Fitness centers can’t open
Constitutional argument likely to fail, judge says
A federal judge rejects a bid from a California fitness chain to keep its studios open in Arizona.
A federal judge rejected a bid from a California fitness chain to keep studios open in Arizona Tuesday, saying they need to obey Gov. Doug Ducey’s closure order, echoing a similar decision from a state court last week.
Ducey reordered the closure of gyms and bars that don’t serve food on June 29, and his order has faced three legal challenges from gyms and one from bars.
Tuesday’s order in U.S. District Court in Arizona is the second time a judge has rejected requests for temporary restraining orders to prevent Ducey’s order from forcing the gyms to close.
Xponential Fitness, a Californiabased company that runs 50 boutique exercise studios in Arizona, including brands such as Pure Barre, CycleBar, Stretch Lab, Club Pilates and Row
House, filed the challenge, contending the order violated the U.S. and Arizona constitutions.
“Plaintiffs are not likely to succeed on the merits of their claims and the balance of the equities and public interest weigh against entry of a temporary restraining order or preliminary injunction, and therefore, plaintiffs’ motion will be denied,” Judge Diane Humetewa said in her ruling. “The Court deeply sympathizes with Plaintiffs, and other similar business owners, and their patrons affected by Governor Ducey’s June 29, 2020 Executive Order.”
Ducey’s closure order lasts until at least July 27. The governor’s attorney said the state is developing an attestation form for gyms with the Department of Health Services that will be required for gyms to reopen.
A lawyer for Xponential initially told The Arizona Republic that the franchises in Arizona would remain closed pending the court’s decision. However, upon follow up, The Republic was able to determine at least six were open in defiance of the closure a week after the order.
Representatives for Xponential and the Governor’s Office did not immediately respond to requests for comment on the ruling Tuesday.
Arguments made in court
Attorneys for Xponential and the governor made brief arguments before Humetewa on Monday.
“We are operating safely,” Xponential attorney Alex Weingarten said Monday. “The proof is in the pudding. We do not have any evidence of community spread from any of our locations.”
Ducey’s attorney Brett Johnson said Monday that “nobody is saying that the fitness centers, gyms, boutique health centers are doing anything, quote unquote, wrong.”
Johnson said Arizona is not only a national but a global hot spot for the virus, and the order was specifically aimed at slowing its spread among people aged 20 to 44, and based on guidance from health experts.
Johnson made the same argument to a Maricopa County Superior Court judge, who last week issued a similar ruling in a case brought by Mountainside Fitness, which was consolidated
with a complaint from EoS Fitness.
Details of judge’s ruling
Humetewa noted that more than 13 million people worldwide have been infected with the virus as of Tuesday.
“The court’s limited role of judicial review is not to assess the wisdom of the June 29, 2020 executive order but rather to determine whether it violates the law,” she wrote.
Humetewa cited Arizona Department of Health Services Director Dr. Cara Christ, who said in a court declaration that indoor gyms and fitness centers are a “uniquely dangerous environment for the spread of COVID-19.”
“Because individuals breathe harder during exercise, droplets are able to spread at an increased rate and distance, putting others at distances in excess of the recommended six feet at risk for inhaling infected droplets and making it more likely that distance objects become contaminated by the virus,” Christ’s declaration said.
The judge wrote that the case was unlikely to succeed in proving the order unconstitutional.
“In our constitutional republic, the decisions of whether, when, and how to exercise emergency powers amidst a global pandemic belong not to the unelected members of the federal judicial branch, but to the elected officials of the executive branch,” Humetewa wrote.
Xponential’s attorney argued on Monday that the closure order is inconsistent, not only because gyms closed, then were allowed to reopen, then closed again by the governor, but also because other businesses like tattoo parlors are allowed to remain open while gyms close.
Humetewa disagreed.
“Governor Ducey’s June 29, 2020 executive order does not violate the Equal Protection Clause simply because it does not close every business where transmission is possible,” she wrote.
“Plaintiffs may disagree with the rationale supporting Governor Ducey’s June 29, 2020 Executive Order; however, Governor Ducey’s medical advisors have opinioned that given the current COVID-19 crisis in Arizona, gyms, even those currently in compliance with the guidelines, pose undue risk. Accordingly, the temporary closure of gyms is reasonable and rational.”