A company that franchises out fitness studios wants a federal judge to rule that there are limits on the unilateral authority of the governor to close them down, even during an emergency.
Alex Weingarten who represents Xponential Fitness told Judge Diane Humetewa on Monday in U.S. District Court in Phoenix, he does not doubt that Gov. Doug Ducey has authority to act to protect public health. And Weingarten is not directly challenging Ducey’s June 29 order re-closing gyms and fitness centers a month and a half after he initially allowed them to reopen.
What he is arguing is that the 50 fitness centers have presented evidence that they will be operating under guidelines by the Centers for Disease Control and Prevention. Yet Ducey’s order says they cannot open until at least July 27 — if not later.
“If we’re not doing anything wrong, why are we closed?” he asked.
But attorney Brett Johnson, hired by Ducey to defend his actions, told the judge that this was merely a “pause” in their operations the governor believes is necessary due to a sharp uptick in the number of COVID-19 cases in the state. He said Arizona “is not just one of the hotspots in the country but is one of the hotspots in the world.”
And Johnson pointed out that the biggest increase has been among those in the 20 to 44-year-old age group, precisely those most likely to be clients of gyms and fitness centers.
Anyway, he told Humetewa, a President Obama appointee, that the state health department will be putting out forms sometime before July 27 — he did not say when — telling these facilities exactly what they need to do to reopen and allowing them to once again have clients once they attest that they are meeting those standards.
“The governor appreciates all of the fitness centers who have put in significant amount of data as to what they are doing and what they are willing to do as part of the attestation process,” he said.
Weingarten said that’s not an answer.
“Platitudes only go so far,” he told Humetewa. “We need to be able to operate our business.
He said the franchise operations are ready to go now. To delay it further, he said, simply because the governor set that July 27 date — and one that he can push back unilaterally — denies the fitness centers their rights.
The push could prove an uphill fight.
Last week a Maricopa County Superior Court judge rejected similar arguments by the owners of Mountainside Fitness and EOS who claimed they were acting in a responsible fashion and sought to remain open.
Weingarten said Xponential’s franchise operations are different, operating around the state as Club Pilates, Stretch Lab, CycleBar, Pure Barre, Yoga Six, AKT, and Row House.
He called them “boutique” fitness centers versus “big-box” gyms, able to much easier do things like maintain social distance and keep equipment clean. And Weingarten said there are no confirmed cases of community spread from any of the 1,500 operations under those flags nationwide.
“Those are points the governor has not and cannot refute,” he said.
But there are other things working against Weingarten and his clients.
Humetewa said that there are legal precedents saying that, in general, courts should not try to second-guess health decisions made by elected officials. She said they lack the expertise.
Weingarten said it’s not that simple.
“Here you have the governor making what is a well-intentioned but ultimately incorrect decision and a lack of any ability by us or any aggrieved parties to challenge that action if the governor’s interpretation is correct,” he responded.
“The governor has broad power,” Weingarten continued. “The governor does not have unlimited power.”’
But Humetewa also questioned whether Xponential even has standing to sue.
“Making a profit is not a property right,” she said during the hour-long hearing.
Weingarten also told Humetewa that she can look at the reasonableness of the governor’s order.
For example, he said, Ducey is allowing tattoo parlors to remain open. Ditto liquor stores.
“There are no public health benefits associated with liquor stores or tattoo parlors,” Weingarten said. But yet gyms, that do confer public health benefits … were closed.”
The judge said she will issue an order “shortly.”
Correction: A previous version of this story erroneously reported Lifetime Fitness was part of the lawsuit. In fact, the other gym was EOS.