Will Mountainside Fitness open this week? ‘We’ll just see,’ CEO says
PHOENIX – The owner of Mountainside Fitness, who is embroiled in a legal battle with Arizona Gov. Doug Ducey over a closure order, wouldn’t commit Monday to opening his gyms this week as he’d previously announced.
Mountainside CEO Tom Hatten last week said he was planning to open Tuesday following rulings in a lawsuit filed by his chain and EOS Fitness.
“Well, we’ll just see,” Hatten said Monday when asked on KTAR News 92.3 FM’s The Mike Broomhead Show if he was still planning to open the next day.
Later Monday, Hatten released a statement confirming that Mountainside’s reopening plans were on hold as he awaited finalized protocols from the state, which a judge last week ruled were due by Tuesday.
“We have decided to hold off our reopening until those protocols are available to sign,” the statement said. “We will act accordingly based on what we receive tomorrow.”
The lawsuit was filed in response to Ducey’s late-June executive order that closed gyms in an effort to stem what was a rising wave of COVID-19 cases.
On Aug. 4, Maricopa County Superior Court Judge Timothy Thomason’s ruled that the state must give gyms a way to apply for reopening within a week.
The same day, Mountainside Fitness told members it planned to reopen Tuesday, which will be one week from the ruling.
Hatten wasn’t so certain on Monday.
“I think I’m going to take a ‘wait and see,’” he said. “Naively I believed, … which I shouldn’t of, when we got the court order last week that Gov. Ducey would just, ‘OK, move forward.’”
Thomason on Friday rejected the motion to delay, but in his ruling he emphasized the fact that he wasn’t giving gyms legal permission to reopen.
“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,” the ruling says. “The only thing that this Court’s Order did was require a modicum of due process to aggrieved parties.”
Ducey’s office responded to 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, Hatten again implied he planned to reopen his facilities this week.
“We are thankful that Judge Thomason upheld his decision and denied the Governor’s stay,” he said in a statement Friday. “We look forward to opening as an industry next week.”
Arizona’s health clubs 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 on June 29 issued the executive order that again closed indoor gyms and fitness centers, bars, movie theaters, water parks and tubing.
Mountainside Fitness remained open and sought an injunction against that 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 was due 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.
Last week’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. The document is clearly marked as a draft and subject to change.
A revised draft dated July 31 that was still up as of Monday morning calls for occupancy to remain at or below 25% of capacity.
Hatten said he’s provided ample evidence that his gyms should be allowed to reopen.
“We are dumbfounded as to the reason why we are simply not allowed to open up,” he said Monday. “We’ve given more than enough proof based on their own guidelines.”
During a court hearing Aug. 3, Dr. Cara Christ, director of the Arizona Department of Health Services, testified that the nature of indoor gyms made them a high risk for spreading coronavirus, “even when the guidelines are put in place.”
The spread of coronavirus in Arizona has been slowing since 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.
Arizona reported 600 new coronavirus cases and 4 more deaths on Monday, bringing the state’s totals to 187,523 COVID-19 infections and 4,154 fatalities.
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