Judge sides with AZ gyms
Arizona gyms must be given a chance to reopen within a week, a Maricopa County Superior Court judge rules on Tuesday.
Arizona gyms must be given a chance to reopen within a week, a Maricopa County Superior Court judge ruled on Tuesday, marking the first time during the pandemic that Gov. Doug Ducey has faced a rebuke of his actions to fight the coronavirus.
Gyms, led by Mountainside Fitness and Eos Fitness, challenged the governor’s June closure order, which was extended in late July.
The Governor’s Office initially intended to issue guidelines for reopening by July 27, but four days before that the governor extended the closure, putting it up for review every two weeks. Mountainside and EoS asked the judge to reconsider an earlier decision upholding the closure order.
After an evidentiary hearing on Monday in which Arizona Department of Health Services Director Dr. Cara Christ and others were questioned by attorneys for the gyms and the governor, Judge Timothy Thomason said Tuesday the governor needs to give gyms an opportunity to apply to the state to reopen.
“The court previously found that a short shutdown might not implicate a protected property interest,” he wrote in his order. “At the same time, it is evident that the government forcing a business to shut down indefinitely, to the point where it might not be able to survive, implicates a property interest.”
Shortly after the judge’s ruling, Mountainside announced it would reopen its gyms next Tuesday after signing one of the DHS attestations that the businesses would comply with guidelines from the state. The company has 18 gyms in Maricopa County, serving 90,000 customers.
CEO and founder Tom Hatten said Tuesday that masks would be required in the common areas and strength floors and there would be additional distancing measures to keep people away from one another.
“It’s been awe inspiring to say the least to see the business community rally behind our efforts not only for fitness but for all businesses,” he said. “It’s been truly incredible.”
He also said he had a conversation early on in the pandemic with his son regarding respecting the power of the government and that he did not predict he would end up in a legal battle after multiple closures and reopenings.
“To our governor, we are with you. We are here with you to move forward in this pandemic,” Hatten said. “We want to be part of the solution together, not only for fitness but for all businesses.
We share your struggle, your worry, your fears. We want to unite to that, and we look forward to doing that beginning this Tuesday.”
Ducey’s spokesman Patrick Ptak said the governor is reviewing the order.
“Our focus is on protecting public health, and working with the private sector on how and when to safely reopen,” Ptak said.
One problem the judge noted was that the form gyms needed to follow to reopen was not available by July 27 as planned, and instead was posted on the DHS website July 31.
Thomason said that the closure order itself does not violate due process rights of gym owners.
“The court agrees with the governor’s position that his decision complies with substantive due process because he is following the recommendations of others, including top-notch medical people,” the judge wrote. “The governor is not required to provide specific data to support his decision.”
But Thomason took issue with the procedure by which the closure has been carried out, which hasn’t offered them an opportunity to mitigate the risk of spreading COVID-19, the illness caused by coronavirus.
“Fitness centers must be provided a prompt opportunity to apply for reopening,” the judge wrote. “The process for doing so must be in place within one week from the date of entry of this order.”