author: Justice COOPER. Justice KELLER.

text:
    Donna HARGIS, Individually; Donna Hargis, as Administratrix of the Estate of Darrell Ruben Hargis, Deceased; Zachary Hargis, A Minor, Through Donna Hargis as Next Friend; and Christian Hargis, A Minor, Through Donna Hargis as Next Friend Appellants, v. Allen R. BAIZE, D/B/A Greenville Log and Lumber; and Baize Forest Products, Inc. Appellees
    No. 2002-SC-0969-DG.
    Supreme Court of Kentucky.
    May 19, 2005.

      Jonathan S. King, Paxton & King, PLC, Central City, Counsel for Appellants.
    Alice Barns Herrington, Elizabeth U. Mendel, Woodward, Hobson & Fulton, LLP, Louisville, Counsel for Appellees.
   Opinion of the Court by

Justice COOPER.

Appellee, Allen R. Baize, owned a lumber yard and sawmill in Muhlenberg County, Kentucky, a sole proprietorship known as Greenville Log and Lumber Co. (“Greenville”). Baize hired Darrell Ruben Hargis on an independent contractor basis to haul logs to and from Greenville and various other locations for which services Baize paid Hargis by the board-feet hauled. Hargis owned his own tractor (track) but hauled the logs on a semitrailer owned by Baize. Baize claims he rented the trailer to Hargis and deducted the rentals from Hargis’s weekly paycheck but produced no records to prove that assertion. Hargis worked exclusively for Baize during the last six months of his life.

On November 24,1998, Baize dispatched Hargis to Campbellsville, Kentucky, to pick up a load of logs that Baize had purchased from Whitney & Whitney Lumber Co. Presumably, Whitney’s employees loaded the logs. Upon returning to Green-ville, Hargis began releasing the binders on the logs in preparation for unloading by one of Baize’s forklift drivers. Baize required all truck drivers, even his own employees, to release the binders on their loads, and then to move to a position at least two track lengths in front of the track so as to be in full view of the forklift operator while the logs were being unloaded. Baize owned eight forklifts, and three or four of them were in the vicinity of the unloading area when Hargis parked his truck. Steven Staples, a Baize employee, was standing by in his forklift waiting for Hargis to release the binders so that he could unload the logs. Unfortunately, when Hargis released the binders, a large log rolled off the trailer and struck and killed him.

Hargis’s widow, individually, as adminis-tratrix of his estate, and as next friend of their two minor children, brought this action against Baize in the Muhlenberg Circuit Court alleging that the fatal accident was caused by Baize’s failure to comply with Kentucky Administrative Regulation 803 KAR 2:317 § 2 (now § 3), promulgated pursuant to the Kentucky Occupational Safety and Health Act (KOSHA), which incorporates by reference 29 CFR § 1910.265(d)(l)(i)(b) and (c), promulgated pursuant to the federal Occupational Safety and Health Act (OSHA). Those regulations provide:

(d) Log handling, sorting, and storage—
(1) Log unloading methods, equipment, and facilities—
(i) Unloading methods.
(b) Binders on logs shall not be released prior to securing with unloading lines or other unloading device.
(c) Binders shall be released only from the side on which the unloader operates, except when released by remote control devices or except when person making release is protected by racks or stanchions or other equivalent means.

In the context of our facts, “securing” the logs with an unloading device meant using the forks of the forklift to stabilize the logs to keep them from rolling off the truck when the binders were released. Baize admits that it was not his company’s policy to comply with this regulation. Baize’s former safety officer, Randahl Matheny, testified in a discovery deposition that an insurance representative visited the site two weeks before Hargis was killed and recommended implementation of the securing procedures required by the KOSHA regulations. According to Mathe-ny, Delbert Knight, Baize’s son-in-law and operations manager, rejected the recommendation even though Knight, himself, had been recently injured in a similar accident. A state investigative report prepared after Hargis’s death also recommended implementation of the securing procedure required by KOSHA. When confronted with this recommendation, the only response of Robbie Baize, Baize’s son and sales manager, was: “Not implemented.”

Following completion of discovery, Appellants moved for partial summary judgment on the issue of Baize’s negligence, claiming that the violation of the KOSHA regulations was negligence per se and created a private cause of action for wrongful death; thus, the jury should be instructed only on Hargis’s contributory fault, if any, KRS 411.182, and damages. Baize also moved for summary judgment, claiming that the violation of the regulations did not create a private cause of action in favor of Appellants, and that his only duty to an independent contractor such as Hargis was to warn him of any hidden dangers on the premises. Ralston Purina Co. v. Farley, 759 S.W.2d 588, 589 (Ky.1988). The trial court agreed with Baize and also construed a “Release” signed by Hargis on April 10, 1998, to be a valid contract exculpating Baize from any liability for damages to Hargis caused by Baize’s negligence. Accordingly, the trial court overruled Appellants’ motion for partial summary judgment and entered a summary judgment in favor of Baize. The Court of Appeals affirmed. We granted discretionary review and now reverse the Court of Appeals and remand this case to the trial court with directions to vacate the summary judgment granted to Baize, grant a partial summary judgment to Appellants on the issue of Baize’s liability, and conduct further proceedings as necessary.

I. VIOLATION OF KOSHA REGULATION.

KRS 446.070 provides:
A person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation, although a penalty or forfeiture is imposed for such violation.

(Emphasis added.) The statute creates a private right of action in a person damaged by another person’s violation of any statute that is penal in nature and provides no civil remedy, if the person damaged is within the class of persons the statute intended to be protected. State Farm Mut. Auto. Ins. Co. v. Reeder, 763 S.W.2d 116, 118 (Ky.1988); Grzyb v. Evans, 700 S.W.2d 399, 401 (Ky.1985); Hackney v. Fordson Coal Co., 230 Ky. 862, 19 S.W.2d 989, 990 (1929).

A. Violation of administrative regulation.

In Rietze v. Williams, 458 S.W.2d 613 (Ky.1970), our predecessor court held that because KRS 13.081 provided that all administrative regulations “have the force and effect of law,” they had the same effect as statutes or ordinances enacted directly by the General Assembly; thus, the violation of an administrative regulation is the equivalent of a violation of a statute, and a person injured by a violation may recover from the violator such damages as he or she sustained by reason of the violation. Id. at 617. However, KRS 13.081, the foundation for that holding, was subsequently repealed, 1974 Ky. Acts, ch. 73, § 7, and has not been reenacted or replaced by a general statute of similar import. In Centre College v. Trzop, 127 S.W.3d 562 (Ky.2003), we overruled Rietze to the extent that it relied on KRS 13.081 “for the proposition that KRS 446.070 allows recovery for violation of an administrative regulation.” Id. at 566.

In Lomayestewa v. Our Lady of Mercy Hospital, 589 S.W.2d 885 (Ky.1979), the Court equated the violation of an administrative regulation with the violation of a statute.

[I]t is crystal clear there was a violation of the regulation and, of course, no inspector had any authority to relieve the hospital of compliance with the statutory standard.
Having determined there was a violation of the statutory standard, we have no trouble in determining that Jessica was one of the class of persons intended to be protected by the regulation, and her jump from the window was an event that the regulation was designed to prevent.

Id. at 887. It is unclear whether the violation in Lomayestewa occurred prior to the repeal of KRS 13.081.

In Britton v. Wooten, 817 S.W.2d 443 (Ky.1991), the violation clearly occurred after the repeal of KRS 13.081; nevertheless, the Court reiterated that “violations of administrative regulations, like statutory violations, constitute negligence, per se, and the basis for liability if found to be a substantial factor in causing the result.” Id. at 447 (citing only Rietze and Higgins Inv., Inc. v. Sturgill, 509 S.W.2d 266 (Ky.1974), another case in which the violation occurred prior to the repeal of KRS 13.081). Because KRS 446.070 was not mentioned in any of the Rietze line of cases, it is unclear whether the decisions were premised upon that statute, as this Court has previously stated. Centre College, 127 S.W.3d at 567 (concluding that KRS 446.070 allows for a private right of action only for the violation of regulations that are consistent with their enabling legislation). Another possibility is that the Lomayestewa and Britton Courts were recognizing a common law cause of action based on the violation of an administrative regulation, assuming that such a common law cause of action exists. Cf. Phoenix Amusement Co. v. White, 306 Ky. 361, 208 S.W.2d 64, 67 (1948) (suggesting but not deciding that the violation of an administrative regulation would give rise to a common law right of action if the injury was of a type that the regulation was designed to prevent).

We need not decide here whether such a common law cause of action exists; for KRS 338.031(l)(b), the statute under which the KOSHA regulations were promulgated, specifically provides that “[e]ach employer ... [sjhall comply with occupational safety and health standards promulgated under this chapter.” Since those standards are promulgated in the regulations adopted by the Kentucky Occupational Safety and Health Standards Board, KRS 388.051(3); KRS 338.061(1), the violation of a KOSHA regulation would constitute a violation of KRS 338.031(l)(b), thus triggering the right of action created by KRS 446.070.

B. Incorporation of OSHA standards by reference.

As previously noted, the regulation at issue in this case, 803 KAR 2:317 § 2 (now § 3), incorporates by reference the standards set forth in 29 CFR § 1910.265(d)(l)(i)(b) and (e). KRS 13A.2267(l)(a) prohibits the incorporation by reference into a Kentucky administrative regulation of a federal regulation that imposes specific procedures, standards, conditions, or restrictions on regulated entities. On the other hand, KRS 338.061(2) specifically permits incorporation by reference of established federal standards into KOSHA regulations. Since KRS 13A.2267(l)(a) deals with incorporation by reference in a general way and KRS 338.061(2) in a specific way, the latter controls. Travelers Indem. Co. v. Reker, 100 S.W.3d 756, 763 (Ky.2003); Commonwealth v. Phon, 17 S.W.3d 106, 107-08 (Ky.2000); DeStock # 14, Inc. v. Logsdon, 993 S.W.2d 952, 959 (Ky.1999).

C. Carman v. Dunaway distinguished.

Baize’s reliance on Carman v. Dunaway Timber Co., Inc., 949 S.W.2d 569 (Ky.1997), is misplaced. While the accident in Carman occurred under facts almost identical to those in this case, the plaintiff in Carman was not within the class of persons that KOSHA intended to be protected. Carman was a private businessman, an independent logger, who was on Duna-way’s premises for the purpose of selling his own logs to Dunaway. In declining to apply Teal v. E.I. DuPont de Nemours & Co., 728 F.2d 799 (6th Cir.1984), which extended OSHA’s coverage to employees of independent contractors who work at another employer’s workplace, we noted that Carman was “neither an independent contractor nor an employee thereof.” Car-man, 949 S.W.2d at 571. Contrary to Appellant’s assertion, we did not thereby adopt Teal; there was no need to do so because the holding in Teal did not apply to the facts in Carman. The holding in Teal, however, does apply to the facts of this case.

D.Teal adopted.

If this were a workers’ compensation claim, it would be a close question whether Hargis was an employee or an independent contractor under the test reiterated most recently in Uninsured Employers’ Fund v. Garland, 805 S.W.2d 116 (Ky.1991):

The proper legal analysis consists of several tests from Ratliff [v. Redmon, 396 S.W.2d 320 (Ky.1965) ] and requires consideration of at least four predominant factors: (1) the nature of the work as related to the business generally carried on by the alleged employer; (2) the extent of control exercised by the alleged employer; (3) the professional skill of the alleged employee; and (4) the true intent of the parties.

Id. at 118-19. In addition to the facts that Baize dispatched Hargis to pick up Baize’s logs and transport them to Baize’s place of business on a semi-trailer owned by Baize, are the facts that Hargis had worked exclusively for Baize for six months immediately preceding the accident and, though paid by the board-feet hauled, was paid on a weekly basis, not at the conclusion of each individual trip. Nevertheless, the parties agree that Hargis was an independent contractor (for otherwise, Appellant’s complaint would have been summarily dismissed as barred by KRS 342.690(1), the “exclusive remedy” provision of the Workers’ Compensation Act).

Thus, we now reach the issue that we did not reach in Carman, ie., whether KOSHA’s protections extend to workers on the job site other than direct employees of the owner or other person in control of the job site. We conclude, as did the Sixth Circuit in Teal, that KOSHA’s protections extend to any employee, including an employee of an independent contractor, who is performing work at another employer’s workplace. We adopt Teal’s analysis of the relevant OSHA provisions as our construction of the same provisions replicated in KOSHA, viz:

Under the Act, an employer’s duty is two-fold:

Each employer—
(1) Shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
(2) Shall comply with Occupational Safety and Health standards promulgated under this chapter.
29 U.S.C. Sec. 654(a) [KRS 338.031(1) ]. The first duty is a “general duty” imposed on an employer to protect its employees from hazards that are likely to cause death or serious bodily injury. The second duty is a “specific duty” imposed on employers to comply with the OSHA regulations....
... The general duty clause was intended by Congress [the General Assembly] to cover unanticipated hazards; Congress [the General Assembly] recognized that it could not anticipate all of the potential hazards that might affect adversely the safety of workers. Accordingly, it enacted the general duty clause to cover serious hazards that were not otherwise covered by specific regulations. Pursuant to Sec. 654(a)(1) [KRS 338.031(l)(a) ], every employer owes a duty of reasonable care to protect his employees from recognized hazards that are likely to cause death or serious bodily injury. The protection from exposure to serious hazards is the primary purpose of the general duty clause, and every employer owes this duty regardless of whether it controls the workplace, whether it is responsible for the hazard, or whether it has the best opportunity to abate the hazard.
In contrast, Sec. 654(a)(2) [KRS 338.031(l)(b) ] is the specific duty provision. The class of employers who owe a duty to comply with the OSHA regulations is defined with reference to control of the workplace and opportunity to comply with the OSHA regulations. Accordingly, an employers’ [sic] responsibilities under the Act depend upon which duty provision the employer is accused of breaching. Similarly, the class of persons for whom each of these duty provisions was enacted must be determined with reference to the particular duty in dispute.
In this case, Dupont [Baize] is accused of breaching the specific duty imposed on employers by Sec. 654(a)(2)[KRS 338.031(l)(b) ]. Accordingly, ... reliance on the plain language of the general duty clause is misplaced. The very narrow question on appeal does not concern the scope of an employer’s general duty to protect employees from exposure to recognized hazards, but rather, the scope of an employer’s duty to comply with the specific OSHA regulations. If the special duty provision is logically construed as imposing an obligation on the part of employers to protect all of the employees who work at a particular job site, then the employees of an independent contractor who work on the premises of another employer must be considered members of the class that Sec. 654(a)(2) [KRS 838.031(l)(b) ] was intended to protect. In other words, one cannot define the scope of an employer’s obligation under Sec. 654(a)(2) [KRS 338.031(l)(b) ] as including the protection of another’s employees and, at the same time, claim that these “other” employees are unintended beneficiaries.
We believe that Congress [the General Assembly] enacted Sec. 654(a)(2) [KRS 338.031(l)(b) ] for the special benefit of all employees, including the employees of an independent contractor, who perform work at another employer’s workplace. The specific duty clause represents the primary means for furthering Congress’ purpose of assuring “so far as possible every working man and woman in the Nation safe and healthful working conditions.” 29 U.S.C. Sec. 651(b). (Emphasis added). The broad remedial nature of the Occupational Health and Safety Act of 1970 is the Act’s primary characteristic. Consistent with the broad remedial nature of the Act, we interpret the scope of intended beneficiaries of the special duty provision in a broad fashion. In our view, once an employer is deemed responsible for complying with OSHA regulations, it is obligated to protect every employee who works at its workplace.

Teal, 728 F.2d at 803-05 (internal footnotes and citations omitted). Cf. Brennan v. Occupational Safety and Health Review Comm’n, 513 F.2d 1032, 1038 (2d Cir.1975) (“In a situation where, as here, an employer is in control of an area, and responsible for its maintenance, we hold that to prove a violation of OSHA the Secretary of Labor need only show that a hazard has been committed [sic] and that the area of the hazard was accessible to the employees of the cited employer or those of other employers engaged in a common undertaking.” (Emphasis added.)).

Similar to the “purpose” provision in 29 U.S.C. § 651(b), KRS 338.011 provides:

[I]t is the purpose and policy of the Commonwealth of Kentucky to promote the safety, health and general welfare of its people by preventing any detriment to the safety and health of all employees, both public and private, covered by this chapter, arising out of exposure to harmful conditions and practices at places of work ....

Baize asserts that even if Teal would apply to Hargis if he were an employee of an independent contractor, it does not apply to him because Hargis was, in fact, the independent contractor. As illustrated by the analysis in Teal, to draw such a distinction would be ludicrous. Except for providing his own truck, Hargis was performing the same work duties and was exposed to the same work hazards as Baize’s own truck-driver employees. As noted by Appellants, if Hargis had incorporated himself and paid himself a salary, as do many independent truckers, he would have been an “employee of an independent contractor.” He is no less entitled to KOSHA’s protections because, technically, he was self-employed. See Angel v. United States, 775 F.2d 132, 133, 135, 144 (6th Cir.1985) (treating a self-employed independent subcontractor as both an employer and an employee under Teal); Arrington v. Arrington Bros. Const., Inc., 116 Idaho 887, 781 P.2d 224, 228 (1989) (adopting Teal ⅛ reasoning verbatim and holding general contractor liable for independent electrical subcontractor’s injuries caused by general contractor’s violation of OSHA regulation where subcontractor testified he was the “primary employee” of his unincorporated electrical business).

Baize asserts that the Sixth Circuit subsequently departed from Teal in Ellis v. Chase Communications, Inc., 63 F.3d 473 (6th Cir.1995). We disagree. In Ellis, an employee of an independent painting contractor fell to his death from a communications tower owned by Chase Communications after he unbuckled his safety harness in order to change positions. The Court explained that “Teal ... merely extends to employees of an independent contractor the same duty owed to one’s own employees.” Ellis, 63 F.3d at 477-78. The premise for Teal was that the responsible employer had control of the workplace and, therefore, an opportunity to assure compliance with OSHA regulations. Teal, 728 F.2d at 804. In Ellis, however, the tower was not “a regular job site on which Chase had a duty to protect its own employees.” Ellis, 63 F.3d at 478.

E. KRS 838.021(2).

Finally, Baize asserts that KRS 338.021(2) precludes a cause of action premised upon a violation of KOSHA. KRS 338.021(2) provides:

Nothing in this chapter shall be construed to supersede or in any manner affect any workers’ compensation law or to enlarge or dimmish or affect in any manner the common law or statutory rights, duties, or liabilities of employers or employees, under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of employment.

(Emphasis added.) The Court of Appeals has interpreted the statute to preclude an action by an employee against an employer premised upon a violation of KOSHA. Stinnett v. Buchele, 598 S.W.2d 469, 471 (Ky.App.1980); Childers v. Int’l Harvester Co., 569 S.W.2d 675, 677 (Ky.App.1977). We agree that a violation of KOSHA does not affect the exclusive remedy provision of the Workers’ Compensation Act. KRS 342.690(1). We also agree that KOSHA, itself, does not create a private right of action for a violation of one of its provisions. However, a violation of KOSHA is actionable by a person for whose benefit it was enacted if the right of action arises from a source created separately from and independently of KOSHA. Ellis, 63 F.3d at 478 (construing 29 U.S.C. § 653(b)(4), which is replicated by KRS 338.021(2)). Because a violation of KOSHA also constitutes a violation of KRS 338.031(l)(b), KRS 446.070, which was enacted eighty years prior to KOSHA, 1892 Ky. Acts, ch. 107, p. 372, § 21, is a separate and independent source creating a right of action in favor of a person damaged by a violation of KOSHA if that person is within the class intended to be protected by KOSHA. It is not KOSHA, but KRS 446.070, that authorizes Appellants to bring this private civil action for damages. Cf. Reker, 100 S.W.3d at 762 (“[I]t is not KRS 304.12-230, but KRS 446.070, that authorizes a private civil action for damages caused by a violation of the UCSPA.”). KRS 446.070 converts the standard of care required by the violated statute into a statutory standard of care for the negligence claim, the violation of which is negligence per se. Real Estate Marketing, Inc. v. Franz, 885 S.W.2d 921, 926-27 (Ky.1994); Grayson Fraternal Order of Eagles, Aerie No. 3738, Inc. v. Claywell, 736 S.W.2d 328, 333 (Ky.1987); Stivers v. Ellington, 140 S.W.3d 599, 601 (Ky.App.2004).

KRS 342.690(1) precludes application of KRS 446.070 to conduct within the purview of the Workers’ Compensation Act. Reker, 100 S.W.3d at 763; Simmons v. Clark Constr. Co., 426 S.W.2d 930, 932-33 (Ky.1968). Thus, if Hargis had been a direct employee of Baize, this action would be precluded; however, Appellants would have been entitled to death benefits under KRS 342.730(3) without regard to any contributory fault on Hargis’s part. Since Hargis was an independent contractor, though self-employed on premises controlled by Baize, his death was not within the purview of the Workers’ Compensation Act. Fields v. Twin City Drive-In, 534 S.W.2d 457, 459 (Ky.1976). Thus, this civil action is not precluded; but Hargis’s alleged contributory fault, if any, will be a factor for the jury to consider in determining causation and whether any damages should be reduced on the basis of comparative fault. KRS 411.182; cf. Durham v. Maratta, 302 Ky. 633, 195 S.W.2d 277, 279 (1946) (holding, in a case where defendant’s negligence was premised upon the violation of an ordinance, that plaintiffs contributory negligence was an issue for the jury to decide).

II. ONLY SUBSTANTIAL FACTOR.

The violation of a statute does not necessarily create liability. The statute must have been specifically intended to prevent the type of occurrence that took place, and the violation must have been a substantial factor in causing the result. Isaacs v. Smith, 5 S.W.3d 500, 502 (Ky.1999). Baize claims the accident occurred because of Hargis’s own negligence in permitting his truck to be overloaded so as to increase the amount of board-feet hauled and, thus, his remuneration for the trip; and that such was the only substantial factor in causing his injuries. But even if Hargis’s truck were overloaded, a jury could conclude that Baize’s compliance with the applicable KOSHA regulations would have prevented Hargis’s death and, conversely, that his failure, nay refusal, to comply with those regulations was a substantial factor in causing that death. “[I]n many negligence per se cases, the statute or ordinance violated was intended to protect individuals from their own carelessness in certain dangerous situations.” William S. Cooper, Comment, Negligence Per Se as Proximate Cause of Injury in Fall-Down Cases, 57 Ky. L.J. 277, 280 (1968-69). The issue of comparative fault in this case is one to be decided by a properly instructed jury.

III. EXCULPATORY AGREEMENT.

On April 10, 1998, Hargis signed the following document prepared by Baize:

RELEASE
It is hereby agreed and acknowledged that I am a self-employed independent contractor. Therefore, I am not required to carry Worker’s compensation according to Kentucky Law. I accept responsibility for my own property and person and release ALLEN BAIZE, d/b/a GREENVILLE LOG & LUMBER CO., BAIZE FOREST PRODUCTS, INC., GRAPEVINE LUMBER CO., A R LUMBER CO., AND JORDAN LOGGING, INC., and forever hold him harmless for any property damage/bodily injury sustained by me or any other person I authorize to be on the working premises while performing services for said contractor. I agree that my relationship with him will be strictly as a subcontractor and not an employee, which makes me ineligible for any employee benefits under said contractor’s insurance programs or state requirements.
ACKNOWLEDGED RECEIVING A COPY OF THIS RELEASE ON 4/10/98 AND AM IN FULL AGREEMENT WITH ITS CONDITIONS.
Is/ Darrell Hargis

(Emphasis added.)

This document does not exculpate Baize from liability for Hargis’s death because (1) the “Release” does not explicitly purport to release Baize from liability for his own negligence and does not identify the type of injury or damage for which liability is being released; and (2) as applied to the facts of this case, the “Release” purports to transfer to Hargis duties that were assigned to Baize by a safety statute.

An exculpatory contract for exemption from future liability for negligence, whether ordinary or gross, is not invalid per se. Cobb v. Gulf Refining Co., 284 Ky. 523, 145 S.W.2d 96, 99 (1940); Greenwich Ins. Co. v. Louisville & N.R. Co., 112 Ky. 598, 66 S.W. 411, 413 (1902); Jones v. Hanna, 814 S.W.2d 287, 289 (Ky.App.1991); Louisville Bear Safety Serv., Inc. v. S. Cent. Bell Tel. Co., 571 S.W.2d 438, 440 (Ky.App.1978); Restatement (Second) of Contracts § 195(2) cmt a (1981); Restatement (Second) of Torts § 496B cmt a (1965). However, such contracts are dis favored and are strictly construed against the parties relying upon them. City of Hazard Mun. Hous. Comm’n v. Hinch, 411 S.W.2d 686, 689 (Ky.1967); Cobb, 145 S.W.2d at 99. The wording of the release must be “so clear and understandable that an ordinarily prudent and knowledgeable party to it will know what he or she is contracting away; it must be unmistakable.” 57A Am.Jur.2d, Negligence § 52 (2004) (citations omitted). Specifically, a preinjury release will be upheld only if (1) it explicitly expresses an intention to exonerate by using the word “negligence;” or (2) it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party’s own conduct; or (3) protection against negligence is the only reasonable construction of the contract language; or (4) the hazard experienced was clearly within the contemplation of the provision. Id. at § 53 (citations omitted). “Thus, an exculpatory clause must clearly set out the negligence for which liability is to be avoided.” Id. (citations omitted).

The “Release” signed by Hargis satisfies none of these alternatives. It does not mention the word “negligence” and does not explicitly release Baize from liability for personal injury caused by his own conduct. Nor is protection of Baize against his own acts of negligence the only reasonable construction of the contract language. The language could reasonably be construed to release Baize only from workers’ compensation liability to Hargis and any of his employees or subcontractors for injuries caused by their own negligence, and vicarious liability for damages caused by Hargis to one of his subcontractors. Finally, there is no reason to believe that injury or death resulting from a failure to secure a load of logs before the binders were released was specifically within the contemplation of the provision.

A party cannot contract away liability for damages caused by that party’s failure to comply with a duty imposed by a safety statute. Boyer v. Atchison, T. & S.F. Ry. Co., 34 Ill.App.2d 330, 181 N.E.2d 372, 375 (1962) (exculpatory provision in free pass to use railroad did not relieve railroad of liability for injury caused by its violation of Safety Appliance Act); D.H. Davis Coal Co. v. Polland, 158 Ind. 607, 62 N.E. 492, 495-96 (1902) (provision in contract of employment by which employee relieved employer of duty to provide safeguards required by statute held unenforceable); Warren City Lines, Inc. v. United Refining Co., 220 Pa.Super. 308, 287 A.2d 149, 151 (1971) (exculpatory clause in contract for lease of gasoline pump did not relieve lessor of liability for explosion caused by lessor’s violation of safety regulation: “Any attempt by a negligent party to exculpate himself for a violation of a statute intended for the protection of human life is invalid.”); Metz v. Medford Fur Foods, Inc., 4 Wis.2d 96, 90 N.W.2d 106, 108 (1958) (hold-harmless agreement in contract of sale was unenforceable where damages were caused by seller’s violation of statute prohibiting sale of adulterated foods).

Accordingly, we reverse the Court of Appeals and remand this case to the Muh-lenberg Circuit Court with directions to vacate the summary judgment granted to Baize, to grant Appellants a partial summary judgment on the issue of Baize’s liability, and to conduct further proceedings consistent with this opinion.

LAMBERT, C.J.; GRAVES, SCOTT, and WINTERSHEIMER, JJ„ concur.

KELLER, J., dissents by separate opinion, with JOHNSTONE, J., joining that dissenting opinion.

Dissenting Opinion by

Justice KELLER.

Because this is a civil action by an employee against an employer and is based on a violation of the Kentucky Occupational Safety and Health Act (KOSHA), it is precluded by KRS 838.021(2), and therefore, I respectfully dissent.

A violation of KOSHA may not be the basis of a civil action by an employee against his or her employer. The Legislature could not have stated it any clearer when it authorized in KRS Chapter 338 the promulgation and adoption of the KO-SHA regulations:

Nothing in this [CJhapter [3S8] shall be construed to supersede or in any manner affect any workers’ compensation law or to enlarge or diminish or affect in any manner the common law or statutory rights, duties, or liabilities of employers or employees, under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of employment.

This exclusion is even repeated almost verbatim in KOSHA itself. In other words, if a civil action for an employee’s injury or death did not exist before the adoption of KOSHA, then KOSHA could not be the basis thereafter for such an action. But the majority opinion has ignored this clear mandate of the Legislature, and a civil action based on a KOSHA violation is exactly what the majority has sanctioned with today’s opinion.

To avoid the prohibition of the statute and to reach its desired result, the majority opinion employs the circular reasoning that although the KOSHA provisions themselves do not create a private right of action, violation of those provisions constitutes a violation of KRS 338.031(l)(b), which in turn invokes KRS 446.070, which provides that a “person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation.” The majority opinion claims that this “creat[es] a right of action in favor of a person damaged by a violation of KOSHA.” The first four words of KRS 338.021(2) — “Nothing in this chapter” — are rendered totally meaningless by this reasoning. Those words, of course, are referring to KRS Chapter 338 and therefore include KRS 338.031(l)(b) and KRS 338.051(3), which specifically authorized the Kentucky Occupational Safety and Health Standards Board to promulgate and adopt the KOSHA regulation that was violated and is the basis for Appellants’ civil suit against Appellee, Allen Baize, Darrell Hargis’s employer for the purpose of KOSHA.

As the majority opinion correctly points out, KRS 446.070 was enacted eighty years prior to the adoption of KOSHA. So what happened between KRS 446.070’s enactment in 1892 and now, more than one hundred years later, that gave Appellants a statutory cause of action against Baize? The answer is simple — KOSHA was enacted — and but for the enactment of KOSHA, there would be no alleged civil remedy stemming from KRS 446.070. The majority opinion attempts to sidestep this issue by claiming that KRS 446.070 is the source of the right of action and by noting that it is not part of KRS Chapter 338. But this fails to recognize that KRS 446.070 does not allow a cause of action to bootstrap itself into existence. Rather KRS 446.070 only creates causes of action by acting as a channel for the action of other statutes. As such, KRS 446.070 is merely a codification of the common law. The only way then for a cause of action in this case to exist is that it results indirectly from the existence of KRS 338.031(l)(b), which was enacted long after KRS 446.070. But if the majority opinion is correct, then this means that KOSHA’s enactment served to expand a statutory right, specifically the right granted under KRS 446.070, or to expand a right granted under the common law. Yet this is exactly why the cause of action in this case is precluded by KRS 338.021(2), which states clearly and unambiguously that KOSHA is not to be construed “to enlarge or diminish or affect in any manner the common law or statutory rights, duties, or liabilities of employers or employees.” This language is clear, the enactment of KRS Chapter 338 did not, directly or indirectly, bring into existence a new cause of action. If the cause of action did not exist before KRS Chapter 338’s enactment (the cause of action claimed in this case did not), then it does not come into existence because of the enactment of KRS Chapter 338. The majority opinion construes KOSHA otherwise.

The majority opinion relies on Travelers Indemnity Co. v. Reker for the proposition that “[i]t is not KOSHA, but KRS 446.070, that authorizes Appellants to bring this private civil action for damages.” But as we noted in that case, when “two statutes are irreconcilable, the later enactment prevails” and “when two statutes are in conflict, one of which deals with the subject matter in a general way and the other in a specific way, the more specific provision prevails.” This is why we read the Workers’ Compensation statute in that case as not giving rise to a cause of action through KRS 446.070. Similarly, in this case, KRS Chapter 338 was enacted long after KRS 446.070 and addresses specifically occupational safety issues. Moreover, unlike the statutory schemes in Reker and the cases cited therein, KRS Chapter 338 contains an express provision that bars the creation of a new cause of action.

Rather than determining if KRS 446.070 has an effect given the limitations it contains, as we did in Reker, the task here is determining whether KRS 338.021(2) contains an outright bar on a new cause of action. Given the clarity of the language in that statute, denying Appellants’ cause of action here should be a simple matter. Unfortunately, the majority opinion has engaged in a rather gymnastic chain of reasoning to find the existence of a cause of action, in contradiction of the clear language KRS 338.021(2).

The majority opinion’s reliance on Ellis v. Chase Communications, Inc. is also misplaced. Ellis specifically held that an employer “must owe a duty to an employee under a theory of liability independent of OSHA, as OSHA [itself] does not create a private right of action.” As further noted by the Ellis Court, “[t]he Act itself explicitly states that it is not intended to affect the civil standard of liability.” Like in Ellis, Baize owed no duty independent duty to Hargis. And KRS 446.070 does not create an independent duty; it merely provides for enforcement of a breach of an existing statutory duty other than one contained in KOSHA. Yet under the majority’s interpretation, KRS 338.031(1)(b) provides the duty that KRS 446.070 allegedly gives effect to. Lest the majority forgets, KRS 338.031(l)(b) is a part of KOSHA; any duty it supposedly creates is not independent of KOSHA. But even if the holding of Ellis could be perverted to support the majority opinion, the federal court’s interpretation of OSHA is not binding on this Court in our construction of KOSHA, and a reading of the exclusion clearly shows an intention by the Legislature to preclude this type of action.

For the above reasons, I dissent and would affirm the Court of Appeals.

JOHNSTONE, J., joins this dissenting opinion.

      . References to acts or omissions by Baize include those of his management or supervisory employees.

      . Baize does not claim that Hargis was also negligent per se in releasing the binders on his load of logs while they were unsecured. KRS 338.031(2) ("Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this chapter which are applicable to his own actions and conduct.” (Emphasis added.)); Angel, 775 F.2d at 144. Hargis, however, had no control over Baize's forklift drivers who, pursuant to Baize's operating procedures, were not allowed to secure his load while the binders were being released. Thus, he was faced with the Hobson’s choice of either releasing the binders or leaving the load on the trailer.

      ."An act relating to the safety and health of workers employed within the Commonwealth of Kentucky” was enacted in 1972. 1972 Ky. Acts ch. 251. This Act is commonly known as the Occupational Safety and Health Act of 1972. The Act created the Kentucky Occupational Safety and Health Standards Board, Id. § 6, and authorized it to promulgate and adopt "occupational safety and health rules, regulations, [and] standards.” Id. § 6(c). The promulgated rules, regulations, and standards are found at 803 KAR 2:010-:600 and are commonly referred to as the Kentucky Occupational Safety and Health Standards Act or by its acronym "KOSHA.” KOSHA was patterned after its federal counterpart, the Federal Occupational Safety and Health Act (OSHA).

      . KRS 338.021(2) (emphasis added).

      . 803 KAR 2:050 § 1(3) ("Nothing in these administrative regulations shall be construed to supersede or in any manner affect any workmen’s compensation law or to enlarge or diminish or affect in any manner the common law or statutory rights, duties, or liabilities of employees, under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of employment.”).

      . KRS 338.03l(l)(b)("(l) Each employer:... (b) Shall comply with occupational safety and health standards promulgated under this chapter.”).

      . KRS 446.070 ("A person injured by the violation of any statute may recover from the Offender such damages as he sustained by reason of the violation, although a penalty or forfeiture is imposed for such violation.”).

      . KRS 13A.120(l)(a) ("An administrative body may promulgate administrative regulations to implement a statute only when the act of the General Assembly creating or amending the statute specifically authorizes the promulgation of administrative regulations or administrative regulations are required by federal law, in which case administrative regulations shall be no more stringent than the federal law or regulations.”).

      . City of Henderson v. Clayton, 57 S.W. 1, 2 (Ky.1900) ("From time immemorial, where a statutory duty for the protection of individuals had been violated, an action at common law might be maintained. The common-law rule referred to is thus stated in Com. Dig. tit. ‘Action upon Statutes': ‘In every case where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law.’ Another common-law authority thus states the rule: ‘Whenever an act of parliament doth prohibit anything, the party grieved shall have an action, and the offender shall be punished at the king’s suit. It is written in the horn-book of the law that the public and a party particularly aggrieved may each have a distinct but concurrent remedy for an act which happens to be both a public and a private wrong.’ End. Interp. St. § 463. The same common-law rule is laid down in Bish. Non-cont. Law, § 133, and in Cooley, Torts, p. 658. It is also recognized in section 466, Ky. St.: 'A person injured by the violation of any statute may recover from the offender such damage as he may sustain by reason of the violation, although a penalty or forfeiture for such violation be thereby imposed.” ')•

      . 100 S.W.3d 756, 762 (Ky.2003).

      . Id. at 763 (citing Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398, 400 (1949)).

      . Id.

      . See Grzyb v. Evans, 700 S.W.2d 399, 401 (Ky.1985) ("Under KRS 446.070, a person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation. But this is limited to where the statute is penal in nature, or where by its terms the statute does not prescribe the remedy for its violation. Hackney v. Fordson Coal Co., 230 Ky. 362, 19 S.W.2d 989 (1929). Where the statute both declares the unlawful act and specifies the civil remedy available to the aggrieved party, the aggrieved party is limited to the remedy provided by the statute.” (emphasis added)).

      .63 F.3d 473 (6th Cir.1995).

      . Id. at 478.

      . Id.


source: Caselaw Access Project

author: BARBER, Judge.

license: Public Domain

text:
    Cheryl GOMEZ; Catesby Woodford, Individually; Miller, Griffin & Marks, PSC, Appellants, v. Eduardo Roman GOMEZ, Appellee.
    No. 2004-CA-000432-MR.
    Court of Appeals of Kentucky.
    July 8, 2005.

      Thomas W. Miller, Catesby Woodford, Susan Y.W. Chun, Lexington, KY, for Appellant, Cheryl Gomez.
    Melinda Gillum Dalton, Somerset, KY, for Appellee.
    Before BARBER and JOHNSON, Judges; HUDDLESTON, Senior Judge.

      . Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

BARBER, Judge.

This appeal calls into question the Pulaski Circuit Court, Family Court Division’s valuation of Eduardo Roman Gomez’s (Eduardo) radiology practice, the amount of maintenance awarded to Cheryl Gomez (Cheryl), the allocation of a marital debt to Cheryl, and the amount of Cheryl’s attorney’s fees for which Eduardo should bear responsibility. We reluctantly affirm the court’s ruling as to the valuation of Eduardo’s medical practice and vacate and remand with respect to all other issues.

Cheryl and Eduardo were married June 2, 1985, but lived together for two years prior to that time. They separated in July 2000 and the court entered a decree of dissolution of the marriage on May 21, 2003 reserving all other issues. Prior to the marriage Cheryl had worked as a registered nurse, but after the birth of their daughter in 1988 and their relocation to Somerset, Kentucky from Miami, Florida Cheryl has not been employed. Instead she has chosen, presumably with the blessing of Eduardo, to raise their daughter, be a homemaker, and participate in various charitable activities — some no doubt designed to further her husband’s career.

When the Gomez’s relocated to Kentucky Eduardo became employed by an entity now known as Bluegrass Radiology Associates, Inc. (Bluegrass Radiology). In 1995 Eduardo became a partner in Bluegrass Radiology and in the three years preceding the divorce he grossed between $600,000.00 to $800,000.00 per year. At the time of the dissolution of the parties’ marriage Eduardo remained a shareholder in Bluegrass Radiology and owned a 1/3 interest.

Eduardo’s level of income allowed the Gomez’s to live an extremely comfortable lifestyle. The testimony and other papers filed in the case show that the parties owned two Mercedes, a Toyota Landcruiser, and a Porsche. Cheryl testified that vacations were frequent and during the marriage the family traveled extensively. The Gomez’s owned a nice home and employed individuals to perform cooking, housework, grounds keeping, pool cleaning, and mowing. Cheryl regularly received massages. The parties ordered organic food and meat from specialty sources. Their daughter had a nanny. They owned a condominium in Florida and were members of the local country club.

It is undisputed that Cheryl had control of paying the parties’ bills. It is also undisputed that Cheryl discussed financial matters with Eduardo and he did not question her decisions.

Despite Eduardo’s considerable income, the Gomez’s assets were rather heavily encumbered. Cheryl touched on this fact in her deposition testimony stating that some of their financial situation had been planned (such as the two mortgages on their home in Somerset, one with a balloon payment) to receive a low interest rate along with tax advantages. The plan was to pay these obligations off within a specific, relatively short, time period.

Prior to trial the parties participated in mediation. As a result of mediation the parties agreed to share joint custody of their daughter, for Eduardo to pay $3,000.00 per month in child support and for Eduardo to retain their daughter on his health insurance. The trial court subsequently ordered child support to continue until age 18, or, if the child was still in high school at that age until the age of 19, and for Eduardo to provide the child’s health insurance until the child’s majority not to exceed age 25. Extraordinary medical expenses were to be shared.

The parties also agreed to divide certain items of their marital estate as follows: Each agreed to keep the furnishings currently in their possession. The Linwood Drive home was to go to Cheryl. Its value was set at $200,000.00 with a net equity of $28,437.00. The Glendale home went to Eduardo with a value of $150,000.00 and net equity of $19,000.00. The Florida condominium was retained by Cheryl with net equity of $4,580.00. A 1997 Mercedes and a Porsche were to be sold with the proceeds divided equally. Cheryl kept a 1999 Landcruiser while Eduardo kept a 2001 Mercedes, each to hold the other harmless on the outstanding debt.

Cheryl and Eduardo kept the checking accounts in their own name and agreed to equally divide an account with Edward Jones with a value of $17,442.00. Finally, Cheryl and Eduardo agreed to equally divide their retirement accounts, Eduardo’s having a value of $503,824.32 and Cheryl’s a value of $61,211.00.

Eduardo also agreed to continue to pay the first and second mortgage on the Linwood home, the amounts to be considered maintenance. Payment of the first and second mortgage by Eduardo terminate when his maintenance obligation terminates. Cheryl agreed to pay the indebtedness on the Florida condominium and not claim that amount as a factor in her request for maintenance.

This review of the evidence shows that Cheryl and Eduardo agreed to a roughly equal division of property.

What Cheryl and Eduardo could not agree to was the value to be attributed to Eduardo’s practice, the amount and duration of maintenance, the allocation of a $52,000.00 credit card debt, and whether Eduardo should be responsible for Cheryl’s attorney’s fees and expert witness fees. These matters were referred to the court for decision.

In its amended decree of dissolution the court found that Eduardo’s share of Bluegrass Radiology was worth $106,284.00 and directed him to pay Cheryl half that amount in increments of $1,500.00 until paid in full. This value was based on the expert witnesses of Eduardo who attributed no goodwill value to the practice and calculated his share of the practice based solely on book value.

As to maintenance the court ordered Eduardo to pay $5,000.00 per month for 3 years. It noted that this was in addition to the amounts payable for the first and second mortgage on the Linwood home (approximately $2,424.00 per month) and that Cheryl had been receiving temporary maintenance since May 2001 of $4,150.00 per month.

The court found insufficient credible evidence introduced to support Cheryl’s claim that a $52,000.00 credit card debt was a joint obligation. Instead, it ordered Cheryl to be responsible for the full amount.

The court ordered Eduardo to pay $12,000.00 of Cheryl’s attorney fees and $1,000.00 of her expert witness fees. Cheryl represents this amount to be 22% of the total fees owing by her and Eduardo does not dispute that calculation.

The first question for our consideration is the appropriate standard of review. Cheryl argues because the case was decided under CR 43.04(1) which allows trials by deposition, this Court is in just as good a position to judge the credibility of the witnesses and weight of evidence as the trial court. Therefore, she argues we should not give the trial court’s ruling any deference but, instead, conduct a de novo review. Eduardo maintains the appropriate standard for review is under CR 52.01, the clearly erroneous standard.

We will allow that there is some ambiguity in this area of the law. Largent v. Largent, 643 S.W.2d 261, 263 (Ky.1982) holds that the clearly erroneous standard of CR 52.01 applies to cases tried solely by deposition. See also Vanover-May v. Marsh, 793 S.W.2d 852, 854 (Ky.App.1990). However, in Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky.1986), the Supreme Court stated:

CR 43.04 provides that certain types of cases may be tried by deposition. Obviously, under such circumstances the trial judge does not have an opportunity to judge the credibility of the witnesses on the basis of physical appearance in court. The “clearly erroneous” standard is sufficiently broad to permit the reviewing court to adopt a method of review which best fits the questions involved and the particular facts in a specific case. The appellate court should review each case according to what is most appropriate under the specific circumstances. The fact that part of the proceedings before the trial court are taken by means of deposition does not permit the reviewing court to conduct a de novo consideration of the facts and it does not allow the reviewing court to substitute its judgment for that of the original finder of fact.

The above-quoted language and sentiment from Reichle is repeated in Commonwealth v. Harrelson, 14 S.W.3d 541, 548 (Ky.2000). Even though this language may suggest that an appellate court can fashion a method of review fitting to the situation, it is clear from other language in the case that the standard does not allow for a de novo review nor for this Court to substitute its judgment for that of the trial court. Reichle, supra 719 S.W.2d at 444 & 445.

A major point of contention between the parties is the value of Eduardo’s radiology practice. Eduardo’s experts valued his interest in Bluegrass Radiology at just over $100,000.00. Their calculation did not include an amount for goodwill. Cheryl’s expert, on the other hand, put the value of Eduardo’s interest at $932,880.00. This included a calculation for goodwill based on the capitalization of excess earnings approach. On appeal Cheryl argues it was reversible error for the court to attribute no goodwill value to Eduardo’s interest.

In Heller v. Heller, 672 S.W.2d 945, 947 (Ky.App.1984), it was held the goodwill contained in a business should be considered when arriving at the value of a practice. In Heller the business was an accounting practice. The Court did not rule that all businesses have goodwill. The evidence in that case established the accountant had purchased an accounting practice from the estate of a former accountant and had paid in that price a component of goodwill. Id. at 947-948. Therefore, the only question presented by the case was whether the trial court had erred by refusing to consider the accounting practice and its goodwill as marital property. This Court held it to be error. Id. at 947.

The seminal case in Kentucky on valuing a professional practice is Clark v. Clark, 782 S.W.2d 56 (Ky.App.1990). That case discussed at length the task of properly valuing a professional practice for dissolution purposes and concluded the use of the capitalization of excess earnings method to value the husband’s medical practice was an acceptable approach. Id. at 60.

Cheryl contends the trial court erred by not following this method, the one adopted by her expert, to value Eduardo’s interest in Bluegrass Radiology. But, Clark does not require a trial court to use the capitalization of excess earnings method. It was noted in Clark that a trial court’s ruling as to valuations in a dissolution action will not be disturbed on appeal unless clearly contrary to the evidence submitted. Id. at 58-59. It set the task of the appellate court to determine whether the trial court’s approach fairly estimated the value of the business and the individual’s interest. Id. at 59.

After determining the trial court appropriately used the capitalization of excess earnings approach in the case the Court stated:

There is no definitive rule or best method for valuing goodwill. (Citations omitted.) The determination of goodwill is a question of fact rather than law, and each case must be determined on its own facts and circumstances.

Id. at 60.

The position of the Clark court is in the majority of those who have considered the question of valuing goodwill in a professional practice. However, we believe it is also fair to say that courts across the country have struggled with the issue and many different formulations for trying to reach a fair and equitable disposition of the marital estate have been upheld. See e.g. Martin J. McMahon, Annotation, 78 A.L.R.4th 853 Valuation of Goodwill in Medical or Dental Practice for Purposes of Divorce Court’s Property Distribution (1990); Martin J. McMahon, Annotation, 76 A.L.R.4th 1025 Divorce and Separation: Goodwill in Medical or Dental Practice as Property Subject to Distribution on Dissolution of Marriage (1989). Clark itself recognizes this by requiring the trial court’s judgment of a business’ value reflect reality, but not requiring a particular methodology to reach that conclusion. Clark, supra 782 S.W.2d at 60.

In this case the trial court found the practice of Bluegrass Radiology with respect to those physicians entering or exiting the practice to be significant. Eduardo testified and submitted affidavits from other physicians who had left the practice that when a physician joined or left the group an evaluation of the current accounts receivable was done. Based on that value a physician entering or leaving the practice had to pay or was paid a percentage of the accounts receivable value. No calculation for goodwill was included. The trial court found this evidence to be persuasive along with evidence that when the group had discontinued its practice at another hospital it did not receive any payment for goodwill.

The description of how the practice had historically valued itself is, in essence, a buy-sell agreement. And while buy-sell agreements or corporate by-laws have been rejected as the basis for valuing a professional practice where this would not accurately reflect the value of the business, Clark, supra 782 S.W.2d at 60, they may be used as a factor in reaching a determination regarding the value of a professional business. Drake v. Drake, 809 S.W.2d 710, 713 (Ky.App.1991).

We disagree with the trial court’s conclusion that the type of practice engaged in by Bluegrass Radiology, which is a hospital based practice with no patient list or patient contact, is so dissimilar from the practice considered in Clark as to justify attributing no goodwill to Bluegrass Radiology. Other courts giving their attention to practices with such characteristics have found goodwill measurable. See e.g. Nehorayoff v. Nehorayoff, 108 Misc.2d 311, 320-321, 437 N.Y.S.2d 584 (1981)(abortion clinic has goodwill); Geesbreght v. Geesbreght, 570 S.W.2d 427, 434 (Ct. of Civ. App. Tex.1978)(emergency room practice has goodwill value). See also, Clark, supra 782 S.W.2d at 60 (“The difficulty of valuing goodwill is not sufficient reason to ignore its existence”).

And while we would have reached a different conclusion on the evidence presented in this case, the trial court’s determination that no goodwill existed because of the historical way in which the practice valued itself is supported by substantial evidence. Further, a review of the expert testimony in this case reveals that Cheryl’s expert’s valuation suffered from some problems according to Eduardo’s experts. Our task is to determine whether the trial court’s finding of fact as to valuation of the business is clearly erroneous. If substantial evidence exists to support the decision, then we are bound to affirm and we do so here.

Cheryl next complains the court’s award of maintenance was in error. The court, as stated above, awarded Cheryl $5,000.00 per month for three years. It also ordered Eduardo to pay the first and second mortgages on the Linwood home for the same time frame, as per his mediation agreement, bringing Cheryl’s award to $7,424.00 per month for three years.

KRS 403.200, in this case, allows the court to order maintenance if it finds that the dependent spouse lacks sufficient property to provide for her reasonable needs and is unable to support herself through appropriate employment. KRS 403.200(l)(a) & (b). The court found this to be true in Cheryl’s ease. Once that determination is made various factors are to be considered by the court in setting the amount and duration of maintenance. These include the financial resources of the party, the time necessary to become sufficiently educated or trained to find appropriate employment, the standard of living established during the marriage, the duration of the marriage, the age, physical and emotional condition of the party seeking maintenance, and the ability of the spouse from whom maintenance is sought to meet his reasonable needs. KRS 403.200(2)(a)-(f). A trial court’s decision regarding maintenance will not be reversed absent an abuse of discretion. Powell v. Powell, 107 S.W.3d 222, 224 (Ky. 2003).

The trial court did not make specific findings as to each of these factors in its decree and amended decree. Instead, it focused on what it perceived as Cheryl’s delay in seeking retraining to enter the job force even though she had been receiving temporary maintenance for approximately 8 months.

The court is required to consider the factors listed in KRS 403.200(2)(a)-(f) before ordering the amount and duration of maintenance. Gentry v. Gentry, 798 S.W.2d 928, 937 (Ky.1990). From the court’s order in this case it appears that none of those factors were taken into consideration. This is clearly error.

Further, the recent case of Powell, supra, a case very similar factually to the one considered here, would suggest that the amount and duration of maintenance awarded to Cheryl is unjust and an abuse of discretion. The parties in Powell had been married 18 years. Cheryl and Eduardo were married for 18 years. Mrs. Powell had been an R.N. but let her license lapse and devoted her time to raising their child. Cheryl is similarly situated.

Dr. Powell grossed close to $600,000.00 just prior to the parties’ divorce. Eduardo, the evidence shows, grossed more than Dr. Powell. Although Cheryl could return to work as an R.N. upon reinstatement of her license and earn approximately $40,000.00 a year, there is likely to be limited job opportunities for a 45-50 year-old R.N. who has not practiced the trade in a significant number of years. As the Supreme Court noted in Powell, the amount of money that could be earned by Mrs. Powell in one year was about what Dr. Powell would earn in one month. Powell, supra 107 S.W.3d at 225. The evidence in this case shows much the same.

The award of maintenance to Cheryl did not consider the standard of living to which the parties were accustomed. It is also clear Eduardo had more than sufficient resources from which to meet his needs and pay an appropriate level of maintenance. Powell, supra 107 S.W.3d at 224.

Cheryl next complains of the allocation of a $52,000.00 credit card debt as her sole responsibility. The trial court found insufficient evidence to believe that this was a marital debt. The evidence on this issue consisted of Cheryl and Eduardo’s testimony. Cheryl testified as to part of the source for the total charges. She stated that at least $18,000.00 of the debt was for two rugs of which Eduardo received one. Both cost the same amount. Eduardo did not deny this and also admitted that there was at least one credit card and the debt was marital. The problem really comes in the fact that Cheryl presented no documentation of the debt. Cheryl claims that bills were equally available to Eduardo since the card was in his name.

The evidence seems sufficient to support a finding that the debt was marital in nature. However, its allocation should be reconsidered once an appropriate level of maintenance is awarded. It could be that the court could still fairly award the responsibility of paying this debt to Cheryl.

Finally, Cheryl argues the court should have awarded more of her attorney’s and expert witness fees. KRS 403.220 allows the court to award a reasonable amount of the requesting party’s attorney’s fee after considering the financial resources of the parties. The Supreme Court has held that a number of factors go into determining whether and how much of an attorney’s fee should be awarded. Sexton v. Sexton, 125 S.W.3d 258, 272-273 (Ky.2004). As in Sexton we do not know if the court considered any of these factors. Id. at 273. Considering the great disparity in income between Cheryl and Eduardo, it would appear appropriate for attorney’s fees to be awarded after consideration of the factors explained in Sexton.

The judgment of the circuit court is affirmed on the issue of the valuation of Eduardo’s share of Bluegrass Radiology. The judgment of the circuit court with regard to maintenance, allocation of marital debt, and attorney’s fees is vacated and the case remanded for proceedings consistent with this opinion.

JOHNSON, JUDGE, CONCURS.

HUDDLESTON, SENIOR JUDGE, CONCURS IN RESULT.

      . After the marriage was dissolved another radiologist joined the practice as a shareholder, thus, Eduardo's interest then became ⅛.


author: VANMETER, Judge.

text:
    Gerald WILCHER, Appellant, v. INTERNATIONAL ENVIRONMENTAL TECHNOLOGIES, INC.; and International Water Technology, Inc., Appellees.
    No. 2004-CA-000828-MR.
    Court of Appeals of Kentucky.
    July 8, 2005.

      Richard Clay, Danville, KY, for appellant.
    William L. Stevens, Danville, KY, for appellees.
    Before TACKETT and VANMETER, Judges; MILLER, Senior Judge.

      . Senior Judge John D. Miller sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

VANMETER, Judge.

Under KRS 271B.16-010, et seq., a corporate shareholder has the right to inspect certain corporate records, and if a corporation refuses to permit inspection, the circuit court may summarily order inspection and award costs and reasonable attorney fees. The issue we must resolve is whether the filing of an action for inspection, resulting in the issuance of order of inspection, mandates the award of attorney fees under KRS 271B.16-040(3). As we hold that it does not, we affirm the order of the Boyle Circuit Court.

Gerald Wilcher was a shareholder in two corporations, International Environmental Technologies, Inc. and International Water Technology, Inc. On May 23, 2002, Wil-cher made a request to examine certain corporate records. Wilcher and the corporations agreed on a production date of May 28, 2002 for a portion of the records, and an additional date was set for approximately a week later. However, apparently unsatisfied with the progress of the production, on June 6 Wilcher filed an action pursuant to KRS 271B.16-040(2) requesting the Boyle Circuit Court to order an inspection.

On July 12, 2002, the trial court conducted a hearing at which it attempted to ascertain which records had or had not been produced. The parties, through their respective counsel, agreed that certain records had been produced, that the financial records of the corporations had been delivered on a compact disc, and that the only issue remaining to be resolved by the court was whether the tax form K-l’s for all the shareholders, as well as the stock subscriptions executed by shareholders other than Wilcher, were to be produced. The corporations’ concern in producing these documents pertained to the privacy interests of the other shareholders. The trial court ultimately ordered that these documents should be made available to Wilcher.

A written order memorializing this hearing was not entered until August 14, following an August 8 hearing necessitated both by Wilcher’s motion for a more definite statement concerning a counterclaim filed by the corporations, and by the corporations’ motion for a protective order concerning duplicative production of documents. The August 14 order provided in part that “defendants agreed to produce all remaining items not previously furnished plaintiff, except shareholder subscriptions. Following argument the court ordered defendants to furnish the complete records requested by plaintiff, which order is now eommemorated[.]” A receipt in the record indicates that K-l’s, stock ledger books, a compact disc showing accounting transactions, and shareholder subscription agreements for both corporations were delivered to Wilcher’s counsel on August 9, 2002.

No further proceedings were held until the trial court filed a housekeeping show cause notice for possible dismissal for lack of prosecution. Following the entry of that notice, Wilcher filed a motion for attorney fees. After conducting a hearing on Wilcher’s motion on March 15, 2004, the trial court entered an order denying the motion. Wilcher filed this appeal.

KRS 271B.16-040, pursuant to which Wilcher filed his complaint, provides in pertinent part:

(2) If a corporation does not within a reasonable time allow a shareholder to inspect and copy any other record, the shareholder who complies with subsections (2) and (3) of KRS 271B.16-020 may apply to the Circuit Court of the county where the corporation’s principal office (or, if none in this state, its registered office) is located for an order to permit inspection and copying of the records demanded. The court shall dispose of an application under this subsection on an expedited basis.
(3) If the court orders inspection and copying of the records demanded, it shall also order the corporation to pay the shareholder’s costs (including reasonable counsel fees) incurred to obtain the order unless the corporation proves that it refused inspection in good faith because it had a reasonable basis for doubt about the right of the shareholder to inspect the records demanded.

Following the hearing to determine Wil-cher’s entitlement to attorney fees, the trial court made a finding that the corporations were making

a good faith effort to allow reasonable inspection of records within the time requested. There is no proof of an ongoing or continued attempt by the defendant not to disclose or allow the plaintiff to copy or inspect the records. Previous orders of this court do not trigger the requirement that attorney fees be paid in the instant ease. The lawsuit was prematurely filed. The defendant made a good faith effort in a reasonable time to produce the records requested by the plaintiff.

Initially, we note that KRS 271B.16-020 creates two rights of inspection. The first, under KRS 271B.16-020(1), pertains to documents which a corporation is required to have available at its principal office: articles of incorporation, bylaws, resolutions regarding classes of shares, minutes or records of shareholders actions, communications to shareholders including three years’ financial statements, names and addresses of current directors and officers, and the most recent annual verification report. The subsection grants a shareholder the right to inspect on five days’ notice. An action to compel production of these records is authorized by KRS 271B.16-040(1).

A separate right of inspection for other documents is provided under KRS 271B.16-020(2), the subsection which was the basis of Wilcher’s complaint. The records subject to inspection under this subsection are minutes of board of directors’ meetings, records of any action of any committee of the board of directors, minutes or actions of shareholders or directors taken without a meeting, accounting records of the corporation, and the record of shareholders. The action to compel inspection of these records is set forth in KRS 271B.16-040(2). While a shareholder has a right to give five days’ notice of the date on which he wishes to inspect these records, the corporation is given a “reasonable time” within which to allow the shareholder to inspect and copy such records. Presumably the distinction between the time periods of production exists because the records under KRS 271B-16.010(5) are required to be kept at the corporation’s principal office and therefore should be readily accessible, whereas the records under KRS 271B.16-020(2) are not required to be kept in any one particular location and therefore, especially if accounting records, may require more time to assemble.

In the instant case, Wilcher argues that only through his filing of this action and the resultant court orders did he obtain the corporate records sought. The trial court record, however, reveals that Wilcher filed the action only nine days after the corporations produced some of the requested documents, and while they were in the process of producing others. In addition, during the initial hearing on July 12, 2002, the parties were fairly well in agreement that the majority of the corporations’ records had been produced, with the only disagreements being as to whether the corporations should produce shareholder K-l’s and subscription agreements, and as to the quality of the compact disc upon which the corporations had disclosed their accounting records. The August 14, 2002 order memorializing this hearing reflects the corporations’ agreement to produce records, and orders the corporations to furnish shareholder subscriptions.

As found by the trial court, the corporations never refused Wilcher’s right to inspect and copy records but instead acted in good faith to produce the records in a reasonable time, with the result that Wil-cher prematurely filed his action. Under similar circumstances, the North Carolina Court of Appeals, interpreting the identical provisions of North Carolina’s business corporation statute, held that a consent order by which the parties agreed to an ongoing access to corporate records did not operate to trigger entitlement to attorney fees.

Clearly, as recognized by the trial court, the provisions of subsection (3) of KRS 271B.16-040, giving rise to the right to attorney fees, must be read in conjunction with subsections (1) and (2). In other words, in order for a shareholder to be entitled to attorney fees, the corporation must have effectively denied a shareholder’s right to inspect and copy records, either by outright refusal or by failure to act within a reasonable time. To permit otherwise would create an inequitable situation in which a corporation, although complying with the statutorily-mandated disclosure requirements in good faith and in a timely manner, could be forced not only to defend precipitately filed lawsuits, but also to pay the shareholder’s attorney fees.

The order of the Boyle Circuit Court is affirmed.

ALL CONCUR.

      . The record does not disclose the relationship between the two corporations, but the on-line records of the Kentucky Secretary of State reveal that the two corporations share the same principal office and have common management.

      . CR 77.02(2).

      . See KRS 271B.16-010(5).

      . KRS 271B.16-200. The financial statements required by this section are those "showing in reasonable detail [the corporation’s] assets and liabilities and the results of its operations.”

      .KRS 271B.16-220.

      . KRS 271B. 16-040(2).

      . The only documents which were actually ordered to be produced were the shareholder subscription agreements.

      . N.C. Gen.Stat. § 55-16-04.

      . Carswell v. Hendersonville Country Club, Inc., 609 S.E.2d 460, 462 (N.C.App.2005).

      . See Baker v. White, 251 Ky. 691, 694, 65 S.W.2d 1022, 1024 (1933) (in order to determine legislative will and meaning, courts may consider not only a particular section but also the act as a whole).


text:
    Eric C. DETERS; Jerry Zimmerer; Rhonda McCafferty; May Lou Kaub; Erica Deters; Charlie Ann Deters; and Parker Deters, Appellants, v. KENTON COUNTY PUBLIC LIBRARY; Milton Maines; John Toelke; Allen Thomas, Jr., Anthony Durso; and Louis Schultz, Appellees.
    No. 2004-CA-001562-MR.
    Court of Appeals of Kentucky.
    July 8, 2005.

      Eric C. Deters, Independence, KY, for appellants.
    Gerald F. Dusing, Mary Ann Stewart, Jennifer L. Langen, Covington, KY, for appellees.
    Before KNOPF, TAYLOR, and VANMETER, Judges.
   OPINION

VANMETER, Judge.

This is an appeal from an order entered by the Kenton Circuit Court dismissing appellants’ claim, as citizen taxpayers, seeking equitable and injunctive relief relating to the purchase of real estate by the Kenton County Public Library Board. As we agree with the court’s determination that appellants lack standing, we affirm.

After considering various possible locations, in 2004 the Board selected a site for the construction of a new library in Independence, Kentucky. Evidently the family of appellant Eric Deters owned one of the other sites which was considered but ultimately rejected by the Board. On April 21, 2004, Deters filed a complaint and motion against the Board and its individual members, challenging the Board’s selection of a site, and seeking “injunctive and equitable relief prohibiting the closing of the contract” for the site’s purchase. His various claims included assertions that the Board failed to act in the best interest of taxpayers, and that the Board signed a contract to purchase the real estate “without proper authority, without holding a public hearing for receiving public comment and in violation of statutory provisions relative to meetings of public authorities and for making such a purchase.”

Although the parties refer to an amended complaint and a second amended complaint which Deters apparently filed or tendered to the court, the record available to us on appeal contains neither document. In any event, appellees filed a motion seeking dismissal of the claim, asserting that Deters and any other appellants lacked standing to bring the action as they “have alleged no special or peculiar injury which would entitle them to challenge” the Board’s action. The court dismissed the action for lack of standing, and this appeal followed.

As stated in Fish v. Elliott, there must be “an allegation and proof that the plaintiff would suffer some injury distinct from that of the general public before he could have standing to enjoin an official act.” Moreover, a party’s interest in the lawsuit’s subject matter must be “judicially recognizable,” as well as “a present or substantial interest as distinguished from a mere expectancy.”

Here, although appellants evidently alleged in the amended pleadings that the new library site is not readily accessible “to the majority of taxpayers,” such allegation was insufficient to demonstrate that appellants have standing based on “some injury distinct from that of the general public.” Moreover, standing was not created by any interest which the Deters family may have had in providing an alternate site for the library, as any such interest constituted nothing more than a mere expectancy rather than a “present or substantial interest.” Further, as noted by the trial court, the Board was not statutorily required to conduct a public hearing before entering into a contract for the purchase of real estate, and there is no statutory procedure which vested appellants with the authority to challenge the Board’s action. Finally, the circumstances of the fraud allegations were not stated with sufficient specificity to avoid dismissal.

The court’s judgment is affirmed.

ALL CONCUR.

      . 554 S.W.2d 94, 96 (Ky.App.1977), citing York v. Chesapeake & Ohio Railroad Company, 240 Ky. 114, 41 S.W.2d 668 (1931). See also Carrico v. City of Owensboro, 511 S.W.2d 677, 679 (Ky.1974).

      . City of Ashland v. Ashland F.O.P. #3, Inc., 888 S.W.2d 667, 668 (Ky.1994), citing Healthamerica Corp. v. Humana Health Plan, 697 S.W.2d 946 (Ky.1985).

        .City of Ashland, 888 S.W.2d at 668, citing Winn v. First Bank of Irvington, 581 S.W.2d 21 (Ky.App.1979).

      . Fish, 554 S.W.2d at 96.

      . City of Ashland, 888 S.W.2d at 668, citing Winn v. First Bank of Irvington, 581 S.W.2d 21 (Ky.App.1979).

      . See KRS 173.520; KRS 61.810(1)(b).

      . CR 9.02. See Heltsley v. District No. 23, UMW, 477 S.W.2d 134 (Ky.1971); Scott v. Farmers State Bank, 410 S.W.2d 717 (Ky.1966); Handy v. Warren County Fiscal Court, 570 S.W.2d 663 (Ky.App.1978).


author: RICHARD B. TEITELMAN, Judge.

text:
    In re: R.W., Appellant, v. Michael SANDERS, et al., Respondents.
    No. SC 85652.
    Supreme Court of Missouri, En Banc.
    Jan. 11, 2005.

      John R. Cullom, Kansas City, MO, for Appellant.
    Lisa Noel Gentleman, Kansas City, MO, for Respondents.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Michael Pritchett, Asst. Atty. Gen., Jefferson City, MO, Amicus Curiae.
   RICHARD B. TEITELMAN, Judge.

R.W. filed a petition for declaratory judgment and injunctive relief to prevent enforcement of Missouri’s sex offender registration statutes, section 589.400, et seq. The circuit court denied relief. In this appeal, R.W. argues that the registration statute does not apply to offenders who receive a suspended imposition of sentence, conflicts with the section 610.105 requirement that records pertaining to a suspended imposition of sentence case shall be closed, and constitutes an invalid ex post facto law. The judgment is affirmed.

BACKGROUND

All fifty states, the District of Columbia, and the federal government have adopted some form of sex offender registration and community notification statutes premised upon what is commonly referred to as “Megan’s Law.” See, Wayne A. Logan, Liberty Interests in the Preventive State: Procedural Due Process and Sex Offender Community Notification Laws, 89 J. Crim L. & Criminology 1167, 1171 (1999). Missouri codified its version of Megan’s Law in sections 589.400 to 589.425. The statutes became effective on January 1, 1995, and require “[a]ny person who, since July 1, 1979, has been or is hereafter convicted of, been found guilty of, or pled guilty to committing, or attempting to commit, an offense of chapter 566” to register with the chief law enforcement officer of the county of the offender’s residence. Section 589.400. Registrants are required to provide information to authorities, including their name, address, social security number, telephone number, place of employment, enrollment with any institution of higher learning, the date and place of conviction or plea, the age and gender of the victim at the time of the offense, fingerprints and a photograph. Section 589.407. The public may request from the county’s chief law enforcement official the names, addresses and crimes for which offenders are registered. Section 589.417. If the victim was under 18 years of age, the offender must report in person to the county law enforcement agency every 90 days in order to verify the information provided. Section 589.414.4.

Registration is a lifetime requirement unless all offenses requiring registration are reversed, vacated, set aside or the offender is pardoned. Section 589.400.3. Failure to register is a class A misdemean- or, and any subsequent failure to register is a class D felony. Section 589.425.

On March 30, 1994, R.W. was charged with one count of sodomy and one count of sexual assault in the first degree. The conduct involved a minor. On February 9, 1995, after section 589.400 became effective, R.W. pleaded guilty to the sexual assault. The court suspended imposition of sentence, and R.W. was placed on probation for five years. As a condition of his probation, R.W. was required to register as a sex offender under section 589.400.

After R.W. completed his probation, he ceased registering as a sex offender. In April 2003, the Jackson County sheriffs office requested that R.W. register as sex offender and renew his registration every 90 days. R.W. declined to register.

R.W. filed a petition for declaratory judgment and injunctive relief to prevent enforcement of the registration statutes and the criminal penalties attending the failure to register. The circuit court denied relief. On appeal, R.W. argues, inter alia, that the sex offender registration statutes as applied to him are unconstitutional. He raises three points on appeal.

ANALYSIS

The standard of review in a declaratory judgment case is the same as in any other court-tried case. Levinson v. State, 104 S.W.3d 409, 411 (Mo. banc 2003). The judgment will be affirmed unless there is no substantial evidence to support the judgment, the judgment is against the weight of the evidence, or the judgment erroneously declares or applies the law. Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 393 (Mo. banc 2001).

I. Ex Post Facto

R.W. contends that the registration requirement, as applied to him, is an invalid ex post facto law because it constitutes a new penalty for a crime he committed before the registration requirements were enacted. In order to prevail on this claim, R.W. must overcome the presumption that statutes are constitutional. Westin Croum Plaza Hotel Co. v. King, 664 S.W.2d 2, 5 (Mo. banc 1984). The registration statutes will be upheld unless they “clearly and undoubtedly” violate constitutional limitations. In re Marriage of Kohring, 999 S.W.2d 228, 231 (Mo. banc 1999). As the party raising the challenge, R.W. bears the burden of demonstrating that the statute is unconstitutional. C.C. Dillon Co. v. City of Eureka, 12 S.W.3d 322, 327 (Mo. banc 2000).

The United States and Missouri constitutions both prohibit ex post facto laws. A constitutionally prohibited ex post facto law is one that “provides for punishment for an act that was not punishable when it was committed or that imposes an additional punishment to that in effect at the time the act was committed.” Cooper v. Mo. Bd. of Prob. & Parole, 866 S.W.2d 135, 137-38 (Mo. banc 1993).

The registration statutes operate retrospectively in this case. R.W. committed the crime prior to the enactment of registration statutes and, because of the subsequent enactment of the statutes, is required to register as a sex offender. Accordingly, the issue is whether the registration requirements constitute a punishment.

A two-stage inquiry determines whether a retrospective statute constitutes an invalid ex post facto punishment or a valid, non-punitive civil regulation. If registration statutes were intended to establish a punishment, the inquiry ends and an ex post facto violation is established. Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (holding that Alaska’s sex offender registration statute is not an invalid ex post facto law because it is civil and non-punitive). If the registration statutes are intended to establish a non-punitive, civil regulatory system, the inquiry proceeds to a determination of whether the registration statutes are sufficiently punitive in effect so as to negate the General Assembly’s intent to enact a non-punitive civil sex offender registration program. Id.

The Missouri registration statutes do not clearly express the General Assembly’s intent to make the registration statutes civil or criminal. There is evidence that the registration statutes were intended to be criminal and punitive insofar as the statutes are located in Title XXXVIII dealing with “Crimes and Punishment.” However, “the location and labels of a statutory provision do not by themselves transform a civil remedy into a criminal one.” Smith, 538 U.S. at 94, 128 S.Ct. 1140, (quoting United States v. One Assortment of 89 Firearms, 465 U.S. 354, 365, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984)). Furthermore, this Court has previously stated that the “obvious legislative intent for enacting section 589.400 was to protect children from violence at the hands of sex offenders.” J.S. v. Beaird, 28 S.W.3d 875, 876 (Mo.2000). When a statute is “an incident of the State’s power to protect the health and safety of its citizens,” it will be considered “as evidencing an intent to exercise that regulatory power, and not a purpose to add to the punishment.” Smith, 538 U.S. at 93-94, 123 S.Ct. 1140 (quoting Flemming v. Nestor, 363 U.S. 603, 616, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960)). Given the lack of clear legislative intent, the registration statutes must be analyzed to determine if they are sufficiently punitive in effect to constitute a retrospective punishment.

In Smith v. Doe, the Court utilized five factors for assessing whether a statute constitutes a punishment under the Ex Post Facto Clause. The factors are whether the registration requirements: have been regarded in our history and traditions as punishment; promote the traditional aims of punishment; impose an affirmative disability or restraint; have a rational connection to a non-punitive purpose; or are excessive with respect to the purpose. Id. at 97, 123 S.Ct. 1140. The Court determined these factors indicated that the Alaska registration statute did not constitute a punishment. Essentially the same analysis leads to the same conclusion in this case: the Missouri registration statutes, as applied to R.W., do not constitute an invalid ex post facto law.

A. Traditional notions of punishment

The Missouri registration statutes are distinguishable from traditional notions of punishment. First, registration has not traditionally been viewed as punishment. See, Lambert v. People of State of California, 355 U.S. 225, 229, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957) (ordinance requiring felons to register was designed for the convenience of law enforcement). Registration is traditionally a government method of making available relevant and necessary information to law enforcement, not a method of punishment.

Second, unlike historical punishments such as stocks or contemporary punishments such as incarceration, the registration requirements do not physically confine or restrain the movement on a registrant. Moreover, the registrant is not intentionally subjected to public shaming or humiliation. The “dissemination of truthful information in furtherance of a legitimate governmental objective” is generally not regarded as punishment. Smith, 538 U.S. at 98, 123 S.Ct. 1140.

B. Traditional aims of punishment

Two traditional aims of punishment are deterrence of future crimes and retribution for past crimes. Smith v. Doe, 538 U.S. at 102, 123 S.Ct. 1140. Although the registration statutes may deter future crimes, the mere presence of a deterrent effect does not establish that registration constitutes a punishment because “any number of governmental programs might deter crime without imposing punishment.” Id. Along with any deterrent effect, the registration statutes also serve the regulatory purpose of assisting authorities with investigation of sex crimes. The registration requirements are not retributive because all offenders are subject to lifetime registration. A retributive scheme would impose progressively longer registration periods based upon the severity of the underlying sex offense. While offenders such as R.W. who commit a sex offense against a minor have to update their registration more frequently, this is reasonably related to the regulatory objective of reducing recidivism and more efficiently investigating crimes against minors.

C.Affirmative disability or restraint

The Missouri registration statutes require registrants to provide fingerprints, a photograph and written information concerning the offender and the underlying offense. However, the registrant is otherwise free to travel and go about his or her daily activities with no additional intrusion from governmental officials. Any restrictions on housing and employment are collateral consequences of the underlying sex offense, not the registration requirement.

D. Rational connection to a non-punitive purpose

Whether a statute has a rational connection to a non-punitive purpose is a “most significant” factor in the ex post facto analysis. Smith v. Doe, at 102, 123 S.Ct. 1140, (quoting United States v. Ursery, 518 U.S. 267, 290, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996)). The registration requirement advances the legitimate, non-punitive purpose of public safety and protecting children from sex offenders. J.S. v. Beaird, 28 S.W.3d 875, 876 (Mo.2000).

E. Excessiveness with respect to the purpose

The registration statutes are not excessive in relation to the regulatory purposes. As applied to those who, as did R.W., commit sex offenses against a minor, the registration requirement is not excessive given the assistance it provides law enforcement agencies in investigating future offenses. Furthermore, as noted above, the registration requirements do not impose substantial physical or legal impediments upon a registrant’s ability to conduct his or her daily affairs.

While the registration statutes have both punitive and regulatory attributes, a weighing of the factors above leads to the conclusion that the thrust of the registration and notification requirements are civil and regulatory in nature. R.W. has not carried his burden of “clearly and undoubtedly” showing that the registration statutes violate constitutional limitations on ex post facto laws.

II. Statutory Construction

R.W. sets forth two statutory construction challenges to the requirement that he register as a sex offender.

First, he argues that the registration statutes do not provide for registration of convicted sex offenders who receive a suspended imposition of sentence. "While section 589.400(1) does not expressly provide for registration for offenders receiving a suspended imposition of sentence, it also provides no exemption. The statute obligates all persons “convicted of, been found guilty of or pled guilty to committing” an enumerated sex offense to register as a sex offender. R.W. does not dispute that he pled guilty to a sex offense. R.W. is, therefore, required to register.

Second, R.W. argues that the registration statutes conflict with section 610.105, which closes all official records regarding cases in which imposition of sentence is suspended. The registration statutes do not require the records of a court proceeding to be opened and, therefore, do not conflict with section 610.105. The registration statutes require only that R.W. register with the county sheriff by providing the information required by statute to be maintained on the registry. The registration requirements in no way permit public access to the official arrest, court and conviction records made confidential by section 610.105.

III. Due Process

R.W. argues that the registration requirements violate his fundamental due process rights to liberty and privacy. In Connecticut Dept. of Public Safety et al., v. Doe, the United States Supreme Court held that Connecticut’s sex offender registration statute did not violate the due process rights of registrants. 538 U.S. 1, 7, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003). Because the ultimate fact determining whether a person had to register was conviction of sex crime, the Court found that the criminal procedures leading to conviction provided the registrant with a sufficient procedurally safeguarded opportunity to challenge the conviction that triggered the registration requirement. Id.

The analysis in Connecticut v. Doe controls this case. R.W. was charged with a sex offense and pled guilty. He was notified of his legal obligation to register at the time of his plea and received all procedural safeguards attending a guilty plea. No further process was necessary.

The judgment is affirmed.

All concur.

      . All statutory citations are to RSMo 2000 unless otherwise indicated.

      . Other state courts rejecting ex post facto challenges to state sex offender registration statutes include: Robinson v. State, 730 So.2d 252 (Ala.Crim.App.l998)(registration and notification requirements are not punishment); State v. Noble, 171 Ariz. 171, 829 P.2d 1217 (1992); Reliar v. Fayetteville Police Dept., 339 Ark. 274, 5 S.W.3d 402 (1999); People v. Castellanos, 21 Cal.4th 785, 88 Cal.Rptr.2d 346, 982 P.2d 211 (1999); People v. Stead, 66 P.3d 117 (Colo.App.2003)(internet posting of information from sex offender registry did not constitute additional punishment); Helman v. State, 784 A.2d 1058 (Del.2001); Ray v. State, 133 Idaho 96, 982 P.2d 931 (1999); People v. Malchow, 193 Ill.2d 413, 250 Ill.Dec. 670, 739 N.E.2d 433 (2000); Spencer v. O’Connor, 707 N.E.2d 1039 (Ind.Ct.App.1999); State v. Pickens, 558 N.W.2d 396 (Iowa 1997); Hyatt v. Commonwealth, 72 S.W.3d 566 (Ky.2002);
        Opinion of the Justices of the Senate, 423 Mass. 1201, 668 N.E.2d 738 (1996); State v. Haskell, 784 A.2d 4 (Me.2001); People v. Pennington, 240 Mich.App. 188, 610 N.W.2d 608 (2000); State v. Manning, 532 N.W.2d 244 (Minn.App.1995); State v. Mount, 317 Mont. 481, 78 P.3d 829 (2003); State v. Torres, 254 Neb. 91, 574 N.W.2d 153 (1998); State v. Costello, 138 N.H. 587, 643 A.2d 531 (1994); Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995); State v. Druktenis, 135 N.M. 223, 86 P.3d 1050 (Ct.App.2004); People v. Grice, 254 A.D.2d 710, 679 N.Y.S.2d 771 (1998); State v. Sakobie, 598 S.E.2d 615 (N.C.App.2004); State v. Burr, 598 N.W.2d 147 (N.D.1999); State v. Cook, 83 Ohio St.3d 404, 700 N.E.2d 570 (1998); State v. MacNab, 334 Or. 469, 51 P.3d 1249 (2002); Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616 (1999); State v. Walls, 348 S.C. 26, 558 S.E.2d 524 (2002); Meinders v. Weber, 604 N.W.2d 248 (S.D. 2000); White v. State, 988 S.W.2d 277 (Tex.App.1999); Kitze v. Commonwealth, 23 Va. App. 213, 475 S.E.2d 830 (1996); State v. Ward, 123 Wash.2d 488, 869 P.2d 1062 (1994); Hensler v. Cross, 210 W.Va. 530, 558 S.E.2d 330 (2001); Snyder v. State, 912 P.2d 1127 (Wyo.1996).

      . Section 610.105 reads, in pertinent part: "If the person arrested is charged but the case is subsequently nolle pressed, dismissed, or the accused is found not guilty or imposition of sentence is suspended in the court in which the action is prosecuted, official records pertaining to the case shall thereafter be closed records when such case is finally terminated except that the disposition portion of the record may be accessed and except as provided in section 610.120.”