SB363: Bill Text

2013 Senate BILL 363

October 22, 2013 - Introduced by Senators Erpenbach, L. Taylor, T. Cullen, Harris and Lehman, cosponsored by Representatives C. Taylor, Danou, Ohnstad, Berceau, Clark, Genrich, Hesselbein, Pasch, Pope, Sargent, Shankland, Young and Zepnick. Referred to Committee on Health and Human Services.

SB363,2,2 An Act to renumber subchapter IV of chapter 50 [precedes 50.90]; to renumber and amend 59.54 (25), 961.55 (8), 968.19 and 968.20 (1); to amend 20.435 (6) (jm), 50.56 (3), 59.54 (25m), 66.0107 (1) (bm), 66.0107 (1) (bp), 146.40 (1) (bo), 146.81 (1) (L), 146.997 (1) (d) 18., 149.14 (3) (nm), 173.12 (1m), 289.33 (3) (d), 349.02 (2) (b) 4., 767.41 (5) (am) (intro.), 767.451 (5m) (a) (intro.), 961.555 (2) (a), 961.56 (1) and 968.20 (3) (a) and (b); and to create 20.435 (1) (gq), 20.435 (1) (jm), subchapter V of chapter 50 [precedes 50.60], 59.54 (25) (b) 2., 59.54 (25) (b) 3., 66.0408, 146.44, 767.41 (5) (d), 767.451 (5m) (d), 961.01 (5m), 961.01 (11v), 961.01 (12v), 961.01 (14c), 961.01 (14g), 961.01 (17k), 961.01 (19m), 961.01 (20hm), 961.01 (20ht), 961.01 (20t), 961.01 (21f), 961.01 (21t), 961.436, 961.55 (8) (b), 961.55 (8) (c), 961.55 (8) (d), 961.555 (2) (e), 961.555 (2m), 961.5755, 968.072, 968.12 (5), 968.19 (2), 968.20 (1d) and 968.20 (1j) of the statutes; relating to: medical use of marijuana, the regulation of marijuana distribution organizations, requiring the exercise of rule-making authority, making appropriations, and providing a penalty.

Analysis by the Legislative Reference Bureau

Current law prohibits a person from manufacturing, distributing, or delivering marijuana; possessing marijuana with the intent to manufacture, distribute, or deliver it; possessing or attempting to possess marijuana; using drug paraphernalia; or possessing drug paraphernalia with the intent to produce, distribute, or use a controlled substance. This bill creates a medical use defense to marijuana-related prosecutions and forfeiture actions for, and prohibits the arrest or prosecution of, persons who are registered with the Department of Health Services (DHS) and have certain debilitating medical conditions or treatments and primary caregivers of such persons. The defense and prohibition apply to primary caregivers only if it is not practicable for the person to acquire, possess, cultivate, or transport marijuana independently or the person is under the age of 18. The defense and prohibition do not apply under certain circumstances, including the following: 1) if the person does not have a valid registry identification card or equivalent; 2) if the amount of marijuana involved in the offense is more than the maximum authorized amount of marijuana (12 marijuana plants and three ounces of marijuana leaves or flowers); 3) if, while under the influence of marijuana, the person drives or operates a motor vehicle or operates heavy machinery or engages in any other conduct that endangers the health or well being of another person; and 4) if the person smokes marijuana at certain places including on a school bus or on public transit, at his or her place of employment, or on school premises.

The bill requires DHS to establish a registry for persons who use marijuana for medical use. Under the bill, a person may apply for a registry identification card by submitting to DHS a signed application, a written certification, and a registration fee of not more than $150. DHS must verify the information and issue the person a registry identification card. A registry identification card is generally valid for two years and may be renewed. DHS may not disclose that it has issued to a person a registry identification card, or information from an application for one, except to a law enforcement agency for the purpose of verifying that a person possesses a valid registry identification card. This bill also requires DHS to promulgate a rule listing other jurisdictions that allow the medical use of marijuana by a visiting person or allow a person to assist with a person's medical use of marijuana. This bill treats documents issued by these entities the same as registry identification cards issued by DHS.

The bill requires DHS to license and regulate nonprofit corporations, known as compassion centers, that distribute or deliver marijuana or drug paraphernalia or possess or manufacture marijuana or drug paraphernalia with the intent to deliver or distribute to facilitate the medical use of marijuana. This bill prohibits compassion centers from being located within 500 feet of a school, prohibits a compassion center from distributing to a person more than a maximum authorized amount of marijuana, and prohibits an organization from possessing a quantity that exceeds, by an amount determined by DHS, the total maximum authorized amount of marijuana of all of the persons it serves. An applicant for a license must pay an initial application fee of $250, and a compassion center must pay an annual fee of $5,000. This bill also requires DHS to register entities as tetrahydrocannabinols-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.

This bill also prohibits a village, town, city, or county from prohibiting a person who is allowed to cultivate marijuana under this bill from cultivating the marijuana outdoors.

This bill changes state law regarding marijuana. It does not affect federal law, which generally prohibits persons from manufacturing, delivering, or possessing marijuana and applies to both intrastate and interstate violations.

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 concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.

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:

SB363,1 Section 1. 20.435 (1) (gq) of the statutes is created to read:

SB363,3,4 20.435 (1) (gq) Medical marijuana registry. All moneys received as fees under s. 146.44 (2) (a) 4., for the purposes of the Medical Marijuana Registry Program under s. 146.44.

SB363,2 Section 2. 20.435 (1) (jm) of the statutes is created to read:

SB363,3,8 20.435 (1) (jm) Licensing and support services for compassion centers. All moneys received under s. 50.64 to regulate and license compassion centers, and to register laboratories, under subch. V of ch. 50.

SB363,3 Section 3. 20.435 (6) (jm) of the statutes is amended to read:

SB363,4,17 20.435 (6) (jm) Licensing and support services. The amounts in the schedule for the purposes specified in ss. 48.685 (2) (am) and (b) 1., (3) (a), (am), (b), and (bm), and (5) (a), 49.45 (47), 50.02 (2), 50.025, 50.065 (2) (am) and (b) 1., (3) (a) and (b), and (5), 50.13, 50.135, 50.36 (2), 50.49 (2) (b), 50.495, 50.52 (2) (a), 50.57, 50.981, and 146.40 (4r) (b) and (er), and subch. IV VI of ch. 50 and to conduct health facilities plan and rule development activities, for accrediting nursing homes, convalescent homes, and homes for the aged, to conduct capital construction and remodeling plan reviews under ss. 50.02 (2) (b) and 50.36 (2), and for the costs of inspecting, licensing or certifying, and approving facilities, issuing permits, and providing technical assistance, that are not specified under any other paragraph in this subsection. All moneys received under ss. 48.685 (8), 49.45 (42) (c), 49.45 (47) (c), 50.02 (2), 50.025, 50.065 (8), 50.13, 50.36 (2), 50.49 (2) (b), 50.495, 50.52 (2) (a), 50.57, 50.93 (1) (c), and 50.981, all moneys received from fees for the costs of inspecting, licensing or certifying, and approving facilities, issuing permits, and providing technical assistance, that are not specified under any other paragraph in this subsection, and all moneys received under s. 50.135 (2) shall be credited to this appropriation account.

SB363,4 Section 4. 50.56 (3) of the statutes is amended to read:

SB363,4,22 50.56 (3) Notwithstanding sub. (2), insofar as a conflict exists between this subchapter, or the rules promulgated under this subchapter, and subch. I, II or IV VI, or the rules promulgated under subch. I, II or IV VI, the provisions of this subchapter and the rules promulgated under this subchapter control.

SB363,5 Section 5. Subchapter IV of chapter 50 [precedes 50.90] of the statutes is renumbered subchapter VI of chapter 50.

SB363,6 Section 6. Subchapter V of chapter 50 [precedes 50.60] of the statutes is created to read:

SB363,5,3 CHAPTER 50

SB363,5,4 SUBCHAPTER V

SB363,5,5 Distribution and testing Centers

SB363,5,6 50.60 Definitions. In this subchapter:

SB363,5,8 (1) "Compassion center" means a licensed organization that grows and distributes marijuana for the medical use of tetrahydrocannabinols.

SB363,5,9 (2) "Maximum authorized amount" has the meaning given in s. 961.01 (14c).

SB363,5,11 (3) "Medical use of tetrahydrocannabinols" has the meaning given in s. 961.01 (14g).

SB363,5,12 (4) "Qualifying patient" has the meaning given in s. 961.01 (20hm).

SB363,5,13 (5) "Registry identification card" has the meaning given in s. 146.44 (1) (g).

SB363,5,14 (6) "Treatment team" has the meaning given in s. 961.01 (20t).

SB363,5,15 (7) "Usable marijuana" has the meaning given in s. 961.01 (21f).

SB363,5,16 (8) "Written certification" has the meaning given in s. 961.01 (21t).

SB363,5,18 50.61 Departmental powers and duties. The department shall provide licensing, regulation, record keeping, and security for compassion centers.

SB363,5,21 50.62 Licensing. The department shall issue licenses to operate as a compassion center and shall decide which and how many applicants for a license receive a license based on all of the following:

SB363,5,22 (1) Convenience to treatment teams and the preferences of treatment teams.

SB363,5,24 (2) The ability of an applicant to provide to treatment teams a sufficient amount of medical marijuana for the medical use of tetrahydrocannabinols.

SB363,6,2 (3) The experience the applicant has running a nonprofit organization or a business.

SB363,6,4 (4) The preferences of the governing bodies with jurisdiction over the area in which the applicants are located.

SB363,6,6 (5) The ability of the applicant to keep records confidential and maintain a safe and secure facility.

SB363,6,7 (6) The ability of the applicant to abide by the prohibitions under s. 50.63.

SB363,6,9 50.63 Prohibitions. The department may not issue a license to, and must revoke a license of, any organization to which any of the following applies:

SB363,6,11 (1) The organization does not qualify as a nonprofit organization, as defined in s. 108.02 (19).

SB363,6,13 (2) The organization is located within 500 feet of a public or private elementary or secondary school, including a charter school.

SB363,6,16 (3) The compassion center distributes to a treatment team a number of plants or an amount of ounces of usable marijuana that, in the period of distribution, results in the treatment team possessing more than the maximum authorized amount.

SB363,6,20 (4) The compassion center possesses a number of plants or an amount of ounces of usable marijuana that exceeds the combined maximum authorized amount for all of the treatment teams that use the organization by a number or an amount determined by the department by rule to be unacceptable.

SB363,6,21 50.64 Licensing procedure. (1) The application for a license shall:

SB363,6,22 (a) Be in writing on a form provided by the department.

SB363,6,23 (b) Include the licensing application fee under sub. (2) (a).

SB363,6,24 (2) (a) A licensing application fee is $250.

SB363,6,25 (b) The annual fee for a compassion center is $5,000.

SB363,7,3 (3) A compassion center license is valid until revoked. Each license shall be issued only for the applicant named in the application and may not be transferred or assigned.

SB363,7,7 50.65 Distribution of medical marijuana. (1) A compassion center may deliver or distribute tetrahydrocannabinols or drug paraphernalia to a member of a treatment team if the compassion center receives a copy of the qualifying patient's written certification or registry identification card.

SB363,7,9 (2) A compassion center may possess or manufacture tetrahydrocannabinols or drug paraphernalia with the intent to deliver or distribute under sub. (1).

SB363,7,11 (3) A compassion center may have 2 locations, one for cultivation and one for distribution.

SB363,7,17 (4) A compassion center shall have all tetrahydrocannabinols tested for mold, fungus, pesticides, and other contaminants and may not distribute tetrahydrocannabinols that test positive for mold, fungus, pesticides, or other contaminants if the contaminants, or level of contaminants, are identified by the testing laboratories under s. 50.66 (2) to be potentially unsafe to a qualifying patient's health.

SB363,7,18 (5) A compassion center may cultivate marijuana outdoors.

SB363,7,22 50.66 Testing laboratories. The department shall register entities as tetrahydrocannabinols-testing laboratories. The laboratories may possess or manufacture tetrahydrocannabinols or drug paraphernalia and shall perform the following services:

SB363,7,24 (1) Test marijuana produced for the medical use of tetrahydrocannabinols for potency and for mold, fungus, pesticides, and other contaminants.

SB363,8,2 (2) Research findings related to the medical use of tetrahydrocannabinols, including research that identifies potentially unsafe levels of contaminants.

SB363,8,4 (3) Provide training to persons who hold registry identification cards, treatment teams, and persons employed by compassion centers on the following:

SB363,8,6 (a) The safe and efficient cultivation, harvesting, packaging, labeling, and distribution of marijuana for the medical use of tetrahydrocannabinols.

SB363,8,7 (b) Security and inventory accountability procedures.

SB363,8,8 (c) The most recent research on the medical use of tetrahydrocannabinols.

SB363,7 Section 7. 59.54 (25) of the statutes is renumbered 59.54 (25) (a) and amended to read:

SB363,8,20 59.54 (25) (a) The board may enact and enforce an ordinance to prohibit the possession of 25 grams or less of marijuana, as defined in s. 961.01 (14), subject to par. (b) and the exceptions in s. 961.41 (3g) (intro.), and provide a forfeiture for a violation of the ordinance; except that any person who is charged with possession of more than 25 grams of marijuana, or who is charged with possession of any amount of marijuana following a conviction for possession of marijuana, in this state shall not be prosecuted under this subsection. Any ordinance enacted under this paragraph shall provide a person who is prosecuted under it with the defenses that the person has under s. 961.436 to prosecutions under s. 961.41 (1) (h), (1m) (h), or (3g) (e).

SB363,8,22 (b) 1. Any ordinance enacted under this subsection par. (a) applies in every municipality within the county.

SB363,8 Section 8. 59.54 (25) (b) 2. of the statutes is created to read:

SB363,9,3 59.54 (25) (b) 2. A person may not be prosecuted under an ordinance enacted under par. (a) if, under s. 968.072 (2) or (4) (b), the person would not be subject to prosecution under s. 961.41 (3g) (e).

SB363,9 Section 9. 59.54 (25) (b) 3. of the statutes is created to read:

SB363,9,8 59.54 (25) (b) 3. No person who is charged with possession of more than 25 grams of marijuana, or who is charged with possession of any amount of marijuana following a conviction for possession of marijuana, in this state may be prosecuted under an ordinance enacted under par. (a).

SB363,10 Section 10. 59.54 (25m) of the statutes is amended to read:

SB363,9,19 59.54 (25m) Drug paraphernalia. The board may enact an ordinance to prohibit conduct that is the same as that prohibited by s. 961.573 (1) or (2), 961.574 (1) or (2), or 961.575 (1) or (2) and provide a forfeiture for violation of the ordinance. Any ordinance enacted under this subsection shall provide a person prosecuted under it with the defenses that the person has under s. 961.5755 to prosecutions under s. 961.573 (1), 961.574 (1), or 961.575 (1). A person may not be prosecuted under an ordinance enacted under this subsection if, under s. 968.072 (3) or (4) (b), the person would not be subject to prosecution under s. 961.573 (1), 961.574 (1), or 961.575 (1). The board may enforce an ordinance enacted under this subsection in any municipality within the county.

SB363,11 Section 11. 66.0107 (1) (bm) of the statutes is amended to read:

SB363,9,25 66.0107 (1) (bm) Enact and enforce an ordinance to prohibit the possession of 25 grams or less of marijuana, as defined in s. 961.01 (14), subject to this paragraph and the exceptions in s. 961.41 (3g) (intro.), and provide a forfeiture for a violation of the ordinance; except that any. Any ordinance enacted under this paragraph shall provide a person prosecuted under it with the defenses that the person has under s. 961.436 to prosecutions under s. 961.41 (1) (h), (1m) (h), or (3g) (e). A person may not be prosecuted under an ordinance enacted under this paragraph if, under s. 968.072 (2) or (4) (b), the person would not be subject to prosecution under s. 961.41 (3g) (e). No person who is charged with possession of more than 25 grams of marijuana, or who is charged with possession of any amount of marijuana following a conviction for possession of marijuana, in this state shall not may be prosecuted under this paragraph.

SB363,12 Section 12. 66.0107 (1) (bp) of the statutes is amended to read:

SB363,10,16 66.0107 (1) (bp) Enact and enforce an ordinance to prohibit conduct that is the same as that prohibited by s. 961.573 (1) or (2), 961.574 (1) or (2), or 961.575 (1) or (2) and provide a forfeiture for violation of the ordinance. Any ordinance enacted under this paragraph shall provide a person prosecuted under it with the defenses that the person has under s. 961.5755 to prosecutions under s. 961.573 (1), 961.574 (1), or 961.575 (1). A person may not be prosecuted under an ordinance enacted under this paragraph if, under s. 968.072 (3) or (4) (b), the person would not be subject to prosecution under s. 961.573 (1), 961.574 (1), or 961.575 (1).

SB363,13 Section 13. 66.0408 of the statutes is created to read:

SB363,10,20 66.0408 Cultivation of tetrahydrocannabinols. No village, town, city, or county may enact or enforce an ordinance or a resolution that prohibits cultivating tetrahydrocannabinols outdoors if the cultivation is by one of the following:

SB363,10,21 (1) A compassion center, as defined in s. 50.60 (1).

SB363,10,24 (2) A person who is cultivating tetrahydrocannabinols for the medical use of tetrahydrocannabinols, as defined in s. 961.01 (14g), if the amount does not exceed the maximum authorized amount, as defined in s. 961.01 (14c).

SB363,14 Section 14. 146.40 (1) (bo) of the statutes is amended to read: