Borg, 011917 ALAGO, AGO 2017-16

• Case Date: January 19, 2017
• Court: Alabama

Honorable Joseph P. Borg AGO 2017-16 No. 2017-016 Alabama Attorney General Opinions State of Alabama Office of the Attorney General January 19, 2017          Honorable Joseph P. Borg          Director Alabama Securities Commission          Post Office Box 304700          Montgomery, Alabama 36130          State Departments and Agencies -Securities Commission - Fees          Fees levied or assessed by the Alabama Securities Commission can only be increased without legislative action if those fees are retained to fund its operations and programs.          A fee increase made pursuant to section 41-1-11 of the Code of Alabama is considered a "rule" and is subject to the Alabama Administrative Procedure Act's notice and hearing requirements.          Dear Mr. Borg:          This opinion of the Attorney General is issued in response to your request.          QUESTIONS

(1) May the Alabama Securities Commission ("Commission"), pursuant to section 41-1-11 of the Code of Alabama, increase fees without legislative action?

(2) If so, would the Commission retain the fee increases on those provisions in the Alabama Securities Act which are statutorily designated to the general fund?

         FACTS AND ANALYSIS          The Alabama Securities Commission is a state agency that enforces laws "governing the issuance, sale, and other transactions relative to securities." Ala. Code § 8-6-50 (2002). A state agency's actions should be within "its statutory and constitutional powers." Ex parte Ala. Bd. Of Nursing, 835 So.2d 1010, 1012 (Ala. 2001). The Commission is statutorily authorized to charge fees for the following: initial and renewal registration for dealers, agents, investment advisors, and representatives [Ala. Code § 8-6-3(h) (Supp. 2015)]; registration of securities [Ala. Code § 8-6-8(d) (Supp. 2015)]; application for exemption from full registration of security transactions [Ala. Code §8-6-11(c) (Supp. 2015)]; a filing fee to accompany a notice of intent to sell a security issued by an open-end management investment company or...