Arizona Court Says Gyms Must Have A Way To Petition To Reopen

(Photo courtesy Mountainside Fitness.) Mountainside Fitness, the company that brought the lawsuit against Arizona Gov. Doug Ducey, had planned to reopen its 18 clubs on Aug. 11, but an appeal on the ruling by the governor may put that reopening in jeopardy.

[Update: 2 p.m. ET - This story has been updated with news that on Aug. 5, Arizona Gov. Doug Ducey filed an appeal of the judge's ruling and with a comment from EOS Fitness about the appeal.]

An Arizona Superior Court judge ruled that Arizona must put in place a process for health clubs in the state to petition to reopen after Arizona Gov. Doug Ducey temporarily closed health clubs in the state for a second time on June 29. Gyms are still closed as of Aug. 6.

However, on Aug. 5, the governor filed an appeal on the ruling and a motion to delay enforcement of the ruling.

The governor’s filing states: “If this Ruling is allowed to stand, its erroneous legal conclusion will open the floodgates to additional lawsuits against the Governor’s COVID-related executive orders, and down the road during other emergency situations, which will hamper the Governor’s ability to focus on the pressing battle against the pandemic.”

On June 29 after the governor's order to close gymsMountainside Fitness, Scottsdale, Arizona, filed a lawsuit and several temporary restraining and preliminary injunctions against the governor, stating that the closure of gyms was arbitrary when other businesses, such as retail stores, were allowed to remain open.

Originally, Executive Order 43 closed gyms until July 27, but on July 23, the governor extended the shutdown to Aug. 10 with the possibility of another two-week extension and additional extensions.

Mountainside Fitness Founder and CEO Tom Hatten initially defied the governor's second order, but on July 13, he agreed to comply.

On Aug. 4, Arizona Superior Court Judge Timothy J. Thomason ruled on Mountainside's lawsuit that Gov. Ducey’s executive order violated procedural due process and the governor must give health clubs an avenue to reopen.

The ruling stated: “Fitness centers must be allowed to complete and submit some type of form or application to receive authorization to reopen. Of course, the attestation form can mandate compliance with the requirements. However, it cannot require fitness centers to attest that they agree to be shut down during any mandatory shutdown period.

“The Court rules only that fitness centers and gyms are Constitutionally entitled to some mechanism for petitioning for reopening. They must have some meaningful opportunity to be heard.”

The judge admonished that gyms should have already been provided with an opportunity to apply for reopening and said that “time is of the essence.”

Club Industry has reached out to get a comment from Mountainside Fitness after the governor's appeal, but after the ruling on Aug. 4, Hatten had said in a media release that he was relieved by the judge's ruling and planned to open his 18 locations on Aug. 11. 

“Since the first shut down, we have continued to do everything the governor and the state have asked us to do to safely operate our business, and finally today, thanks to Judge Thomason, we have an avenue to open and stay open,” Hatten said on the day of the ruling. “We as an industry worked extremely hard to not only open safely the first time, but also the second and third time. We have the best protocols and practices in place to do that and we are excited to once again open our doors and allow our members to continue improving their health and mental well-being.”  

EOS Fitness, which has 22 clubs in Arizona and three more under construction, offered this comment after the governor's appeal: “We are aware of the most recent developments and that the Governor’s office has filed a notice of appeal and a motion to delay enforcement of Judge Thomason’s ruling. We remain committed to working directly with Governor Ducey’s office and the Arizona Department of Health Services to get our gyms open to support our members and their health.”

During the hearings, Mountainside Fitness presented a series of witnesses testifying that health clubs, who were following the state’s own safety protocols, were no more dangerous than grocery stores or retail stores that have never closed.

Will Humble, who is the executive director of the Arizona Public Health Association and was the  director of the Arizona Public Health Association from 2009 to 2015, testified that fitness centers following the proposed requirements pose far less risk of COVID-19 transmission than bars and nightclubs. He also said they pose a similar or even lower risk than retail and grocery stores.

The state countered with its own witnesses, including Dr. Cara Christ, who is the current state health director and is an infectious disease epidemiologist. In her testimony, she said that the intensity of the breathing done by exercisers in a gym makes the risk of contracting COVID-19 higher in a gym than the risk of contracting it in a grocery store.

Arizona health clubs initially were ordered closed on March 20 and then were allowed to reopen on May 13 before the governor ordered them to close again on June 29.

Under the judge’s order Mountainside Fitness will continue operating during normal business hours and enforce all the safety protocols and following the mandated CDC guidelines it put into place before reopening on May 18 after the first shutdown.

 

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