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Wed, Oct. 21

Court sides with gyms over closure order

Arizona Gov. Doug Ducey’s gym closure order violates the constitutional rights of the owners, a court has ruled. (Photo by Howard Fischer/For the Miner)

Arizona Gov. Doug Ducey’s gym closure order violates the constitutional rights of the owners, a court has ruled. (Photo by Howard Fischer/For the Miner)

PHOENIX – Arizona gyms and fitness centers could be open this coming week.

In an extensive order Tuesday, Maricopa County Superior Court Judge Timothy Thomason said it was wrong for Gov. Doug Ducey to shut down these facilities indefinitely without a chance to appeal. He said that violates constitutional due process rights of the owners.

Thomason said he is not faulting Gov. Doug Ducey for his initial decision to shutter these facilities. He said the governor, based on medical advice he was getting, had a "rational basis” for doing that.

But now, with these facilities shut down twice since the emergency was declared in March, Thomason ordered the governor to provide gyms and fitness centers "a prompt opportunity to apply for reopening,” allowing them to attest that they can live with guidelines already crafted by the state Department of Health Services to minimize the risk of the spread of COVID-19.

And he wants that quickly, as the fitness centers remain closed.

"As such, time is of the essence,” the judge said. leading to his order that the state has to have a process for reopening within one week.

"It's everything we wanted,” said attorney Joel Sannes who is representing the locally owned Mountainside Fitness chain. "What we wanted was a process in place for gyms that can operate safely to reopen.”

And he interprets the order to mean that, by this coming Tuesday, his client and any other facility that agrees to the guidelines can again have customers coming through the door.

Whether that's true remains to be seen.

Thomason said the state does maintain some "discretion” in reviewing the promises submitted by gyms and fitness centers that they will operate under the rules. And he even provided an escape clause of sorts, allowing the health department to impose even higher standards than the ones already crafted.

Sannes conceded the point.

"The governor could say we've examined the protocols and they're just not safe enough to allow anyone to reopen,” he said. But Sannes said he would go back to Thomason and ask the judge to cite Ducey for contempt.

Whatever the state does, the judge said, has to happen soon. He said any process set up by the state "will be one that moves with deliberate speed.”

"Fitness centers have already been closed for several months this year, and it is imperative that their constitutional rights be respected,” the judge wrote.

Ducey press aide Patrick Ptak would say only that the governor's lawyers are reviewing the decision.

Tuesday's order is the first legal defeat for the governor over his executive powers. Prior rulings – including one by Thomason – have rejected efforts to have his actions declared illegal.

What's changed, the judge said, is he's now had a chance to hear from experts about not just the virus but the relative risks posed by gyms and fitness centers, which are closed, versus other businesses which the governor has allowed to reopen and other measures Ducey has – and has not – taken during the pandemic.

"Indeed, there is not even a state-wide mask policy,” Thomason noted.

"There are many businesses operating in this state with no mandated protocols, such as social distancing, mask wearing, crowd control and the like,” he wrote. "Yet these businesses are up and running, potentially exposing the public to illness.”

By contrast, Thomason said, Mountainside Fitness and EoS Fitness, both of whom sued, have said they are willing to live within rules proposed by the health department, including limits on the number of clients and other restrictions. He said that also applies to other operators.

"It is very understandable that fitness center operators feel like they are being unfairly singled out,” the judge said.

But there's more to the ruling than simply a question of whether gyms and fitness centers were being treated fairly.

In seeking to defend the closure order, Ducey argued that simply shuttering businesses for some period of time does not deprive owners of their property, meaning they are not entitled to any sort of due process.

"This is incorrect,” Thomason wrote.

He acknowledged that a short shutdown might be legally acceptable in certain circumstances.

"At the same time, it is evident that the government, forcing a business to shut down indefinitely, the the point here it might not be able to survive, implicates a property interest,” the judge said. "There is no legal or logical support for the proposition that a permanent or long-term forced shutdown of a business does not involved a constitutionally protected property interest.”

Beyond that, Thomason said if the government wants to shut down certain businesses it has to provide them with "due process” to appeal that action. That, the judge said, does not change simply because of the pandemic.

"Procedural due process does not completely disappear in time of hardship,” he said.

Thomason acknowledge that, at least on paper, Ducey did provide some appeal process.

In fact, that was the promise Ducey originally made in June when he shut down these businesses for the second time since the emergency was declared in March. The governor said the health department would come up with operating standards by July 27 and those facilities which attested they could live by those standards would be allowed to reopen.

That date came and went, with the governor simply extending his closure order for another two weeks. And that, in turn, quashed any ability of the gyms and fitness centers to even seek to reopen.

"Not allowing businesses any due process until the governor decides, in his discretion to end mandatory shutdown periods, deprives these businesses of any meaningful due process,” Thomason said. "In fact, under (the executive order), the governor can simply continue to extend the shutdown periods for two weeks at a time indefinitely, depriving fitness centers any opportunity to be heard.”

The judge was not swayed by promises by Ducey and the health department that gyms and fitness centers will be allowed to open if they follow the requirements – but just not yet. He said there appears to be no reason to conclude that it makes sense for the state to say they can't operate under those standards now but might be able to open under the same standards "at some time to be determined over the ensuing weeks or months.”

Thomason also brushed aside arguments by the governor that, in keeping gyms closed, he was relying on recommendations by the White House Coronavirus Task Force. He pointed out that Ducey has decided to ignore other recommendations, like a statewide mandate for face masks and limiting indoor dining at restaurants to no more than 25% capacity.

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