MARK WHITE 

Attorney General 

The Attorney General of Texas 

September 5, 1980 

Honorable Louis J. Raffaelli 

Bowie County Criminal District 

Attorney 

505 west 5th 

Texsrkana, Texas 75501 

Opinion No. m-234 

Re: Whether an adequate building 

must be in existence before a 

private club permit is granted by the 

Alcoholic Beverage Commission 

Dear Mr. Raffaelli: 

You have asked two questions concerning the Alcoholic Beverage 

Code. You first ask for the meaning of the term “adequate building” found 

in those pmvisions which require that the applicant for a private 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 on the general welfare, health, peace, morals and safety of the 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. We believe the commission may answer this question on a case-bycase basis, in light of the 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 a private club registration permit may only be issued to a club 

which meets a number of requirements which include the following: 

(f) The club must own, lease, or rent a building, or 

space’ in a building of such extent and character as in 

the judgment of the commission is suitable and 

adequate for the club’s members and their guests. 

Section 32.04 provides that a private club that meets the requirements set 

forth in section 32.03 may apply for a private 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 be upgraded before 

it is allowed to open. 

P. 741 
., - 

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

We believe the commission may grant a permit 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 11.43 gives 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 is not the case. Some conditions listed in section 32.03 cannot 

be fulfilled until the permit has been issued. A private club registration permit may 

only be issued to a club 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 

on the 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 of the beverage. 

Sec. 32.03. A private club does not ordinarily meet either of these 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. We believe the broad powers conferred upon the commission by section 5.31 of 

the Alcoholic Beverage Code include the authority to issue a private club permit with 

the condition that the building it covers conform to the statutory standard before the 

club is allowed to open. 

SUMMARY 

The Alcoholic Beverage Commission has authority to determine on a case-by-case basis whether an applicant for a private 

club has en adequate building. It may grant a permit to a club 

with a deficient building and require that the building be 

repaired before the club is allowed to open. 

Very truly yours, 

&A?iziie 

MARK WHITE 

Attorney General of Texas 

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

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

Prepared by Susan Garrison 

Assistant Attorney General 

APPROVED: 

OPINION COMMlTTEE 

C. Robert Heath, Chairman 

Jon Bible 

Susan Garrison 

Rick Gilpin 

Reed Lockhoof 

P. 743