                         The Attorney                General of Texas
                                         September     5,    1980
MARK WHITE
Attorney General
                   Honorable Louis J. Raffaelli               Opinion No.   m-234
                   Bowie County Criminal District
                   Attorney                                   Re: Whether an adequate building
                   505 west 5th                               must be in existence         before a
                   Texsrkana, Texas 75501                     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-by-
                   case 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.




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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 deter-
           mine 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




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