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AGO 1955 No. 28 - February 16, 1955
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Don Eastvold | 1953-1956 | Attorney General of Washington

REAL ESTATE BROKERS AND SALESMEN ‑- DISPOSITION AND REFUND OF FEES.

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                                                                February 16, 1955
Honorable Della Urquhart
Director of Licenses
Transportation Building
Olympia, Washington                                                                                                                Cite as:  AGO 55-57 No. 28

 Dear Mrs. Urquhart:

             We have your letter of January 26, 1955, requesting a formal opinion on several questions pertaining to the subject or returning or refunding fees under the law covering the licensing of real estate brokers and salesmen.  Specifically, your questions may be stated as follows:

             1. What disposition should be made of the renewal fee of a broker or salesman who paid it in December, 1954, and died prior to January 1, 1955.

             2. What should be done when a fee is filed in a larger amount than the law requires.

             3. What should be done where a fee is filed in less than the statutory amount, the applicant is advised of the amount of the deficiency, and thereupon withdraws his application and requests a return of the amount paid in.

             4. What disposition should be made of fees where the application for a license is denied.

             5. What should be done where a fee is submitted with the letter requesting a license, but when the applicant is advised that a formal application is required he reconsiders and requests a refund of his fee.

             6. Where an applicant who has operated as a temporary salesman with a  [[Orig. Op. Page 2]] temporary permit and hence is not entitled to a second temporary permit files a fifteen-dollar examination fee plus a five‑dollar permit fee, what disposition should be made of the five‑dollar item.

             7. What should be done where an applicant for a temporary salesman's permit files the twenty-dollar fee to cover his examination fee plus his permit fee and then decides he does not desire a temporary salesman's permit.

             8. Where an applicant pays in twenty dollars to cover the fees for an examination and a special permit and previous to the examination date makes application to take the broker's examination instead, may any portion of the money paid in be applied to the twenty-five dollar broker's examination fee.

             9. Where an applicant who files an examination fee is unable to appear for the examination, may this fee be allowed to cover the next examination or is it forfeited.

                                                                      ANALYSIS

             Our conclusions are as follows:

             1. The renewal fee is forfeited.

             2. The balance must be returned to the applicant.

             3. Make the refund.

             4. Return them.

             5. Make the refund.

             6. Return it.

             7. Retain it.

             8. No.

             9. With the exception of those persons who have been issued a temporary salesman's permit at least sixty days previous to the next examination, such fees may be applied to the subsequent examination.

              [[Orig. Op. Page 3]]

            RCW 18.85.220 (1953 Supp.) provides in part:

             "All fees required under the provisions of this chapter shall be paid to the state treasurer.  * * *"

             The eleventh amendment of the state constitution provides in part:

             "No moneys shall ever be paid out of the treasury of this state, or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law; * * *"

            An examination of the general appropriation act for the current biennium reveals no item for refunds of fees for real estate brokers or salesmen.  RCW 43.09.080 provides quadruple damages against the state auditor for the issuance of any state warrant not authorized by law.

             In Mason-Walsh-Atkinson-Kier Co. v. Dept. of Labor and Industries, 5 Wn. (2d) 508, 105 P. (2d) 832, it was held that premiums erroneously collected for an employer and paid into the accident fund could not be refunded because there was no appropriation for such refunds.  Thus, it is evident that the department lacks the authority to make a refund to the widow of the deceased applicant under existing law.  Her only recourse will be a special relief bill.  We recognize that this is unfortunate.  Remedial legislation appears desirable.

             Your next five questions can each be answered by analysis of the fee filing transaction.  There can be no actual acceptance of a filing fee unless the application has been completed to the satisfaction of the department and the requisite amount of money paid in.  If too large a sum is paid, the only thing which needs to be done is to refund the balance.  If an insufficient amount is paid and there has been no filing, the applicant may withdraw his application and the department must make a refund.  If the application is denied the department has nothing to sell and a refund must be made.  Only where the application has been satisfactorily completed and is submitted to the department together with an amount sufficient to cover the fee, can it properly be said that the fee has been filed.  At this stage, and no sooner, these moneys should be paid to the state treasurer to be credited to the proper funds.

              [[Orig. Op. Page 4]]

            Your next two questions require an analysis of RCW 18.85.150 (1953 Supp.), which pertains to the temporary salesman's permit pending examination.  This statute provides in part as follows:

            "* * * The application fee for such temporary permit shall be five dollars which shall not be refunded for any cause, * * * The examination fee for an applicant for a temporary permit shall be fifteen dollars, no part of which shall be refunded for any cause."

             We believe that the language of that section is too clear for controversy.  We are of the opinion that to make such money available for credit on a different type of license would, in legal contemplation, constitute a refund in direct contravention of law.

             There is no statutory impediment to permitting an applicant who has filed an examination fee from passing up the next available examination if he chooses to do so.  Nor do we believe that the exercise of this choice should cause a forfeiture of his examination fee except in the case of the temporary salesman who has been issued a temporary permit at least sixty days previous to the date of the examination.  RCW 18.85.150 (1953 Supp.) specifically provides

             "* * * Failure to take the examination next following the sixty day period after issuance of the temporary permit shall cause forfeiture of the temporary permit and of any and all fees paid."

             We hope the foregoing analysis will prove helpful.

 Very truly yours,
DON EASTVOLD
Attorney General
 

ANDY ENGEBRETSEN
Assistant Attorney General

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