concurring in part; dissenting in part.
I agree that J & J Excavating’s challenge to the constitutionality of Arkansas Code Annotated section 17-25-103(d) is not preserved for appellate review, so I concur with that portion of the majority opinion. I, however, cannot agree that the majority has correctly interpreted that statute.
It is settled law that code provisions imposing penalties for noncompliance with licensing requirements must be strictly construed. Wilcox v. Safley, 298 Ark. 159, 766 S.W.2d 12 (1989). If the language of such provisions is not clear and positive, or if it is reasonably open \ ¿to different interpretations, every doubt as to construction must be resolved in favor of the one against whom the enactment is sought to be applied. Id. In my view that standard was not applied.
The definition of a contractor is set out in Arkansas Code Annotated section 17-25 — 101(a)(1):
(a)(1) As used in this chapter, “contractor” means any person, firm, partnership, copartnership, association, corporation, or other organization, or any combination thereof, that, for a fixed price, commission, fee, or wage, attempts to or submits a bid to construct or demolish, or contracts or undertakes to construct or demolish, or assumes charge, in a supervisory capacity or otherwise, or manages the construction, erection, alteration, demolition, or repair, or has or have constructed, erected, altered, demolished, or repaired, under his or her, their, or its direction, any building, apartment, condominium, highway, sewer, utility, grading, or any other improvement or structure on public or private property for lease, rent, resale, public access, or similar purpose, except single-family residences, when the cost of the work to be done, or done, in the State of Arkansas by the contractor, including, but not limited to, labor and materials, is twenty thousand dollars ($20,000) or more.
Clearly J & J was not constructing or demolishing any improvement. It was, at best, doing dirt work under direct supervision of a general contractor in preparation for an improvement. That is not enough.
In Wilcox v. Safley, supra, a case clearly analogous to the case at bar, the supreme court held that a man who was doing restorative sodding to complete a sewer project was not a contractor under the statute and therefore could maintain an action to collect money owed to him from the general contractor. The Wilcox court held that sodding and sprigging was not “construction, erection, alteration, or repair.” The dissent in Wilcox asserted that what Wilcox was doing was a “repair” or “grading.” That activity was insufficient to qualify |3Wilcox as a contractor because he did not assume “charge, in a supervisory capacity or otherwise, or manage” or direct the activity.
The holding in Wilcox requires us to reverse and remand this case. Like the appellant in Wilcox, J & J had only a small piece of the projects for which Doyne was the general contractor. The fact that J & J was doing preparatory site work instead of the finish work at issue in Wilcox is a distinction without a difference. Dirt work is not construction or demolition of an “improvement”; it is merely a step in a process that was managed by a general contractor. Accordingly, agreeing in a writing to perform “site demolition” did not make J & J a contractor. Obviously, the “site” was not an improvement; it was only the location of an improvement that was yet to be constructed.
Further, for an entity to be considered a contractor with regard to the more extensive list of actions in the statute, i.e., “erection, alteration, demolition, or repair,” section 17-25-101(a) requires that the entity “assumes charge, in a supervisory capacity or otherwise, or manages” the project. I cannot ignore that Doyne Construction conceded at oral argument that J & J had no supervisory responsibility m the projects whatsoever.
Finally, it is worth noting that the majority, like the trial court and the dissent in Wilcox, made the same mistake in construing the statute. “Grading” is not the activity that is contemplated by the statute; rather it is the type of “improvement” that the activity in question must be directed toward. “Grading” under the statute is a gerund, not a verb. The grading, as in creating a road has to be the “improvement.” It is error hold that the mere act|inof pushing dirt around makes J & J a contractor under the statute. Id.; see Meadow Lake Farms, Inc. v. Cooper, 360 Ark. 164, 200 S.W.3d 399 (2004).
Finally, because J & J’s participation in the projects could be reasonably characterized in different ways, Wilcox requires that the courts resolve the ambiguity in favor of the party against whom the punitive sanctions of section 17 — 25—103(d) are sought to be applied. It is not defendable to do otherwise.