• The FBI denied the Delaware Office of the Marijuana Commissioner’s request for a service code for necessary fingerprinting for criminal background checks.
• Despite the state handling most other background checks, the FBI fingerprints produce the criminal records.
• The needed change requires legislation to amend the current law.

The bumpy road to legal recreational marijuana businesses in Delaware hit another roadblock.

The FBI denied the Delaware Office of the Marijuana Commissioner’s request for a service code to complete legally required fingerprinting for everyone who was selected for a marijuana business license. The state office said the FBI denied the request because it wants the law to lay out exactly who requires a background check.

The FBI service code is necessary to conduct the fingerprinting part of the background check. Without it, no one can move on to the next steps of their remaining applications. The state marijuana office said it is working to propose new legislation to amend Title 4 of Delaware’s code “expeditiously” to add the necessary wording that would make the FBI happy. It has not found a legislator to introduce a bill with these changes yet.

More: Marijuana business owners gather in Dover to press state to open weed businesses

The Delaware Division of Alcohol and Tobacco Enforcement is still working through its background checks, which include income tax transcripts, long-term debt obligations, bankruptcies, civil litigation and more for every licensee. The key missing piece is the FBI fingerprinting, which produces the criminal part of the background check.

The requirements for the background checks a few years ago for medical sales and these adult-use recreational sales are virtually the same, the Office of the Marijuana Commissioner said. But it said the FBI wants more specificity in the law for adult-use recreational sales.

Without the FBI-produced criminal records, conditional licenses to operate recreational marijuana businesses will remain in limbo.

Once someone gets a conditional license, they have 18 months to become operational before they can be awarded an active license. Unless there is a good-faith reason they cannot get up and running, the license is rescinded after that time period.

In order for the FBI to perform fingerprinting and national criminal history background checks, it requires state laws to meet the following criteria:

• Require the fingerprinting of applicants
• Authorize the use of FBI records to screen the applicants
• Identify specific categories of people subject to the checks

The last requirement is the sticking point for the FBI’s denial of the current law.

An amendment to the law now has to go through the entire legislative process, stifling the industry for an indefinite amount of time nearly two years after its legalization. Throughout 2024, the state government had the goal to open dispensary doors by this month. The industry, which must be homegrown because it is illegal to transport marijuana over state lines, has yet to get off the ground in Delaware.

For some license holders, this development is adding to their frustrations with the process. Tracee Southerland is a cannabis advocate and holds two social equity licenses for testing facilities in Sussex and New Castle counties. She called the FBI’s denial more than a speed bump.

“Currently, it’s a roadblock because until we get fingerprints, we can’t get our conditional licenses so nothing can move forward,” she said.

She said the state marijuana office told her in an email that she is squared away and needs to complete the background check before she can start to set up her business. Now, with this new delay and the time it takes for marijuana plants to grow, the process could extend for months.

James Brobyn, who owns a medical marijuana dispensary, has his background check completed. However, he wants to welcome recreational customers as soon as he can because of the limited customer base for medical marijuana.

“Everyone’s asleep at the wheel, like no one’s watching,” Brobyn said. “Well, I’m watching. I’ve been trying to scream at this and raise the alarm for a while.”

Cannabis advocates have been calling for Gov. Matt Meyer to appoint a marijuana commissioner to give the agency some power. The state’s first marijuana commissioner, Rob Coupe, stepped down in January. His deputy commissioner, Paul Hyland, has been acting commissioner since then.

A spokesperson for the governor said interviews for the position are underway and that a selection could be announced in the coming weeks. The state Senate must confirm Meyer’s nomination.

Shane Brennan covers New Castle County with a focus on Newark and surrounding communities. Reach out with ideas, tips or feedback at slbrennan@delawareonline.com. Follow @shanebrennan36 on X, formerly Twitter.