SB486: Bill Text

Under the bill, an individual may cultivate as many as six marijuana plants. Only a person who has a permit from DATCP may produce or process more marijuana plants. A person without a permit who possesses more than six but not more than 12 marijuana plants that have reached the flowering stage is subject to a forfeiture not to exceed twice the permitting fee ($250 under the bill). If the person possesses more than 12 plants that have reached the flowering stage, the person is guilty of a misdemeanor and subject to a fine not to exceed $1,000 or imprisonment not to exceed 90 days or both. The person is guilty of a Class I felony if the person also takes action to hide the number of plants he or she has and the person also has in place a security system to alert him or her to the presence of law enforcement or a method to intimidate, or a system that could injure or kill, a person approaching the area containing the plants.

The bill requires DOR to create and maintain a medical marijuana registry program whereby a person who is a qualifying patient may obtain a registry identification card and purchase marijuana from a retail establishment without having to pay the sales or excise taxes imposed on that sale. A “qualifying patient” is a person who has been diagnosed by a physician as having a debilitating medical condition such as cancer, glaucoma, AIDS, or another specified condition or is undergoing a debilitating medical treatment.

Previous convictions relating to marijuana

The bill requires the director of state courts to review records of acts that have been decriminalized under the bill. If a record is for a conviction for an act that the bill decriminalizes or lessens the penalty for, the sentencing court must be notified. If the act was a misdemeanor, the court must dismiss the conviction and expunge the record or, if applicable, redesignate it to a lesser crime. If the act was a felony, the court must determine if it is in the public interest to dismiss the conviction and expunge the record or, if applicable, redesignate it to a lesser crime. The presumption is that such actions are in the public interest unless there is clear and convincing evidence that the actions would create a risk to public safety. If the felony is expunged or redesignated to a misdemeanor or civil forfeiture, the sentencing court must determine if there is good cause to restore the person’s right to possess a firearm. Finally, if the record is for an arrest or a charge for an act that the bill decriminalizes or lessens the penalty for, the director of state courts must expunge such records.

Registration for THC testing labs

The bill requires DATCP to register entities as tetrahydrocannabinols (THC)-testing laboratories. The laboratories must test marijuana for contaminants; research findings on the use of medical marijuana; and provide training on safe and efficient cultivation, harvesting, packaging, labeling, and distribution of marijuana, security and inventory accountability, and research on medical marijuana.

Discrimination based on marijuana use

Under the fair employment law, no employer or other person may engage in any act of employment discrimination against any individual on the basis of the individual’s use or nonuse of lawful products off the employer’s premises during nonworking hours, subject to certain exceptions, one of which is if the use impairs the individual’s ability to undertake adequately the job-related responsibilities of that individual’s employment. The bill specifically defines marijuana as a lawful product for purposes of the fair employment law, such that no person may engage in any act of employment discrimination against an individual because of the individual’s use of marijuana off the employer’s premises during nonworking hours, subject to those exceptions.

Under current law, an individual may be disqualified from receiving unemployment insurance benefits if he or she is terminated because of misconduct or substantial fault. The bill specifically provides that an employee’s use of marijuana off the employer’s premises during nonworking hours does not constitute misconduct or substantial fault unless termination for that use is permitted under one of the exceptions under the fair employment law.

Unless federal law requires otherwise, the bill prohibits a hospital, physician, organ procurement organization, or other person from determining the ultimate recipient of an anatomical gift on the sole basis of a positive test for the use of marijuana by a potential recipient.

Drug screening and testing

The bill exempts THC, including marijuana, from drug testing for certain public assistance programs. Currently, a participant in a community service job or transitional placement under the Wisconsin Works program (W2) or a recipient of the FoodShare program, also known as the food stamp program, who is convicted of possession, use, or distribution of a controlled substance must submit to a test for controlled substances as a condition of continued eligibility. The Department of Health Services is currently required to request a waiver of federal Medicaid law to require drug screening and testing as a condition of eligibility for the childless adult demonstration project in the Medical Assistance program. Current law also requires DHS to promulgate rules to develop and implement a drug screening, testing, and treatment policy for able-bodied adults without dependents in the FoodShare employment and training program. The bill exempts THC from all of those drug-testing requirements and programs. In addition, because THC is not a controlled substance under state law under the bill, the requirement under current law that the Department of Children and Families promulgate rules to create a controlled substance abuse screening and testing requirement for applicants for the work experience program for noncustodial parents under W2 and the Transform Milwaukee Jobs and Transitional Jobs programs does not include THC.

Under current law, the Department of Workforce Development must establish a program to test claimants who apply for unemployment insurance benefits for the presence of controlled substances, as defined under federal law. If a claimant tests positive for a controlled substance, the claimant may be denied UI benefits, subject to certain exceptions and limitations. The bill excludes THC for purposes of this testing requirement. As such, under the bill, an individual who tests positive for THC may not be denied UI benefits.

Equity grants and program for law enforcement training

The bill provides for a number of grants to be paid from the revenue generated from the excise tax on marijuana that is deposited into the community reinvestment fund. For example, the bill requires the Department of Administration to provide grants to public, private, and nonprofit entities in this state that promote diversity and advance equity and inclusion, including promoting the inclusion of women and racial and ethnic minorities in the production and sale of marijuana. In addition, the bill directs DHS to award grants to community organizations to implement community health worker care models. The bill also directs DHS to award grants to community organizations and local or tribal health departments to hire health equity strategists and to implement health equity action plans in small geographic areas.

The bill appropriates $125,000 in fiscal year 2023-24 and $250,000 in fiscal year 2024-25 for the Department of Transportation’s Drug Evaluation and Classification Program. The program provides training for law enforcement officers and others in the recognition of drug influence and impairment.

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.

Because this bill relates to an exemption from state or local taxes, it may be referred to the Joint Survey Committee on Tax Exemptions for a report to be printed as an appendix to the bill.

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

SB486,,4 The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB486,1 Section 1. 16.282 of the statutes is created to read:

SB486,,6 16.282 Equity grants. The department shall develop and administer a grants program to provide grants to public, private, and nonprofit entities in this state that promote diversity and advance equity and inclusion, including promoting the inclusion of women and racial and ethnic minorities in the production and sale of marijuana.

SB486,2 Section 2. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated:

SB486,3 Section 3. 20.115 (7) (gc) of the statutes is amended to read:

SB486,,9 20.115 (7) (gc) Industrial hemp and marijuana. All moneys received under s. 94.55 for regulation of activities relating to industrial hemp under s. 94.55 and to marijuana under s. 94.56.

SB486,4 Section 4. 20.115 (7) (ge) of the statutes is created to read:

SB486,,11 20.115 (7) (ge) Marijuana producers and processors; official logotype. All moneys received under s. 94.56 for regulation of activities relating to marijuana under s. 94.56, for conducting public awareness campaigns under s. 94.56, and for the creation of a logotype under s. 100.145.

SB486,5 Section 5. 20.192 (1) (t) of the statutes is created to read:

SB486,,13 20.192 (1) (t) Underserved community grants. From the community reinvestment fund, the amounts in the schedule for the purpose of providing underserved community grants under s. 238.139.

SB486,6 Section 6. 20.255 (2) (r) of the statutes is created to read:

SB486,,15 20.255 (2) (r) Sparsity aid; community reinvestment fund supplement. From the community reinvestment fund, the amounts in the schedule for sparsity aid to school districts under s. 115.436.

SB486,7 Section 7. 20.395 (5) (db) of the statutes is created to read:

SB486,,17 20.395 (5) (db) Drug evaluation and classification program. From the general fund, the amounts in the schedule for the drug evaluation and classification program.

SB486,8 Section 8. 20.435 (1) (s) of the statutes is created to read:

SB486,,19 20.435 (1) (s) Health equity grants. From the community reinvestment fund, the amounts in the schedule for health equity grants under s. 250.22.

SB486,9 Section 9. 20.437 (3) (r) of the statutes is created to read:

SB486,,21 20.437 (3) (r) Diversity, equity, and inclusion grants; community reinvestment fund supplement. From the community reinvestment fund, the amounts in the schedule for diversity, equity, and inclusion grants under s. 48.47 (20).

SB486,10 Section 10. 20.505 (1) (t) of the statutes is created to read:

SB486,,23 20.505 (1) (t) Equity grants; community reinvestment fund. From the community reinvestment fund, the amounts in the schedule for the purpose of providing grants to promote diversity and advance equity and inclusion under s. 16.282.

SB486,11 Section 11. 20.566 (1) (bn) of the statutes is created to read:

SB486,,25 20.566 (1) (bn) Administration and enforcement of marijuana tax and regulation. The amounts in the schedule for the purposes of administering the marijuana tax imposed under subch. IV of ch. 139 and for the costs incurred in enforcing the taxing and regulation of marijuana producers, marijuana processors, marijuana retailers, and operators of marijuana lounges under subch. IV of ch. 139.

SB486,12 Section 12. 20.835 (2) (eq) of the statutes is created to read:

SB486,,27 20.835 (2) (eq) Marijuana tax refunds. A sum sufficient to pay refunds under subchapter IV of chapter 139.

SB486,13 Section 13. 25.316 of the statutes is created to read:

SB486,,29 25.316 Community reinvestment fund. There is established a separate nonlapsible trust fund, designated the community reinvestment fund consisting of 60 percent of all moneys received under subch. IV of ch. 139, including interest and penalties.

SB486,14 Section 14. 48.47 (20) of the statutes is created to read:

SB486,,31 48.47 (20) Diversity, equity, and inclusion grants. From the appropriation account under s. 20.437 (3) (r), award grants to public, private, or nonprofit entities that promote diversity and advance equity and inclusion.

SB486,15 Section 15. 49.148 (4) (a) of the statutes is amended to read:

SB486,,33 49.148 (4) (a) A Wisconsin works Works agency shall require a participant in a community service job or transitional placement who, after August 22, 1996, was convicted in any state or federal court of a felony that had as an element possession, use or distribution of a controlled substance to submit to a test for use of a controlled substance as a condition of continued eligibility. If the test results are positive, the Wisconsin works Works agency shall decrease the presanction benefit amount for that participant by not more than 15 percent for not fewer than 12 months, or for the remainder of the participant’s period of participation in a community service job or transitional placement, if less than 12 months. If, at the end of 12 months, the individual is still a participant in a community service job or transitional placement and submits to another test for use of a controlled substance and if the results of the test are negative, the Wisconsin works Works agency shall discontinue the reduction under this paragraph. In this subsection, “controlled substance” does not include tetrahydrocannabinols in any form, including tetrahydrocannabinols contained in marijuana, obtained from marijuana, or chemically synthesized.

SB486,16 Section 16. 49.79 (1) (b) of the statutes is amended to read:

SB486,,35 49.79 (1) (b) “Controlled substance” has the meaning given in 21 USC 802 (6), except that “controlled substance” does not include tetrahydrocannabinols in any form, including tetrahydrocannabinols contained in marijuana, obtained from marijuana, or chemically synthesized.

SB486,17 Section 17. 59.54 (25) (title) of the statutes is amended to read:

SB486,,37 59.54 (25) (title) Possession Regulation of marijuana.

SB486,18 Section 18. 59.54 (25) (a) (intro.) of the statutes is amended to read:

SB486,,39 59.54 (25) (a) (intro.) The board may enact and enforce an ordinance to prohibit the possession of marijuana, as defined in s. 961.01 (14), subject to the exceptions in s. 961.41 (3g) (intro.), and provide a forfeiture for a violation of the ordinance that is consistent with s. 961.71 or 961.72; except that if a complaint is issued regarding an allegation of possession of more than 25 grams of marijuana, or possession of any amount of marijuana following a conviction in this state for possession of marijuana alleging a violation of s. 961.72 (2) (a) 3. b. or (c) 3., the subject of the complaint may not be prosecuted under this subsection for the same action that is the subject of the complaint unless all of the following occur:

SB486,19 Section 19. 66.0107 (1) (bm) of the statutes is amended to read:

SB486,,41 66.0107 (1) (bm) Enact and enforce an ordinance to prohibit the possession of marijuana, as defined in s. 961.01 (14), subject to the exceptions in s. 961.41 (3g) (intro.), and provide a forfeiture for a violation of the ordinance that is consistent with s. 961.71 or 961.72; except that if a complaint is issued regarding an allegation of possession of more than 25 grams of marijuana, or possession of any amount of marijuana following a conviction in this state for possession of marijuana alleging a violation of s. 961.72 (2) (a) 3. b. or (c) 3., the subject of the complaint may not be prosecuted under this paragraph for the same action that is the subject of the complaint unless the charges are dismissed or the district attorney declines to prosecute the case.

SB486,20 Section 20. 66.04185 of the statutes is created to read:

SB486,,43 66.04185 Cultivation of tetrahydrocannabinols. No city, village, town, or county may prohibit cultivating tetrahydrocannabinols outdoors if the cultivation is by an individual who has no more than 6 marijuana plants at one time for his or her personal use.

SB486,21 Section 21. 73.17 of the statutes is created to read:

SB486,,45 73.17 Medical marijuana registry program. (1) Definitions. In this section:

SB486,,46 (a) “Debilitating medical condition or treatment” means any of the following:

SB486,,47 1. Cancer; glaucoma; acquired immunodeficiency syndrome; a positive test for the presence of HIV, antigen or nonantigenic products of HIV, or an antibody to HIV; inflammatory bowel disease, including ulcerative colitis or Crohn’s disease; a hepatitis C virus infection; Alzheimer’s disease; amyotrophic lateral sclerosis; nail patella syndrome; Ehlers-Danlos Syndrome; post-traumatic stress disorder; or the treatment of these conditions.

SB486,,48 2. A chronic or debilitating disease or medical condition or the treatment of such a disease or condition that causes cachexia, severe pain, severe nausea, seizures, including those characteristic of epilepsy, or severe and persistent muscle spasms, including those characteristic of multiple sclerosis.

SB486,,49 (b) “Department” means the department of revenue.

SB486,,50 (c) “Physician” means a person licensed under s. 448.04 (1) (a).

SB486,,51 (d) “Qualifying patient” means a person who has been diagnosed by a physician as having or undergoing a debilitating medical condition or treatment.

SB486,,52 (e) “Tax exemption certificate” means a certificate to claim the exemption under s. 77.54 (71).

SB486,,53 (f) “Usable marijuana” has the meaning given in s. 139.97 (13).

SB486,,54 (g) “Written certification” means means a statement made by a person’s physician if all of the following apply:

SB486,,55 1. The statement indicates that, in the physician’s professional opinion, the person has or is undergoing a debilitating medical condition or treatment and the potential benefits of the person’s use of usable marijuana would likely outweigh the health risks for the person.

SB486,,56 2. The statement indicates that the opinion described in subd. 1. was formed after a full assessment of the person’s medical history and current medical condition that was conducted no more than 6 months prior to making the statement and that was made in the course of a bona fide physician-patient relationship.

SB486,,57 3. The statement is signed by the physician or is contained in the person’s medical records.

SB486,,58 4. The statement contains an expiration date that is no more than 48 months after issuance and the statement has not expired.

SB486,,59 5. If the person has not attained the age of 18 years, the statement is signed by the person’s parent or guardian.

SB486,,60 (2) Application. A person who is claiming to be a qualifying patient may apply for a registry identification card by submitting to the department a signed application form containing or accompanied by all of the following:

SB486,,61 (a) His or her name, address, and date of birth.

SB486,,62 (b) A written certification.

SB486,,63 (c) The name, address, and telephone number of the person’s current physician, as listed in the written certification.

SB486,,64 (d) If the person has not attained the age of 18 years, a signature of a parent or guardian of the person.

SB486,,65 (3) Processing the application. The department shall verify the information contained in or accompanying an application submitted under sub. (2) and shall approve or deny the application within 30 days after receiving it. The department may deny an application submitted under sub. (2) only if the required information has not been provided or if false information has been provided.

SB486,,66 (4) Issuing a registry identification card and tax exemption certificate. The department shall issue to the applicant a registry identification card and tax exemption certificate within 5 days after approving an application under sub. (3). Unless voided under sub. (5) (b) or revoked under rules issued by the department under sub. (7), a registry identification card and tax exemption certificate shall expire 4 years from the date of issuance. A tax exemption certificate shall contain the information determined by the department. A registry identification card shall contain all of the following:

SB486,,67 (a) The name, address, and date of birth of the registrant.

SB486,,68 (b) The date of issuance and expiration date of the registry identification card.

SB486,,69 (c) A photograph of the registrant.

SB486,,70 (d) Other information the department may require by rule.

SB486,,71 (5) Additional information to be provided by registrant. (a) A registrant shall notify the department of any change in the registrant’s name and address. A registrant who is a qualifying patient shall notify the department of any change in his or her physician or of any significant improvement in his or her health as it relates to his or her debilitating medical condition or treatment.