Within the decade, Virginians could look back to 2021 and remember how odd it was that having or using marijuana could land them in jail—the same as we look back on the Prohibition Era and alcohol. That’s because in the next week, pot could be made legal.
In 2017, then-Gov. Terry McAuliffe signed a bill into law permitting those suffering from intractable epilepsy to use Cannabis oil with a doctor’s order. On July 1 last year, it became legal for patients to use Cannabis extracts—such as capsules, oils, creams, lozenges and lollipops—containing certain levels of cannabidiol, or CBD, and tetrahydrocannabinol, or THC. Another law passed last year decriminalized the possession of up to one ounce of marijuana. Now, anyone convicted of marijuana possession is slapped with a civil, rather than a criminal, penalty and an up-to $25 fine, as opposed to an up-to $500 fine and/or up to 30 days in jail.
This year, the Virginia General Assembly is likely to pass a bill that would eliminate that civil penalty and legalize the retail sale of marijuana for recreational use.
This month, the House of Delegates and the Virginia Senate passed two separate bills that seek to eliminate criminal penalties for the possession of up to an ounce of marijuana, allow for the cultivation and retail sale of marijuana and establish an automatic expungement process for those previously convicted of certain marijuana-related crimes.
The two bills are similar, although there are some key differences between them, which is why legislators are expected to create a conference committee to reconcile the differences before sending a single bill to Gov. Ralph Northam for signing. They have until March 1, when the General Assembly’s special session adjourns, to make that happen.
Del. David Reid (D-32), a co-sponsor of the House bill, said that committee would be created once the Senate votes on the House bill and vice versa. He said the committee would feature three to five legislators from each chamber. He said he’s hopeful the House of Delegates and Senate can vote on the bills, reconcile them and send a finalized version to Northam by March 1.
“Everyone’s intent is to get it done during this regular session,” he said. “… There’s no reason for me to think right now that this can’t be done.”
Residents Could Have a Say on Pot Shops
Under the proposed legislation, a retail marijuana store would be allowed to sell up to an ounce of marijuana in a single transaction to one person 21 years of age or older, via an automated dispensing or vending machine, a drive-through sales window, an internet-based sales platform or a delivery service. Under the proposed legislation, those stores would be required to set up shop at least 1,000 feet apart from each other.
The legislation will set a tax level for retail sales. Under both bills, the state would impose a 21% tax on marijuana sales. Reid said legislators are still debating that number. He said it could come out to be as high as 30 or 40%.
Both bills also propose to allow localities to impose a 3% tax on top of the state tax. A town or city tax would be in place of any tax imposed by the county surrounding the jurisdiction.
The legislation also proposes to create a Virginia Alcoholic Beverage and Cannabis Control Authority to regulate the market, grant licenses to sell marijuana and issue fines. Under the House bill, that board could set a certain number of licensees to grant to retailers, wholesalers, cultivators and product manufacturers, which, Reid said, would ensure there isn’t a Cannabis shop on every street corner in a particular community.
“You have to think about this as a model that was used for the ABC stores,” he said, noting that there is only one ABC store in any given shopping center in Loudoun.
Both bills provide counties, cities and towns with populations of more than 1,000 residents the authority to file a petition with their jurisdictions’ Circuit Court asking that a referendum be held on the question of whether the retail sale of marijuana should be prohibited in that jurisdiction. In Loudoun, that would apply to the county as a whole and the towns of Leesburg, Lovettsville and Purcellville.
County Chair Phyllis J. Randall (D-At Large) said she hopes that provision makes it to the finalized bill to provide Loudoun residents the opportunity to decide whether they would like to see local Cannabis shops, if the bill becomes law.
Purcellville Mayor Kwasi Fraser said he, too, would like to see a referendum for Purcellville residents if the bill becomes law. Councilman Ted Greenly, who said he would not like to see retail marijuana sales in town, said he also would advocate for the referendum.
Middleburg Police Chief A.J. Panebianco said he finds it “truly concerning” that the bills propose to disallow smaller towns, like Middleburg, from holding a referendum to allow their residents the chance to opt their towns out of retail sales. He said that exclusion would force smaller towns to accept a practice that’s “completely off culture or contrary to the desires of the citizenry.”
“[T]o take away the options because of size seems a bit of a strong hand to play,” Panebianco said. “If they are going to give the largest in Virginia the options, why not the smaller areas?”
Virginians Could Possess 1 Ounce of Marijuana
Perhaps more controversial, and notable for those who currently use marijuana illegally, is the proposed legislation’s provision establishing that it would become legal for anyone over the age of 21 to possess up to an ounce of marijuana. Anyone carrying amounts in excess of an ounce would be subject to a $25 civil penalty, unless they are found to have more than 5 pounds of marijuana, for which they would be subject to a felony charge and face 1-10 years in prison and a fine of up to $250,000 if convicted.
Still, it would be illegal to sell marijuana on the street—local jurisdictions could not collect tax on those types of sales. But, Reid pointed out, both bills do allow for individuals over the age of 21 to cultivate up to two mature marijuana plants and two immature marijuana plants for personal use at home.
Cultivating five to 50 plants at home could result in varying misdemeanor charges. Cultivating 50-100 plants at home could result in a Class 6 felony charge. Cultivating more than 100 plants at home could result in a felony charge with the same punishments as those associated with possessing more than 5 pounds of marijuana.
Public Safety Concerns
A consensus among the county’s law enforcement and government leaders is that legalization will pose risks in the community, within individual households and on the roadways.
Randall said that while she is in favor of decriminalizing marijuana to help people whose lives have been affected or ruined by the substance—and to help those who are sitting in jail for buying or selling a small amount of marijuana—she is opposed to legalizing it outright.
Randall said marijuana “is a real drug” and that legalizing its sale for profit is not what Virginia should do.
“Selling drugs for money is wrong and it doesn’t matter who’s doing it,” she said. “This is about money collecting and it is wrong.”
Randall said she’s skeptical of the argument that legalizing marijuana will benefit “communities of color.”
“I got a better idea, don’t put an addictive drug on the street,” she said.
Fraser said he also recognizes “the socio-economic burden and inequities the criminalization of marijuana has placed on communities across our nation” but is also “painfully aware of the destruction to some families and delay of valuable contribution to society the use of marijuana has caused.”
Randall also highlighted a seemingly counterintuitive provision included in both bills establishing that 25% of the tax revenue generated from retail marijuana sales would be required to go toward “substance use disorder prevention and treatment programs,” according to the bills’ language.
“Are you kidding me?” she said.
Another 40% of the tax revenue is proposed to go toward pre-kindergarten programs for at-risk three- and four-year-olds; 30% to the Cannabis Equity Reinvestment Fund; and 5% to public health programs.
Reid said the provision to send tax revenue to treatment programs, if carried into the finalized bill and signed into law, would help fund substance abuse programs for people addicted to all types of drugs, not just marijuana.
Northern Virginia Hemp Company Owner and Founder Luke Greer said that provision in the legislation is “a tremendous benefit” that would be used to prevent the abuse of marijuana.
“I think it would be a self-correcting issue for the concerns that have been raised against the bill,” he said.
Randall said she’s also concerned about Loudoun’s roadways, since marijuana users will inevitably get behind the wheel, even though both bills propose to make the use of marijuana in a moving vehicle a misdemeanor charge. And although marijuana doesn’t have the same effects on the body as alcohol, it does cause a complacent attitude, relaxes the reflexes and has a long half-life, meaning its effects linger for long periods of time.
Randall pointed out that most marijuana being grown and smoked today is much more potent than the marijuana of decades past. Greer said decades ago, most marijuana contained 5% THC per volume. Now, some strains reach as high as 30%.
“This idea that marijuana is not a dangerous drug and people cannot die when using marijuana, it’s just a fallacy,” Randall said about marijuana’s effects on the highway. “… There’s no way that it can do anything than cause more danger.”
Sheriff Mike Chapman said legalizing marijuana is “almost like legalizing moonshine,” since the proposed legislation has “no standards.” Unlike the .08 blood-alcohol content level allowable when driving, which deputies can check on the side of the road via a breathalyzer test, the proposed legislation for marijuana legalization does not establish a legal limit for the amount of THC a person may have in their blood while driving, and deputies can’t test for that on the side of the road—they’ll need a magistrate to sign off on a search warrant to draw blood.
Purcellville Police Chief Cynthia McAlister said she, too, was concerned that legalizing marijuana would make roads more dangerous and create lengthy processes when testing for THC levels in a driver’s blood.
“It’s just more time consuming, more hoops to jump through,” she said.
Reid said although the proposed legislation doesn’t include legal THC levels for driving, the House bill does include additional funding to help law enforcement agencies recognize the indicators of drivers who are under the influence of marijuana.
“It does need to be addressed,” he said of marijuana use behind the wheel.
McAlister said she and her officers would treat marijuana use on the roads just as they do drinkers; they’ll have to be on the lookout for drivers swerving, driving too fast or too slow and they’ll have to consider drivers’ facial expressions and speech when determining if they’ve used too much marijuana.
Chapman said legalization is overall a “huge mistake” because the state has not had enough time to analyze the effects of decriminalizing the substance.
“The consequences of just drugs in general are huge, and then to legalize something that we know is detrimental to your health,” he said. “There really is not an upside to this at all.”
And the Drug Abuse Resistance Education program taught in Loudoun’s public schools will need to be reconfigured, since the program teaches kids to stay away from illegal drugs, which marijuana won’t be if the legislation becomes law.
Chapman said marijuana’s current illegality is enough to stop some kids from using the substance. But if it’s legalized, he said, more youth could experiment with it.
“The messaging is just terrible. It’s terrible for kids,” he said.
Chapman said he’s also concerned about sales outside of retail shops, which will still be illegal. If the retail sale of marijuana is legalized, there inevitably will be more marijuana sales on the streets.
“There’s really no ability for us to enforce anything. It’s like school’s out,” Chapman said. “My emphasis is on public safety.”
Leesburg Police Chief Greg Brown said he didn’t feel it was appropriate to comment on legislation that has yet to become law.
Reid said that if marijuana is legalized in Virginia, it could provide cost savings for law enforcement, since deputies and officers won’t be taking time to cite and arrest people for possession, book evidence and all the other actions that go along with those types of charges.
Both bills also propose a requirement for the state to automatically expunge records for people arrested, charged or convicted of selling or possessing marijuana or selling drug paraphernalia no later than July 1, 2022.
From Hemp to Pot: Marijuana Cultivation
Beyond cultivating marijuana at home, farmers could cultivate the Cannabis sativa plant in large quantities as a business. But Loudoun Farm Bureau Board Member and Former President Chris Van Vlack said that kind of business could be a bit difficult, considering its similarities with hemp farming.
Van Vlack said that when hemp cultivation was legalized in Virginia, there were few buyers for the crop. Hemp cultivation first became legal in Virginia at a limited level in 1999 and was fully legalized nationally in 2018 under the Farm Bill.
“Unless [hemp farmers] had a signed contract for purchase of their crop, or were processing their crop … they were left holding a lot of hemp they had no market for,” Van Vlack said. “The [future marijuana farmers] who have done the homework, the paperwork, lined up legal buyers, and who are processing to a final product and legally selling may do well. Folks who jump and put an acre of Cannabis in the ground with no plan for marketing or processing it may be left holding the bag so to speak. … The devil will be in the details as far as how local producers might be able to tap into a legalized market.”
One of those future marijuana growers could be Greer, who started his hemp-growing company on his family farm near Purcellville in 2019.
Greer’s first hemp harvest was this year—he grows up to 1,200 Cannabis sativa plants on a one-acre plot—but he said he might be ready to jump into growing marijuana if it makes sense for his business.
“If it’s financially feasible, absolutely,” he said, adding that he would like the legislation to include initiatives for existing hemp growers, who already have experience growing the Cannabis sativa plant.
That Cannabis sativa plant is the same one that produces marijuana. While some strands produce more CBD, others produce more THC.
Greer said that if he were to cultivate marijuana, he would look to grow marijuana plants containing less than 10% THC.
Currently in Loudoun, there are about two dozen hemp growers. Greer said the hemp-growing community is a small niche within the county’s agricultural community, and one that’s “very competitive.”
He said Loudoun is a great place to grow the Cannabis sativa plant because the soil here is rich with nitrogen and the climate is humid.
Reid said state legislators are “working hard” to push the House and Senate bills through and get a finalized version voted on and sent to Northam’s desk before March 1. He said state legislators have gone through the legislation crafting process methodically, and that if a finalized bill is passed and signed into law, its provisions most likely won’t take effect until 2023 or 2024.
“They are committed to doing it right,” he said.