MARK WHITE Attorney General 

# The Attorney General of Texas

September 5, 1980

Honorable Louis J. Raffaelli Bowie County Criminal District Attorney 505west 5th Texsrkana, Texas 75501 Opinion No. m-234 Re: Whether an adequate building must be in existence before a private club permit isgranted bythe Alcoholic Beverage Commission Dear Mr.Raffaelli: You have asked two questions concerning the Alcoholic Beverage Code. You first ask for the meaning ofthe term “adequate building” found in those pmvisions which require that the applicant for aprivate club permit have an adequate building. The Alcoholic Beverage Code provides that the Alcoholic Beverage Commission may refuse to issue a permit if “the place or manner in which the applicant may conduct his business warrants the refusal of a permit based onthe general welfare, health, peace, morals and safety ofthe people and on the public sense of decency,” and “the applicant &es not have an adequate buildirg available at the address for which the permit is sought.” Sec. ll.46(8), (12). The code does not define the term “adequate building.” Whether a particular building is adequate for a proposed use is a fact question. Webelieve the commission may answer this question onacase-bycase basis, in light ofthe policies underlying the code. See Alco. Bev. Code S1.03. See generally Lowe v. Texas Liquor Control Bosx255 S.W. 2d 252 (Tex. Civ. App.-Amarillo 1952,no writ). You next ask whether an “adequate building” must be in existence before the granting of a private club permit. Section 32.03 of the code provides that aprivate club registration permit may only beissued to aclub which meets anumber ofrequirements which include the following:

(f)The club must own, lease, orrent abuilding, or space’inabuilding of such extent and character asin the judgment of the commission is suitable and adequate for the club’smembers and their guests. Section 32.04 provides that a private club that meets the requirements set forth insection 32.03 may apply for aprivate club registration permit. You state that on some occasions a permit has been granted to a club with a deficient building with the requirement that the building beupgraded before it isallowed to open.

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Honorable Louis J. Rafaelh - Page Two (MW-234)

Webelieve the commission may grant apermit on these terms. It may exercise all powers conferred by the code, and “all powers incidental, necessary, or convenient to the administration of [the] code.” Alco. Bev. Code $5.31. Section 11.43gives the commission broad authority to issue or deny permits. Although sections 32.03 and 32.04 may appear to require that all enumerated conditions exist prior to issuance of the license, that clearly isnot the case. Some conditions listed insection 32.03 cannot be fulfilled until the permit has been issued. Aprivate club registration permit may only be issued to aclub which meets the following requirements:

(h) The club’s total annual membership fees, dues, or other income, excluding proceeds from the disposition of alcoholic beverages but including service charges, must be sufficient to defray the annual rental of its leased or rented premises or, if the premises are owned by the club, sufficient to meet the taxes, insurance, and repairs and the interest on any mortgage onthe premises.

. . . . (i) No member or any officer, agent, or employee of the club may be paid or receive any money as salary or other compensation, directly IX indirectly, from the disposition of alcoholic beverages to members of the club and thei guests, other than charges for the service ofthe beverage. Sec. 32.03. Aprivate club doesnot ordinarily meet either ofthese conditions before it begins selling alcoholic beverages. The legislature apparently did not intend that a private club meet every condition listed in section 32.03 prior to the issuance of a permit. Webelieve the broad powers conferred upon the commission by section 5.31of the Alcoholic Beverage Code include the authority to issue aprivate club permit with the condition that the building it covers conform to the statutory standard before the club isallowed to open. SUMMARY

The Alcoholic Beverage Commission has authority to determine on a case-by-case basis whether an applicant for aprivate club has en adequate building. It may grant apermit to a club with a deficient building and require that the building be repaired before the club isallowed to open. Very truly yours, 

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MARK WHITE Attorney General ofTexas

P. 742Honorable Louis J. Raffaelli - Page Three (MI+‘-23 4)

JOHN W.FAINTER, JR. First Assistant Attorney General Prepared bySusan Garrison Assistant Attorney General APPROVED: OPINION COMMlTTEE C. Robert Heath, Chairman Jon Bible Susan Garrison Rick Gilpin Reed Lockhoof

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