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Gym pushes judge to hold Ducey in contempt of court

(Deposit Photos/Wave Break Media)

(Deposit Photos/Wave Break Media)

The attorney for a locally owned chain of fitness centers told a judge Monday he should hold Gov. Doug Ducey in contempt.

Joel Sannes pointed out to Maricopa County Superior Court Judge Timothy Thomason that he had directed the governor to come up with a process to allow gyms and fitness centers to reopen even in counties where the risk of COVID-19 remains substantial.

But Sannes said all that Ducey and state Health Director Cara Christ did was to tell these businesses they can apply — and she and her agency would review what they submit.

What they did not do, he said, is give them some actual standards to meet. Instead, it comes down to making proposals beyond the basics of what will allow them to reopen at some undetermined future date and hoping state officials like them.

Mountainside Fitness attorney Joel Sannes, right, answers a question as Mountainside Fitness founder and CEO Tom Hatten, left, listens after the health club announces the they will comply with a court decision to close during a news conference at Mountainside Fitness headquarters Tuesday, July 7, 2020, in Scottsdale, Ariz. A judge on rejected the request by the Mountainside Fitness chain to stop enforcement of Gov. Doug Ducey's shutdown of gyms, ruling the coronavirus provided a rational basis for such emergency action. (AP Photo/Ross D. Franklin)

Mountainside Fitness attorney Joel Sannes, right, answers a question as Mountainside Fitness founder and CEO Tom Hatten, left, listens after the health club announces the they will comply with a court decision to close during a news conference at Mountainside Fitness headquarters Tuesday, July 7, 2020, in Scottsdale, Ariz. (AP Photo/Ross D. Franklin)

“The process is a black box,” Sannes said. “Due process can’t be achieved without standards.”

Thomason said he understands the frustration of businesses hoping to prove they can reopen safely despite the substantial threat of the coronavirus but not told what they need to do.

“The thing that gives me a little concern is the fact that if you’re in the ‘substantial’ category … there aren’t any standards,” the judge said. “It is a little bit shooting in the dark.”

But Brett Johnson, the governor’s attorney, said Ducey did comply with the order, directing the health department to set up a system for businesses to be able to get waivers from the normal standards.

In fact, he said, it’s working. He pointed out that EoS Fitness, which also had sued Ducey over the governor’s order shuttering gyms and fitness centers, has been allowed to open its doors again.

Documents obtained by Capitol Media Services show what EoS did is agree to limit occupancy to 10%, require electronic reservations for all clients, require masks, keep saunas and steam rooms closed and pause group activities like basketball.

But it’s not just EoS that sought a waiver from the rules that now keep certain businesses closed because they’re located in areas of substantial risk of COVID-19 spread.

As of late Friday, 89 gyms and fitness centers had submitted proposals, with Training for Warriors – Estrella also given the go-ahead to reopen.

There also are 95 applications by businesses licensed as bars to be allowed to bring customers inside, and five from movie theaters.

Four businesses have been denied.

Timothy Thomason

Timothy Thomason

But as Sannes pointed out, there is no specific set of standards to get those waivers, only an application process with decisions made on a case-by-case basis.

That makes what Thomason decides crucial as it could have implications beyond this case — and even beyond gyms and fitness centers. It could determine if the health department is forced to tell businesses closed because they are in areas of “substantial” risk of COVID-19 spread exactly what they have to do to get a waiver to reopen or whether they just have to put in a proposal and hope for the best.

Johnson told Thomason that Mountainside has to go through the process — and seek an informal settlement conference if denied — before it can claim that Ducey didn’t do what the judge ordered. And he said that the whole idea of Mountainside seeking to hold the governor in contempt because they don’t like how the health department might handle its application makes no sense.

“If you don’t get a driver’s license, you don’t sue the governor,” Johnson said. “You go after DMV.”

Sannes, however, does not see it that way. He said Thomason’s order required the health department to create standards to tell businesses what they need to do to get a waiver.

Under current practices, the health department will allow gyms and fitness centers to reopen at 25% capacity with certain other protections. But Christ said that can occur only in counties where there is no longer a substantial risk of spread of the coronavirus.

Only Cochise and Yavapai counties fit that definition.

At issue here is that Christ said she will allow those in the other 13 counties to submit plans to reopen anyway. That’s how EoS and Training for Warriors got approved.

But what she hasn’t provided, Sannes said, is some clear benchmarks for what others have to do.

Johnson did not dispute that fact. Instead he urged Thomason toss the complaint.

“To say the governor is somehow subject to contempt for everything he and his administration is doing is quite honestly offensive,” Johnson said. And he said there is a remedy if Mountainside wants to know what Christ found acceptable by EoS: file a public records request.

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