2021 - 2022 LEGISLATURE
SENATE SUBSTITUTE AMENDMENT 1,
TO ASSEMBLY BILL 440
January 25, 2022 - Offered by Senators Agard,
Roys, Smith, Pfaff, Larson,
Johnson, Erpenbach, L. Taylor and Bewley.
1An Act to repeal
94.55 (2t), 961.11 (4g), 961.14 (4) (t), 961.32 (2m), 961.38 (1n), 2
961.41 (1) (h), 961.41 (1m) (h), 961.41 (1q), 961.41 (3g) (e), 961.571 (1) (a) 7., 3
961.571 (1) (a) 11. e., 961.571 (1) (a) 11. k. and L. and 967.055 (1m) (b) 5.; to
4renumber and amend
115.35 (1), 961.01 (14) and 961.34; to amend
(7) (gc), 49.148 (4) (a), 49.79 (1) (b), 59.54 (25) (title), 59.54 (25) (a) (intro.), 6
66.0107 (1) (bm), 111.35 (2) (e), 114.09 (2) (bm) 1. (intro.), 114.09 (2) (bm) 4., 7
157.06 (11) (i), 289.33 (3) (d), 349.02 (2) (b) 4., 961.41 (1r), 961.41 (1x), 961.41 8
(3g) (c), 961.41 (3g) (d), 961.41 (3g) (em), 961.47 (1), 961.48 (3), 961.48 (5), 961.49 9
(1m) (intro.), 961.571 (1) (a) 11. (intro.), 971.365 (1) (a), 971.365 (1) (b), 971.365 10
(1) (c) and 971.365 (2); and to create
16.282, 20.115 (7) (ge), 20.192 (1) (t), 11
20.255 (2) (r), 20.435 (1) (r), 20.437 (3) (r), 20.505 (1) (t), 20.566 (1) (bn), 20.835 12
(2) (eq), 25.316, 48.47 (20), 66.04185, 73.17, 77.54 (71), 94.56, 94.57, 100.145, 13
108.02 (18r), 108.04 (5m), 111.32 (9m), 111.32 (11m), subchapter IV of chapter
139 [precedes 139.97], 157.06 (11) (hm), 238.139, 250.22, subchapter VIII of 2
chapter 961 [precedes 961.70] and 973.016 of the statutes; relating to:
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 changes state law so that state law allows
recreational use of marijuana.
The bill changes state law to allow a Wisconsin resident who is at least 21 years
old, or a qualifying patient who is at least 18 years old, to possess no more than two
ounces of marijuana and to allow a nonresident of Wisconsin who is at least 21 years
old to possess no more than one-quarter ounce of marijuana. Generally, under the
bill, a person who possesses more than the maximum amount he or she is allowed
to possess, but not more than 28 grams of marijuana, is subject to a civil forfeiture
not to exceed $1,000 or imprisonment not to exceed 90 days or both. A person who
possesses more than 28 grams of marijuana is guilty of a Class B misdemeanor,
except that, if the person takes action to hide the amount of marijuana he or she has
and the person has in place a security system to alert him or her to the presence of
law enforcement, a method of intimidation, or a trap that could injure or kill a person
approaching the area containing the marijuana, the person is guilty of a Class I
felony. The bill also eliminates the prohibition on possessing or using drug
paraphernalia that relates to marijuana consumption.
The bill creates a process by which a person may obtain a permit to produce,
process, or sell marijuana for recreational use and pay an excise tax for the privilege
of doing business in this state. Sixty percent of the revenue collected from the tax
is deposited into a segregated fund called the “community reinvestment fund”.
The bill requires a person to obtain separate permits from the Department of
Revenue to produce, process, distribute, or sell marijuana, and requires marijuana
producers and processors to obtain additional permits from the Department of
Agriculture, Trade and Consumer Protection. The requirements for obtaining these
permits differ based on whether the permit is issued by DOR or DATCP but, in
general, a person may not obtain such a permit if he or she is not a state resident,
is under the age of 21, or has been convicted of certain crimes; in addition, a person
may not operate under a DOR permit within 500 feet of a school, playground,
recreation facility, child care facility, public park, public transit facility, or library and
may not operate as a marijuana producer under a DATCP permit within 500 feet of
a school. A person who holds a permit from DOR must also comply with certain
Under the bill, a permit applicant with 20 or more employees may not receive
a permit from DATCP or DOR unless the the applicant certifies that the applicant
has entered into a labor peace agreement with a labor organization. The labor peace
agreement prohibits the labor organization and its members from engaging in any
economic interference with persons doing business in this state, prohibits the
applicant from disrupting the efforts of the labor organization to communicate with
and to organize and represent the applicant's employees, and provides the labor
organization access to areas in which the employees work to discuss employment
rights and the terms and conditions of employment. Current law prohibits the state
and any local unit of government from requiring a labor peace agreement as a
condition for any regulatory approval. The permit requirements under the bill are
not subject to that prohibition.
The bill also requires DATCP and DOR to use a competitive scoring system to
determine which applicants are eligible to receive permits. Each department must
issue permits to the highest scoring applicants that it determines will best protect
the environment; provide stable, family-supporting jobs to local residents; ensure
worker and consumer safety; operate secure facilities; and uphold the laws of the
jurisdictions in which they operate. Each department may deny a permit to an
applicant with a low score.
Under the bill, a person who does not have a permit from DOR to sell marijuana
may not sell, distribute, or transfer marijuana, or possess marijuana with the intent
to sell or distribute it. A person who violates the prohibition is guilty of a Class I
felony except that the felony classification increases to a Class H felony if the person
sells, distributes, or transfers the marijuana to a person who is under the age of 21
(minor) and the person is at least three years older than the minor. The bill prohibits
a DOR permittee from selling, distributing, or transferring marijuana to a minor and
from allowing a minor to be on premises for which a permit is issued. If a permittee
violates one of those prohibitions, the permittee may be subject to a civil forfeiture
of not more than $500 and the permit may be suspended for up to 30 days. Under
the bill, a minor who does any of the following is subject to a forfeiture of not less than
$250 nor more than $500: procures or attempts to procure marijuana from a
permittee; falsely represents his or her age to receive marijuana from a permittee;
knowingly possesses marijuana for recreational use; or knowingly enters any
premises for which a permit has been issued without being accompanied by his or her
parent, guardian, or spouse who is at least 21 years of age or at least 18 years of age
if a qualifying patient.
In addition, under the bill, a person who is cultivating marijuana plants
without a permit who possesses more than six marijuana plants that have reached
the flowering stage but not more than 12 at one time is subject to a civil forfeiture
not to exceed $1,000 or imprisonment not to exceed 90 days or both. If the person
possesses more than 12 plants that have reached the flowering stage at one time, the
person is guilty of a Class B misdemeanor, except that, if the person takes action to
hide the number of plants he or she has and the person has in place a security system
to alert him or her to the presence of law enforcement, a method of intimidation, or
a trap that could injure or kill a person approaching the area containing the plants,
the person is guilty of a Class I felony.
The bill also 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.
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. Also under current law, DWD
must establish a program to test claimants who apply for UI 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.
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.
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.
The bill requires DOR to create and maintain a medical marijuana registry
program whereby a person 18 years old or older who is a qualifying patient may
obtain a registry identification card and purchase marijuana from a licensed retail
establishment without having to pay the sales or excise taxes imposed on that sale.
Under the bill, generally, a qualifying patient is an individual who has been
diagnosed by a physician as having or undergoing a debilitating medical condition
or treatment but does not include a person under the age of 18 years.
The 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.
General state government
This 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.
health and human services
General health and human services
Health equity grants
This 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
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
16.282 of the statutes is created to read:
216.282 Equity grants.
The department shall develop and administer a grants 3
program to provide grants to public, private, and nonprofit entities in this state that 4
promote diversity and advance equity and inclusion.
20.115 (7) (gc) of the statutes is amended to read:
(gc) Industrial hemp
All moneys received under s. 3
94.55 for regulation of activities relating to industrial hemp under s. 94.55 and to
4marijuana under s. 94.56
20.115 (7) (ge) of the statutes is created to read:
(ge) Marijuana producers and processors; official logotype.
moneys received under s. 94.56 for regulation of activities relating to marijuana 8
under s. 94.56, for conducting public awareness campaigns under s. 94.56, and for 9
the creation of a logotype under s. 100.145.
20.192 (1) (t) of the statutes is created to read:
(t) Underserved community grants.
From the community 12
reinvestment fund, the amounts in the schedule for the purpose of providing 13
underserved community grants under s. 238.139.
20.255 (2) (r) of the statutes is created to read:
(r) Sparsity aid; community reinvestment fund supplement.
the community reinvestment fund, the amounts in the schedule for sparsity aid to 17
school districts under s. 115.436.
20.435 (1) (r) of the statutes is created to read: