Following collaboration with the State Bureau of Identification and the Delaware Department of Justice to obtain an FBI service code necessary for carrying out the legally mandated criminal background checks in the adult-use recreational marijuana sector, the FBI informed the State last Friday that their request for reconsideration has been denied. Upon examining the authorizing statute, the FBI pointed out that Title 4 of the Delaware Code needs to explicitly specify the groups of individuals who must undergo a background check. This precision is essential to prevent excessive scope. The Office of the Marijuana Commissioner intends to promptly collaborate with the General Assembly to create proposed legislation that aligns with the FBI’s requirements.

The criteria for Pub. L. 92-544 are as follows:

1. The statute must exist as a result of a legislative enactment;
2. It must require the fingerprinting of applicants who are to be subjected to a national criminal history background check;
3. It must, expressly (“submit to the FBI”) or by implication (“submit for a national check”), authorize the use of FBI records for the screening of applicants;
4. It must identify the specific category(ies) of licensees/employees falling within its purview, thereby avoiding overbreadth;
5. It must not be against public policy; and
6. It may not authorize receipt of the CHRI by a private entity.