Arizona judge rejects Gov. Doug Ducey’s attempt to delay order on gyms

Aug 7, 2020, 12:42 PM | Updated: 3:05 pm

PHOENIX – An Arizona judge who gave the state one week to provide gyms with a way to apply for reopening has rejected Gov. Doug Ducey’s motion to delay enforcement of the order.

That doesn’t necessarily mean the state’s indoor fitness centers are any closer to being allowed to reopen, although one chain owner appears ready to move ahead next week.

“The Executive Orders are in full force and effect and there is nothing preventing the Executive Branch from enforcing those orders and preventing the spread of the coronavirus,” Maricopa County Superior Court Judge Timothy Thomason’s Friday ruling says. “The only thing that this Court’s Order did was require a modicum of due process to aggrieved parties.”

Thomason’s denial came two days after Ducey filed the delay motion in a lawsuit brought by the Mountainside Fitness and EOS Fitness chains.

“Plaintiffs have been mandatorily shutdown for well over one month without any opportunity to be heard,” the ruling says. “A stay would further delay and impair plaintiffs’ procedural due process rights for weeks and perhaps months.”

Ducey’s office responded to Friday’s developments by thanking the judge for addressing the issue of whether the state would have to let gyms reopen.

“We appreciate the clarification in Judge Thomason’s order, which states it ‘does not order that any fitness center be opened,’” Ducey spokesman Patrick Ptak said in a statement emailed to KTAR News 92.3 FM. “We will not be asking for a stay from the Court of Appeals. Our appeal of the previous ruling remains ongoing.”

However, Tom Hatten, CEO and Founder of Mountainside Fitness, appeared to have a different read on the ruling.

“We are thankful that Judge Thomason upheld his decision and denied the Governor’s stay,” he said in a statement. “We look forward to opening as an industry next week.”

On Tuesday, Thomason ruled that 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.”

A day later, Ducey filed a notice of appeal and the motion to delay enforcement for that order 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 said.

“… 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 Tuesday said Ducey’s order violated procedural due process, but not substantive due process.

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

After Thomason issued his order earlier this week, Hatten said he was planning to reopen Mountainside Fitness facilities Tuesday of next week.

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 argued that the regular review and attestation form provide adequate due process on the matter.

In a response to follow-up questions about the form and other topics following Friday’s court ruling, Ptak told KTAR News in an email, “We are working with our legal team and the Department of Health Services on next steps. We will keep you updated.”

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 1,406 new coronavirus cases and 79 more deaths on Friday, bringing the state’s documented totals to 185,053 COVID-19 infections and 4,081 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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Arizona judge rejects Gov. Doug Ducey’s attempt to delay order on gyms