SB789: Bill Text

2015 - 2016 LEGISLATURE

2015 Senate BILL 789

March 10, 2016 - Introduced by Senators Erpenbach and L. Taylor, cosponsored by Representatives C. Taylor, Barnes, Shankland, Johnson, Genrich, Sargent, Hebl, Kahl, Wachs, Subeck, Ohnstad, Berceau and Considine. Referred to Committee on Health and Human Services.

SB789,2,2 An Act to renumber subchapter IV of chapter 50 [precedes 50.90]; to renumber and amend 961.55 (8), 968.19 and 968.20 (1); to amend 20.435 (6) (jm), 50.56 (3), 59.54 (25) (a) (intro.), 59.54 (25m), 66.0107 (1) (bm), 66.0107 (1) (bp), 66.1201 (2m), 66.1213 (3), 66.1301 (2m), 66.1331 (2m), 66.1333 (3) (e) 2., 106.50 (1m) (h), 146.40 (1) (bo), 146.81 (1) (L), 146.997 (1) (d) 18., 173.12 (1m), 234.29, 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) (c), 66.0408, 146.44, 767.41 (5) (d), 767.451 (5m) (d), 961.01 (3), 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 entities, 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. The defense and prohibition apply also to primary caregivers of such persons 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, unless in the previous ten years the person was serving a sentence or on probation for certain felony convictions, 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 the Department of Justice to determine if the applicant's criminal history makes him or her ineligible for a card or 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 ensuring that certain out-of-state registry identification cards are valid in Wisconsin.

The bill requires DHS to license and regulate dispensaries to distribute or deliver marijuana or drug paraphernalia or to possess or manufacture marijuana or drug paraphernalia with the intent to deliver or distribute to facilitate the medical use of marijuana. This bill prohibits dispensaries from being located within 500 feet of a school, prohibits a dispensary from distributing to a person more than a maximum authorized amount of marijuana, and prohibits a dispensary 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 dispensary must pay an annual fee of $5,000.

This bill requires DHS to promulgate rules to allow entities to grow marijuana and distribute marijuana to dispensaries. 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 recent 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:

SB789,1 Section 1. 20.435 (1) (gq) of the statutes is created to read:

SB789,3,4 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.

SB789,2 Section 2. 20.435 (1) (jm) of the statutes is created to read:

SB789,3,8 20.435 (1) (jm) Licensing and support services for dispensaries. All moneys received under s. 50.64 to license and regulate dispensaries, and to register laboratories, under subch. V of ch. 50.

SB789,3 Section 3. 20.435 (6) (jm) of the statutes is amended to read:

SB789,4,17 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.

SB789,4 Section 4. 50.56 (3) of the statutes is amended to read:

SB789,4,22 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.

SB789,5 Section 5. Subchapter V of chapter 50 [precedes 50.60] of the statutes is created to read:

SB789,4,25 CHAPTER 50

SB789,5,1 SUBCHAPTER V

SB789,5,2 Distribution and testing Centers

SB789,5,3 50.60 Definitions. In this subchapter:

SB789,5,7 (1) "Dispensary" means an entity licensed under s. 50.62 that cultivates, acquires, manufactures, possesses, delivers, transfers, transports, sells, or dispenses marijuana, paraphernalia, or related supplies and educational materials to treatment teams and other dispensaries.

SB789,5,8 (2) "Maximum authorized amount" has the meaning given in s. 961.01 (14c).

SB789,5,10 (3) "Medical use of tetrahydrocannabinols" has the meaning given in s. 961.01 (14g).

SB789,5,11 (4) "Qualifying patient" has the meaning given in s. 961.01 (20hm).

SB789,5,12 (5) "Registry identification card" has the meaning given in s. 146.44 (1) (g).

SB789,5,13 (6) "Treatment team" has the meaning given in s. 961.01 (20t).

SB789,5,14 (7) "Usable marijuana" has the meaning given in s. 961.01 (21f).

SB789,5,15 (8) "Written certification" has the meaning given in s. 961.01 (21t).

SB789,5,17 50.61 Departmental powers and duties. (1) The department shall provide licensing, regulation, record keeping, and security for dispensaries.

SB789,5,21 (2) The department shall promulgate rules allowing entities to grow marijuana and distribute marijuana to dispensaries, developing security guidelines for the entities, and regulating such entities. The rules may not include limits on the amount of marijuana the entities grow for, and sell to, dispensaries.

SB789,5,24 50.62 Licensing. The department shall issue licenses to operate as a dispensary and shall decide which and how many applicants for a license receive a license based on all of the following:

SB789,5,25 (1) Convenience to treatment teams and the preferences of treatment teams.

SB789,6,2 (2) The ability of an applicant to provide to treatment teams a sufficient amount of medical marijuana for the medical use of tetrahydrocannabinols.

SB789,6,4 (3) The experience the applicant has running a nonprofit organization or a business.

SB789,6,6 (4) The preferences of the governing bodies with jurisdiction over the area in which the applicants are located.

SB789,6,8 (5) The ability of the applicant to keep records confidential and maintain a safe and secure facility.

SB789,6,9 (6) The ability of the applicant to abide by the prohibitions under s. 50.63.

SB789,6,11 50.63 Prohibitions. The department may not issue a license to, and must revoke a license of, any entity to which any of the following applies:

SB789,6,13 (1) The entity is located within 500 feet of a public or private elementary or secondary school, including a charter school.

SB789,6,16 (2) The dispensary 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.

SB789,6,20 (3) The dispensary 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 dispensary by a number or an amount determined by the department by rule to be unacceptable.

SB789,6,23 50.64 Licensing procedure. (1) An application for a license shall be in writing on a form provided by the department and include the licensing application fee under sub. (2) (a).

SB789,6,24 (2) (a) A licensing application fee is $250.

SB789,6,25 (b) The annual fee for a dispensary is $5,000.

SB789,7,3 (3) A dispensary license is valid unless revoked. Each license shall be issued only for the applicant named in the application and may not be transferred or assigned.

SB789,7,7 50.65 Distribution of medical marijuana. (1) A dispensary may deliver or distribute tetrahydrocannabinols or drug paraphernalia to a member of a treatment team if the dispensary receives a copy of the qualifying patient's written certification or registry identification card.

SB789,7,9 (2) A dispensary may possess or manufacture tetrahydrocannabinols or drug paraphernalia with the intent to deliver or distribute under sub. (1).

SB789,7,13 (2m) An entity operating under rules promulgated under s. 50.61 (2) may possess tetrahydrocannabinols, possess or manufacture tetrahydrocannabinols with the intent to deliver or distribute to a dispensary, or deliver or distribute marijuana to a dispensary.

SB789,7,15 (3) A dispensary may have 2 locations, one for cultivation and one for distribution.

SB789,7,20 (4) A dispensary 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.

SB789,7,22 (5) A dispensary or an entity operating under rules promulgated under s. 50.61 (2) may cultivate marijuana, including cultivating marijuana outdoors.

SB789,8,2 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:

SB789,8,4 (1) Test marijuana produced for the medical use of tetrahydrocannabinols for potency and for mold, fungus, pesticides, and other contaminants.

SB789,8,6 (2) Research findings related to the medical use of tetrahydrocannabinols, including research that identifies potentially unsafe levels of contaminants.

SB789,8,10 (3) Provide training to persons who hold registry identification cards, treatment teams, persons employed by dispensaries, and entities that grow and distribute marijuana, as provided by rules promulgated under s. 50.61 (2), on the following:

SB789,8,12 (a) The safe and efficient cultivation, harvesting, packaging, labeling, and distribution of marijuana for the medical use of tetrahydrocannabinols.

SB789,8,13 (b) Security and inventory accountability procedures.

SB789,8,14 (c) The most recent research on the medical use of tetrahydrocannabinols.

SB789,6 Section 6. Subchapter IV of chapter 50 [precedes 50.90] of the statutes is renumbered subchapter VI of chapter 50.

SB789,7 Section 7. 59.54 (25) (a) (intro.) of the statutes is amended to read:

SB789,9,3 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 par. (c) and the exceptions in s. 961.41 (3g) (intro.), and provide a forfeiture for a violation of the ordinance; except that if. 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). 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, 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:

SB789,8 Section 8. 59.54 (25) (c) of the statutes is created to read:

SB789,9,7 59.54 (25) (c) 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).

SB789,9 Section 9. 59.54 (25m) of the statutes is amended to read:

SB789,9,18 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.

SB789,10 Section 10. 66.0107 (1) (bm) of the statutes is amended to read:

SB789,9,25 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 ; except that if. 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). 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, 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.

SB789,11 Section 11. 66.0107 (1) (bp) of the statutes is amended to read:

SB789,10,14 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).

SB789,12 Section 12. 66.0408 of the statutes is created to read:

SB789,10,18 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:

SB789,10,19 (1) A dispensary, as defined in s. 50.60 (1).

SB789,10,22 (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).