Opinion No.

Mr. Howard Williams, Administrator Contractors Licensing Board 621 East Capitol Avenue Little Rock, Arkansas 72202

Dear Mr. Williams:

This is in response to your request for an opinion regarding the scope of the licensing law and its relation to running tracks at schools and universities. You have asked the following specific question in this regard:

Would, in fact, the establishment of a running track at a college or university, high school or any other institution of similar nature, which is composed of based of grading, a form of curb and gutter if requested, asphalt overlay with or without rubber finish be covered under the scope of the contractors licensing law?

Ark. Stat. Ann. 71-701 (Supp. 1985) defines a "contractor" as follows:

For the purposes of this Act [71-701 — 71-720], a "contractor" is defined to be any person, firm, partnership, co-partnership, association, corporation or other organization, or any combination thereof, who for a fixed price, commission, fee or wage attempts to or submits a bid to construct, or contracts or undertakes to construct, or assumes charge, in a supervisory capacity or otherwise, or to manage the construction, erection, alteration, or repair, or has or have constructed, erected, altered or repaired, under his, their or its direction, any building, highway, sewer, grading or any other improvement or structure. . . ." (Emphasis added.)

The first rule in construing the meaning of a statute is to construe it just as it reads, giving words their ordinary and usually accepted meaning in common usage. Bolden v. Watt,290 Ark. 343, 719 S.W.2d 428 (1986). The word "grading" as it appears in 71-701 is not defined in the Act. The Attorney General, as a member of the executive division of government, cannot provide a controlling definition of a term where the legislature has elected not to provide one. However, since it will be presumed that the legislature employed words in their usual and common meaning, we may defer to that meaning in this instance.

"Grading," in its commonly accepted meaning, is a physical change of the earth's structure by scraping and filling in the surface to reduce it to a common level. See 38 C.J.S. Grade 1. It includes reducing the surface of the earth to a given line fixed as the grade, involving excavating or filling or both. Id.

While there appear to be no judicial decisions addressing this question, the foregoing definition indicates that the term "grading," in its usual and common meaning, may reasonably be construed to include the construction of a running track. This conclusion is based upon the assumption that such construction involves excavating or filling in the surface of land to reduce it to a common level.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.