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.
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 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
P. 743