Judge plans decision today whether gyms can be open

Emergency hearing held regarding order by Ducey

A judge pledged Monday morning to announce today whether Arizona gyms need to follow Gov. Doug Ducey’s order to stay closed through at least July 27.

Maricopa County Superior Court Judge Timothy Thomason had an emergency hearing Monday to hear arguments from Mountainside Fitness and EoS Fitness, which are challenging Ducey’s order from a week ago.

Some gyms in the state are obeying the order and have closed, including large chains like LA Fitness. But many others, from independent fitness studios to chains such as Mountainside, are defying the order in a tense standoff with the governor.

Attorney Joel Sannes, representing Mountainside, said the governor’s order didn’t follow due process and called the order “arbitrary and capricious.”

“The state closed fitness facilities that were in compliance with the state’s own protocols for reopening,” Sannes said.

Mountainside has 18 gyms in Maricopa County open for its 90,000 members. Mountainside has requested a temporary restraining order to prevent the order from closing the gyms, but the judge’s decision is likely to influence whether other gyms follow the order as well.

Sannes said the Mountainside challenge deals with the specific order to close gyms that came last week, not the previous shutdown order for all nonessential businesses.

Ducey issued a statewide stay-athome order on March 30, and gyms were not listed among the essential services that could remain open. Ducey allowed gyms to reopen the week of May 12.

Sannes said that after gyms were allowed to reopen, they were following the guidelines the Arizona Department of Health Services issued for preventing the spread of COVID-19 at businesses.

He said they were not given a chance to consult with the governor over the new closure order announced June 29 that applies to gyms, water

parks, theaters and bars.

The lawyer representing Ducey said the state is dealing with an emergency and must be flexible to address the pandemic as conditions change.

“Your honor, times have changed,” Ducey’s attorney Brett Johnson said. “When those (reopening) protocols came out, Arizona was in a much different state of COVID-19.”

Johnson said that because of a lack of social distancing, the number of people sick with COVID-19 has increased in Arizona, particularly among people age 20-44, and the state provided declarations from two medical doctors supporting the closure of indoor gyms.

“There is no speculation here,” Johnson said. “We have two individual doctors who are both attesting based on their medical opinion at the highest level in the state, that gyms need to be shut down because of the activity in there.”

He said the order is aimed at protecting lives. Attorney Robert Zelms said the governor’s order doesn’t take into account the “innumerable safety precautions” gyms like EoS put in place before they reopened.

“There is another dynamic here,” Zelms continued. “These fitness facilities do provide public safety service here.”

He said that with outside temperatures reaching 114 degrees in Phoenix, gyms play an important role in public health.

After a brief hearing, Thomason said he hoped to issue a ruling today.

“I’m going to get a ruling out quickly,” the judge said. “It doesn’t do anyone any good by letting this sit.”

Soon after Ducey’s order to close gyms, Mountainside announced that the company would remain open and challenge the order in court. Other gyms joined in defying the order.

“This wasn’t about the coronavirus anymore,” Mountainside CEO Tom Hatten said Friday. “It became about everybody. It became about our government, our leadership. It became about the businesses community. It became about who’s next.”