Penhall Company v. Dep't of Labor & Industries

FILED

MAY 19, 2026

In the Office of the Clerk of Court

WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

PENHALL COMPANY, et al, )

) No. 40453-6-III

Appellant, )

)

v. )

)

WASHINGTON STATE DEPARTMENT ) UNPUBLISHED OPINION

OF LABOR AND INDUSTRIES, )

)

Respondent. )

STAAB, J. — This case concerns the prevailing wage act (PWA) and the

classification of 37 Penhall Company (Penhall) employees who used specialized

equipment to locate “embedments” within concrete for the “Sound Transit Link

Extension Project” on the I-90 floating bridge across Lake Washington (E-130 Project).

The primary question before this court is whether the Department of Labor and Industries

(L&I) met its burden of proving that the employees were properly classified as

“construction site surveyors” under WAC 296-127-01396 thereby entitling them to the

prevailing wages rate set for that scope of work. On review, the director of L&I affirmed

the classification and found that L&I had met its burden of proving Penhall violated the

PWA.

No. 40453-6-III

Penhall v. Dep’t. of Labor & Indus.

Penhall raises several arguments on appeal from the director’s final order.

Primarily, Penhall challenges the director’s interpretation of the scope of work for

construction site surveyors. Penhall also assigns error to the director’s imposition of a

“strike” toward debarment notwithstanding that Penhall’s violation was found to be

inadvertent. Additionally, among several other arguments, Penhall asserts it was entitled

to have the matter heard by a jury under article I, section 21 of the Washington State

Constitution. Both parties request attorney fees.

We hold that the director erred by imposing a strike against Penhall for an

inadvertent violation but otherwise affirm the director’s order concluding that the work

performed by GPR (ground penetrating radar) analysts and x-ray technicians is properly

classified as construction site surveyors for purposes of determining the proper wage rate

under the PWA. We award L&I its attorney fees as the substantially prevailing party.

BACKGROUND

A. Background on the Prevailing Wage Act

Wages, benefits and overtime

The PWA applies broadly to laborers, workers, or mechanics employed on public

works projects. RCW 39.12.020. When the PWA applies, the hourly wages are based on

the prevailing rate of wage paid for similar work in the locality where the work is

performed. Id. To determine this rate, the industrial statistician first determines the

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worker’s established trade or occupation and then determines the rate of hourly wage for

that established trade or occupation. WAC 296-127-013(3), (4), -019.

The “established trades and occupations” are set forth in L&I’s scope of work

descriptions. WAC 296-127-013(2), -019. Currently, there are 65 WACs setting forth

the recognized established trades and occupations. WAC 296-127-01301 to WAC 296-

127-01398, see also https://www.lni.wa.gov/licensing-permits/public-works-projects

/scopes-of-work. L&I’s director or designee is responsible for the creation of the scope

of work descriptions. WAC 296-127-013.

To determine the prevailing rate of wage assigned to a scope of work, the

industrial statistician follows the multistep procedure set forth in WAC 296-127-019.

RCW 39.12.015(1), (3). The “prevailing rate of wage” is defined as “the rate of hourly

wage, usual benefits, and overtime paid in the locality . . . to the majority of workers,

laborers, or mechanics in the same trade or occupation.” RCW 39.12.010(1). Thus, the

“prevailing rate of wage” is comprised of three parts: the hourly wage, usual benefits, and

overtime.

“Usual benefits” under RCW 39.12.010(1) are those set forth in WAC 296-127-

014 and RCW 39.12.010(3) and include benefits such as medical insurance, life

insurance, retirement accounts, vacation pay, apprentice training funds, and paid

holidays. These are also referred to as “fringe benefits.” See RCW 39.12.010(3)(b);

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WAC 296-127-014(4).1 The employer’s cost of fringe benefits can be used to “offset” the

full prevailing wage rate. RCW 39.12.010(3); WAC 296-127-014(1). Stated another

way, an employer can get a credit for the amount an employee’s fringe benefits cost the

employer, and that credit reduces the hourly rate of pay that must be paid to a worker on

a prevailing wage project.

Regarding overtime, the industrial statistician has adopted a regulation that entitles

workers covered by the PWA overtime for hours worked in excess of 8 hours per day,

unless the worker and employer have entered into a voluntary, written agreement for

four, 10-hour days. WAC 296-127-022.

Filing of certified records

Under the PWA, employers must keep accurate payroll records for each laborer,

worker, and mechanic employed to work on a public works project and supply those

records to L&I. WAC 296-127-320(1), (2). A failure to keep accurate payroll records or

supply them to L&I constitutes a violation of the PWA under RCW 39.12.050. WAC

296-127-320(3).2 RCW 39.12.050 provides penalties for an employer’s filing of false

statements or failure to file. The penalties include imposition of a civil penalty in the

1

The parties refer to these benefits as “fringe benefits” throughout the record.

See, e.g., AR at 8384.

2

RCW 39.12.120 was added in 2020 requiring the employer to automatically file

payroll records. Prior to January 1, 2020, the employer was only required to provide

them upon L&I’s request. See RCW 39.12.110.

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sum of $500 for each false filing or failure to file. RCW 39.12.050(1). An employer is

also not “permitted to bid, or have a bid considered, on any public works contract until

the penalty has been paid in full.” RCW 39.12.050(1).

Penalties for violations under RCW 39.12.050 escalate for each subsequent

offense. Each violation is thus commonly referred to as a “strike.” Upon the first strike,

only the $500 civil penalty may be imposed. Upon the second strike within a five-year

period, the employer is again subject to the $500 civil penalty under RCW 39.12.050(1)

as well as the added penalty of being prohibited—“debarred”—from bidding on any

public works contract for one year. RCW 39.12.050(1), (2). However, not all violations

are subject to penalties set forth in RCW 39.12.050. Where the director determines the

filing or reporting error to be inadvertent, the civil penalty under RCW 39.12.050 does

not apply. RCW 39.12.050(1).

Penalties for failure to pay prevailing wages

Similar to RCW 39.12.050, RCW 39.12.065(3) sets forth escalating penalties for

employers who fail to pay prevailing wages. At the time of Penhall’s violation,3 former

RCW 39.12.065(3) (2009) set forth that upon the first strike for a prevailing wage

violation, an employer is subject to a civil penalty in the amount “not less than one

thousand dollars or an amount equal to twenty percent of the total prevailing wage

3

RCW 39.12.065 was amended in 2019, increasing the penalties.

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violation found on the contract, whichever is greater.” “The employer is not permitted to

bid, or have a bid considered, on any public works contract until [the imposed] civil

penalty has been paid in full.” As with RCW 39.12.050, under RCW 39.12.065, a second

strike within a five-year period subjects the contractor to the outlined civil penalties and

as an additional sanction, the contractor is debarred from bidding on any public works

contract for two years. RCW 39.12.065(3). Here too, where the violation is found to be

inadvertent, the civil penalty and sanctions under RCW 39.12.065 do not apply. RCW

39.12.065(3).

B. Factual Background

This matter stems from Penhall’s work on the E-130 Project on the I-90 floating

bridge from Mercer Island across Lake Washington. Penhall was a subcontractor of

Kiewit-Hoffman, the primary. Penhall performed work that included, inter alia, concrete

saw cutting, core drilling, slab sawing, concrete grinding, profile grinding, GPR

scanning, digital x-ray concrete imaging, and concrete removal. The issues before this

court involve the 37 Penhall employees who used GPR scanning and x-ray imaging to

detect and locate “embedments”—buried objects contained within the concrete structures

such as rebar and post tension cables. On appeal to this court, Penhall challenges the

classification of these workers under the construction site surveyor scope of work.

Penhall does not challenge the wage rate assigned to this scope of work.

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The work performed by GPR analysts and x-ray technicians

Penhall Company has been a concrete core drilling and saw cutting company since

1957. In 2016, due to increased demand in specialized technology, Penhall created a

division called Penhall Technologies. Because this distinction between company

divisions is not otherwise relevant to the issues before this court, we refer to Penhall

Company and Penhall Technologies simply as “Penhall.”

Penhall began working on the E-130 project in the summer of 2017. To avoid

striking embedments in the concrete, Penhall utilized GPR scanning and digital x-ray

imaging to assist concrete cutting and drilling crews. On July 17, 2017, Penhall filed a

“Statement of Intent to Pay Prevailing Wage.” AR at 1015-17. In this statement, Penhall

identified laborers in the occupations of concrete saw operator/core driller, and general

laborer as those employees entitled to prevailing wages. Penhall’s statement of intent did

not include its GPR analysts or x-ray technicians.

The work of GPR concrete scanning and x-ray concrete imaging detects

subsurface objects in concrete. However, they use different methods to do so. X-ray

technicians use an x-ray system that consists of an electronic device that generates x-rays

and a receiver panel or plate that captures the image of the x-ray on the other side. In

addition to the x-ray system, x-ray technicians utilize several safety items such as Geiger

counters and other radiation measurement devices. X-ray imaging is limited insofar as it

requires access to both sides of an area sought to be imaged.

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X-ray technicians work in teams of two. One worker works with the x-ray emitter

and uses lasers mounted to the emitter to line it up with the area to be imaged. That

worker also controls the milliamps and KV,4 which affects the penetrating power and

how many x-rays are generated. The other worker positions themself on the opposite

side of the wall with a digital detector plate that is an x-ray sensitive crystal attached to a

computer. The detector plate captures the x-rays which produces an image.

Image produced by x-ray. AR at 1473.

GPR analysts use an electronic device called a Mini XT, which is a handheld

electronic device with four wheels that is rolled over the concrete surface and sends a

radar signal through the concrete. The radar signal bounces back to the instrument and

creates a visual graph on the screen. If an embedment is below the device, a parabola is

4

The transcript simply refers to “KV,” and is not further explained.

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depicted on the screen. The device has lasers mounted to it such that as the device

depicts a hyperbola signifying an embedment, the lasers line up with the location of the

embedment, it signifies the antenna is directly over the peak of the parabola. The screen

has numbers across the top and along the side for calculating the distance, width, and

depth. A more elaborate procedure using several scans imported into a computer

program can produce a three-dimensional cross-section of the scanned area. The GPR

analysts cannot see exactly what is beneath the concrete using the Mini XT. Instead, the

analysts use the surroundings, the image displayed on the device, and their experience to

provide their best estimate of what lies beneath the concrete. GPR analysts can typically

pinpoint an embedment within a couple of inches of accuracy.

If an embedment is located beneath the concrete, the GPR analyst or x-ray

technician uses a “crayon” to draw markings on the concrete to depict the embedment.

Different colors of crayon are used to signify different types of embedments such as post-

tension cables or rebar. In some instances, drawings indicate the depth of the

embedment. GPR analysts and x-ray technicians did not provide a warranty or guarantee

for their work on the E-130 project.

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Image on left depicts the Mini XT Image on right shows the

machine. AR at 1490. screen and parabola on the Mini XT.

AR at 1479

Prior to the use of the advanced technology of GPR scanning, Penhall employees

used a “ferroscan” to detect subsurface hazards or objects. The ferroscan can detect

ferrous objects such as metal or iron. The ferroscan works similar to a stud finder; it

lights up a green or red light to indicate whether an iron embedment is present. However,

the ferroscan has limitations: it cannot detect post- and pretension cables, which are

typically enclosed in plastic sheathing.

Request for clarification, challenge to L&I’s determination

In November 2016, before Penhall began working on the E-130 project, Penhall

sought a determination from L&I regarding the scope of work for concrete scanning. In

December 2016, an industrial relations specialist with L&I, advised Penhall that GPR

scanning and x-ray imaging work, performed in direct support of construction, fell within

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the scope of work for a construction site surveyor under WAC 296-127-01396 and was

subject to prevailing wages.

Penhall attempted to challenge the determination that the workers in question were

construction site surveyors by emailing L&I’s industrial statistician, Jim Christensen,

twice and asking him to make a formal determination. Christensen had no recollection of

ever having responded to that email.

Complaint and L&I’s investigation

Thomas Garcia was hired by Penhall company in 2018 as an assistant industrial

radiographer. He began work on the E-130 project in April 2018 and received a rate of

$38.57 an hour. Although he was hired as an assistant industrial radiographer, Garcia

was trained and performed both x-ray imaging and GPR scanning.5

Garcia typically worked 10-hour days, five days a week on the E-130 project,

scanning and x-raying both the pontoons and deck of the bridge. He did not sign a

written agreement with Penhall to work 10-hour shifts, four days a week. Although he

typically worked 10-hour days, some weeks Garcia worked fewer than 40 hours in a

week. He did not receive overtime for hours worked beyond 8 hours in a day, only those

5

The positions of industrial radiologist and GPR analyst are separate positions

within Penhall. However, the parties and the testimony largely treat the occupations as

able to be done by one person for the analysis of the scope of work. X-ray technicians

used GPR devices alongside x-ray machines to determine the depth of objects.

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worked beyond 40 hours in a week. Garcia left his employment with Penhall in

December 2018.

On February 7, 2019, Garcia filed a complaint with L&I against Penhall. Garcia

alleged that he believed his occupation was not properly classified. He asserted that he

should have been classified and paid as a construction site surveyor and he should have

been paid overtime for hours worked beyond 8 hours in a day as opposed to 40 hours in a

week. Garcia’s rate of pay at $38.57 per hour together with fringe benefits in the amount

of $2.43 per hour totaled less than the prevailing wage for construction site surveyors,

which ranged from $58.69 to $63.76 between 2016 and 2019.

Garcia’s complaint triggered a prevailing wage investigation. After Penhall

provided a list of tools used and tasks performed by GPR analysts and x-ray technicians,

L&I informed Penhall that the GPR analysts and x-ray technicians working on the E-130

project were entitled to prevailing wages at the construction site surveyor rate of pay.

Notice of violation

Based on the information gathered, Jim Christensen signed and issued a notice of

violation (NOV) to Penhall. The NOV set forth three primary allegations: (1) 37 Penhall

employees were not compensated at the required prevailing rate of wage for the

classification of labor performed (construction site surveyor), (2) those same employees

were not paid overtime at a rate of time-and-one-half for hours worked in excess of 8

hours per calendar a day, and (3) Penhall filed false certified payroll records when it

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submitted records it stated were complete, but were missing the 37 Penhall employees in

question. The first two allegations were violations of RCW 39.12.065, and the third was

a violation of RCW 39.12.050.

The NOV set forth that the gross amount of unpaid prevailing wages owed to the

workers was $501,758.70 as well as $146,850.98 interest on the same. It stated that a 20

percent civil monetary penalty in the amount of $100,351.74 may be assessed under

RCW 39.12.065(3) for failure to pay prevailing wages, and $54,000 for improperly filing

certified payroll records. AR at 29. The NOV also noted that if Penhall was found to

have violated the “Public Works Act” by failing to pay the required prevailing rate of

wage, it would have a strike toward debarment under RCW 39.12.065(3), and if it were

found to have filed false documents it would have a strike toward debarment under RCW

39.12.050(1).

C. Procedural Background

Appeal to Office of Administrative Hearings

Penhall appealed the NOV. The appeal was assigned to an administrative law

judge (ALJ) from the office of administrative hearings (OAH), who held a nine-day

evidentiary hearing. At the hearing, Penhall conceded that the work performed by the

employees in question was pursuant to a public works contract but argued the workers in

question were not covered by the PWA because they were “technicians” and not laborers,

mechanics, or workers. In the alternative, Penhall argued even if the workers in question

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were covered by the PWA, L&I incorrectly classified the workers under the scope of

work for construction site surveyors.

L&I’s primary witness was Jim Christensen who issued the NOV. In his

testimony regarding the application of the scope of work, Christensen testified that L&I

first determines whether prevailing wages apply and thereafter determines which scope of

work applies. Christensen acknowledged that

[t]here is no scope of work description that [L&I] throw[s] work into when

[it] can’t seem to make a decision. . . . [L&I] find[s] the reference in a . . .

scope that seems to describe the work better than all the other passages in all

the other scopes, and that’s where [L&I] place[s] the work.

AR at 9468.

Christensen indicated that in determining which scope of work applies, he

considers the nature of the work, which he opined included four factors: tools used,

methods followed, materials applied, and the purpose of the work. On cross-

examination, Christensen agreed that in undertaking a prevailing wage analysis L&I

considers the tools used—including the historical use of the tool as well as the current use

of the tool. It also considers the materials, methods, or processes used, location of the

work performed, industry practice, and in some cases the unions claims for the work in

question. However, Christensen did not agree that a site visit was necessary to assist

L&I’s scope of work determination. Christensen did not point to a rule or other L&I

publication memorializing any of the factors he outlined in his testimony.

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Ultimately, Christensen testified that he issued the NOV because he agreed with

the determination that the GPR analysts and x-ray technicians in question performed

construction site surveyor work because that scope of work was the best fit of all of the

scopes of work, insofar as it spoke of using tools and electronic measuring devices to

establish locations and elevations.

Penhall called Peter Brands to testify regarding the tools and duties of a surveyor.

At the time of his testimony, Brands worked for Pacific Surveying and Engineering, a

professional company that performs land surveying, civil engineering, and environmental

studies work. Brands testified and demonstrated various surveying tools he used as part

of his occupation as a land surveyor, including but not limited to a smart level,

conventional level, metal detector, theodolite, a total station—which uses lasers to

measure distance, and a bipod—which also uses lasers to measure distance. Brands

testified that he had never used a GPR device for surveying.

The parties submitted post-hearing briefs in lieu of oral closing arguments.

After the hearing, the ALJ issued his initial order that included findings of fact and

conclusions of law. He concluded that L&I had met its burden of proof that the

prevailing wage applied to the work performed by GPR analysts and x-ray technicians

and Penhall failed to pay prevailing wages, including overtime wages, to the 37

employees under RCW 39.12.065 and RCW 39.12.010(1). However, the ALJ disagreed

that the construction site surveyor scope of work under WAC 296-127-01396 applied and

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instead agreed with Penhall and modified the NOV to reflect that the laborer scope of

work under WAC 296-127-01344 applied.

The ALJ also found that Penhall filed false pay records in violation of RCW

39.12.050 and WAC 296-127-320. However, the ALJ found Penhall’s prevailing wage

and false filing violations were inadvertent. The ALJ recognized that the civil penalties

under RCW 39.12.065 and .050 do not apply to inadvertent violations and memorialized

the same in conclusions of law 5.29 and 5.35 as well as his initial order. The ALJ

remanded the matter to L&I, “for calculation, based upon the escalated prevailing wage

rate for Laborers, with credit for ‘fringe benefits,’ and accounting for overtime owing for

hours exceeding 8 per day.” AR at 270.

Appeal to the director

The Department appealed to the director of L&I. Penhall did not cross appeal.

The director affirmed the ALJ’s initial order in part and reversed in part. The director

reversed the initial order’s conclusion that GPR analysts and x-ray technicians should be

classified as laborers, finding instead that the language of WAC 296-127-01396 was not

ambiguous, and based on the plain language of the regulation, the workers in question

were construction site surveyors. He reasoned this was because, in pertinent part, they

used the Mini XT and x-ray devices which the director found were electronic measuring

devices used to measure depth. The director also found the list of tools listed in WAC

296-127-01396 was a series of tools connected by an “or” at the end of a list.

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The director adopted that portion of the ALJ’s initial order finding Penhall’s

violations for false filing and failing to pay prevailing wages inadvertent, but imposed a

strike toward debarment pursuant to RCW 39.12.065 for its failure to pay prevailing

wages.

Appeal to this court

Penhall appealed the director’s order to superior court. The parties agreed to

transfer the appeal for direct review to this court pursuant to RCW 34.05.518.

ANALYSIS

In prevailing wage violation hearings, “[L&I] shall have the burden of proving, by

a preponderance of the evidence, that the violations occurred and that any wages were

unpaid as stated in the notice.” WAC 296-127-170(1). Where, as here, review of a final

decision by the director of a department is at issue, the Washington Administrative

Procedure Act (WAPA), chapter 34.05 RCW, governs review. Silverstreak, Inc. v. Dep’t

of Lab. & Indust., 159 Wn.2d 879, 154 P.3d 891 (2007). A court shall grant relief from

an agency order entered at an adjudicative proceeding only if the court determines that

certain factors exist. RCW 34.05.570(3). Relevant to this case, Penhall contends that the

director’s decision “erroneously interpreted or applied the law,” was “not supported by

[substantial] evidence,” was “inconsistent with a rule of the agency,” or was “arbitrary or

capricious.” RCW 34.05.570(3)(d), (e), (h), (i). We sit in the same position as the

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administrative tribunal and “appl[y] the WAPA standards directly to the record

considered by the agency.” Silverstreak, 159 Wn.2d at 879.

1. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

As an initial matter, L&I contends that several of Penhall’s argument are waived

because Penhall did not exhaust its administrative remedies. When an administrative

hearing is presided over by an ALJ, the ALJ’s proposed decision shall be served on the

parties who then have 30 days to appeal the decision to the director. WAC 296-127-

170(5). “If none of the parties appeals within thirty days, the proposed decision may not

be appealed either to the director or the courts.” Id. Any “notice of appeal [filed with the

director] must specify which findings and conclusions are erroneous.” WAC 296-127-

170(6). On appeal, the director shall issue a final decision that affirms, modifies, or

reverses the ALJ’s proposed decision. WAC 296-127-170(7). A party aggrieved by the

director’s final decision may appeal “unless the final decision affirms an unappealed

proposed decision.” WAC 296-127-170(8).

Here, Penhall did not appeal the ALJ’s initial order. Yet, in its response to L&I’s

appeal to the director, Penhall disputed several adverse rulings made by the ALJ. The

director concluded that Penhall’s challenges to adverse rulings within the initial order

were foreclosed:

The Initial Order concluded that “[b]ased on the foregoing and the findings

of fact herein, the Department has met its burden to establish that the work

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at issue is covered under RCW 39.12, and that prevailing wages are

owing.” Initial Order Conclusion of Law No. 5.13. This conclusion, as

well as other adverse conclusions to Penhall cannot be disputed now by

Penhall and is adopted. This means, among other things, that Penhall

cannot contest that there is covered work under RCW 39.12; the import of

the PLA [project labor agreement]; the wage calculations, including

overtime and benefits; and the determination that there was a failure to pay

prevailing wages and file certified payroll records. Accordingly, the

Director adopts Initial Order Findings of Fact No. 4.10 to 4.14, and the

Director adopts Initial Order Conclusions of Law No. 5.6, 5.13, 5.25 to

5.37 together with the Director’s enumerated conclusions.

AR at 235.

To the extent that Penhall raises these same arguments on appeal to this court, we

agree with the director that the issues are foreclosed by Penhall’s failure to appeal from

the initial order. By failing to appeal the ALJ’s initial order, Penhall failed to exhaust its

administrative remedies, precluding our review of these issues. See Barson v. Dep’t of

Soc. & Health Servs., 58 Wn. App. 616, 619, 794 P.2d 538 (1990).

2. INTERPRETATION AND APPLICATION OF SCOPE OF WORK REGULATION

Penhall challenges the director’s conclusion that L&I met its burden of proving

that the work of GPR analysts and x-ray technicians should be classified as construction

site surveyors under the PWA. Penhall’s primary argument is that the director

erroneously interpreted the scope of work. Penhall also challenges several of the

director’s findings of fact and the director’s conclusion that the findings supported L&I’s

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classification of the work performed by GPR analysts and x-ray technicians as falling

within the scope of work for construction site surveyors.

A. Interpretation of Construction Site Surveyor Scope of Work

The interpretation of a regulation is an issue of law this court reviews de novo.

Silverstreak, 159 Wn.2d at 880; Port of Seattle v. Pollution Control Hr’gs Bd., 151

Wn.2d 568, 593, 90 P.3d 659 (2004). Our primary objective, in construing a statute, is to

determine the interpretation that best reflects the legislature’s intent. Silverstreak, 159

Wn.2d at 882.

The PWA is remedial legislation, designed to preserve local wages and protect

employees from substandard earnings on public works projects. Id. As a result, “it is the

worker, not the contractor, who is the intended beneficiary of the [act].” Id. at 880.

Thus, the PWA “and regulations promulgated thereunder are to be liberally construed in

favor of the beneficiary of the [PWA], the worker.” Id. at 882. Where a court is called

on to resolve a question of statutory construction, it should “ʻadopt the interpretation

which best advances the legislative purpose.’” Citizens All. for Prop. Rights Legal Fund

v. San Juan County, 184 Wn.2d 428, 437, 359 P.2d 753 (2015) (quoting Bennett v.

Hardy, 113 Wn.2d 912, 928, 784 P.2d 1258 (1990)), cited with approval in Associated

Gen. Contractors of Washington v. State, 2 Wn.3d 846, 865, 544 P.3d 486 (2024).

“The ʻ[r]ules of statutory construction apply to administrative . . . regulations.’”

D.W. Close Co. v. Dep’t of Lab. & Indus., 143 Wn. App 118, 126, 177 P.3d 143 (2008)

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(alteration in original) (quoting State v. Burke, 92 Wn.2d 474, 478, 598 P.2d 395 (1979)).

To determine the meaning of a regulation, we first look to its language and determine

whether it is clear on its face. Cerrillo v. Esparza, 158 Wn.2d 194, 201, 142 P.3d 155

(2006). “ʻIf an administrative rule or regulation is clear on its face, its meaning is to be

derived from the plain language of the provision alone.’” D.W. Close Co, 143 Wn. App.

at 126 (quoting Cannon v. Dep’t of Licensing, 147 Wn.2d 41, 56, 50 P.3d 627 (2002)).

“[W]hen we look at this plain language, we must read all words ‘in the context of the

statute in which they appear, not in isolation or subject to all possible meanings found in

a dictionary.’” Associated Gen. Contractors, 2 Wn.3d at 855 (quoting State v. Lilyblad,

163 Wn.2d 1, 9, 177 P.3d 686 (2008)).

The scope of work for construction site surveyors under WAC 296-127-01396 is

defined as follows:

For the purpose of the Washington state public works law,

chapter 39.12 RCW, construction site surveyors perform survey work

which requires the use or utilization of transits, tripod mounted levels,

lasers, electrotape and other electronic measuring devices or theodolites to

establish a location, an elevation or grade, distances, and other

measurements.

(1) The work of the construction site surveyor includes, but is not

limited to:

• Survey work performed after the contract is awarded and during

the actual construction in direct support of construction crews when the

worker is in the employ of and working under the direction of a

construction contractor to survey check points of location and grade on a

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Penhall v. Dep’t. of Labor & Indus.

construction site using a variety of measurement tools, instruments, and

procedures.

(2) The construction site surveyor scope of work does not include

surveying services not within the description in subsection (1) of this

section that are required by specification or contract or state law to be

performed under the direct supervision of individuals registered under

chapter 18.43 RCW.

Both Penhall and L&I assert that WAC 296-127-01396 is not ambiguous. They

implicitly agree that the plain language of WAC 296-127-01396 requires three primary

elements be met for a worker to be a “construction site surveyor.” The worker must (1)

“perform survey work,” (2) use certain enumerated tools, to (3) “establish a location, an

elevation or grade, distances, and other measurements.” However, the parties diverge on

their construction and application of these provisions.

Survey work

While both parties agree that a construction site surveyor is one who performs

“survey work,” they disagree on the definition of survey work. Penhall asserts that all

construction site surveyors under WAC 296-127-01396 are land surveyors as defined by

chapter 18.43 RCW, and because the employees in question did not meet the

requirements or perform the job duties under chapter 18.43 RCW, they necessarily were

not construction site surveyors under WAC 296-127-01396. L&I responds that the

undefined term “survey work” should be given its ordinary dictionary definition, which

would encompass both traditional land surveyors and non-traditional survey work.

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No. 40453-6-III

Penhall v. Dep’t. of Labor & Indus.

This court may determine the plain meaning of an undefined term from the

dictionary. State v. Barnes, 189 Wn.2d 492, 496, 403 P.3d 72 (2017). However, “[i]f a

term is defined in a statute, that definition is used.” Cowiche Canyon Conservancy v.

Bosley, 118 Wn.2d 801, 813, 828 P.2d 549 (1992).

Determining the definition of terms in a rule or statute is a question of law.

See City of Redmond v. Central Puget Sound Growth Mgmt. Hr’gs Bd., 136 Wn.2d 38,

49, 959 P.2d 1091 (1998) (proper definition of a statutory term is a question of law). The

dictionary definition of “survey” means “to determine and delineate the form, extent, and

position of ([such] as a tract of land . . .) by taking linear and angular measurements and

by applying the principles of geometry and trigonometry.” WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY 2302 (1993). Similar to the dictionary definition, the

director concluded that “survey work is the establishing of a location, elevation, grade,

distance, or other measurements.” AR at 236. The director clarified that “[s]urvey work

includes the understanding of geometry, mathematics and applying it to the earth,” and

includes “analysis and mental work.” AR at 230.6

Penhall argues that the director committed an error of law in applying a dictionary

definition because “survey work” is already defined in the separate but related chapter

6

Although the director labeled these definitions as findings of fact, we review

them as conclusions of law. See City of Tacoma v. William Rogers Co., 148 Wn.2d 169,

181, 60 P.3d 79 (2002).

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Penhall v. Dep’t. of Labor & Indus.

regulating professional land surveyors, chapter 18.43 RCW. Penhall contends that

chapter 18.43 RCW should be read as a related statute for three reasons. First, WAC

296-127-01396 uses the term “survey work” and RCW 18.43.020 defines “professional

land surveyor” and the “practice of land surveying.” Second, the regulation uses a phrase

similar to language used in chapter 18.43 RCW. And third, the scope of work explicitly

references chapter 18.43 in its description of construction site surveyors. We conclude

that chapter 18.43 RCW is not a related statute and was not intended to define the term

“survey work” in WAC 296-127-01396.

The plain and ordinary meaning of a statute is generally derived from the

“ʻcontext of the entire act’” and related statutes. Barnes, 189 Wn.2d at 495-96. A

“related statute” can be one that is cross-referenced or incorporated into another statute

by reference. See State v. Weatherwax, 188 Wn.2d 139, 149-51, 392 P.3d 1054 (2017).

Penhall first argues that the State of Washington has already defined what work is

performed by a surveyor in chapter 18.43 RCW. Penhall suggests that “survey work” as

set forth in WAC 296-127-01396 is synonymous with the “practice of land surveyor”

under RCW 18.43.020(9) and that construction site surveyors under WAC 296-127-

01396 are a subset of land surveyors as set forth in RCW 18.43.020(6). In essence,

Penhall suggests that because RCW 18.43.020(11) contains a definition for “professional

land surveyor” it must be a “related statute” to WAC 296-127-01396 and therefore

provides context for the definition of “construction site surveyor” and “survey work” in

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Penhall v. Dep’t. of Labor & Indus.

WAC 296-127-01396. Contrary to Penhall’s implied assertion, just because a definition

for the same or similar term exists in separate statutes or regulations, does not necessarily

mean they are “related.” See Davis v. Dep’t of Licensing, 137 Wn.2d 957, 977 P.2d 554

(1999).

Here, both the chapter and the regulation explicitly limit their applications. WAC

296-127-01396 begins with the words, “[f]or the purpose of the Washington state public

works law, chapter 39.12 RCW.” The same limiting language appears in RCW

18.43.020, “[t]he definitions in this section apply throughout this chapter unless the

context clearly requires otherwise.” (emphasis added).

Next, Penhall argues that the scope of work regulation uses a phrase similar to

language found in chapter 18.43 RCW. Penhall points out that a construction site

surveyor is one who “survey[s] check points of location and grade on a construction site,”

which is language similar to the definition of the “[p]ractice of land surveying” in RCW

18.43.020(9). We agree with the director that the scope of work for a construction site

surveyor describes work that is performed in traditional land surveying; we disagree with

Penhall that the regulation is limited to this type of surveying. Instead, the plain language

indicates that:

[t]he work of the construction site surveyor includes, but is not limited to:

• Survey work performed after the contract is awarded and during the actual

construction in direct support of construction crews when the worker is in

the employ of and working under the direction of a construction contractor

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Penhall v. Dep’t. of Labor & Indus.

to survey check points of location and grade on a construction site using a

variety of measurement tools, instruments, and procedures.

WAC 296-127-01396(1); see State v. Joseph, 3 Wn. App. 2d 365, 372, 416 P.3d 738

(2018) (statutory language, “including but not limited to” demonstrates a legislative

intent to create an illustrative, not exhaustive list.).

Finally, Penhall argues that the explicit reference to chapter 18.43 RCW in WAC

296-127-01396(2) demonstrates an intention to incorporate the definitions in this chapter

as a related statute. A “related statute” can be one that is cross-referenced or incorporated

into another statute by reference. See Weatherwax, 188 Wn.2d at 149. Penhall is correct

that WAC 296-127-01396 does reference chapter 18.43 RCW in subsection (2), which

states:

The construction site surveyor scope of work does not include surveying

services not within the description in subsection (1) of this section that are

required by specification or contract or state law to be performed under the

direct supervision of individuals registered under chapter 18.43 RCW.

However, when read together with subsection (1), the scope of work both includes

and excludes certain survey work. Generally speaking, under subsection (1), survey

work performed during construction by someone employed by a contractor to perform

traditional survey work such as “survey check points of location and grade on a

construction site using a variety of measurement tools, instruments, and procedures” is

included within the scope of a construction site surveyor. Under subsection (2), survey

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Penhall v. Dep’t. of Labor & Indus.

work is excluded if it does not fall within the example of subsection (1) and is required to

be performed under the supervision of a land surveyor registered under chapter 18.43

RCW. While subsections (1) and (2) provide that certain traditional survey work will

either be included or excluded, the language does not constrain survey work to work

defined in chapter 18.43 RCW.

We hold that chapter 18.43 RCW is not a related chapter for purposes of

discerning the meaning of “survey work” or “construction site surveyor” in WAC 296-

127-01396 The language used by the promulgators of both chapter 18.43 RCW and

WAC 296-127-01396 indicates the definitions set forth in each are intended to be

confined to the statute and regulation in which they appear. The language in WAC 296-

127-01396(1) makes it apparent that construction site surveyor work under the regulation

“includes, but is not limited to,” survey check points. And, although there is a cross-

reference to chapter 18.43 RCW in WAC 296-127-01396(2), that reference works to

exclude certain survey work.

We conclude that the director did not err in applying the dictionary definition, or a

modified version of the dictionary definition to the term “survey work.” The definition

applied by the director is more expansive than the definition promoted by Penhall and

thus promotes the purpose of the PWA.

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Penhall v. Dep’t. of Labor & Indus.

Survey tools

Penhall contends that the director committed an error of law in his interpretation

of the required list of tools used by construction site surveyors in WAC 296-127-01396.

The parties agree that under WAC 296-127-01396, construction site surveyors must

perform survey work that “requires the use or utilization of transits, tripod mounted

levels, lasers, electrotape and other electronic measuring devices or theodolites.”

However, their interpretation of this list of tools differs.

Penhall argues that the tools listed must be limited to survey tools, or devices a

land surveyor would use in the performance of their work. It argues that any other

interpretation would lead to non-sensical results. Penhall further argues that the list of

tools is divided into two categories connected by the conjunction “and.” Under this

interpretation, construction site surveyors must use at least one tool from each of the two

categories, i.e., [part 1] transits, tripod mounted levels, lasers, electrotape and [part 2]

other electronic measuring devices or theodolites.

The director disagreed and concluded that “[t]he plain language of the

introductory sentence reflects an intent to list a series of tools. To that end, there is an

omitted comma before ‘theodolites,’ but this omission is not dispositive when reading the

provision as a whole.” AR at 238. L&I defends the director’s conclusion, asserting that

the last antecedent rule makes it clear the list is intended as a series.

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No. 40453-6-III

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We disagree with L&I that the last antecedent rule applies, but we agree that the

list of tools is a single integrated list. The tools here are most logically read as a series of

tools that can be used to perform survey work. This reading is consistent with the series-

qualifier rule as well as the directive that we read the regulations of the PWA broadly.

Traditional rules of grammar are used to discern the plain language of a statute.

State v. Valdiglesias LaValle, 2 Wn.3d 310, 318, 535 P.3d 856 (2023). The last

antecedent rule is one such grammar rule. It establishes that “qualifying or modifying

words and phrases refer to the last antecedent.” State v. Bunker, 169 Wn.2d 571, 578,

238 P.3d 487 (2010). Punctuation can play a part in how the last antecedent is

interpreted. More specifically, “ʻthe presence of a comma before the qualifying phrase is

evidence the qualifier is intended to apply to all antecedents instead of only the

immediately preceding one.’” Id. (quoting City of Spokane v. County of Spokane, 158

Wn.2d 661, 673, 146 P.3d 893 (2006)) (internal quotation marks omitted).

In the present case, WAC 296-127-01396 contains the qualifying or modifying

phrase “to establish a location, an elevation or grade, distances, and other measurements.”

The phrase is not preceded by a comma. Thus, the typical construction would have the

modifying phrase apply only to theodolites, the last antecedent. Construing the list as one

series as L&I suggests versus two parts as recommended by Penhall does not change the

application of this rule, and therefore it is not helpful in discerning the construction of the

list. However, we need not apply the last antecedent rule where it does not make sense to

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No. 40453-6-III

Penhall v. Dep’t. of Labor & Indus.

do so. PeaceHealth St. Joseph Med. Ctr. v. Dep’t of Revenue, 196 Wn.2d 1, 10, 468 P.3d

1056 (2020); Bunker, 169 Wn.2d at 578; State v. McGee, 122 Wn.2d 783, 864 P.2d 912

(1993).

The “series-qualifier” rule of grammar creates the presumption that “‘when there

is a straightforward, parallel construction that involves all nouns or verbs in a series, a

prepositive or postpositive modifier normally applies to the entire series.’” PeaceHealth

St. Joseph Medical Center v. Dep’t of Revenue, 9 Wn. App. 2d at 781 (quoting BLACK’S

LAW DICTIONARY 1574 (10th ed. 2014)) aff’d, 196 Wn.2d 1 (2020). The “rule applies

when two textual signals are present: first, when the modifying phrase makes sense with

all items in the series; and second, when the modifying clause appears at the end of a

single, integrated list.” Id. Here, the modifier makes sense when we apply it to each tool

in the series, and this supports that the second element is met; the list is a single,

integrated list.

Again, WAC 296-127-01396 states in pertinent part that “construction site

surveyors perform survey work which requires the use or utilization of transits, tripod

mounted levels, lasers, electrotape and other electronic measuring devices or theodolites

to establish a location, an elevation or grade, distances, and other measurements.” Both

parties agree that the modifier “to establish a location, an elevation or grade, distances,

and other measurements” applies to all the listed tools. For the series-qualifier rule to

apply, however, all the listed items must be a part of a single, integrated list.

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Penhall v. Dep’t. of Labor & Indus.

Penhall’s interpretation fails for several reasons. First, Penhall’s suggestion, that

the list contains two parts, runs afoul of its argument that the modifier applies to all the

listed tools such that the series-qualifier rule applies. Here, the most logical

interpretation of the sentence is that the listed tools are a single integrated list modified

by the clause that comes immediately thereafter. Second, Penhall’s split categories

interpretation would lead to absurd results. A surveyor using only a theodolite would not

qualify as a construction site surveyor. Nor would a surveyor using only a transit.

Finally, Penhall argues that reading the list of tools as an integrated list would

render the definition of construction site surveyors so broad that any worker using an

electronic tape measure would now fall under the scope of work. We disagree. The use

of tools within the scope is constrained by its purpose: to conduct survey work for a

particular purpose.

We conclude that WAC 296-127-01396 is not ambiguous. The plain language of

the regulation, liberally construed in favor of the workers, provides that a construction

site surveyor is someone who conducts “survey” work—which is work that “determine[s]

and delineate[s] the form, extent, and position of ([such] as a tract of land . . .) by taking

linear and angular measurements and by applying the principles of geometry and

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Penhall v. Dep’t. of Labor & Indus.

trigonometry”7—by using at least one of the enumerated tools for the purpose of

establishing a location, an elevation or grade, distances, and other measurements.

Because we conclude that WAC 296-127-01396 is not ambiguous, we do not

address Penhall’s arguments related to the interpretation of an ambiguous regulation.

B. Challenged Findings of Fact

Penhall argues the director’s findings supplanting those of the ALJ were not

supported by substantial evidence, entitling it to relief under RCW 34.05.570(3)(e).

Penhall asserts that this action was also arbitrary and capricious and does not pass the

gimlet eye test set forth in Crosswhite8 because the director disregarded, without

justification, the findings of the ALJ that were supported by substantial evidence. L&I

responds that the director explained extensively his reasons for adopting, modifying, or

omitting the findings in the initial order. L&I also notes that “while Penhall assigns error

to many findings of fact . . . it presents little argument why specific findings are

incorrect.” Resp’t’s Br. at 16. L&I suggests that this court therefore treat the challenged

findings as verities since Penhall failed to present argument on the same.

7

Webster’s, supra, at 2302.

8

Crosswhite v. Dep’t of Soc. & Health Servs., 197 Wn. App. 539, 560, 389 P.3d

731.

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No. 40453-6-III

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We decline to review Penhall’s challenges to the director’s findings because the

challenges were not sufficiently developed in the briefing or are otherwise not relevant

given our preceding interpretation of the scope of work.

In its briefing, Penhall assigns error to over 30 findings of fact, asserting the

director erred by entering, modifying, or deleting the same. Penhall then sets forth under

its “Issues Pertaining to Assignments of Errors” section, a blanket assertion that the

challenged findings of fact are not supported by substantial evidence pursuant to RCW

34.05.570(3)(e). It then buries many of its substantive arguments regarding substantial

evidence throughout its brief, in both the body, as well as in a series of footnotes instead

of a dedicated section. See, e.g., Appellant’s Br. at 37 n.11, 43 & n.13, 44, 46 n.14, 53,

64 n.37, 67. Further, with a few exceptions, the typical “argument” set forth is a one-line

conclusory statement that the finding in question “is not supported by substantial

evidence.” See, e.g., Appellant’s Br. at 37 n.11 (Asserting that “[t]he Director’s Order is

not supported by substantial evidence,” without further support.). We decline to address

challenges to findings that are not supported by analysis. Under RAP 10.3(g), a party

should assign error to each finding of fact a party contends was improperly made. The

arguments in support of issues and assignments of error should be made in the argument

section, not the statement of the case. RAP 10.3(a)(5), (6). In addition, a party

“challenging findings of fact must present argument as to why the specific findings are

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Penhall v. Dep’t. of Labor & Indus.

unsupported and cite to the record to support that argument.” In re Disciplinary

Proceeding Against Abele, 184 Wn.2d 1, 13, 358 P.3d 371 (2015).

“Passing treatment of an issue, lack of reasoned argument, or conclusory

arguments without citation to authority are not sufficient to merit judicial consideration.”

In re Vulnerable Adult Pet. For Winter, 12 Wn. App. 2d 815, 835, 460 P.3d 667 (2020).

Where claims are unsupported by meaningful analysis, this court will not consider them

and will instead deem such claims waived. See RAP 10.3(a)(6); Cowiche Canyon, 118

Wn.2d at 809. Our courts have also held that “ʻplacing [a substantial evidence argument]

in a footnote is, at best, ambiguous or equivocal as to whether the issue is truly intended

to be part of the appeal.’” Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wn.

App. 474, 497, 254 P.3d 835 (2011) (internal quotation marks omitted) (quoting St.

Joseph, 158 Wn. App. at 473). And where “ʻ[a]n issue [is] raised and argued for the first

time in a reply brief,’” it is considered “ʻtoo late to warrant consideration.’” Norcon

Builders, LLC, 161 Wn. App. at 497 (alteration in original) (quoting Cowiche Canyon,

118 Wn.2d at 809).

We note that many of Penhall’s challenges to the director’s findings are not

relevant in light of our interpretation of the construction site surveyor scope of work. For

example, Penhall challenges the director’s decision to delete the ALJ’s finding that

surveyors warrant their work. But this finding is only relevant if survey work or

construction site surveyors are limited to land surveying under chapter 18.43 RCW.

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Similarly, the director’s finding that GPR analysts and x-ray technicians used lasers to

measure is of consequence to Penhall only if this court were to omit the requirement that

construction site surveyors also undertake survey work. The director’s deletion of the

ALJ’s finding that GPR analysis and x-ray technicians do not use survey tools is also

irrelevant. Instead, based on our conclusion above, the relevant question is whether GPR

analysts and x-ray technicians perform survey work by using at least one of the tools

listed for an enumerated purpose. Finally, the director’s reliance on the generalized

testimony of Christensen was only relevant if the scope of work was deemed ambiguous.

Penhall argues, in a footnote, that the director’s deletion of the finding that the

“Industrial Statistician was not aware that [L&I] failed to consider Industry Practice when

he signed the NOV” was not supported by substantial evidence. Appellant’s Br. at 64

n.37. However, as the director noted, the industrial statistician’s awareness of whether or

not industry practice was considered prior to the issuance of an NOV is not relevant.

Industry practice is not an element to be considered in the issuance of an NOV, nor an

element to be proved as part of a subsequent challenge of the same. See WAC 296-127-

170. Additionally, while industry practice may be a relevant consideration in construing

an ambiguous regulation, or where the validity of the regulation is challenged, it is not

relevant when the regulation is unambiguous, as is the case here. See, e.g., D.W. Close

Co., 143 Wn. App. at 130-33 (considering WAC 296-127-013 as part of a challenge to

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Penhall v. Dep’t. of Labor & Indus.

the validity of a scope of work but elsewhere noting that an unambiguous rule or

regulation’s meaning is derived from the plain language of the provision alone).

Finally, in its statement of the case, Penhall includes a passing comment that

“[t]he analysis of the hyperbola involves no mathematical calculations by the GPR

Analyst.” Appellant’s Br. at 8. Penhall does not pair this with any argument or request

for relief under RCW 34.05.570. L&I responded that Penhall failed to adequately brief

the issue, and the director’s finding was supported by substantial evidence. In its reply

brief, Penhall develops its argument on why the finding is not supported by substantial

evidence. We decline to address arguments developed in the reply brief. Norcon

Builders, LLC, 161 Wn. App. at 497.

Because we find that the challenges to the director’s findings to be irrelevant,

surplusage or waived, we decline to address Penhall’s argument that the director’s

findings were arbitrary and capricious.

C. Application of Construction Site Surveyor Scope of Work to GPR Analysts

and X-ray technicians

Whether the agency correctly applied the law to its factual findings is a question of

law reviewed de novo. Silverstreak, 159 Wn.2d at 880.

While Penhall challenges the director’s application of the findings to scope of

work, it does so only in the context of its proffered interpretation of a construction site

surveyor. In other words, while Penhall contends that the director erred in his

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Penhall v. Dep’t. of Labor & Indus.

application, it bases this argument on Penhall’s asserted definition of a construction site

surveyor. Penhall does not argue in the alternative that even if the director’s

interpretation was correct, the director still misapplied the facts to the law. Regardless,

we conclude that the director did not commit an error of law in applying the law to the

facts.

As set forth above, WAC 296-127-01396 requires GPR analysts and x-ray

technicians to (1) perform survey work (2) using at least one of the listed tools (3) to

establish a location, an elevation or grade, distances and other measurements.

(i) Survey work performed

As noted above, the dictionary definition of “survey” means “to determine and

delineate the form, extent, and position of ([such] as a tract of land . . .) by taking linear

and angular measurements and by applying the principles of geometry and trigonometry.”

WEBSTER’S, supra, at 2302.

The director concluded GPR analysts and x-ray technicians performed survey

work. Specifically, he concluded:

The GPR analysts and x-ray technicians look for locations as a point that has

distinguishing features, elevations in the vertical plane in a three-

dimensional space, distances between points, and other measurements such

as depth. The work here involved examining an area on the site of a public

works project; performing mathematical and geometric calculations using

the hyperbola and parabola; using results in geometrical renderings; taking

linear measurements; delineating the location, elevation, distance, and depth

of existing features; and calibrating the dimensioning of objects buried in

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concrete, as well as using computerized three dimensional readings. This is

survey work that satisfies the construction site surveyor scope of work.

AR at 237.

Penhall challenges the definition of “survey work” but does not otherwise make a

meaningful challenge to the director’s application of the definition to the director’s

findings concerning the nature of the work. The director did not err in concluding that

the work performed by GPR analysts and x-ray technicians fell within the definition of

survey work.

(ii) Survey tools: other electronic measuring devices

As set forth above, WAC 296-127-01396 requires the use of transits, tripod

mounted levels, lasers, electrotape and other electronic measuring devices or theodolites.

It is undisputed that the workers in question did not use transits, tripod mounted levels,

electrotape or theodolites, and the director so found. However, it is also undisputed that

the workers in question used Mini XT, x-ray emitters, and x-ray detectors. The director

found that these tools met the definition of electronic measurement tools.

Penhall does not dispute this application. Instead, it contends that use of a tool

defined as an electronic measuring device is not enough because the regulation creates

two categories of tools and a constructive site surveyor must use at least one tool from

each category. We reject that interpretation above.

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The director did not err in concluding that Mini XT and x-ray devices are “other

electronic measuring devices” as required by WAC 296-127-01396.

(iii) Purpose of using survey tools

Construction site surveyors must perform survey work using one of the

enumerated tools for a particular purpose: to establish a location, an elevation or grade,

distances, and other measurements. WAC 296-127-01396. The director concluded that

GPR analysts and x-ray technicians used tools to establish location, elevation, distance,

and other measurements such as depth. Penhall challenges the conclusion that GPR

analysts and x-ray technicians were using other electronic measuring devices to establish

location and other measurements. It does not meaningfully challenge the director’s

conclusion that the tools were used to determine elevation and distance.9

WAC 296-127-01396 can be satisfied by demonstrating that the worker in

question used one of the enumerated tools to establish a location. The director concluded

that “GPR analysts and x-ray technicians look for locations as a point that has

distinguishing features.” AR at 237. Penhall argues that the location of buried objects is

not equivalent to the establishment of locations that a land surveyor undertakes.

9

Penhall assigns error to the director’s additional findings and conclusions that GPR

analysts and x-ray technicians determined elevation and distance, but does not otherwise

develop this argument.

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“Establish” is defined in relevant part as “to make firm or stable.” WEBSTER’S,

supra, at 778. Penhall implicitly argues that the WAC’s requirement that the tools be

used to establish a location is different than establishing the location of something.

Penhall uses the example of a land surveyor to highlight the distinction. But this court is

confined to the plain language of the regulation and must interpret it broadly.

Silverstreak, 159 Wn.2d at 882-83; Glacier Nw., Inc. v. Dep’t of Lab. & Indus., 32 Wn.

App. 2d 189, 197-98, 555 P.3d 896 (2024). The dictionary provides one definition of “a”

as meaning “any.” WEBSTER’S, supra, at 1. Thus, the question is whether GPR analysts

or x-ray technicians used their electronic devices to “make firm or stable” “any location.”

They did. The GPR and x-ray devices in question were undisputedly used to establish the

location of subsurface embedments.

Penhall also challenges the director’s conclusion that the workers used tools to

determine other measurements such as depth. Penhall contends that such a conclusion

necessarily adds the word “depth” to the regulation contrary to the plain language.

The establishment of “other measurements” using one of the enumerated tools is

one means of satisfying WAC 296-127-01396. Contrary to Penhall’s assertion, “depth”

is included in the plain language of the WAC because it is a type of measurement.

WEBSTER’S, supra, at 607 (defining “depth” as “the perpendicular measurement

downward from a surface.”) (emphasis added).

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X-ray technicians and GPR analysts used electronic measuring devices to establish

the depth and other measurements of embedments. At the hearing, Garcia testified that

he used the numbers on the screen of the Mini XT to determine how deep certain

embedments were as well as establishing distances. Renati, who also worked as a GPR

and x-ray technician and later marketed those technologies for Penhall, testified that an x-

ray scan could not give the depth of objects but could measure the distance. The depth of

objects depicted in an x-ray image was determined by the x-ray technician using a GPR

device. Thus, GPR analysts and x-ray technicians both used electronic measuring

devices to establish measurements such as distance and depth.

D. Investigation and Witnesses

Penhall argues that L&I’s investigation is inconsistent with agency rules and the

director’s order in favor of L&I was arbitrary and capricious under RCW

34.05.570(3)(h), (i). Specifically, Penhall argues that the investigation underlying the

NOV was inconsistent with agency rules and was arbitrary and capricious because L&I

did not undertake a sufficient investigation to determine the appropriate classification of

the Penhall employees in question. Penhall also asserts that L&I failed to conduct a site

visit, observe the work being performed, or interview Penhall management to describe

the work being performed prior to its issuance of the NOV. Additionally, Penhall raises

challenges to the evidence produced during the administrative hearing, challenging L&I’s

failure to call certain witnesses involved in investigating the complaint against Penhall.

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With respect to the director’s order, Penhall argues that it is arbitrary and capricious

because it failed to apply the missing witness doctrine. These arguments fail for several

reasons.

First, other than claiming that the director’s order was arbitrary and capricious,

Penhall does not identify the basis for its challenges under RCW 34.05.570. A party is

entitled to relief if it can identify and demonstrate invalidity of an agency action on one

of the bases listed in RCW 34.05.570 and prejudice flowing therefrom. RCW 34.05.510,

.570.

Furthermore, while L&I carries the burden of proving a violation by a

preponderance of the evidence, WAC 296-127-170(1), Penhall fails to identify a rule or

regulation that required L&I to follow a certain procedure during the investigation and

trial. Instead, the quality of L&I’s investigation and the witnesses L&I calls to testify go

to the credibility and sufficiency of its evidence and its ability to meet its burden of proof.

We do not address questions of credibility on appeal, and we have already determined

that L&I’s evidence is sufficient to support the conclusion that the work of GPR analysts

and x-ray technicians was properly classified under the construction site survey scope of

work. See Mercier v. Dep’t of Lab. & Indus., 35 Wn. App. 2d 780, 581 P.3d 655 (2025)

(appellate courts do not reevaluate credibility on appeal).

Penhall also contends that it was entitled to a missing witness presumption

because L&I failed to present the testimony of some L&I employees involved in L&I’s

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investigation. The missing witness rule provides that “ʻwhere evidence which would

properly be part of a case is within the control of the party whose interest it would

naturally be to produce it, and, without satisfactory explanation, he fails to do so,—the

jury may draw an inference that it would be unfavorable to him.’” State v. Abdulle, 174

Wn.2d 411, 417, 275 P.3d 1113 (2012) (internal quotation marks omitted) (quoting State

v. Davis, 73 Wn.2d 271, 276, 438 P.2d 185 (1968)).

Penhall’s argument fails for two reasons. First, Penhall fails to show that the

witnesses who did not testify were material. Jim Christensen was L&I’s top manager on

prevailing wage matters at the time of the NOV and thus L&I argues Christensen was the

most appropriate witness to testify regarding the classification of the workers in question.

RCW 39.12.015; RCW 43.22.260 to .270.

Second, the missing witness doctrine is permissive not mandatory. It allows—but

does not require—the fact finder to draw an unfavorable inference against the party

failing to call a material witness. Abdulle, 174 Wn.2d at 417. Thus, even if Penhall

could show that the prerequisites were met, it was not entitled to a particular

presumption.

3. WAGE AND BENEFIT CALCULATIONS

Penhall advances several challenges to L&I’s calculations of wages owed. L&I

asserts that Penhall waived these arguments by failing to appeal the ALJ’s initial order.

We agree with L&I.

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Penhall contends that the director’s order is inconsistent with a Department rule

but points only to L&I’s burden under WAC 296-127-170(1) to prove that wages were

unpaid as stated in the notice. The director concluded that Penhall owed the wages and

interest listed in the NOV. On appeal to this court, Penhall contends that the summary

evidence admitted under ER 1006 and used to support the NOV and the director’s

conclusion is unreliable because the source documents were not introduced. Although

Penhall characterizes the argument as one of sufficiency, it is really raising an evidentiary

challenge. This argument fails for two reasons.

First, Penhall fails to articulate the basis for this challenge on appeal under RCW

34.05.570. Second, as L&I points out, Penhall’s argument, that the summary evidence is

unreliable because the source data was not introduced, is contrary to the record.

Next, Penhall argues that the director acted arbitrarily and capriciously when it

overturned the ALJ’s initial order, which found that L&I failed to properly account for

calculations regarding overtime or benefits paid by Penhall. Related to their allegation of

an overtime error, Penhall also interjects that “to the extent it applies, the Sound Transit

PLA permits an employer to elect to have a four, tens schedule.” Appellant’s Br. at 98.

However, as L&I points out, Penhall is mistaken.

Penhall’s assertion that the initial order found that L&I failed to properly account

for benefits or overtime is factually incorrect. The initial order found that the Penhall

employees in question should have been classified as laborers and paid the prevailing

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wage for the classification of laborers instead of construction site surveyors. Because the

original NOV calculations were based on the construction site surveyor rate of wage, the

initial order remanded the matter to L&I for further calculations based on the laborer rate.

The ALJ did not find any error in L&I’s accounting for benefits or overtime, including

the four, tens overtime calculations. Thus, contrary to Penhall’s assertion, there was no

such ruling for the director to overturn.

As to Penhall’s assertion that it was not required to pay overtime on anything over

8 hours per day because the Sound Transit PLA permits a four, tens schedule, this

assertion is misleading. The ALJ’s initial order, incorporated by reference into the

director’s order, noted that Penhall was not entitled to the benefit of the PLA’s four, tens

schedule because Penhall failed to fulfill the PLA’s notice requirement10 prior to

exercising this option. Penhall provides no citation to the record to refute this finding.

Penhall’s allegation that it did not receive adequate credit for fringe benefits is

similarly misplaced. Penhall provided L&I with the numbers underlying L&I’s

calculations for fringe benefits. L&I’s audit provided a credit of $2.43 per hour for fringe

benefits based on the documents provided by Penhall. The ALJ’s initial order found that

fringe benefits were provided in the same amount, $2.43 an hour. No other testimony

10

The PLA stated, “[p]rior to changing a shift from 5x8 hours to 4x10 hours, a

contractor must give at least five (5) calendar days advance notice to the employees.”

AR at 3049.

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was introduced at the hearing that controverted this calculation. The director’s order did

not overturn—arbitrarily, capriciously, or otherwise—any findings in the initial order

related to L&I’s accounting for fringe benefits or overtime.

Next, Penhall asserts that its own expert conducted a review of L&I’s audit and

opined that only $150,202.48 was owed. Penhall asserts that the director’s order failed to

address these calculations. But the director did not consider Penhall’s figure in his order

because it was based on a finding that the work was covered under the laborer’s scope of

work. The figure is irrelevant because the director found the workers in question were

construction site surveyors and not laborers.

4. STRIKE TOWARD DEBARMENT

Penhall next challenges the director’s imposition of a strike. It raises two bases

for relief on this contention. First, Penhall argues that the director’s action was arbitrary

and capricious where he overturned the initial order’s determination that Penhall’s false

filing was inadvertent. Second, Penhall argues because its violation was inadvertent, it

should not be subject to a strike toward debarment under RCW 39.12.050 and the

director’s order affirming a strike toward debarment was therefore an error of law. L&I

concedes that “[t]he Director’s Order includes an unnecessary conclusion that Penhall is

subject to a strike toward debarment under RCW 39.12.065” but argues that the matter is

not ripe for review because Penhall is not yet subject to the contemplated debarment.

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Resp’t’s Br. at 67. Thus, L&I asserts that this court should not consider the issue until

there is a second violation, if any.

We agree with Penhall that the director committed an error of law when it imposed

a strike where Penhall’s offense was inadvertent.

A. Ripeness and Redressability

We first address L&I’s argument that Penhall’s challenge is neither redressable or

ripe. L&I argues this issue is not redressable or ripe because Penhall is not yet subject to

debarment and the APA requires more than speculative redressability. Thus, L&I argues

this court should not consider this issue until there is a second violation, if any. Penhall

responds that the strike against debarment is an actual penalty ripe for adjudication

because the strike can lead to a prohibition from bidding on public work.

A claim is ripe for judicial review if the challenged action is final, no further

factual development is necessary, and the issues are primarily legal. State v. Gantt, 29

Wn. App. 2d 427, 456, 540 P.3d 845, review denied, 3 Wn.3d 1002, 549 P.3d 115 (2024).

A speculative and hypothetical claim is not ripe for review. Id.

There is little question here that this issue is ripe for judicial review. Neither party

disputes the challenged action is final, and no further factual development is necessary to

determine the purely legal question of whether the director could impose a strike if

Penhall’s violation was found inadvertent.

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L&I sets forth a one-line argument on redressability stating that “[t]he APA

requires more than speculative redressability,”11 and infers that because Penhall is not yet

subject to the contemplated debarment, this court cannot provide relief since no harm has

yet arisen. L&I cites Benton County Water Conservancy Board v. Department of

Ecology, 3 Wn. 3d 59, 546 P.3d 394 (2024), but provides no analysis.

Typically, the party seeking review bears the burden to prove standing. Sarepta

Therapeutics, Inc. v. Wash. State Health Care Auth., 19 Wn. App. 2d 538, 549, 497 P.3d

454 (2021). We review issues of standing de novo. In re Estate of Becker, 177 Wn.2d

242, 246, 298 P.3d 720 (2013).

The PWA regulates employers, such as Penhall. Under RCW 39.12.065(3),

Penhall as the offending party, is subject to a strike. Penhall is not asserting the rights of

some third party, as was the case in Benton County Water Conservancy, 3 Wn.3d 59.

L&I suggests that Penhall can seek relief if and when a second strike is imposed

since that is when debarment would be imposed. That argument is curious since Penhall

would be unable at the time of the imposition of a second strike to reach back to

challenge the imposition of this strike and there is no assurance that Penhall would have

grounds to challenge a subsequent strike, whereas it has grounds to challenge the present

strike.

11

Resp’t’s Br. at 67.

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While it is true that Penhall is not subject to debarment presently, it has been

harmed insofar as it has presently been penalized with a strike toward this debarment.

The director’s order reads, “[h]aving violated former RCW 39.12.065, Penhall has a

strike toward debarment.” AR at 247 (emphasis added). Penhall only gets one “free”

strike before debarment. At present, it has lost that strike.

B. Inadvertence

Having determined that Penhall’s challenge to the director’s imposition of a strike

is both ripe and redressable, we turn to Penhall’s contentions.

Inadvertence is a defense against a strike toward debarment. RCW 39.12.065(3).

Penhall’s argument is that the director committed an error of law when he subjected

Penhall to a strike toward debarment where Penhall’s violation was inadvertent. Whether

the director correctly applied the law to the facts as found by the agency is a question of

law we review de novo. Glacier, 32 Wn. App. 2d at 195.

Under RCW 39.12.065(3), L&I may impose sanctions, including strikes toward

debarment. However, “the civil penalty and sanctions . . . do not apply to a violation

determined by the director to be an inadvertent filing or reporting error.” Id.12 RCW

39.12.010(5) sets forth that

[a]n ‘inadvertent filing or reporting error’ is a mistake and is made

notwithstanding the use of due care by the contractor, subcontractor, or

12

RCW 39.12.065 was amended in 2019 and 2023, but this language remained

unchanged.

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employer. An inadvertent filing or reporting error includes a contractor

who, in good faith, relies on a written determination provided by the

department of labor and industries and pays its workers, laborers, and

mechanics accordingly, but is later found to have not paid the proper

prevailing wage rate.

The original NOV assessed $100,351.74 civil monetary penalty for failing to pay

prevailing wages and a $54,000.00 civil monetary penalty for an alleged certified payroll

records violation. It also asserted that in the event Penhall was found to have failed to

pay the required prevailing rate of wage or filing false documents, it would have a

“strike” toward debarment under RCW 39.12.065(3) and .050(1) respectively. The initial

order determined that Penhall’s failure to pay prevailing wages and file certified payroll

records was inadvertent. Accordingly, the initial order found Penhall was not liable for

civil monetary penalties under RCW 39.12.065 and/or 39.12.050.

The director’s order adopted the initial order’s conclusions of law Nos. 5.6, 5.13,

5.25 to 5.37. Among the adopted conclusions of law, in addition to the finding that

Penhall’s failure to pay prevailing wages and file certified payroll records was

inadvertent, was a finding that “[t]he civil penalty and sanctions under RCW 39.12.065

do not apply to a violation determined by the director to be an inadvertent filing or

reporting error.” AR at 53, 268. Notwithstanding this adoption, the director’s order

imposed a strike toward debarment under RCW 39.12.065. In doing so, the director

erroneously applied the law.

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Because the director adopted the finding that Penhall’s false filing of documents

and failure to pay prevailing wages and filing certified records was inadvertent, and the

penalties and sanctions under RCW 39.12.065 do not apply to a violation determined by

the director to be inadvertent, the director incorrectly applied the law to the facts as found

by the agency. Penhall should not have received a strike toward debarment under RCW

39.12.065 for its inadvertent violation.

Where this court finds that a party has met its burden of proving an agency’s

action is invalid under the APA, a reviewing court may grant relief outlined in RCW

34.05.578(4). One option for relief is to set aside the agency’s action. 34.05.570(1)(b).

We therefore set aside that portion of the director’s decision imposing a strike against

Penhall under RCW 39.12.065.

5. CONSTITUTIONAL RIGHT TO A JURY TRIAL

Penhall contends that the administrative hearing in this case violated its right to a

jury trial under article I, section 21. More specifically, Penhall argues that, similar to the

Seventh Amendment to the United States Constitution, the right to a jury trial under

article I, section 21 of the Washington Constitution should be read to require a jury trial

anytime civil penalties go beyond restoring the status quo. Penhall argues Security

Exchange Commission v. Jarkesy, 603 U.S. 109, 144 S. Ct. 2117, 219 L. Ed. 2d 650

(2024), is analogous to the present matter and supports its position. L&I responds that

Penhall’s argument is meritless and that the APA has allowed for judicial review of

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agency orders without a jury trial for decades under RCW 34.05.510(3) and the Seventh

Amendment does not apply to state civil cases. We decline to reach the merits of this

issue because it has not been sufficiently briefed by the parties.

Whether there is a right to a jury trial in cases brought under Washington’s PWA

appears to be an issue of first impression. Article I, section 21, guarantees that “[t]he

right of trial by jury shall remain inviolate.” The Seventh Amendment to the United

States Constitution, which also affords a right to a jury trial in some civil cases, does not

apply to the states through the Fourteenth Amendment. Sofie v. Fibreboard Corp., 112

Wn.2d 636, 644, 771 P.2d 711 (1989); Minneapolis & St. Louis R.R. Co. v. Bombolis,

241 U.S. 211, 36 S. Ct. 595, 60 L. Ed. 961 (1916). Instead, in Washington, the right to a

jury trial in civil matters is protected solely by the Washington Constitution. Sofie, 112

Wn.2d at 644.

Washington courts “have long interpreted article I, section 21 as guaranteeing

those rights to trial by jury that existed at the time of the constitution’s adoption in 1889.”

Bird v. Best Plumbing Grp., LLC, 175 Wn.2d 756, 768, 287 P.3d 551 (2012) . To

determine whether the historical right existed, “ʻthe court examines (1) whether the cause

of action is one to which the right to a jury trial applied in 1889, and (2) the scope of the

right to a jury trial.’” Id. at 768 (quoting Nielson v. Spanaway Gen. Med. Clinic, Inc.,

135 Wn.2d 255, 266, 956 P.2d 312 (1998)). Additionally, “[i]t is well established that

the right to a jury trial exists where a case is purely legal in nature but does not exist

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where a case is purely equitable.” Id. at 769. Further, no right to a jury trial attaches to

“ʻstatutorily created actions without common law analogues.’” Bird, 175 Wn.2d at 769

(quoting State v. State Credit Ass’n, 33 Wn. App. 617, 621, 657 P.2d 327 (1983). Even

where the right to a jury trial has historically existed, in some instances, the legislature

has the authority to modify or abolish causes of action and replace them with alternative

remedies that may not include a jury trial. See Afoa v. Dep’t of Lab. & Indust., 3 Wn.

App. 2d 794, 808-10, 418 P.3d 190 (2018).

Of Penhall’s 106-page brief, it dedicates roughly three pages to its constitutional

argument of first impression. L&I’s response to this constitutional argument garners less

than a page of its 70-page brief. Additionally, Penhall’s argument is conclusory and fails

to provide analysis using the proscribed framework under Jarksey or article I, section 21.

While the Jarksey case is similar to the present case insofar as both concern

administrative agencies which sought civil penalties punitive in nature without a jury, the

similarities end there, and citation to Jarksey alone cannot carry the day for Penhall here.

Ultimately the parties’ briefing amounts to “passing treatment” of what would

otherwise be a monumental change in the law, and their briefing is not sufficient for this

court to consider the substance of this issue. See Glacier, 32 Wn. App. 2d at 209

(“Glacier’s vagueness, due process, and equal protection claims, all condensed into a

mere five pages, were conclusory or did not follow the prescribed analytic framework

and provide argument as to how the controlling law applied to the facts in this case.”).

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6. ATTORNEY FEES

Both parties request attorney fees on appeal.

RCW 39.12.065(1) provides in pertinent part “[a] judicial appeal from the

director’s determination may be taken in accordance with chapter 34.05 RCW, with the

prevailing party entitled to recover reasonable costs and attorneys’ fees.” “While the

PWA does not define ‘prevailing party,’ courts have interpreted the phrase to mean the

party ‘that receives judgment in its favor.’” Id. at 212 (quoting Harmony at Madrona

Park Owners Ass’n v. Madison Harmony Dev., Inc., 160 Wn. App. 728, 740, 253 P.3d

101 (2011)). In applying attorney fees under other statutory provisions, our courts have

ordinarily held where “neither party wholly prevails then the party who substantially

prevails is the prevailing party, a determination that turns on the extent of the relief

afforded the parties.” See Marassi v. Lau, 71 Wn. App. 912, 916, 859 P.2d 605 (1993),

abrogated on other grounds by Wachovia SBA Lending, Inc. v. Kraft, 165 Wn.2d 481,

200 P.3d 683 (2009) (applying the attorney fee provision in RCW 4.84.330).

Although Penhall prevails on the issue concerning the strike imposed against it,

L&I prevails on all remaining issues. We therefore find L&I is the substantially

prevailing party and award attorney fees in an amount to be determined by a

commissioner of this court upon compliance with RAP 18.1.

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We conclude that the director erred when he imposed a strike against Penhall and

we remand with instructions for the director to strike this penalty. Otherwise, we affirm

the director’s order and award L&I its reasonable attorney fees.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

_________________________________

Staab, C.J.

WE CONCUR:

_________________________________

Murphy, J.

_________________________________

Cooney, J.

55