SB1034: Bill Text

The bill also authorizes the commission to inspect, without prior notice, the premises and records of a licensee or an applicant. The commission may also establish rules for suspending, revoking, or refusing to issue or renew a license. The bill authorizes the commission to promulgate any other rules necessary to administer and implement the medical marijuana program as it relates to producers, processors, transporters, dispensaries, and laboratories.

Medical marijuana tax

The bill imposes an excise tax on a licensed processor at the rate of 10 percent of the sales price on each wholesale sale in this state of medical marijuana to a licensed dispensary. All proceeds from the tax, and all fees and penalties collected by the commission, are deposited into a segregated fund, identified in the bill as the medical marijuana fund.

Criminal provisions

The bill decriminalizes the manufacture, possession, distribution, and delivery of medical marijuana if that manufacture, possession, distribution, or delivery is done in compliance with the medical marijuana program established by the commission.

Under current law, with certain exceptions, it is illegal to manufacture, possess, distribute, or deliver THC, including THC in marijuana, which is classified as a schedule I controlled substance. The bill authorizes the possession, distribution, or delivery of medical marijuana by a qualifying patient or his or her primary caregivers if 1) the possession, distribution, or delivery of marijuana is done to facilitate a qualifying patient's medical use of the marijuana in accordance with his or her recommendation; 2) the marijuana is legally obtained from a person who is authorized to distribute or deliver medical marijuana under the laws of this state; 3) the amount of usable marijuana does not exceed a 30-day supply of individual doses of medical marijuana per qualifying patient; and 4) the qualifying patient or primary caregiver has in his or her immediate possession a registry identification card. The bill authorizes the manufacture, possession, distribution, or delivery of medical marijuana by an entity that is licensed by the commission or an employee or agent of such a licensed entity if the manufacture, possession, distribution, or delivery is done in the usual course of business or employment.

Under the bill, if a person manufactures, possesses, distributes, delivers, or uses medical marijuana in a way that is not in compliance with the requirements of the medical marijuana program, he or she can be referred by the commission for criminal prosecution under the Controlled Substances Act or a local law that prohibits the possession, manufacture, distribution, or delivery of marijuana.

Prescription drug monitoring program

Current law requires the Controlled Substances Board to establish a Prescription Drug Monitoring Program (PDMP) that requires pharmacies and health care practitioners to generate records documenting the dispensing of monitored prescription drugs. Records from the PDMP may be disclosed to persons specified under current law or by the board by rule.

The bill requires records to be generated for the PDMP documenting recommendations for medical marijuana and the issuance of registry identification cards for medical marijuana.

Fair employment law

Under the current fair employment law, an employer may not refuse to hire or employ, bar or terminate from employment, or discriminate against any individual in promotion or compensation or in terms, conditions, or privileges of employment because the individual has a disability. Such discrimination against an individual with a disability includes refusing to reasonably accommodate an employee's or prospective employee's disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer's program, enterprise, or business. Also under the fair employment law, an employer may not refuse to hire or employ, bar or terminate from employment, or discriminate against any individual in promotion or compensation or in terms, conditions, or privileges of employment because of the individual's use or nonuse of lawful products off the employer's premises during nonworking hours.

The Department of Workforce Development enforces the fair employment law, may receive and investigate complaints charging discrimination or discriminatory practices, and may, if an employer is found to have engaged in discrimination, order such action by the respondent as will effectuate the purpose of the fair employment law, including awarding back pay. Decisions of DWD hearing examiners made under the fair employment law are subject to further review by the Labor and Industry Review Commission and a court.

The bill provides that the fair employment law does not apply to any act of an employer based on an individual's use of medical marijuana.

Unemployment insurance; worker's compensation

Currently, an individual whose work is terminated by an employer for misconduct by the employee connected with the employee's work is ineligible to receive unemployment insurance (UI) benefits until the individual satisfies certain conditions. In addition, the wages paid to the individual by that employer are excluded from the employee's base period wages for purposes of calculating the individual's entitlement to UI benefits. “Misconduct,” for purposes of these provisions, is defined specifically as including a violation by an employee of an employer's reasonable written policy concerning the use of a controlled substance if the employee 1) had knowledge of the policy and 2) admitted to the use of a controlled substance, refused to take a test, or tested positive for the use of a controlled substance in a test used by the employer in accordance with a testing methodology approved by DWD.

Also under current law, an employer is not liable for temporary disability benefits under the worker's compensation law during an employee's healing period if the employee is suspended or terminated for misconduct as defined above.

The bill retains these provisions regarding misconduct and further provides that such a reasonable written policy may include a drug-free workplace policy.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB1034,1 Section 1. 15.435 (title) of the statutes is amended to read:

SB1034,6,2 15.435 (title) Same; attached boards and commissions.

SB1034,2 Section 2. 15.435 (2) of the statutes is created to read:

SB1034,6,7 15.435 (2) Medical marijuana regulatory commission. (a) Creation; membership. No later than 30 days after the effective date of this paragraph .... [LRB inserts date], there is created a medical marijuana regulatory commission attached to the department of revenue under s. 15.03, consisting of the following members:

SB1034,6,8 1. One member appointed by the governor.

SB1034,6,9 2. One member appointed by the senate majority leader.

SB1034,6,10 3. One member appointed by the speaker of the assembly.

SB1034,6,11 4. One member appointed by the senate minority leader.

SB1034,6,12 5. One member appointed by the assembly minority leader.

SB1034,6,15 (b) Chairperson. The governor shall designate one of the appointees under par. (a) to serve as chairperson for a 2-year term. The chairperson is responsible for the commission's daily operations and administrative oversight.

SB1034,6,17 (c) Assistance. The commission may request of any state agency such assistance as may be necessary for the commission to fulfill its duties.

SB1034,6,19 (d) Licenses. The commission shall begin issuing licenses under s. 73.17 no sooner than 180 days after the creation of the commission.

SB1034,7,3 (e) Report. 1. Annually, the commission shall submit a report to the legislature under s. 13.172 (2) that provides an overview of the medical marijuana industry in this state, specifies the administrative and enforcement actions undertaken by the commission, and makes recommendations regarding the operation of the commission and the administration of ss. 73.17 and 73.18 and subch. IV of ch. 139.

SB1034,7,8 2. No later than January 15, 2022, and no later than each January 15 thereafter, the commission shall submit to the legislature, as provided under s. 13.172 (2), its recommendation for using moneys from the medical marijuana fund for law enforcement drug prevention programs, treatment alternative and diversion programs, and alcohol and other drug abuse treatment programs.

SB1034,3 Section 3. 15.437 of the statutes is created to read:

SB1034,7,13 15.437 Same; councils. (1) Council on medical marijuana. (a) There is created in the department of revenue a council on medical marijuana to provide advice to the medical marijuana regulatory commission. The council consists of the following members:

SB1034,7,14 1. One individual who represents the interests of licensees under s. 73.17.

SB1034,7,15 2. One individual who represents local government.

SB1034,7,16 3. One individual who represents law enforcement.

SB1034,7,17 4. One individual who represents medical providers.

SB1034,7,18 5. One individual who represents providers of financial services.

SB1034,7,20 6. The secretary of agriculture, trade and consumer protection or the secretary's designee.

SB1034,7,21 7. The secretary of health services or the secretary's designee.

SB1034,7,22 8. The secretary of revenue or the secretary's designee.

SB1034,7,23 9. One member appointed by the senate majority leader.

SB1034,7,24 10. One member appointed by the senate minority leader.

SB1034,7,25 11. One member appointed by the speaker of the assembly.

SB1034,8,1 12. One member appointed by the assembly minority leader.

SB1034,8,3 (b) The governor shall appoint the members under par. (a) 1. to 5. All members serve for staggered 3-year terms, as determined by the secretary of revenue.

SB1034,4 Section 4. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated: - See PDF for table - See PDF for table - See PDF for table - See PDF for table

SB1034,5 Section 5. 20.566 (9) of the statutes is created to read:

SB1034,8,10 20.566 (9) Medical marijuana regulatory commission. (q) General program operations and enforcement. From the medical marijuana fund, the amounts in the schedule for general program operations, administration, and enforcement of ss. 73.17 and 73.18 and subch. IV of ch. 139.

SB1034,6 Section 6. 20.923 (4) (e) 13. of the statutes is created to read:

SB1034,8,13 20.923 (4) (e) 13. Revenue, department of: medical marijuana regulatory commission: members and chairperson.

SB1034,7 Section 7. 20.923 (6) (hp) of the statutes is created to read:

SB1034,8,16 20.923 (6) (hp) Revenue, department of: medical marijuana regulatory commission: all positions other than the members and chairperson.

SB1034,8 Section 8 . 25.56 of the statutes is created to read:

SB1034,9,2 25.56 Medical marijuana fund. There is established a separate nonlapsible trust fund, designated as the medical marijuana fund, consisting of all revenue from the fees, taxes, interest, and penalties under ss. 73.17 and 73.18 and subch. IV of ch. 139.

SB1034,9 Section 9. Chapter 73 (title) of the statutes is amended to read:

SB1034,9,8 CHAPTER 73 TAX APPEALS COMMISSION, medical marijuana regulatory commission, AND DEPARTMENT OF REVENUE

SB1034,10 Section 10 . 73.17 of the statutes is created to read:

SB1034,9,10 73.17 Medical marijuana; licensees. (1) Definitions. In this section:

SB1034,9,11 (a) “Child care center” has the meaning given in s. 49.136 (1) (ad).

SB1034,9,12 (b) “Commission” means the medical marijuana regulatory commission.

SB1034,9,17 (c) “Dispensary” means a person who obtains packaged and labeled medical marijuana from a licensed processor and dispenses that marijuana at a permanent location to qualifying patients or primary caregivers holding a valid registry identification card issued under s. 73.18 (3), regardless of whether the dispensing is done in exchange for monetary consideration.

SB1034,9,21 (d) “Laboratory” means a person who obtains medical marijuana from a licensed processor and tests that medical marijuana for tetrahydrocannabinol content and the presence of molds, pesticides, heavy metals, and other contaminants.

SB1034,9,23 (e) “Licensee” means a producer, processor, dispensary, transporter, or laboratory that holds a valid license under this section.

SB1034,9,24 (f) “Marijuana" has the meaning given in s. 961.01 (14).

SB1034,9,25 (g) “Medical marijuana" has the meaning given in s. 73.18 (1) (e).

SB1034,10,1 (gm) “Primary caregiver" has the meaning given in s. 73.18 (1) (h).

SB1034,10,5 (h) “Processor" means a person who obtains marijuana from a licensed producer, processes the marijuana into medical marijuana, packages and labels the medical marijuana, and transfers or sells the packaged and labeled medical marijuana to a licensed dispensary.

SB1034,10,7 (i) “Producer” means a person who plants, grows, cultivates, and harvests marijuana and transfers or sells the marijuana to a licensed processor.

SB1034,10,8 (im) "Qualifying patient" has the meaning given in s. 961.01 (20hm).

SB1034,10,9 (j) “School” has the meaning given in s. 118.257 (1) (d).

SB1034,10,11 (k) “Transporter” means a person who transports marijuana or medical marijuana to other licensees.

SB1034,10,20 (2) Annual license required. No person may operate in this state as a producer, processor, dispensary, transporter, or laboratory without a license issued by the commission under this section. A person who engages in more than one of these activities shall obtain a separate license for each activity. A person who operates more than one dispensary location shall obtain a separate license for each location. A person who is an employee of a licensee is not required to obtain a separate license. A license issued under this section expires after one year. A person is not required to obtain a license under this section if the person handles only industrial hemp and holds a valid license under s. 94.55.

SB1034,10,23 (3) License criteria. The commission may issue a license to a producer, processor, dispensary, transporter, or laboratory if the commission determines that all of the following requirements are met:

SB1034,11,7 (a) Notwithstanding ss. 111.321, 111.322, and 111.335, the applicant, or each principal officer or board member of the applicant, has never been convicted of a criminal violation of the federal Controlled Substances Act under 21 USC 801 to 971, the Uniform Controlled Substances Act under ch. 961, or any controlled substances law of another state. The commission shall determine whether this requirement is met on the basis of a criminal history search obtained from the records maintained by the department of justice for each of these persons. The department of justice shall provide information to the commission necessary to determine whether this requirement is met.

SB1034,11,9 (b) The applicant, or each principal officer or board member of the applicant, is at least 21 years of age.

SB1034,11,14 (c) For the 24 months following the first date on which the commission receives applications under this section, the applicant, or at least one principal officer or board member of the applicant, has resided in this state, in accordance with the qualifications set forth in s. 6.10, for at least one year before submitting an application to the commission under this subsection.

SB1034,11,18 (d) 1. If the applicant is a producer or processor, the applicant, or each principal officer or board member of the applicant, does not have any financial interest in a licensed dispensary or laboratory or an applicant for a dispensary or laboratory license.

SB1034,11,22 2. If the applicant is a laboratory, the applicant, or each principal officer or board member of the applicant, does not have any financial interest in a licensed producer, processor, or dispensary or an applicant for a producer, processor, or dispensary license.

SB1034,12,2 3. If the applicant is a dispensary, the applicant, or each principal officer or board member of the applicant, does not have any financial interest in a licensed producer, processor, or laboratory or an applicant for a producer, processor, or laboratory license.

SB1034,12,6 (e) The applicant and each principal officer or board member of the applicant have never had a license revoked and not reinstated under this section or been a principal officer or board member of an entity that has had a license revoked and not reinstated under this section.

SB1034,12,8 (f) The applicant's facility or the site of the applicant's facility is not prohibited by a local ordinance of the county or municipality where the facility would be located.

SB1034,12,10 (g) The applicant's operation is not or will not be located within 300 feet of the premises of a school or child care center.