Ducey appeals court order to reopen gyms

In this July 2, 2020, file photo, a trainer, top, at Mountainside Fitness, works with a client in Phoenix.  (AP Photo/Ross D. Franklin, File)

Gov. Doug Ducey is moving to deny gyms and fitness centers the right to reopen despite a court order to the contrary.

In new legal briefs, the governor wants the state Court of Appeals to void the August 4 ruling by Maricopa County Superior Court Judge Timothy Thomason ordering him to provide them a chance to prove they can operate safely. Ducey is arguing that forcing the state to let them reopen before he and health officials believe it is appropriate could result in “death, serious physical illness, and a lack of hospital beds.”

And if that message is lost on the appellate judges, the private attorneys hired by the governor warned of dire consequences if they do not intercede. They said that Thomason’s legal conclusions will “open the floodgates” for others to challenge Ducey’s orders “which will hamper the governor’s ability to focus on the pressing battle against the pandemic.”

“Put simply, the superior court’s ruling threatens the lives of Arizona citizens and should be reversed immediately,” they wrote.

Doug Ducey

More immediately, the governor wants Thomason to stay his own order that requires him and state Health Director Cara Christ to have the rules in place by August 11 telling gyms and fitness centers exactly what they need to do and allowing them to open their doors if they attest they will comply with those requirements.

The stay that Ducey wants would be for a week after either the Court of Appeals refuses to consider the appeal or rules on it. And, if granted, it means that plans by Mountainside Fitness and other facilities to open next week will be shelved.

In filing the appeal, the governor’s attorneys cited a series of what they claim were errors that Thomason made in concluding it was wrong for the governor to shutter the gyms and fitness centers with no opportunity to show that they pose no more danger than other businesses the governor has allowed to open, from grocery stores to restaurants. And they said that the trial judge ignored the principle that the Constitution “principally entrusts the safety and health of the people to politically accountable officials of the states to guard and protect.”

Attorney Joel Sannes, representing Mountainside Fitness, said the governor’s legal bid is not unexpected. But he said he ultimately expects it to fail, even with the claim that people will die.

“On this issue, the governor bears a high burden of proof,” Sannes said.

“The governor actually needs to show evidence that there is a risk that people will die,” he said. “And that is where the governor has really fallen short.”

In essence, Sannes said, Ducey is claiming only that he has a “rational basis” for his conclusions that it would be unsafe to allow gyms and fitness centers to reopen, even if they follow the protocols crafted by his own Department of Health Services.

Those protocols include everything from mask and cleaning requirements to limiting the number of people who can be on site at any one time.

Timothy Thomason

“Their testimony at the hearing established that there are no contact-traced infections related to fitness centers,” Sannes said. “That is true both locally and nationwide.”

Nor, he said, was there evidence of any significant outbreak linked to fitness centers “unlike the very persuasive evidence of serious outbreaks associated with bars and nightclubs.”

Sannes said his most immediate goal will be to convince Thomason not to grant Ducey’s motion to stay his original order requiring a system in place by August 11, allowing these facilities to show they can reopen safely.

That would not void Ducey’s plea to the Court of Appeals.

But if Thomason denies the request for a stay, the governor and health department would have to start the process. Then, if Ducey ultimately convinces the appellate court that Thomason was wrong, it could allow him to once again shut the doors to gyms and fitness centers.

Thomason issued his ruling after hearing from experts called by Mountainside Fitness and EoS Fitness who testified 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.

The judge acknowledged testimony from Dr. Cara Christ, the state health director, about how the White House Coronavirus Task Force, in Arizona-specific recommendations, said the state should keep these kinds of facilities closed.

But Christ acknowledged that the state is not following all of those recommendations, including one for a statewide mandate on the use of face masks and another saying restaurants should limit indoor dining to no more than 25% of normal capacity. Instead, Ducey has left the question of masks up to local officials and is allowing restaurants to seat up to 50%.

The protocols crafted by Christ’s agency for gyms and fitness centers include:

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

– Operate at 25% or less of 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 testified 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.

Neither Thomason nor the appellate court has set a schedule to consider Ducey’s request.