2021 - 2022 LEGISLATURE
January 18, 2022 - Introduced by Representatives Bowen, Ohnstad, Spreitzer,
Hong, Stubbs, Hebl, Emerson, S. Rodriguez, Neubauer, Hesselbein,
Baldeh, Brostoff, Snodgrass, Goyke, Pope, Shankland, Shelton, Moore
Omokunde, L. Myers, Anderson, Drake, Subeck, Sinicki, Ortiz-Velez,
Considine, Andraca, Hintz, Conley, Vining, Cabrera, McGuire and Milroy,
cosponsored by Senators Agard, Johnson, L. Taylor, Roys, Larson, Smith and
Erpenbach. Referred to Committee on State Affairs.
AB846,2,3
1An Act to repeal 94.55 (2t), 961.11 (4g), 961.14 (4) (t), 961.32 (2m), 961.38 (1n),
2961.41 (1) (h), 961.41 (1m) (h), 961.41 (1q), 961.41 (3g) (e), 961.571 (1) (a) 7.,
3961.571 (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 20.115
5(7) (gc), 49.148 (4) (a), 49.79 (1) (b), 59.54 (25) (title), 59.54 (25) (a) (intro.),
666.0107 (1) (bm), 111.35 (2) (e), 114.09 (2) (bm) 1. (intro.), 114.09 (2) (bm) 4.,
7157.06 (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),
1120.255 (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,
13108.02 (18r), 108.04 (5m), 111.32 (9m), 111.32 (11m), subchapter IV of chapter
14139 [precedes 139.97], 157.06 (11) (hm), 238.139, 250.22, subchapter VIII of
1chapter 961 [precedes 961.70] and 973.016 of the statutes;
relating to:
2legalizing recreational marijuana, granting rule-making authority, making an
3appropriation, and providing a penalty.
Analysis by the Legislative Reference Bureau
Legalizing recreational marijuana
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. The bill changes state law so that it allows recreational use of
marijuana. The bill does not affect federal law, which generally prohibits persons
from manufacturing, delivering, or possessing marijuana and applies to both
intrastate and interstate violations.
The bill changes state law to allow a Wisconsin resident who is at least 21 years
old, or a qualifying patient, 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. 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 and who is at least 18 years old.
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.
Special disposition for marijuana-related crimes
The bill also creates a process for persons who have been convicted of an act that
has been decriminalized under the bill. If the person is currently serving a sentence
or on probation for such a conviction, the person may petition a court to dismiss the
conviction and expunge the record. If the person has completed a sentence or period
of probation for such a conviction, the person may petition a court to expunge the
record or, if applicable, redesignate it to a lower crime. Any conviction that is
expunged under the bill is not considered a conviction for any purpose under state
or federal law.
Permits to produce, process, and sell recreational marijuana
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 DOR to produce,
process, distribute, or sell marijuana, and requires marijuana producers and
processors to obtain additional permits from DATCP. 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 operational requirements.
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 this prohibition is guilty of a Class I
felony.
Also under the bill, a person who does not have a permit from DATCP may not
produce or process marijuana. A person who violates this prohibition, who fails to
pay the fee for a permit, or who violates any rules promulgated by DATCP relating
to producing or processing marijuana is subject to a criminal penalty of a fine of
between $100 and $500, imprisonment of up to six months, or both. In addition, a
person who is cultivating marijuana plants 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 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.
Penalties for sales to minors
The bill prohibits a DOR permittee from selling, distributing, or transferring
marijuana to a person who is under the age of 21 (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. If a person who does not have
a permit from DOR to sell marijuana sells, distributes, or transfers marijuana to a
minor, and the person is at least three years older than the minor, the person is guilty
of a Class H felony.
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; 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.
Medical marijuana registry
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 licensed retail establishment
without having to pay the sales or excise taxes imposed on that sale.
Registration for testing labs
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.
Employment discrimination
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.
Unemployment benefits
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.
Drug testing for public assistance programs
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. DHS 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 DCF 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.
Equity grants
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 DOA 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.
Anatomical gifts
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.
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.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB846,1
1Section 1
. 16.282 of the statutes is created to read:
AB846,6,6
216.282 Equity grants. The department shall develop and administer a grants
3program to provide grants to public, private, and nonprofit entities in this state that
4promote diversity and advance equity and inclusion, including promoting the
5inclusion of women and racial and ethnic minorities in the production and sale of
6marijuana.
AB846,3
1Section
3. 20.115 (7) (gc) of the statutes is amended to read:
AB846,8,3
120.115
(7) (gc)
Industrial hemp and marijuana. All moneys received under s.
294.55 for regulation of activities relating to industrial hemp under s. 94.55
and to
3marijuana under s. 94.56.
AB846,4
4Section 4
. 20.115 (7) (ge) of the statutes is created to read:
AB846,8,85
20.115
(7) (ge)
Marijuana producers and processors; official logotype. All
6moneys received under s. 94.56 for regulation of activities relating to marijuana
7under s. 94.56, for conducting public awareness campaigns under s. 94.56, and for
8the creation of a logotype under s. 100.145.
AB846,5
9Section 5
. 20.192 (1) (t) of the statutes is created to read:
AB846,8,1210
20.192
(1) (t)
Underserved community grants. From the community
11reinvestment fund, the amounts in the schedule for the purpose of providing
12underserved community grants under s. 238.139.
AB846,6
13Section 6
. 20.255 (2) (r) of the statutes is created to read:
AB846,8,1614
20.255
(2) (r)
Sparsity aid; community reinvestment fund supplement. From
15the community reinvestment fund, the amounts in the schedule for sparsity aid to
16school districts under s. 115.436.
AB846,7
17Section 7
. 20.435 (1) (r) of the statutes is created to read:
AB846,8,1918
20.435
(1) (r)
Health equity grants. From the community reinvestment fund,
19the amounts in the schedule for health equity grants under s. 250.22.
AB846,8
20Section
8. 20.437 (3) (r) of the statutes is created to read:
AB846,8,2321
20.437
(3) (r)
Diversity, equity, and inclusion grants; community reinvestment
22fund supplement. From the community reinvestment fund, the amounts in the
23schedule for diversity, equity, and inclusion grants under s. 48.47 (20).
AB846,9
24Section 9
. 20.505 (1) (t) of the statutes is created to read:
AB846,9,4
120.505
(1) (t)
Equity grants; community reinvestment fund. From the
2community reinvestment fund, the amounts in the schedule for the purpose of
3providing grants to promote diversity and advance equity and inclusion under s.
416.282.
AB846,10
5Section 10
. 20.566 (1) (bn) of the statutes is created to read:
AB846,9,106
20.566
(1) (bn)
Administration and enforcement of marijuana tax and
7regulation. The amounts in the schedule for the purposes of administering the
8marijuana tax imposed under subch. IV of ch. 139 and for the costs incurred in
9enforcing the taxing and regulation of marijuana producers, marijuana processors,
10and marijuana retailers under subch. IV of ch. 139.
AB846,11
11Section
11. 20.835 (2) (eq) of the statutes is created to read:
AB846,9,1312
20.835
(2) (eq)
Marijuana tax refunds. A sum sufficient to pay refunds under
13subchapter IV of chapter 139.
AB846,12
14Section
12. 25.316 of the statutes is created to read:
AB846,9,18
1525.316 Community reinvestment fund. There is established a separate
16nonlapsible trust fund, designated the community reinvestment fund consisting of
1760 percent of all moneys received from the taxes imposed under s. 139.971, including
18interest and penalties.
AB846,13
19Section
13. 48.47 (20) of the statutes is created to read:
AB846,9,2220
48.47
(20) Diversity, equity, and inclusion grants. From the appropriation
21account under s. 20.437 (3) (r), award grants to public, private, or nonprofit entities
22that promote diversity and advance equity and inclusion.
AB846,14
23Section 14
. 49.148 (4) (a) of the statutes is amended to read:
AB846,9,2524
49.148
(4) (a) A Wisconsin
works
Works agency shall require a participant in
25a community service job or transitional placement who, after August 22, 1996, was
1convicted in any state or federal court of a felony that had as an element possession,
2use or distribution of a controlled substance to submit to a test for use of a controlled
3substance as a condition of continued eligibility. If the test results are positive, the
4Wisconsin
works Works agency shall decrease the presanction benefit amount for
5that participant by not more than 15 percent for not fewer than 12 months, or for the
6remainder of the participant's period of participation in a community service job or
7transitional placement, if less than 12 months. If, at the end of 12 months, the
8individual is still a participant in a community service job or transitional placement
9and submits to another test for use of a controlled substance and if the results of the
10test are negative, the Wisconsin
works Works agency shall discontinue the reduction
11under this paragraph.
In this subsection, “controlled substance” does not include
12tetrahydrocannabinols in any form, including tetrahydrocannabinols contained in
13marijuana, obtained from marijuana, or chemically synthesized.
AB846,15
14Section 15
. 49.79 (1) (b) of the statutes is amended to read:
AB846,10,1815
49.79
(1) (b) “Controlled substance" has the meaning given in
21 USC 802 (6)
,
16except “controlled substance” does not include tetrahydrocannabinols in any form,
17including tetrahydrocannabinols contained in marijuana, obtained from marijuana,
18or chemically synthesized.
AB846,16
19Section 16
. 59.54 (25) (title) of the statutes is amended to read:
AB846,10,2020
59.54
(25) (title)
Possession Regulation of marijuana.
AB846,17
21Section 17
. 59.54 (25) (a) (intro.) of the statutes is amended to read:
AB846,11,522
59.54
(25) (a) (intro.) The board may enact and enforce an ordinance
to prohibit
23the possession of marijuana, as defined in s. 961.01 (14), subject to the exceptions in
24s. 961.41 (3g) (intro.), and provide a forfeiture for a violation of the ordinance that
25is consistent with s. 961.71 or 961.72; except that if a complaint is issued
regarding
1an allegation of possession of more than 25 grams of marijuana, or possession of any
2amount of marijuana following a conviction in this state for possession of marijuana 3alleging a violation of s. 961.72 (2) (b) 2., (c) 3., or (d) 4., the subject of the complaint
4may not be prosecuted under this subsection for the same action that is the subject
5of the complaint unless all of the following occur:
AB846,18
6Section 18
. 66.0107 (1) (bm) of the statutes is amended to read:
AB846,11,167
66.0107
(1) (bm) Enact and enforce an ordinance
to prohibit the possession of
8marijuana, as defined in s. 961.01 (14), subject to the exceptions in s. 961.41 (3g)
9(intro.), and provide a forfeiture for a violation of the ordinance
that is consistent
10with s. 961.71 or 961.72; except that if a complaint is issued
regarding an allegation
11of possession of more than 25 grams of marijuana, or possession of any amount of
12marijuana following a conviction in this state for possession of marijuana alleging
13a violation of s. 961.72 (2) (b) 2., (c) 3., or (d) 4., the subject of the complaint may not
14be prosecuted under this paragraph for the same action that is the subject of the
15complaint unless the charges are dismissed or the district attorney declines to
16prosecute the case.
AB846,19
17Section 19
. 66.04185 of the statutes is created to read:
AB846,11,21
1866.04185 Cultivation of tetrahydrocannabinols. No city, village, town, or
19county may prohibit cultivating tetrahydrocannabinols outdoors if the cultivation is
20by an individual who has no more than 6 marijuana plants at one time for his or her
21personal use.
AB846,20
22Section
20. 73.17 of the statutes is created to read:
AB846,11,24
2373.17 Medical marijuana registry program. (1) Definitions. In this
24section:
AB846,11,2525
(a) “Debilitating medical condition or treatment” means any of the following:
AB846,12,6
11. Cancer; glaucoma; acquired immunodeficiency syndrome; a positive test for
2the presence of HIV, antigen or nonantigenic products of HIV, or an antibody to HIV;
3inflammatory bowel disease, including ulcerative colitis or Crohn's disease; a
4hepatitis C virus infection; Alzheimer's disease; amyotrophic lateral sclerosis; nail
5patella syndrome; Ehlers-Danlos Syndrome; post-traumatic stress disorder; or the
6treatment of these conditions.