Health club chain loses challenge to Ducey’s executive order

A judge on Tuesday rebuffed a bid by a locally owned chain of fitness clubs to remain open while it challenges the order by Gov. Doug Ducey shuttering all of them through July 27 — if not longer.

In an extensive ruling, Maricopa County Superior Court Judge Timothy Thomason, an appointee of former Gov. Jan Brewer, said the evidence shows that Mountainside Fitness is a “good citizen that went above and beyond what was necessary to ensure the health and safety of its patrons and employees.” And the judge said courts have to be sure that government officials, in closing down private businesses, are not exceeding their authority.

But Thomason said that, at least at this point, there is not enough evidence to show that Ducey acted illegally in shutting down not just Mountainside Fitness but also other chain and mom-and-pop operations — at least not enough at this point to quash the governor’s June 29 executive order. It was issued following a spike in COVID-19 cases after Ducey allowed businesses, including gyms, that had been closed in March, to reopen in May.

None of that means that the judge won’t eventually conclude, following further hearings, that Ducey exceeded his legal authority.

But attorney Joel Sannes said that will now require presenting evidence and witnesses, something that could take weeks. And by that point, he acknowledged, the governor’s order affecting gyms and fitness clubs may have been lifted, making it pointless to continue the lawsuit.

Even then, there’s no guarantee that Thomason eventually will side with Mountainside or conclude that gyms can reopen despite what Ducey ordered. In fact, the judge called it “unlikely” that the company will prevail, even after a full-blown hearing.

Still, Sannes said plans are to proceed with the case. In the interim, however, Mountainside will abide by the governor’s latest order, closing its doors Tuesday afternoon at its 18 locations.

Strictly speaking, Tuesday’s order affects only Mountainside Fitness and Fitness Alliance whose challenge to Ducey’s order was consolidated with this case. But Sannes said it could be seen as setting a precedent of sorts for other similar places.

“They’ll have to make the decisions on their own,” he said.

Sannes warned, though, they remain open at their own risk now that Thomason has concluded, at least for the time being, that Ducey was acting within his emergency powers. And he pointed out that the state already had started efforts to enforce the closures even before Tuesday’s ruling.

“The state may become even more serious about enforcement for gyms that choose to stay open and fitness centers that choose to stay open,” Sannes said. “They have to evaluate the consequences just as we have.”

Gubernatorial press aide Patrick Ptak said this was the outcome his boss expected.

“The issue is about protecting public health and containing the spread of COVID-19,” he said in a prepared statement. “Businesses need to comply with the public health orders.”

But this isn’t the only legal fight Ducey has on his hands.

Xponential Fitness has filed its own complaint in federal court alleging that the governor’s order violates a host of federal constitutional protections and that it violates the right of affected businesses to have due process before being shut down. The company has 50 studios around the state operating as Club Pilates, Stretch Lab, CycleBar, Pure Barre, Yoga Six, AKT, and Row House.

U.S. District Court Judge Diane Humetewa is scheduled to hear arguments in that case this coming week.

The governor’s office is likely to present the same evidence at that time that it did in this case, evidence that Thomason found sufficiently compelling to presume that Ducey had a legitimate reason to shut down the gyms. That includes statements from state Health Director Cara Christ and Marjorie Bessel, chief clinical officer at Banner Health.

Both are doctors. And both said they believe that indoor gyms and fitness centers present high risks of infection.

“Physical exercise is often not conducive to wearing a mask,” Thomason wrote.

“Exercising also results in respiratory droplet secretions that can easily be spread,” the judge continued. “Physical distancing can be difficult in gyms.”

Thomason acknowledged that some gyms say they are complying with protocols designed to protect public health. But he questioned whether that really does any good.

“The medical professionals feel that, even if gyms follow all protocols, there is still an unacceptable risk of infection,” Thomason wrote.

“Many fitness center members return to the center several times a week, increasing the risk of infection,” he said. “Other states have closed gyms and fitness centers.”

But the judge also fired a warning shot at the governor, saying he can’t keep facilities closed forever based on these fears.

He pointed out that, at least on paper, Ducey’s order allows gyms to reopen once they have completed and submitted a form prepared by the state Department of Health Services “that attest the entity is in compliance with guidance issued by ADHS.”

Only thing is, those forms are not now available. In fact, attorneys for the state could say only that the form “hopefully” will be available by July 27.

“Justice delayed is indeed justice denied,” Thomason wrote.

“If process is not provided in a reasonably timely fashion, then there really is no due process,” he continued. “In sum, the process provided must be adequate.”

And Thomason emphasized his point with a threat of sorts.

“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,” the judge said. “If meaningful process is not provided, the injunctive relief may ultimately be ordered.”

Tom Hatten, founder and CEO of Mountainside, said the judge’s order shows just how much deference Ducey — and most governors — are given in state laws to issue executive orders and have them upheld. And he said that should alarm owners of other firms that are not affected, at least not yet, who would be subject to “wide-ranging authority that’s arbitrary in its nature, very difficult to fight against.”

Does Hatten believe lawmakers should rein in the governor’s power to issue these orders?

“Absolutely,” he responded.

Hatten said he will keep the estimated 1,500 employees on payroll while the legal fight plays out and that members were not billed this month.

He dodged questions about whether gyms, by their nature, are more hazardous than other businesses because people are working out, raising the possibility that droplets with the virus could become aerosolized and travel more than six feet.

“There’s no evidence that the spike came from health clubs or the fact that you’re standing six feet (apart) and working out or you’re on a treadmill six feet away, there’s just nothing that proves that,” he said.

“What we do know is it’s still spreading,” Hatten continued. “There’s theories as to why.”