Opinion Number ( 1992 )

Dear Mr. Love:

You have requested the Attorney General's opinion as to the proper method for refunding the boat use permit fees collected by the Commission, in light of our previous Opinion No. 91-387, stating that the assessment of the fee by the commission was invalid under LA R.S. 34:851.27.A.

Our research has revealed no specific statutory provisions relating to the refunding of a fee which has been collected by a governmental agency without legal authority. therefore, we must conclude that the method you have proposed in your letter would be permissible.

However, please note that, in at least three cases, Louisiana courts have held that fees collected by a governmental agency without adequate legal authority could nevertheless be retained by the agency, and claims for refunds by those who had paid the fees were denied. Should the Commission be sued for a refund of the permit fee, the court could choose to follow these decisions and deny the refund.

However, it is our opinion that these decisions conflict with Louisiana Civil Code Article 2301, which provides, "He who receives what is not due to him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he has unduly received it." Accordingly, in our opinion, the Commission should provide refunds to those permittees who desire them, either by the method proposed in your letter, or by some other reasonable procedure.

If we may be of further assistance to you, feel free to contact this office.

Yours truly,

RICHARD P. IEYOUB Attorney General

BY: CHRISTOPHER A. RATCLIFF Staff Attorney

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