Today we’re going to get down into the weeds.

Our topic: the bill to legalize weed sales in Virginia, more properly cannabis or what we used to call marijuana before cannabis became the preferred term.

We’ve known the outlines of this bill since December — most notably that there would be no “opt out” clause. Instead, cannabis sales will be legal in every county and city, assuming there’s a licensed operator there. Some key details were still being worked out, though.

Now Del. Paul Krizek, D-Fairfax County and chair of the Joint Commission to Oversee the Transition of the Commonwealth into a Cannabis Retail Market, has introduced the bill — HB 642 for those of you following along from home — and we can finally get a look at the specifics. Yes, he missed an opportunity to get this filed as HB 420, but that went to a bill about when rate increase proceedings involving public utilities may be reopened, by Del. Nicole Cole, D-Spotsylvania County.

On the Senate side, the bill is SB 542 by the commission’s vice chair, Sen. Lashrecse Aird, D-Petersburg, although in a committee meeting last week it was merged with a rival bill from Sen. Aaron Rouse, D-Virginia Beach, so now is somewhat different from the House version. One immediate difference: The House bill would allow retail sales starting Nov. 1, 2026, the Senate bill not until Jan. 1, 2027. The difference between those could make a difference in what your Thanksgiving and Christmas celebrations are like this year.

All joking aside, the legalization of retail sales of cannabis is a serious topic, whether you’re for it or against it, and the bill deserves a serious look no matter where you stand.

Politically, the big fight here may be over how easy (or expensive) it should be for medical marijuana companies to get into the retail business. Some cannabis advocates want a high barrier (no pun intended) because they want to prevent large companies from dominating retail weed. Medical marijuana firms see this as little more than extortion and an unfair meddling in the free market. This is where lobbyists will come into play, because both sides see lots of money at stake. 

Many of those other details I dealt with in December — there will be licenses for 350 retail stores, stores aren’t allowed to have signs that indicate they’re selling weed, the tax rate will be 8% with an optional local tax of up to 3.5%, retail sales would start Nov. 1 — so I won’t go into those again. Instead, I’ll focus on some of the new information and what the implications are.

The criteria for licenses would benefit applicants from Southwest and Southside

We have known all along that there would be some “social equity” component to how licenses are awarded; that’s one of the things that most concerns many Republicans, some of whom would otherwise be comfortable with legalizing retail sales. Some, but not all, licenses would go to what the bill refers to as “impact license applicants.” The bill sets out seven criteria; to qualify for preference in licensing an applicant must check off at least four of those boxes. The criteria that upset Republicans most are the ones that put a premium on being convicted of marijuana-related offenses. Democrats see these provisions as recompense for those who have been busted for something that’s now legal; Republicans see it as rewarding lawbreakers and disadvantaging applicants who have followed the law.

It’s no secret that the bill is intended to help Black Virginians — who historically have been arrested at higher rates than whites for marijuana offenses — get into what’s expected to be a lucrative market. Indeed, the section describing the bill’s purpose declares: “The General Assembly finds that laws prohibiting the use and sale of marijuana have been ineffective and have had devastating collateral consequences for individuals and communities across the Commonwealth, disproportionately impacting African Americans.”

Some of the provisions of the social equity provision in the bill — 4.1-606, Section B13 if you want to look it up — likely would benefit some Black Virginians. However, others would give an advantage to applicants from predominantly white counties in Southwest and Southside Virginia. 

The key is in provisions III and IV. The first part of III gives a preference to those who have lived in a jurisdiction that “is determined to have been disproportionately policed for marijuana crimes” or those who have lived “for at least three of the past five years in a historically economically disadvantaged community.” Provision IV gives a preference to those who “have attended for at least five years a public elementary or secondary school located in a historically economically disadvantaged community.”

So what is a “historically economically disadvantaged community”? That may sound like a lot of mumbo-jumbo, but it’s actually a phrase with a legal definition. In this bill, it means either “a jurisdiction … in which offenses for marijuana possession were committed at a rate in excess of 150 percent of the statewide average for marijuana possession offenses during the 10-year period of 2009 to 2019 or a historically underutilized business zone as defined in 15 U.S.C. § 657a.”

Both of these are important phrases, but let’s continue peeling back this legal onion. So what is 15 U.S.C. § 657a? That’s a federal law that defines “historically underutilized business zone,” or HUB Zone, as the U.S. Small Business Administration calls them. Best of all, there’s a map:

The places in red (entire counties), gray (census tracts) and blue (tribal lands) are all HUB Zones. That means anyone who lives there or went to school there for the required amounts of time qualifies under the social equity component. If you went to school there and live there now, that’s two of the required four boxes you can check off immediately. If you went to college on a Pell Grant, or went to a college with a lot of Pell Grant students, or served in the military, or have received a U.S. Department of Agriculture loan as a distressed farmer, you can get to the four-box threshold without having a single weed conviction on your record.

This is not an accident, or a loophole. “We started out with only those communities directly impacted by marijuana arrests but through the public hearings we’ve been holding it was clear we needed to add these zones to make it more accessible to economically disadvantaged communities in rural Virginia, too,” Krizek said.

It’s hard to tell, but it’s possible that the population in these qualifying HUB Zones is predominantly white — despite the stated intent to redress disproportionate policing against Black Virginians. The qualifying localities in Southwest are virtually all white, most of the qualifying localities in Southside have white majorities. Whatever the numbers might wind up being, it’s clear that these social equity provisions benefit a lot of white Virginians — the ones who live in rural areas.

The provision about disproportionate policing of marijuana offense also benefits a lot of people in Southwest Virginia and the Shenandoah Valley

That provision is the clearest way the bill can give an advantage to Black applicants without specifically mentioning race. A 2020 study by the General Assembly’s investigative arm, the Joint Legislative Audit and Review Commission, found that while Black and white Virginians used cannabis at about the same rate, Black Virginians were 3.5 times more likely to be arrested and 3.9 times more likely to be convicted of cannabis offenses. While the figures varied from locality to locality, Blacks were more likely to be arrested and convicted for marijuana offenses in nearly every locality in Virginia, the study found. The main exceptions were in localities where there simply wasn’t enough data available.

However, when JLARC looked closer at the data, it found that the localities with the widest Black-to-white arrest rates tended to be in predominantly white localities along the Interstate 81 corridor — likely because of a lot of arrests on the interstate. (I once wrote about how state police in Wythe County busted Charley Crockett, a mixed-race country music star from Texas, long before he became famous.) The practical effect of that is residents of those localities will get to check off a box because of the arrest of nonresidents. The JLARC study covered a different time period than what this bill proposes. Still, some curious trends jump out: From 2015-2019, the locality with the most disproportionate number of cannabis arrests by race was Carroll County, where Black suspects were 40.47 times more likely to be arrested than white suspects. Carroll’s not on I-81, but is on Interstate 77. Second place was Hanover County, astride Interstate 95, where the rate was 12.75. 

The bottom line: The policing provision might well give an advantage to applicants from some predominantly Black localities, but it will also give an advantage to applicants in predominantly white localities in the western part of the state, including some that don’t meet the “historically economically disadvantaged” criteria.

The number of licenses could increase after 2028

The bill sets the initial number of retail licenses at 350 — for comparison, Virginia has 402 Alcohol Beverage Control board stores. After Jan. 1, 2028, the board could increase that number, with this proviso: “If the Board makes an additional number of those licenses available, the number of licenses available to impact licensee applicants shall be equal to or greater than the number of licenses available to all other applicants.” That means Boones Mill may not have been premature in holding a hearing recently on what people would like to see in a zoning ordinance.

Zoning restrictions limited to 1,000 feet

As expected, the bill gives localities the power to keep cannabis stores 1,000 feet away from “any place of religious worship; hospital; public, private, or parochial school or institution of higher education; public or private playground or other similar recreational facility; child day program; substance use disorder treatment facility; or federal, state, or local government-operated facility.” Localities can allow stores to be closer, but it can’t go beyond that 1,000 feet limit.

There had been consternation among some cannabis advocates at a proposal to keep stores 1 mile apart. The bill now says they must be 1,000 feet apart, unless the locality allows them to be closer. The goal was to prevent “a weed store on every corner” — unless, of course, a locality wants that kind of thing.

No weed deliveries allowed to certain locations

As previously discussed, the bill would allow weed deliveries but delivery people would have to be licensed. The bill also bans weed deliveries to “(a) any military base, child day center, school, or correctional facility; (b) the State Capitol; or (c) any public gathering places, including sporting events, festivals, fairs, races, concerts, and terminals of public transportation companies.”

I had not considered the prospect of state legislators (or lobbyists or the Capitol Square press corps) ordering out for weed, but the drafters of this legislation did — and aim to prevent it.

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