Health director testifies in gym closure lawsuit

Dr. Cara Christ, director of the Arizona Department of Health Services, speaks during news conference on COVID-19 in Arizona, Thursday, July 30, 2020, in Phoenix. (Patrick Breen/The Arizona Republic via AP, Pool)

The state’s top health official acknowledged that she and Gov. Doug Ducey are ignoring some Arizona-specific recommendations from the White House Coronavirus Task Force.

At a court hearing Monday, Dr. Cara Christ agreed that the latest report from the task force says the state should require masks of all individuals. Instead, the governor, after specifically refusing to issue a mask order — and even barring cities and counties from imposing their own — finally left that decision to local officials.

That same report also says Arizona should limit indoor dining to less than 25 percent normal capacity. But Ducey is allowing restaurants to serve up to half of the regular seating.

What makes all that relevant is that Christ testified that she and Ducey decided to keep gyms and fitness centers closed based on those same task force recommendations — recommendations that, in this case, they decided to follow.

Dr. Deborah Birx, White House coronavirus response coordinator, speaks during a meeting with higher education leaders on safely reopening schools, Friday, July 24, 2020, in Indianapolis. (AP Photo/Darron Cummings)

But under questioning, Christ conceded that Dr. Deborah Birx, coordinator of the White House task force, was probably not aware when those recommendations to keep gyms and fitness centers closed were released that her agency already had crafted some protocols that, if followed, would allow them to reopen in safe fashion. Yet even with that, Ducey and Christ have decided that these facilities have to remain closed.

All that is relevant as Joel Sannes, attorney for Mountainside Fitness, seeks to convince Maricopa County Superior Court Judge Timothy Thomason to overrule the order that keeps the doors shut for not only his client but another approximately 900 similar facilities around the state.

In essence, Sannes is arguing that Ducey and Christ are picking and choosing which task force recommendations they want to follow.

He said there is no “rational basis” to keep gyms and fitness centers closed if they can comply with the very protocols that Ducey directed the Department of Health Services to craft. That came with a promise they could serve customers again as early as July 27 if they agreed to follow those standards.

But the governor instead decided to keep the closures in place, regardless of whether they agreed to follow the guidance.

Sannes isn’t the only one attacking the governor’s decision.

In questioning Christ, Robert Zelms, attorney for EoS Fitness, argued that there have have been no instances of anyone in Arizona contracting COVID-19 from one of these facilities. She conceded the point, but with a caveat.

Timothy Thomason

“I can’t say, though, that that’s 100 percent accurate,” Christ said. “I may just not be aware of them.”

Those protocols her agency crafted are fairly specific. They include:

– Mandated use of masks or cloth face coverings for all guests;

– Operate at 25 percent or less capacity;

– Implement temperature checks or symptom screening at the door;

– Require reservations for fitness classes to limit the number attending;

– Provide hand sanitizer, disinfecting wipes, tissues and no-touch trash cans.

But Christ, whose agency crafted the protocols, told the judge she is still not convinced that gyms and fitness centers can operate safely — even if they follow them.

“The person who has COVID-19, if they are breathing vigorously, they can actually concentrate the virus in droplets that could land on surfaces,” she said. “It also allows the droplet to transmit farther.”

Those who are not infected, Christ said, are breathing deeper — and often through their mouths — which allow the particles to get farther into the respiratory system

And Christ said face coverings don’t eliminate the risk.

“We know that masks are not 100 percent effective,” she testified. “So there’s an inherent risk, even when the guidelines are put into place.”

But Sannes told the judge that, even if that is the case, that’s still no reason to shutter bars and gyms, especially when so many other kinds of places can remain open.

He said, for example, that Ducey’s order keeps bars closed on the basis that they provide opportunities for unmasked people to spread the virus. But Sannes pointed out there are about 4,000 establishments in the state that do serve alcohol for on-premises consumption: restaurants with liquor licenses.

“Those 4,000 bars can continue to be open because they serve burgers,” he said. “That is the height of the definition of arbitrary.”

Brett Johnson, the governor’s attorney, told Thomason he should defer to the decisions made by Christ and Ducey.

He specifically urged the judge to disregard the conclusions of former Health Director Will Humble, now executive director of the Arizona Public Health Association, who said that any gym or fitness center that operated according to the protocols would be no more dangerous than people going to a grocery store or doing any other kind of shopping.

“He’s not a professional or a doctor or anybody who has medical experience,” Johnson said. And he said it’s not fair to compare gyms and fitness centers with grocery and retail stores.

“You can’t get food at a health facility,” Johnson said. By contrast, he argued, there are alternatives to the kinds of services provided by places like Mountainside Fitness.

“You can run outside at 5 in the morning take walks in the evening,” Johnson said.

“You can do virtual exercises,” he continued. “We have to be able to get our food.”

Christ, in defending her decision, said she and her staff have more information about the disease than pretty much anyone else, things like data on specific patients.

“The public does not have access to that type of information,” she said. Christ also said she has more access to experts, like the state epidemiologist, the Centers for Disease Control and Prevention, and the members of the Conoravirus Task force.

Thomason said he hopes to have a ruling on Tuesday.