Judge says fitness centers must close
As pandemic worsens in Arizona, disappointed Mountainside owner agrees to comply with ruling
Mountainside Fitness gyms must close while a court decides whether Gov. Doug Ducey’s executive order to close through at least July 27 is lawful, a judge said in a ruling issued on Tuesday.
After a week of defiance, Mountainside founder and CEO Tom Hatten said shortly after the ruling was announced he would comply and close the comparuling ny’s 18 gyms Tuesday.
Ducey issued a new closure order on June 29, as Arizona cases of COVID-19 increase and hospital capacity to treat the ill shrinks. Mountainside quickly announced it would sue to void that order, which it did. Mountainside also asked for a restraining order to prevent the order from taking effect and continued operating its gyms.
Maricopa County Superior Court
Judge Timothy Thomason said in his that the gyms must follow the order while the case is decided, even if it creates an unfair hardship on a good business.
“The hardships to Mountainside and those similarly situated have been severe and may have been unfair,” Thomason’s ruling said. “The public has a great interest in having businesses up and running in a profitable
and safe manner. Mountainside is, by all accounts, an excellent, well-run company, that is not only profitable, but also a good citizen, concerned about the community.”
However, he said, “We elect people ... to deal with emergency situations such as this one.”
“People in high office must be given wide latitude in their decision making in emergency situations,” the ruling said. “The public has a very strong interest in dealing with public health concerns like this one. The hardships could become even more immense if the spread of the virus is not curtailed.”
Hatten said he was disappointed with the decision but respects the court.
“It’s a disappointing day and not the outcome or decision we had hoped for,” he said in a prepared statement. “We will still be continuing our fight for Mountainside Fitness and other businesses across Arizona as we hope to prevail in the coming days when we go to court.”
He said he will continue paying his 1,500 employees through July 26, in apparent hopes the order expires July 27 without an extension. Mountainside reports 105,000 gym members in Arizona.
Mountainside has lost about $15 million from the closure, Hatten said at an afternoon news conference, where he reiterated that he believes gyms are safe.
“I think we’re chasing our tails a little bit,” he said. “There’s no evidence the spike came from health clubs.”
Hatten said his gyms have gotten seven or eight citations from city police agencies for violating the order and remaining open. The citations are given to the managers on duty. Hatten said he plans to pay them for the workers but has not paid them yet.
After the governor’s order came out, EoS said in an email to members that it would close its 22 gyms in the area for only one day, rather than through July 27 as the governor ordered.
“During this time we will be seeking further guidance and clarification from the Governor’s office and furthering the position that gyms are safe, essential and should stay open,” CEO Rich Drengberg said in an email to members.
Spokeswoman Jakki Lewis, representing EoS through a Phoenix public relations firm, said the EoS gyms all closed as ordered June 29 and did not reopen despite that message to members.
A separate legal challenge from EoS parent company Fitness Alliance was consolidated into the Mountainside case.
The judge still must decide whether the closure overall is lawful, although his rejection of the restraining order indicates his disposition in favor of the governor.
However, Thomason said during a Monday hearing in the case and again in his ruling that he is concerned about one element of the governor’s order, which states that gyms will be given forms from the Department of Health Services to ensure they are in compliance with reopening standards so they can reopen possibly after July 27.
Those forms are not yet available, and Thomason said it is concerning that the process by which gyms will be allowed to reopen is not yet defined.
“The Court is greatly concerned about implementation,” he wrote. “The Court will only say that, if the form is not available well in advance of July 27, then the Governor runs the real risk of depriving aggrieved businesses of any real process at all. If meaningful process is not provided, then injunctive relief may ultimately be ordered.”
In its request for a restraining order, Mountainside cited a study from Norway led by the University of Oslo that found no increased risk of COVID-19 at gyms.
The study tracked more than 3,700 people, some who went to gyms in May and some who did not, to determine if gyms created higher risks for infection.
“Provided good hygiene and social distancing measures, there was no increased COVID-19 spread at training facilities,” the study concluded.
The governor’s office cited another study published by the Centers for Disease Control that showed gyms can spread the virus. It showed that in South Korea, 112 people are believed to have contracted COVID-19 after a Feb. 15 Latin dance instructor workshop.
A person attending that event but not showing symptoms is thought to have infected several dance instructors, who in turn passed the illness to dozens of students at different studios.
“Intense physical exercise in densely populated sports facilities could increase risk for infection,” said the report on the outbreak written by health experts who assisted with contact tracing patients from that event. “Vigorous exercise in confined spaces should be minimized during outbreaks.”
The judge indicated he took studies into account in his ruling.
“It is clear that the science on this subject is at its infancy and remains unsettled,” Thomason wrote. “The governor, however, is not required to back his decision with precise scientific data, particularly when it does not yet exist. He has certainly consulted with knowledgeable professionals. The (order) clearly had a rational and reasonable basis. As such, the order that gyms and fitness centers close does not deprive Mountainside of equal protection under the Constitution.”
Meanwhile, the Arizona Department of Health Services has sued to close Mountainside Fitness gyms with a temporary restraining order.
Mountainside issued a news release Tuesday saying gyms would close by 2 p.m. But at 2 p.m., when a hearing began in the DHS case to close the gyms, Mountainside lawyer David Schwartz said all the gyms would be closed by 8 p.m.
Maricopa County Superior Court Judge Daniel Kiley said he would not issue a restraining order to close the gyms on the spot. Instead, he said he would allow the hearing to continue with opportunities for the parties to make their case if Mountainside agreed to come back Wednesday with a declaration that the gyms were closed and would remain so until lawfully allowed to reopen.
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