Arizona Gov. Doug Ducey appeals ruling on his gym closure order

PHOENIX – Arizona Gov. Doug Ducey is appealing a judge’s recent ruling that gave the state one week to give gyms a way to apply for reopening.

Ducey on Wednesday filed a notice of appeal and a motion to delay enforcement of Maricopa County Superior Court Judge Timothy Thomason’s ruling Tuesday in a lawsuit filed by the Mountainside Fitness and EOS Fitness chains.

Thomason said gyms “must be provided a prompt opportunity to apply for reopening. The process for doing so must be in place within one week from the date of entry of this Order.”

Ducey is asking for that order to be suspended until the appeals court rules.

“Certainly, any potential harm that may result from staying the Order pales in comparison to the harm that will result from the increased spread of COVID-19,” the motion to stay argues.

“… It also pales in comparison to the burdens necessarily associated with the directives in the Order, which will cause an immense diversion of critical and scarce resources at a time when the citizens of Arizona need their public employees to focus on immediate and emerging crises of public health.”

Thomason’s ruling said Ducey’s order violated procedural due process, but not substantive due process.

“As we continue to work with these industries on when and how these reopening should occur, our top priority will remain to protect and defend public health,” Patrick Ptak, a spokesman for the governor’s office, said in a statement about the appeal.

Ducey is arguing that Thomason’s order opens the state up to other lawsuits that would hamper efforts to deal with the coronavirus pandemic.

“If this Ruling is allowed to stand, its erroneous legal conclusion will open the floodgates to additional lawsuits against the Governor’s COVID-related executive orders, and down the road during other emergency situations, which will hamper the Governor’s ability to focus on the pressing battle against the pandemic,” the new filing says.

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

After Thomason’s ruling this week, Mountainside Fitness CEO Tom Hatten said he was planning to reopen his facilities Tuesday.

Arizona’s gyms had been allowed to reopen in May after being closed under the stay-at-home order issued at the outset of the pandemic.

But after COVID-19 cases and hospitalizations soared, Ducey issued an executive order June 29 that again closed indoor gyms and fitness centers, bars, movie theaters, water parks and tubing.

Mountainside Fitness remained open and sought an injunction against the order, but Thomason ruled in favor of the government on July 7, saying the state “has the weight of the law on its side.”

Mountainside closed its 18 Arizona locations after that ruling.

Ducey’s executive order had no set end date but included a provision calling for it to be reconsidered for repeal or revision every two weeks starting July 27. He has extended the order once already, and the next review is due by Monday.

The closure order also mandated state officials to create requirements that gyms will have to follow when they get the green light to reopen. The first draft of the list was posted last month along with a form for gyms to submit to attest they are following orders to stay closed and will follow requirements to reopen when given clearance.

Tuesday’s ruling said the attestation form doesn’t adequately give gyms a way to apply for reopening as set forth in the executive order.

Ducey’s filing argues that the regular review and attestation form provide adequate due process on the matter.

The Arizona Department of Health Services has links to the requirements and form on top of its website.

The first draft of the requirements, dated July 22, included a provision that gyms and fitness centers would be able to operate only at or below 50% of fire code capacity.

A revised draft, dated July 31, calls for occupancy to remain at or below 25% of capacity.

Arizona reported 1,444 new coronavirus cases and 70 more deaths on Thursday, bringing the state’s documented totals to 183,647 COVID-19 infections and 4,002 fatalities.

The spread of coronavirus in Arizona has been slowing in the weeks after the implementation of face mask requirements in many areas — including all of Maricopa County — and the statewide executive orders to close certain businesses and restrict restaurant occupancy.

Those moves were made after the state became a global hot spot for the coronavirus, which has no impact on some people and is seriously debilitating or fatal for others. Infected people without symptoms – which include but are not limited to cough, fever and difficulty breathing — are capable of spreading the virus.

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