Several Wisconsin leaders announced a bill to fully legalize marijuana in the state last week. The bill would make recreational use of cannabis legal for adults, and would tax the sales of cannabis in a similar way to how alcohol is taxed in the state. The bill would also allow people to grow cannabis plants at home.

Madison senator Melissa Agard says legalization could bring the state $165 million a year or more in tax revenue. She also claimed that, according to a poll in 2019, 59% of people in Wisconsin supports the legalization of cannabis.

With fierce opposition from Republican senators –which have blocked similar attempts in the past– it is unclear whether the initiative will pass. But for the time being, here is a brief look at Wisconsin newest attempt at legalizing marijuana.

Legalization of Recreational Marijuana

The proposed bill seeks to allow recreational marijuana. Manufacturing, distributing, or delivering marijuana; possessing marijuana with the intent to manufacture, distribute, or deliver it; possessing, or using drug paraphernalia are all illegal under current law.

The bill does not affect federal law. 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.

What is a qualifying patient and what are the possession limits?

A qualified patient, as defined under the law, is an individual who has been diagnosed by a physician as having or is enduring a debilitating medical condition or treatment and is at least 18 years old.

Under the bill, a person who has more than the maximum permitted amount to possess – but not more than 28 grams of marijuana – is susceptible to civil forfeiture of up to $1000 or imprisonment of up to 90 days.

A Class B misdemeanor is charged against anyone who has more than 28 grams of marijuana. And if that person takes action to hide the amount of marijuana he or she has, placing systems to alert him or her about the presence of law enforcement, a method of intimidation, or traps that could injure or kill a person, that person would be guilty of a Class I felony.

The bill also eliminates the prohibition on possessing or using drug paraphernalia that relates to marijuana consumption

About marijuana related crimes

The law also establishes a procedure for those who have been convicted of an act that has been decriminalized as a result of the bill. If the individual is already serving a term or on probation for such a conviction, he or she may ask a court to have the conviction overturned and the record expunged.

If a person has served a term or period of probation for such a conviction, he or she may ask a court to have the record expunged or, if appropriate, redesignated to a lesser offense. Any record that is erased under the bill is not deemed a conviction under state or federal law for any reason.

Unemployment benefits

Under present legislation, an individual may be ineligible for unemployment insurance payments if he or she is fired for misbehavior or substantial fault.

The new bill expressly states that an employee’s use of marijuana off the employer’s premises during nonworking hours does not constitute misbehavior or serious fault, unless termination for such use is authorized under one of the fair employment legislation exceptions.

Additionally, under existing law, DWD is required to develop a program to test claimants who apply for UI payments for the presence of prohibited drugs, as defined by federal law. If a claimant tests positive for a prohibited drug, UI benefits may be refused, subject to specific exceptions and limits.

The new measure exempts THC from this testing requirement. As a result, an individual who tests positive for THC may not be refused UI payments under the law.

Drug testing exemptions

THC, including marijuana, is exempted from drug testing for some public assistance programs under the new law. A participant in a Wisconsin Works program (W2) community service job or transitional placement or a FoodShare program, who is convicted of possession, use, or distribution of a controlled substance must currently submit to a controlled substance test as a condition of continued eligibility.

THC is excluded from all drug-testing procedures and programs under the law.

Permits to produce, process, and sell recreational marijuana

The law establishes a procedure for obtaining licenses -called permits on the proposed bill- to grow, process, or sell marijuana for recreational purposes. The bill also establishes paying an excise tax for the privilege of doing business in this state. Sixty percent of the tax income is placed into a separate fund known as the “community reinvestment fund.”

The bill requires a person to obtain separate permits from Wisconsin’s Department of Revenue (DOR) to produce, process, distribute, or sell marijuana, and requires marijuana producers and processors to obtain additional permits from the state’s Department of Agriculture, Trade and Consumer Protection (DATCP).

The conditions for getting these permits vary depending on whether the permission is given by DOR or DATCP, but in general, a person may not receive such a permit if he or she is not a resident of the state, is under the age of 21, or has been convicted of certain crimes.

Furthermore, a DOR permit holder may not operate within 500 feet of a school, playground, leisure center, child care facility, public park, public transportation facility, or library, and a DATCP permit holder may not operate within 500 feet of a school.

A person who possesses a DOR permit must also follow specific operating criteria. A permit applicant having 20 or more workers may not receive a permit from DATCP or DOR unless the applicant verifies that he or she has engaged into a labor peace agreement with a labor organization, according to the law.

The labor peace agreement forbids the labor organization and its members from interfering with individuals conducting business in Wisconsin, and it forbids the applicant from interfering with the labor organization’s attempts to connect with, organize, and represent the applicant’s employees, it also provides the labor organization access to areas in which the employees work to discuss employment rights and the terms and conditions of employment.

The state and any local body of government are currently prohibited from demanding a labor peace agreement as a condition for any regulatory clearance. That ban does not apply to the bill’s permission requirements.

In addition, the measure mandates that DATCP and DOR employ a competitive scoring system to decide which applicants are qualified for permits. Each department must provide licenses to the applicants with the highest scores who assures that they will:

Best safeguard the environment,
Offer stable, family-supporting jobs to local communities,
Maintain worker and consumer safety,
Manage secure facilities and follow the laws of the jurisdictions in which they operate.

Each department has the authority to reject a permit to an applicant with a low score. A person who does not have a DOR permission to sell marijuana may not sell, distribute, or transfer marijuana, or possess marijuana with the purpose to sell or distribute it, according to the law. Anyone who breaches this restriction commits a Class I felony.

A Class B misdemeanor is committed if the individual owns more than 12 plants that have reached the blooming stage at the same time, 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

All officers, directors, agents and stockholders holding 5% or more of the stock of any corporation applying for a permit must comply with the licensing requirements set forth on the proposed bill.

Licensing exemptions

According to the bill, no permit shall be granted to any person to whom any of the following applies:

The person has been convicted of a violent misdemeanor
The person has been convicted of a violent felony, unless pardoned
During the preceding 3 years, the person has been committed under s. 51.20 for being drug dependent.
The person chronically and habitually uses alcohol beverages or other substances to the extent that his or her normal faculties are impaired. A person is presumed to chronically and habitually use alcohol beverages or other substances to the extent that his or her normal faculties are impaired if, within the preceding 3 years, any of the following applies:
- The person has been committed for involuntary treatment under s. 51.45
- The person has been convicted of a violation of s. 941.20 (1) (b).
- In 2 or more cases arising out of separate incidents, a court has found the person to have committed a violation of a law regarding DUI.
The person has income that comes principally from gambling or has been convicted of 2 or more gambling offenses.
The person has been convicted of crimes relating to prostitution.
The person has been convicted of of crimes relating to loaning money or anything of value to persons holding licenses or permits pursuant to ch. 125.
The person is under the age of 21
The person has not been a resident of Wisconsin continuously for at least 90 days prior to the application date.

Licensing fees

According to the bill, each person who applies for a permit shall submit with the application a $250 fee.

Also, each person who is granted a permit must annually pay to the department a $2,000 fee for as long as the person holds a valid permit.

A permit is valid for one year and may be renewed, except that the department may revoke or suspend a permit prior to its expiration.

A person is not entitled to a refund of the fees paid under this subsection if the person’s permit is denied, revoked, or suspended

Other regulations

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
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.
The bill prohibits that employers or any other person engage in any act of employment discrimination against any individual on the basis of the individual’s use or nonuse of marijuana -or any other lawful product- 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.

This is the eighth time Sen. Melissa Agard tries to pass a Marijuana legalization legislation, but in spite to all of this, the future doesn’t seem bright, as the Senate Majority Leader Devin LeMahieu has said there aren’t enough Republican votes to pass any marijuana legislation in the Senate.

Time will tell.

If you need counseling on the cannabis industry, do not hesitate to contact us, and also don’t miss out on our Marijuana Legalization Map where you can browse the current status of laws in every state in the United States and see all our posts on each of them.