RICHMOND, Va. — A Senate committee advanced legislation to create a marijuana retail market this week. But along the way, the committee voted to adopt changes that some advocates say will unfairly penalize marginalized communities and undermine marijuana decriminalization efforts.

Amendments to the legislation create a felony penalty for anyone distributing more than 5 pounds of marijuana, carrying a prison sentence of five to 30 years. New language would also bump the penalty for purchasing cannabis from an unlicensed distributor from a Class 2 to a Class 1 misdemeanor and impose a minimum fine of $500 or at least 50 hours of community service.

“It triggers mandatory minimums, which we should be moving away from,” the bill’s sponsor, Sen. Lashrecse Aird, D-Henrico, said during remarks to the Senate Courts of Justice Committee on Wednesday. “It increases the likelihood of adding felonies to records for non-violent conduct in this way.”

Sen. Scott Surovell, D-Fairfax, proposed the amendments and said it would bring penalties in line with alcohol enforcement.

“I think to have a robust (retail) market, there has to be sufficient consequences for selling unlicensed products, or else there’s not enough of an incentive to sell licensed products,” he said.

That amendment was adopted on a 9-6 vote, with Surovell voting in favor alongside the Republicans on the committee and Democratic Sens. Creigh Deeds and Russet Perry.

Aird’s bill would get a retail market up and running in January of next year, though the House version stipulates a November 2026 start date. It would initially allow up to 350 retail marijuana stores as well as five large cultivation facilities. It would allow the state to impose an 8% marijuana tax and allow localities to adopt tax local tax rates between 1% and 3.5%.

Other advocates who had come to speak in favor of a legal retail market criticized the amendments made to SB542.

“We oppose the amendments, in particular, recriminalizing consumers,” said JM Pedini, with National Organization for the Reform of Marijuana Laws. “How are they to know when they are buying cannabis at an illegal store on Jan. 1?”

Some Republicans, who are not in favor of a legal market generally, were also opposed to the amendments.

“We’re telling the state that it’s legal,” said Sen. Richard Stuart, R-King George. “But yet, if people in rural Virginia, and that’s who I represent, if they grow it in their backyard, and they grow too many plants because they think it’s legal, they’re going to end up getting charged with possession with the intent to distribute, and they’re going to end up having a felony.”

Current law allows Virginians to grow no more than four plants per household. Growing more than that amounts to a crime — whether it’s a misdemeanor or a felony depends on the number of plants — and that would not change for unlicensed cultivators under the proposed retail market legislation. Opponents of the amendments, including Aird, say that it would be up to police discretion to determine if people growing their own marijuana plants could be growing enough to be charged with intent to distribute on top of those penalties.

The legislation has been forwarded to the Senate Finance and Appropriations Committee, which next meets Tuesday.

On a 12-3 vote, the Courts of Justice Committee also advanced legislation proposed by Sen. Louise Lucas, D-Portsmouth, that would begin the resentencing process for people convicted of marijuana-related felonies before July 1, 2021, who are still incarcerated or on community supervision. Because that bill deals with old offenses, the amended retail market legislation would not conflict with resentencing. But advocates say it does conflict with the intent of substantial decriminalization.

Aird thanked Lucas for bringing the bill.

“I think this is such a pivotal moment to have you bring a piece of legislation that is seeking to address the wrongs that have been done in the commonwealth as it pertains to adult-use cannabis,” she said. “It was unfortunate to see that we in some ways as a committee have done something counter to what this attempts to accomplish.”

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