SB1034: Bill Text

SB1034,20 Section 20 . Subchapter IV of chapter 139 [precedes 139.97] of the statutes is created to read:

SB1034,29,12 chapter 139

SB1034,29,13 subchapter Iv

SB1034,29,14 medical marijuana tax

SB1034,29,15 139.97 Definitions. In this subchapter:

SB1034,29,16 (1) “Commission” means the medical marijuana regulatory commission.

SB1034,29,17 (2) “Department” means the department of revenue.

SB1034,29,18 (3) “Dispensary” has the meaning given in s. 73.17 (1) (c).

SB1034,29,19 (4) “Marijuana" has the meaning given in s. 961.01 (14).

SB1034,29,20 (5) “Medical marijuana" has the meaning given in s. 73.18 (1) (e).

SB1034,29,21 (6) “Processor" has the meaning given in s. 73.17 (1) (h).

SB1034,29,22 (7) “Producer” has the meaning given in s. 73.17 (1) (i).

SB1034,29,25 139.971 Medical marijuana tax. (1) An excise tax is imposed on a processor at the rate of 10 percent of the sales price on each wholesale sale in this state of medical marijuana to a dispensary.

SB1034,30,5 (2) Each person liable for the taxes imposed under sub. (1) shall pay the taxes to the commission no later than the 15th day of the month following the month in which the person's tax liability is incurred and shall include with the payment a return on a form prescribed by the commission. The commission shall deposit all taxes collected under this section into the medical marijuana fund.

SB1034,30,19 (3) The commission may increase or decrease the rate under sub. (1) by submitting a request to the joint committee on finance. A request made under this subsection may not propose to increase or decrease the rate by more than a 5 percent increment. In addition to the proposed rate, the commission shall include in its request its rationale for the proposed rate, the impact that the proposed rate may have on the regulation of medical marijuana, and the first date on which the proposed rate would apply. If the cochairpersons of the joint committee on finance do not notify the commission that the committee has scheduled a meeting for the purpose of reviewing the request within 30 working days after the date of the submission, the commission may implement the proposal. If within 30 working days after the date of the submission, the cochairpersons of the committee notify the commission that the committee has scheduled a meeting for the purpose of reviewing the request, the commission may implement the proposal only upon approval of the committee.

SB1034,31,2 139.972 Records and reports. (1) Every producer and processor shall keep accurate and complete records of its production and sales of marijuana and medical marijuana in this state. The records shall be kept on the premises described in its license application under s. 73.17 and in such manner as to ensure permanency and accessibility for inspection at reasonable hours by the authorized personnel of the commission or department. The commission shall prescribe reasonable and uniform methods of keeping records and making reports and shall provide the necessary forms to producers and processors.

SB1034,31,12 (2) If the commission determines that any records of a producer or processor are not kept in the prescribed form or are in such condition that the commission requires an unusual amount of time to determine from the records the amount of the tax due, the commission shall give notice to the producer or processor that it is required to revise its records and keep them in the prescribed form. If the producer or processor fails to comply within 30 days, it shall pay the expenses reasonably attributable to a proper examination and tax determination at the rate of $30 per day for each auditor used to make the examination and determination. The commission shall send a bill for such expenses, and the producer or processor shall pay the amount of such bill within 10 days.

SB1034,31,22 (3) If any producer or processor fails to file a report when due, it shall be required to pay a late filing fee of $10. A report that is mailed is filed on time if it is mailed in a properly addressed envelope with postage prepaid, the envelope is officially postmarked, or marked or recorded electronically as provided under section 7502 (f) (2) (C) of the Internal Revenue Code, on the date due, and the report is actually received by the commission or at the destination that the commission prescribes within 5 days of the due date. A report that is not mailed is timely if it is received on or before the due date by the commission or at the destination that the commission prescribes. For purposes of this subsection, “mailed" includes delivery by a delivery service designated under section 7502 (f) of the Internal Revenue Code.

SB1034,32,3 (4) Sections 71.78 (1), (1m), and (4) to (9) and 71.83 (2) (a) 3. and 3m., relating to confidentiality of income, franchise, and gift tax returns, apply to any information obtained from any producer or processor under this subchapter on a tax return, report, schedule, exhibit, or other document or from an audit report relating to any of those documents, except that the commission shall publish production and sales statistics.

SB1034,32,6 139.973 Administration and enforcement. (1) The commission, in consultation with the department, shall administer and enforce this subchapter and promulgate rules necessary to administer and enforce this subchapter.

SB1034,32,8 (2) The duly authorized employees of the commission and the department have all necessary police powers to prevent violations of this subchapter.

SB1034,32,15 (3) Authorized personnel of the commission, the department of justice, and the department of revenue, and any law enforcement officer, within their respective jurisdictions, may at all reasonable hours enter the premises of any producer or processor and examine the books and records to determine whether the tax imposed by this subchapter has been fully paid and may enter and inspect any premises where marijuana or medical marijuana is produced, processed, made, sold, or stored to determine whether the producer or processor is complying with this subchapter.

SB1034,32,19 (4) The commission may suspend or revoke the license of any producer or processor who violates s. 100.30, any provision of this subchapter, or any rules promulgated under sub. (1). The commission shall revoke the permit of any producer or processor who violates s. 100.30 3 or more times within a 5-year period.

SB1034,33,2 (5) No suit shall be maintained in any court to restrain or delay the collection or payment of the tax levied in s. 139.971. The aggrieved taxpayer shall pay the tax when due and, if paid under protest, may at any time within 90 days from the date of payment sue the state to recover the tax paid. If it is finally determined that any part of the tax was wrongfully collected, the secretary of administration shall pay the amount wrongfully collected out of the medical marijuana fund. A separate suit need not be filed for each separate payment made by any taxpayer, but a recovery may be had in one suit for as many payments as may have been made.

SB1034,33,8 (6) (a) Any person may be compelled to testify in regard to any violation of this subchapter of which the person may have knowledge, even though such testimony may tend to incriminate the person, upon being granted immunity from prosecution in connection with such testimony. Upon the giving of the testimony under this paragraph, the person shall not be prosecuted because of the violation relative to which the person has testified.

SB1034,33,10 (b) The immunity provided under par. (a) is subject to the restrictions under s. 972.085.

SB1034,33,12 (7) The provisions on timely filing under s. 71.80 (18) apply to the tax imposed under this subchapter.

SB1034,33,18 (8) Sections 71.74 (1), (2), (10), (11), and (14), 71.77, 71.91 (1) (a) and (c) and (2) to (7), 71.92, and 73.0301 as they apply to the taxes under ch. 71 apply to the taxes under this subchapter. Section 71.74 (13) as it applies to the collection of the taxes under ch. 71 applies to the collection of the taxes under this subchapter, except that the period during which notice of an additional assessment shall be given begins on the due date of the report under this subchapter.

SB1034,33,22 (9) Any building or place of any kind where marijuana or medical marijuana is sold, possessed, stored, or manufactured without a valid license under s. 73.17 or in violation of s. 139.972 is declared a public nuisance and may be closed and abated as such.

SB1034,33,25 (10) At the request of the commission chairperson or the secretary of revenue, the attorney general may represent this state or assist a district attorney in prosecuting any case arising under this subchapter.

SB1034,34,8 139.974 Theft of tax moneys. All medical marijuana tax moneys received by a producer or processor for the sale of marijuana or medical marijuana on which the tax under this subchapter has become due and has not been paid are trust funds in the possession of the producer or processor and are the property of this state. Any producer or processor who fraudulently withholds, appropriates, or otherwise uses medical marijuana tax moneys that are the property of this state is guilty of theft under s. 943.20 (1), whether or not the producer or processor has or claims to have an interest in those moneys.

SB1034,34,15 139.975 Seizure and confiscation. (1) All marijuana and medical marijuana produced, processed, made, kept, stored, sold, distributed, or transported in violation of this subchapter or s. 73.17 or 73.18 and all tangible personal property used in connection with the marijuana or medical marijuana is unlawful property and subject to seizure by the commission or a law enforcement officer. Except as provided in sub. (2), all marijuana and medical marijuana seized under this subsection shall be destroyed.

SB1034,34,24 (2) If marijuana or medical marijuana on which the tax has not been paid is seized as provided under sub. (1), it may be given to law enforcement officers to use in criminal investigations or sold to qualified buyers by the commission without notice. If the marijuana or medical marijuana is sold, after deducting the costs of selling and storing the property, the commission shall pay the sale proceeds into the medical marijuana fund. If the commission finds that the marijuana or medical marijuana may deteriorate or become unfit for use in criminal investigations or for sale, or that those uses would otherwise be impractical, the commission may order them destroyed.

SB1034,35,7 (3) If marijuana or medical marijuana on which the tax has been paid is seized as provided under sub. (1), it shall be returned to the true owner if ownership can be ascertained and the owner or the owner's agent is not involved in the violation resulting in the seizure. If the ownership cannot be ascertained or if the owner or the owner's agent was guilty of the violation that resulted in the seizure of the marijuana or medical marijuana, it may be sold or otherwise disposed of as provided in sub. (2).

SB1034,36,3 (4) If tangible personal property other than marijuana or medical marijuana is seized as provided under sub. (1), the commission shall advertise the tangible personal property for sale by publication of a class 2 notice under ch. 985. If no person claiming a lien on, or ownership of, the property has notified the commission of the person's claim within 10 days after last insertion of the notice, the commission shall sell the property. If a sale is not practical, the commission may destroy the property. If a person claiming a lien on, or ownership of, the property notifies the commission within the time prescribed in this subsection, the commission may apply to the circuit court in the county where the property was seized for an order directing disposition of the property or the proceeds from the sale of the property. If the court orders the property to be sold, all liens, if any, may be transferred from the property to the sale proceeds. Neither the property seized nor the proceeds from the sale shall be turned over to any claimant of lien or ownership unless the claimant first establishes that the property was not used in connection with any violation under this subchapter or s. 73.17 or 73.18 or that, if so used, it was done without the claimant's knowledge or consent and without the claimant's knowledge of facts that should have given the claimant reason to believe it would be put to such use. If no claim of lien or ownership is established as provided under this subsection, the property may be ordered destroyed. In case of a sale, the net proceeds after deducting costs, expenses, and established claims shall be paid into the medical marijuana fund.

SB1034,36,8 139.976 Interest and penalties. (1) Any person who makes or signs any false or fraudulent report under this subchapter, who attempts to evade the tax imposed under this subchapter, or who aids in or abets the evasion or attempted evasion of that tax may be fined not more than $10,000 or imprisoned not more than 9 months or both.

SB1034,36,11 (2) Any producer or processor who fails to keep the records required under this subchapter shall be fined not less than $100 nor more than $500 or imprisoned not more than 6 months or both.

SB1034,36,16 (3) Any person who refuses to permit the examination or inspection authorized under s. 139.973 (3) may be fined not more than $500 or imprisoned not more than 6 months or both. The commission shall immediately suspend or revoke the license of any person who refuses to permit the examination or inspection authorized under s. 139.973 (3).

SB1034,36,19 (4) Any person who violates any of the provisions of this subchapter for which no other penalty is prescribed shall be fined not less than $100 nor more than $1,000 or imprisoned not less than 10 days nor more than 90 days or both.

SB1034,36,22 (5) Any person who violates any of the rules promulgated in accordance with this subchapter shall be fined not less than $100 nor more than $500 or imprisoned not more than 6 months or both.

SB1034,37,2 (6) In addition to the penalties imposed for violating the provisions of this subchapter or any of the commission's rules, the commission shall automatically revoke the license of any person convicted of such a violation and not issue another license to that person for a period of 2 years following the revocation.

SB1034,37,7 (7) Unpaid taxes under this subchapter bear interest at the rate of 12 percent per year from the due date of the return until paid or deposited with the commission, and all refunded taxes under this subchapter bear interest at the rate of 3 percent per year from the due date of the return to the date on which the refund is certified on the refund rolls.

SB1034,37,9 (8) All nondelinquent payments of additional amounts owed under this subchapter shall be applied in the following order: penalties, interest, tax principal.

SB1034,37,12 (9) Delinquent medical marijuana taxes bear interest at the rate of 1.5 percent per month until paid. The taxes imposed by this subchapter shall become delinquent if not paid by the following:

SB1034,37,14 (a) In the case of a timely filed return, no return filed, or a late return, on or before the due date of the return.

SB1034,37,16 (b) In the case of a deficiency determination of taxes, within 2 months after the date of demand.

SB1034,37,20 (10) If due to neglect an incorrect return is filed under this subchapter, the entire tax finally determined is subject to a penalty of 25 percent of the tax exclusive of interest or other penalty. A person filing an incorrect return has the burden of proving that the error or errors were due to good cause and not due to neglect.

SB1034,21 Section 21 . 182.001 (3) of the statutes is amended to read:

SB1034,38,2 182.001 (3) Prohibited activities. Those farming operations prohibited under this section are the production of dairy products not including the processing of such dairy products; the production of cattle, hogs, and sheep; and the production of wheat, field corn, barley, oats, rye, hay, pasture, soybeans, millet, sorghum, and hemp, and marijuana and medical marijuana as provided under ss. 73.17 and 73.18.

SB1034,22 Section 22 . 440.035 (2m) (a) of the statutes is renumbered 440.035 (2m) (a) (intro.) and amended to read:

SB1034,38,5 440.035 (2m) (a) (intro.) In this subsection, “ controlled:

SB1034,38,6 1. “Controlled substance" has the meaning given in s. 961.01 (4).

SB1034,23 Section 23 . 440.035 (2m) (a) 2. of the statutes is created to read:

SB1034,38,9 440.035 (2m) (a) 2. “Medical marijuana” has the meaning given in s. 73.18 (1) (e).

SB1034,24 Section 24 . 440.035 (2m) (b) of the statutes is renumbered 440.035 (2m) (b) 1.

SB1034,25 Section 25 . 440.035 (2m) (b) 2. of the statutes is created to read:

SB1034,38,16 440.035 (2m) (b) 2. The medical examining board and the board of nursing may issue guidelines regarding best practices in making recommendations for the use of medical marijuana under s. 73.18 (2) for persons credentialed by that board who are authorized to recommend the use of medical marijuana.

SB1034,26 Section 26 . 441.07 (1g) (d) 3. of the statutes is created to read:

SB1034,38,19 441.07 (1g) (d) 3. Recommending the use of medical marijuana to treat a patient in accordance with s. 73.18 (2).

SB1034,27 Section 27 . 441.20 of the statutes is created to read:

SB1034,38,22 441.20 Recommendations for use of medical marijuana. (1) In this section, “medical marijuana” has the meaning given in s. 73.18 (1) (e).

SB1034,39,2 (2) A certified advanced practice nurse prescriber who, acting in good faith, recommends the use of medical marijuana to treat a patient in accordance with s. 73.18 (2) shall be immune from criminal or civil liability and may not be subject to professional discipline under s. 441.07 for any outcomes resulting from that recommendation.

SB1034,28 Section 28 . 448.015 (4) (bm) 3. of the statutes is created to read:

SB1034,39,5 448.015 (4) (bm) 3. Recommending the use of medical marijuana, as defined in s. 73.18 (1) (e), to treat a patient in accordance with s. 73.18 (2).

SB1034,29 Section 29 . 448.039 of the statutes is created to read:

SB1034,39,8 448.039 Recommendations for use of medical marijuana. (1) In this section, “medical marijuana” has the meaning given in s. 73.18 (1) (e).

SB1034,39,12 (2) A physician or physician assistant who, acting in good faith, recommends the use of medical marijuana to treat a patient in accordance with s. 73.18 (2) shall be immune from criminal or civil liability and may not be subject to professional discipline under s. 448.02 for any outcomes resulting from that recommendation.

SB1034,30 Section 30 . 450.03 (1) (em) of the statutes is created to read:

SB1034,39,15 450.03 (1) (em) Any person acting within the scope of a valid medical marijuana producer, processor, or dispensary license under s. 73.17.

SB1034,31 Section 31 . 450.07 (1m) of the statutes is renumbered 450.07 (1m) (a).

SB1034,32 Section 32 . 450.07 (1m) (b) of the statutes is created to read:

SB1034,39,20 450.07 (1m) (b) No license under this section is required for a person acting within the scope of a valid medical marijuana producer, processor, or dispensary license under s. 73.17.

SB1034,33 Section 33 . 450.071 (1) of the statutes is renumbered 450.071 (1) (a) and amended to read:

SB1034,39,25 450.071 (1) (a) No Except as provided in par. (b), no person may engage in the wholesale distribution of a prescription drug in this state without obtaining a license from the board for each facility from which the person distributes prescription drugs.

SB1034,40,5 (b) 1. The board shall exempt from the licensure requirement under this section a manufacturer that distributes prescription drugs or devices manufactured by the manufacturer from licensing and other requirements under this section to the extent the license or requirement is not required under federal law or regulation, unless the board determines that it is necessary to apply a requirement to a manufacturer.

SB1034,34 Section 34 . 450.071 (1) (b) 2. of the statutes is created to read:

SB1034,40,9 450.071 (1) (b) 2. No license under this section is required for a person acting within the scope of a valid medical marijuana producer, processor, or dispensary license under s. 73.17.

SB1034,35 Section 35 . 961.01 (12q) of the statutes is created to read:

SB1034,40,12 961.01 (12q) “Licensed entity” means a producer, processor, dispensary, transporter, or laboratory licensed under s. 73.17.

SB1034,36 Section 36 . 961.01 (14g) of the statutes is created to read:

SB1034,40,14 961.01 (14g) “Medical marijuana" has the meaning given in s. 73.18 (1) (e).

SB1034,37 Section 37 . 961.01 (19m) of the statutes is created to read:

SB1034,40,18 961.01 (19m) “Primary caregiver" means a person who is registered under s. 73.18 to help a qualifying patient in his or her use or acquisition of medical marijuana.

SB1034,38 Section 38 . 961.01 (20hm) of the statutes is created to read:

SB1034,40,22 961.01 (20hm) “Qualifying patient" means a person who holds a recommendation and registry identification card for the use of medical marijuana under s. 73.18.

SB1034,39 Section 39 . 961.01 (20ht) of the statutes is created to read:

SB1034,40,25 961.01 (20ht) “Registry identification card" has the meaning given in s. 73.18 (1) (L).

SB1034,40 Section 40. 961.01 (20t) of the statutes is created to read:

SB1034,41,3 961.01 (20t) “Treatment team" means a qualifying patient and his or her primary caregivers.