older who purchases cannabis or
 cannabis products for personal use by persons 21 years of age or older, but not for resale to
 others;
           "Department" means the Department of Revenue or its successor agency;
           "Industrial hemp" means the plant of the genus cannabis and any part of such plant,
 whether growing or not, as authorized pursuant to §19-12D-1 et seq. of this code;
           "Retail cannabis store" means an entity licensed to purchase cannabis from cannabis
 cultivation facilities and cannabis and cannabis products from cannabis product manufacturing
 facilities and to sell cannabis and cannabis products to consumers; and
           "Unreasonably impracticable" means that the measures necessary to comply with the
 requirements of this article require such a high investment of risk, money, time, or any other
 resource or asset that the operation of a cannabis establishment is not worthy of being carried out
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 in practice by a reasonably prudent businessperson.
     §16A-17-3.                 Personal use of               cannabis.
          Notwithstanding any other provision of the code, the following acts are not unlawful and are
  not an offense under state law or a basis for seizure or forfeiture of assets under state law for
  persons 21 years of age or older:
          (1) Possession of one ounce or less of cannabis;
          (2) Consumption of cannabis: Provided, That this article does not permit consumption that
  is conducted openly and publicly or in a manner that endangers others, and for state and local
  governments to prohibit use on government owned property;
          (3) Following the authorization by a county referendum authorized by §16A-17-4 of this
  code, manufacturing, displaying, purchasing, transporting or sales of up to one ounce of cannabis
 in an approved county to persons 21 years or older; or
         (4) Assisting another person who is 21 years of age or older in any of the acts described in
 this section.
     §16A-17-4.      County option election on allowing production and sales of cannabis.
          The county commission of any county may conduct a county option election on the
  question of whether the manufacture and sale to persons 21 years of age or older is allowed in the
  county as provided in this article, upon approval as provided in this section. The option election on
  this question may be placed on the ballot in each county at any primary or general election. The
  county commission of the county shall give notice to the public of the election by publication of the
  notice as a Class II-0 legal advertisement in compliance with the provisions of §59-3-1 et seq. of
  this code, and the publication area for publication is the county in which the election is to be held.
  The date of the last publication of the notice shall fall on a date within the period of the 14
  consecutive days next preceding the election. On the local option election ballot shall be printed
 the following: "Shall the production and sale of cannabis for consumption by persons 21 years or
 older be lawful in this county?
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        If approved by the voters this would authorize licenses to be issued for the regulated
 manufacture and sales of cannabis in the county for lawful consumption to persons 21 years or
 older, and the collection for a special sales tax of five percent for the benefit of the county and its
 municipalities on all retail cannabis sales".
        [ ] Yes [ ] No
        (Place a cross mark in the square opposite your choice.)
        The ballots shall be counted, returns made and canvassed as in general elections and the
 results certified by the commissioners of election to the county commission. The county
 commission shall, without delay, certify the result of the election. Upon receipt of the results of the
 election, in the event a majority of the votes are marked "Yes" all applicable licensees shall be
 permitted for the manufacture and sales of cannabis in the county. In the event a majority of the
 votes are marked "No" the manufacture and sales of cannabis will remain unlawful.
     §16A-17-5.          Lawful operation of       cannabis-related facilities.
         Notwithstanding any other provision of law, the following acts are not unlawful and are not
  an offense under state law or a basis for seizure or forfeiture of assets under state law for persons
  21 years of age or older to possess one ounce or less.
         In counties where the voters have by referendum so authorized:
         (1) Manufacture, possession, or purchase of cannabis accessories or the sale of cannabis
  accessories to a person who is 21 years of age or older;
         (2) Possessing, displaying, or transporting cannabis or cannabis products; purchase of
  cannabis from a cannabis cultivation facility; purchase of cannabis or cannabis products from a
  cannabis product manufacturing facility; or sale of cannabis or cannabis products to consumers, if
 the person conducting the activities described in this paragraph has obtained a current, valid
 license to operate a retail cannabis store or is acting in his or her capacity as an owner, employee
 or agent of a licensed retail cannabis store;
        (3) Cultivating, harvesting, processing, packaging, transporting, displaying, or possessing
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 cannabis; delivery or transfer of cannabis to a cannabis testing facility; selling cannabis to a
 cannabis cultivation facility, a cannabis product manufacturing facility, or a retail cannabis store; or
 the purchase of cannabis from a cannabis cultivation facility, if the person conducting the activities
 described in this paragraph has obtained a current, valid license to operate a cannabis cultivation
 facility or is acting in his or her capacity as an owner, employee, or agent of a licensed cannabis
 cultivation facility;
         (4) Packaging, processing, transporting, manufacturing, displaying, or possessing
 cannabis or cannabis products; delivery or transfer of cannabis or cannabis products to a cannabis
 testing facility; selling cannabis or cannabis products to a retail cannabis store or a cannabis
 product manufacturing facility; the purchase of cannabis from a cannabis cultivation facility; or the
 purchase of cannabis or cannabis products from a cannabis product manufacturing facility, if the
 person conducting the activities described in this paragraph has obtained a current, valid license
 to operate a cannabis product manufacturing facility or is acting in his or her capacity as an owner,
 employee, or agent of a licensed cannabis product manufacturing facility;
         (5) Possessing, cultivating, processing, repackaging, storing, transporting, displaying,
 transferring or delivering cannabis or cannabis products if the person has obtained a current, valid
 license to operate a cannabis testing facility or is acting in his or her capacity as an owner,
 employee, or agent of a licensed cannabis testing facility; or
         (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.
     §16A-17-6.                        Regulation of                      cannabis.
          (a) Not later than July 1, 2024, the bureau shall adopt legislative rules necessary for
  implementation of this article. The rules may not prohibit the operation of cannabis
  establishments, either expressly or through rule, that make their operation unreasonably
  impracticable, and shall include:
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         (1) Procedures for the issuance, renewal, suspension, and revocation of a license to
  operate a cannabis establishment;
         (2) A schedule of application, licensing and renewal fees: Provided, That application fees
  may not exceed $5,000, with this upper limit adjusted annually for inflation, unless the bureau
  determines a greater fee is necessary to carry out its responsibilities under this article: Provided,
 however, That an entity that is licensed under this article to cultivate or sell cannabis or to
 manufacture cannabis products for medical purposes at the time this article takes effect and that
 chooses to apply for a separate cannabis establishment license may not be required to pay an
 application fee greater than $500 to apply for a license to operate a cannabis establishment in
 accordance with the provisions of this article;
        (3) Qualifications for licensure that are directly and demonstrably related to the operation of
 a cannabis establishment;
        (4) Security requirements for cannabis establishments;
        (5) Requirements to prevent the sale or diversion of cannabis and cannabis products to
 persons under the age of 21;
        (6) Labeling requirements for cannabis and cannabis products sold or distributed by a
 cannabis establishment;
        (7) Health and safety regulations and standards for the manufacture of cannabis products
 and the cultivation of cannabis;
        (8) Restrictions on the advertising and display of cannabis and cannabis products; and
        (9) Civil penalties for the failure to comply with rules made pursuant to this article.
        (b) In order to ensure that individual privacy is protected, notwithstanding §16A-17-6(a) of
 this code, the bureau may not require a consumer to provide a retail cannabis store with personal
 information other than government-issued identification to determine the consumer's age, and a
 retail cannabis store may not be required to acquire and record personal information about
 consumers other than information typically acquired in a financial transaction conducted at a retail
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 liquor store.
           (c) A municipality may enact ordinances, not in conflict with this state law or with rules or
 enacted pursuant to this article, governing the times of operation, locations, manner and number
 of cannabis establishment operations.
           (d) Each application for an annual license to operate a cannabis establishment shall be
 submitted to the bureau. The bureau shall:
           (1) Begin accepting and processing applications by October 1, 2024;
           (2) Immediately forward a copy of each application and half of the license application fee to
 the county and municipality in which the applicant desires to operate the cannabis establishment;
           (3) Issue an annual license to the applicant between 45 and 90 days after receipt of an
 application unless the bureau has not received the fee or the bureau is notified by the relevant
 municipality that the applicant is not in compliance with its ordinances in effect at the time of
 application: Provided, That where a municipality has enacted a numerical limit on the number of
 cannabis establishments and a greater number of applicants seek licenses, the bureau shall solicit
 and consider input from the municipality as to its preference or preferences for licensure; and
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