Ducey treats fitness places unfairly

Gov. Doug Ducey is attempting to project a Manichean view of the business community and the COVID-19 outbreak.

In Ducey’s account, there are businesses that are being responsible. Those are the ones who do what Ducey tells them to do and don’t challenge his legal authority to order them to do it.

And then there are the businesses that are being irresponsible. Those are the ones who don’t do what Ducey tells them to do, or question his legal authority to order them to do it.

But if government is treating a business unfairly, it is not per se irresponsible to challenge it — to protect the owner’s investment, the jobs of its employees, and services to its customers.

There is little question that Ducey treated gyms and fitness centers unfairly when he swept them up in his executive order to close the bar loophole, a loophole Ducey himself created.

Arizona’s system of liquor licenses differentiates between establishments which primarily serve food and offer alcoholic beverages as a complement and establishments that primarily serve alcoholic beverages and might offer some food as a complement. Colloquially, the former are known as restaurants and the latter as bars.

In deciding to permit reopenings, Ducey didn’t rely on the demarcation the liquor license regimen permitted. Instead, he said that establishments that served food could reopen and also serve booze. Some bars seized on the loophole, made sure they had some food on hand, and reopened. The result was the now familiar images of mass gatherings of young adults partying in bars without any pretense of social distancing.

With the increase in COVID-19 cases in Arizona, particularly among young adults, and the searing images of the bar party scenes in the public mind, Ducey was compelled politically to do something. So, he closed the bar loophole by using the liquor licensing regimen to differentiate between true restaurants and principally bars, an option that was available to him from the get-go.

Closing the bar loophole was a sensible thing to do. But he also ordered gyms and fitness centers reclosed as well.

Gyms do pose a theoretical higher risk of COVID-19 transmission than other businesses, since people project respiratory droplets a longer distance due to heavier breathing while exercising.

But that higher risk can be mitigated through social distancing protocols.

And, indeed, the Department of Health Services had already promulgated detailed protocols for the safe operation of gyms and fitness centers. There is no evidence that these protocols have been insufficient or that gyms have been a significant source of transmission contributing to the rise in COVID-19 cases.

Simply put, it was unfair to put gyms and fitness centers out of business again while closing the bar loophole.

But what is unfair is not necessarily illegal. The gyms are claiming that it is both. Two lawsuits have been filed, one in state court, the other in federal court.

In neither case are the gyms arguing that Ducey doesn’t have the legal authority to order businesses to shut down, although such a claim could be made.

State statutes are pretty specific about the additional powers the governor has in managing a public health emergency. He has extensive authority to quarantine those who have the virus or come in contact with those who have it.

But there is nothing in statute that give the governor the authority to limit the activities of others who do not fall into either category, which is the principal way Ducey has attempted to manage the COVID-19 outbreak.

Instead, the legal claim is that, in sweeping gyms and fitness centers into the executive order to close the bar loophole, Ducey violated the equal protection and due process clauses of the federal and state constitutions.

The heart of the claim is as follows: If Ducey is going to treat gyms and fitness centers differently than other businesses, there has to be a sound public health basis for it. And he has to offer the companies the opportunity to demonstrate that they can be operated as safely as the businesses Ducey is permitting to stay open.

That’s a reasonable proposition. But a legally difficult one, since judges generally give a wide berth to what public officials deem prudent to deal with an emergency. And, indeed, the gyms lost round one in state court.

Social isolation policies have proven unsustainable and with unacceptable economic and public health consequences. States and countries are converging to the Swedish approach: asking people to evaluate and mitigate COVID-19 risk while allowing them to get on with their work and lives.

In Arizona, getting on with life should include the ability to exercise indoors when it is 110 degrees outdoors.