#28436-r-DG
2018 S.D. 49

                         IN THE SUPREME COURT
                                 OF THE
                        STATE OF SOUTH DAKOTA

                                     ****

IN RE SUPPORT LICENSE #A8365-14-SP

SOUTH DAKOTA
COMMISSION ON GAMING,                       Plaintiff and Appellant,

     v.

CHARLES JOHNSON,                            Defendant and Appellee.

                                     ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE FOURTH JUDICIAL CIRCUIT
                  LAWRENCE COUNTY, SOUTH DAKOTA

                                     ****

                 THE HONORABLE MICHELLE K. COMER
                              Judge

                                     ****

MICHAEL F. SHAW
KATIE J. HRUSKA of
May, Adam, Gerdes &
 Thompson LLP
Pierre, South Dakota                        Attorneys for appellant.


ROGER A. TELLINGHUISEN
MICHAEL V. WHEELER of
DeMersseman, Jensen, Tellinghuisen
 & Huffman LLP
Rapid City, South Dakota                    Attorneys for appellee.


                                     ****

                                            ARGUED ON MAY 22, 2018
                                            OPINION FILED 06/20/18
#28436

GILBERTSON, Chief Justice

[¶1.]        After concluding that Charles Johnson mishandled money while

working in a casino and that he was dishonest in the subsequent investigation, the

South Dakota Commission on Gaming revoked Johnson’s gaming support license

and banned him from entering any gaming establishment in South Dakota.

Johnson appealed the Commission’s decision to the circuit court, which reversed the

Commission’s decision. The Commission now appeals to this Court. We reverse the

circuit court’s decision and affirm the Commission’s decision.

                          Facts and Procedural History

[¶2.]        In September 2016, Charles Johnson held a gaming support license

and was employed at Tin Lizzie’s Casino in Deadwood as a dealer and pit

supervisor. At the time, Johnson had held a gaming license in South Dakota for

nearly three years. Before coming to South Dakota, Johnson had held a gaming

license in the State of Washington, where he worked in the gaming industry for

over 13 years.

[¶3.]        On September 19, 2016, Johnson was working as a pit supervisor at

Tin Lizzie’s when Mark Haddad visited the casino. Johnson and Tin Lizzie’s

general manager, Austin Burnham, recognized Haddad as a suspected cheater and

the subject of an ongoing investigation by the Commission. While Burnham

attempted to contact the Commission, Johnson assumed the role of “stickman” at

the craps table where Haddad began gambling. Unable to reach the Commission,

Burnham returned to the table, where Johnson had already transitioned to the role




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of dealer. 1 At the time Burnham returned, Haddad had $20 in chips on the table:

one $15 bet, one $4 bet, and a $1 tip. Burnham asked Haddad for identification,

and when Haddad refused, Burnham asked him to leave.

[¶4.]         As Burnham asked Haddad to leave, Haddad placed his hand on the

chips remaining in his tray. Johnson picked up the chips comprising Haddad’s $15

bet and placed them in Haddad’s chip tray. Still facing Burnham, Haddad walked

away with only the chips in his tray that he had already placed his hand on; he left

behind the $15 in chips that Johnson had returned to the tray. After Haddad left

the table, Johnson picked up the $15 in chips from Haddad’s tray as well as the

other $5 in chips that Johnson had forgotten were still on the table. Johnson placed

the chips next to the table’s bank, placing a marker on top of the chips to indicate

they were not part of the bank. After the only other player at the table left,

Johnson placed the entire $20 in chips in the tip box. 2

[¶5.]         On September 29, 2016, Brandon Snyder, an enforcement agent

working for the Commission, responded to Burnham’s September 19 report. While

reviewing video recordings of Haddad’s activities at Tin Lizzie’s, Agent Snyder

noticed that Johnson had placed Haddad’s chips in the tip box. On September 30,

Agent Snyder interviewed Burnham as well as Tin Lizzie’s table-games manager,


1.      According to the record, the stickman is in charge of the dice, and the dealer
        is in charge of the table’s “bank” of chips. The words dealer and stickman are
        also defined by regulation. See ARSD 20:18:33:01(5) (defining dealer as “a
        casino employee who either works each end of the table or as a stickman at a
        table”); ARSD 20:18:33:01(9) (defining stickman as “the dealer who calls the
        game and handles the stick”).

2.      Tin Lizzie’s policy was to divide tips among all employees working at the
        time. Thus, Johnson personally received only $1.05 of the $20.
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Donica Schumacher. Burnham and Schumacher both advised Agent Snyder that

the casino’s policy on found or unclaimed chips is to hold the chips if the identity of

the owner is known and to place the chips in the cage if the owner is unknown.

[¶6.]         Agent Snyder also interviewed Johnson on September 30, 2016,

regarding the incident. Johnson asserted that when he returned the $15 in chips to

Haddad’s tray, he also informed Haddad that those chips belonged to Haddad.

Johnson further asserted that a second player at the craps table also tried to tell

Haddad that he had chips remaining at the table. When Agent Snyder asked

Johnson what happened after the second player left, Johnson responded: “[W]ell we

weren’t going to get any more play, so, we didn’t know what the guy wanted, so we

just dropped it in the tip box.” Agent Snyder asked Johnson to provide a written

statement on a form provided by the Commission. When agent Snyder returned to

Tin Lizzie’s several days later, he saw a blank form like the one he left for Johnson

and assumed Johnson had not completed it.

[¶7.]         On November 4, 2016, Agent Snyder filed a complaint against

Johnson, alleging that he took the property of another without notifying the box

person or pit supervisor. Johnson answered the complaint sometime in November

or early December 2016. 3 In his answer, Johnson’s account of the September 19,

2016 incident changed. Whereas Johnson indicated in his September 30 interview

with Agent Snyder that he did not know what Haddad intended by leaving the $20

in chips, Johnson claimed in his answer to the complaint that he “believed [Haddad]



3.      Johnson’s written response is undated, but on December 6, 2016, the
        Commission sent a letter to Johnson that acknowledges receipt of his
        response.
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#28436

was leaving the chips for the dealers since [Haddad] was trying to tip us anyway.”

In the answer, Johnson also claimed he made two attempts before Haddad walked

away—rather than one—to tell him that he had left money at the table. Johnson

further claimed in the answer that “[w]hen [Haddad] was about half way out [of]

the room, [Johnson] yelled to him once more ‘that he left chips on the table.’”

[¶8.]        When Johnson submitted his answer to the complaint, he also

submitted the written statement that Agent Snyder had requested on

September 30, 2016. The factual assertions in this written statement, which is

dated September 30, vary slightly from both Johnson’s interview with Agent Snyder

and Johnson’s answer to the complaint. In the statement, Johnson claimed making

three attempts before Haddad walked away to tell him that he had left money at

the table. But the written statement makes no mention of yelling at Haddad after

Haddad was halfway out of the room. And while Johnson indicated in his interview

that he did not know what Haddad intended to happen to the $20 in chips, and he

indicated in his answer that he affirmatively believed Haddad intended the chips to

be a tip, Johnson instead indicated in the written statement that he “assumed” the

money was intended to be a tip.

[¶9.]        The Commission responded to Johnson’s answer on December 6, 2016.

Larry Eliason, the Commission’s Executive Secretary, informed Johnson that the

matter could be resolved through an informal meeting rather than a formal hearing.

Johnson and Secretary Eliason met informally on January 5, 2017. Secretary

Eliason offered to settle the matter by suspending Johnson’s gaming support license

for 30 days. Johnson declined, choosing to proceed to a formal hearing. After


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leaving the meeting, however, Johnson returned to speak with Secretary Eliason.

Johnson handed $20 to Secretary Eliason and said: “If you think I was a thief and

dishonest there’s his $20.” Secretary Eliason refused to accept the money.

[¶10.]       The Commission held a formal hearing on March 22, 2017. Agent

Snyder, Secretary Eliason, and Johnson each testified at the hearing. In addition to

testimony, the Commission viewed a video-only recording of Johnson’s alleged

misconduct from September 19, 2016. The Commission also viewed video and audio

recordings of Johnson’s attempt to give $20 to Secretary Eliason after their

January 5, 2017 meeting. The Commission concluded that Johnson violated two

administrative regulations by placing a patron’s chips in the tip box and by being

untruthful in the subsequent investigation. Considering these infractions,

Johnson’s attempt to give $20 to Secretary Eliason, and a previous suspension of

Johnson’s gaming license, the Commission decided to revoke Johnson’s gaming

license and exclude him from all gaming establishments in South Dakota.

[¶11.]       Johnson appealed the Commission’s decision to the circuit court. On

appeal, the court’s review was confined to the administrative record. The court held

that several of the Commission’s factual findings are clearly erroneous, including

the Commission’s findings that the $20 in chips belonged to Haddad and that

Johnson was dishonest during the investigation. The court also held that the

sanction imposed by the Commission was an abuse of discretion.

[¶12.]       The Commission now appeals to this Court, raising the following

issues:

             1.    Whether the Commission erred by concluding Johnson
                   acted dishonestly or fraudulently.

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               2.     Whether the Commission erred by concluding Johnson
                      failed to report an irregularity.
               3.     Whether the Commission abused its discretion by
                      revoking Johnson’s license and adding him to the
                      exclusion list.

                                  Standard of Review

[¶13.]         The central issue in this appeal is the formal adjudication of a

contested case by an administrative agency. Therefore, this appeal is governed by

South Dakota’s Administrative Procedures Act, SDCL chapter 1-26. When the

circuit court’s review is limited to the administrative record, 4 on appeal this Court

makes “the same review of the administrative tribunal’s action as did the circuit

court.” Dakota Trailer Mfg., Inc. v. United Fire & Cas. Co., 2015 S.D. 55, ¶ 11,

866 N.W.2d 545, 548 (quoting Peterson v. Evangelical Lutheran Good Samaritan

Soc’y, 2012 S.D. 52, ¶ 13, 816 N.W.2d 843, 847). Questions of law are reviewed

de novo. Id. Matters of reviewable discretion are reviewed for abuse. SDCL 1-26-

36(6). The agency’s factual findings are reviewed under the clearly erroneous

standard. SDCL 1-26-36(5). The agency’s decision may be affirmed or remanded

but cannot be reversed or modified absent a showing of prejudice. SDCL 1-26-36.

                                Analysis and Decision

[¶14.]         The ultimate question in this appeal is whether the Commission

abused its discretion by revoking Johnson’s gaming support license and placing him




4.       The circuit court’s review is usually confined to the administrative record.
         SDCL 1-26-35. However, “in cases of alleged irregularities in procedure
         before the agency, not shown in the record, proof thereon may be taken in the
         court.” Id. A circuit court’s factual findings and legal conclusions regarding
         such proof of irregularities would be entitled to the usual deference afforded a
         circuit court. SDCL 1-26-37. But this appeal does not involve SDCL 1-26-35.
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on the exclusion list. The Commission cited three reasons for its decision. First, the

Commission found that the $20 in chips belonged to Haddad, that Johnson did not

attempt to determine Haddad’s identity, and that consequently, Johnson’s placing

the $20 in chips in the tip box “constituted dishonest or fraudulent conduct” in

violation of ARSD 20:18:09:02. Second, as a further violation of ARSD 20:18:09:02,

the Commission found that Johnson was dishonest in statements he made during

the investigation and hearing. And third, the Commission found that Johnson

violated ARSD 20:18:33:11 and Tin Lizzie’s in-house policy by failing to report an

irregularity to his immediate supervisor. The circuit court reversed the

Commission’s decision on each of these points.

[¶15.]       1.     Whether the Commission erred by concluding
                    Johnson acted dishonestly or fraudulently.

[¶16.]       The Commission first determined that Johnson violated

ARSD 20:18:09:02, which states: “Any act, whether of the same or of a different

character than specified in this article, that constitutes dishonesty or fraudulent

conduct, whether arising within or without the pursuit of the license privilege,

committed by a licensee is grounds for disciplinary action.” The Commission found

that the $20 in chips belonged to Haddad, that Johnson did not attempt to identify

Haddad, and that consequently, Johnson’s taking the chips and placing them in the

tip box was dishonest or fraudulent. The circuit court rejected the Commission’s

finding as a factual matter, concluding there was “[n]o evidence produced to show

the money was not in fact left as a ‘tip.’ The Commission’s findings assume and

presuppose it to be found money despite complete lack of evidence.”



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[¶17.]       The circuit court did not review the Commission’s factual findings

under the correct standard. As noted above, the court was required to “give great

weight to the findings made and inferences drawn by [the Commission] on

questions of fact.” SDCL 1-26-36. The Commission’s factual findings may be set

aside only if they are “[c]learly erroneous in light of the entire evidence in the

record[.]” SDCL 1-26-36(5). Thus, the question is whether “a complete review of

the evidence leaves the Court with a definite and firm conviction that [the

Commission made] a mistake” by finding that the $20 in chips belonged to Haddad.

See Aguilar v. Aguilar, 2016 S.D. 20, ¶ 9, 877 N.W.2d 333, 336 (quoting Clough v.

Nez, 2008 S.D. 125, ¶ 8, 759 N.W.2d 297, 301).

[¶18.]       There is sufficient evidence in the administrative record to prevent the

conclusion that the Commission’s factual findings on this matter are clearly

erroneous. It is undisputed that at the beginning of the September 19, 2016

encounter, Haddad owned the $20 in chips at issue. It is also undisputed that

Haddad overtly exercised ownership of the chips by placing $19 in chips as wagers

and a $1 chip as a tip. It is further undisputed that Johnson ultimately took the

$20 in chips from the table and placed them in the tip box. This is prima facie

evidence that supports the complaint’s allegations that Johnson took money

belonging to a patron and placed it in the tip box. Consistent with Haddad’s

apparent ownership of those chips, Johnson attempted (at least once) to return

them to Haddad when he started to walk away from the table. Even after Haddad

walked away, Johnson did not immediately place the chips in the tip box; rather,

Johnson continued to treat the chips as the property of a recognized and identifiable


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patron by placing them aside and marking them as separate from the table’s bank.

It was only after all other players left the table that Johnson finally placed

Haddad’s chips in the tip box. Johnson’s earliest account of the September 19, 2016

incident also supports the conclusion that Haddad did not intend to leave $20 in

chips as a tip—when interviewed by Agent Snyder on September 30, Johnson stated

that he “didn’t know what [Haddad] wanted” to do with the chips.

[¶19.]       In contrast to the evidence that supports the Commission’s factual

findings, neither Johnson nor the circuit court have identified any evidence—aside

from Johnson’s own statements—that affirmatively supports the assertion that

Haddad intended to leave his chips as a $20 tip. The only support for this view is

Johnson’s answer to the complaint, in which he affirmatively claimed that he

thought the money was intended to be a tip. But as noted above, Johnson’s answer

contradicts his interview statement, in which he indicated he did not know what

Haddad intended. His answer also contradicts his written statement, in which he

indicated he merely assumed the chips were intended as a tip. Considering the

evidence discussed above, Johnson’s inconsistent version of the September 19, 2016

incident is not sufficient to create a definite and firm conviction that the

Commission made a mistake.

[¶20.]       In addition to finding that Johnson acted dishonestly or fraudulently

in placing Haddad’s chips in the tip box, the Commission also found that Johnson

was dishonest in statements he made during the investigation and hearing.

Specifically, the Commission found that Johnson’s claim that he repeatedly

attempted—including yelling—to inform Haddad that the chips belonged to Haddad


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was dishonest. The Commission specifically found Johnson’s testimony and claims

on this point not credible. Even so, the circuit court held that because the video

recording of September 19, 2016, does not include audio, “there was no evidence

presented to dispute Johnson’s assertions.”

[¶21.]       Again, the circuit court failed to apply the appropriate standard of

review. Because the Commission is the only tribunal involved in this case that has

seen and heard Johnson testify, the court was required to give “due regard” to the

Commission’s credibility determinations. Foley v. State ex rel. S.D. Real Estate

Comm’n, 1999 S.D. 101, ¶ 9, 598 N.W.2d 217, 220. And importantly, the record

supports the Commission’s credibility determination. As noted above, Johnson’s

account of the September 19, 2016 incident varied between his interview, his

answer to the complaint, his written statement, and his hearing testimony.

Johnson’s first account mentioned notifying Haddad of the chips only once. But in

his answer to the complaint, Johnson claimed he made two attempts to notify

Haddad before Haddad left the table and that he then yelled to Haddad while

Haddad was halfway across the room. Then in his written statement, Johnson

claimed he made three attempts to notify Haddad—all made before Haddad left the

table. Finally, at the hearing, Johnson denied yelling to Haddad. And as the

Commission noted in its findings, the video recording of the incident does not give

any visual indication to support Johnson’s claims.

[¶22.]       In light of the foregoing, the Commission did not err by concluding

Johnson violated ARSD 20:18:09:02. A complete review of the record does not

create a definite and firm conviction that the Commission erred in finding that


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Johnson placed chips belonging to a patron in the tip box. Nor does that review

create a definite and firm conviction that the Commission erred in finding that

Johnson was dishonest during the investigation and hearing. Therefore, the circuit

court erred by disregarding the Commission’s factual findings.

[¶23.]       2.       Whether the Commission erred by concluding
                      Johnson failed to report an irregularity.

[¶24.]       The Commission also determined that Johnson’s conduct on

September 19, 2016, violated ARSD 20:18:33:11, which states:

             If any irregularity occurs, the dealer shall notify the box person
             or pit supervisor, who shall direct the dealer to take the most
             appropriate action which the box person or supervisor believes
             to be fair and equitable, and shall observe such action being
             taken. The box person or pit supervisor, and not the dealer,
             must make all decisions concerning disputed play or the
             payment or collection of wagers.

The Commission contends that the disposition of Haddad’s $20 in chips concerns

“the payment or collection of wagers” under ARSD 20:18:33:11. Because Johnson

was functioning as the dealer, the Commission concludes that he was prohibited

from making any decision concerning those wagers and that he was required to

report the issue to a supervisor. The circuit court held as a matter of law that the

Commission misinterpreted ARSD 20:18:33:11. Noting that on September 19, 2016,

Johnson was acting as both dealer and pit supervisor, the court concluded that

Johnson was not required to seek guidance from anyone else. In essence, while the

Commission viewed Johnson’s status as a dealer as overriding his status as the pit

supervisor, the court viewed Johnson’s status as a pit supervisor as overriding his

status as a dealer.




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[¶25.]       We decline to address this issue. As noted above, the Commission’s

factual findings support its conclusion that Johnson’s conduct on September 19,

2016, violated ARSD 20:18:09:02. Therefore, it is not necessary to determine

whether that same conduct also violated ARSD 20:18:33:11.

[¶26.]       3.    Whether the Commission abused its discretion by
                   revoking Johnson’s license and adding him to the
                   exclusion list.

[¶27.]       The final issue involves the sanction that the Commission imposed on

Johnson. As noted above, during their January 5, 2017 meeting, Secretary Eliason

offered Johnson a 30-day suspension to settle the matter. But after the March 22,

2017 hearing, the Commission ultimately revoked Johnson’s gaming support license

and excluded him from all gaming establishments in South Dakota. In the circuit

court’s view, “[t]he only thing that changed during that time frame was that

Johnson exercised his right to a hearing as allowed pursuant to the applicable

statutes and procedures.” Thus, the circuit court held that the sanction was an

abuse of discretion as measured relative to Secretary Eliason’s settlement offer

rather than as an absolute measure.

[¶28.]       The circuit court’s reasoning misperceives the role of the executive

secretary. The executive secretary makes recommendations to the Commission, but

he is not a commissioner and so is not involved in the actual adjudication of a

contested case. Secretary Eliason’s offer to settle the complaint was analogous to

the State offering a plea agreement to a criminal defendant. The Commission was

no more required to adhere to the terms of Secretary Eliason’s rejected settlement

offer than a sentencing court is required to adhere to a rejected plea agreement.


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[¶29.]        The Legislature expressly gave the Commission power both to revoke

gaming licenses, see SDCL 42-7B-11, and to create a list of persons to be excluded

from all licensed gaming establishments, see SDCL 42-7B-61. In reaching its

decision, the Commission considered both Johnson’s dishonesty in taking chips that

belonged to a patron and placing them in the tip box and his dishonesty in giving

varying accounts of the September 19, 2016 incident. The Commission also

considered its previous suspension of Johnson’s gaming license. Finally, the

Commission considered Johnson’s attempt to give $20 to Secretary Eliason. The

Commission—the agency specifically tasked by the Legislature with administering

gaming in South Dakota—found that the totality of Johnson’s conduct “could create

or enhance a risk of the fact or appearance of unsuitable, unfair or illegal practices

and activities in the conduct of gaming.” The Commission did not abuse its

discretion.

                                     Conclusion

[¶30.]        The Commission’s factual finding that Johnson took money belonging

to a patron and placed it in the tip box is not clearly erroneous. Nor is the

Commission’s factual finding that Johnson was dishonest in the subsequent

investigation clearly erroneous. The sanction imposed by the Commission was

within its discretion.

[¶31.]        We reverse the circuit court’s decision and affirm the Commission’s

decision.

[¶32.]        ZINTER, KERN, and JENSEN, Justices, and SEVERSON, Retired

Justice, concur.


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