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Mountainside Fitness continues legal battle against Ducey over benchmarks

(Facebook Photo/Mountainside Fitness)

PHOENIX — The legal battle between Mountainside Fitness and Gov. Doug Ducey continued Wednesday as the health club filed a motion of contempt against the governor over newly released benchmarks for businesses to reopen during the coronavirus pandemic.

Mountainside and EOS Fitness alleged that the benchmarks, released Monday, don’t allow gyms to prove they can safely reopen and don’t provide a defined date for when they can reopen.

The benchmarks require counties to reach a moderate spread of COVID-19 community transmission prior to a partial reopening. That requires cases rates to be between 10-99 per 100,000 residents, a positivity rate between 5-10% and a COVID-like illness rate between 5-10% for two consecutive weeks.

Gyms would have to then meet and enforce a list of requirements to open at a 25% level.

Maricopa County currently doesn’t meet any of the benchmarks and is weeks away from the possibility of achieving all three.

“Plaintiff must now navigate a byzantine procedure containing no firm deadlines nor any discernible requirements with which it can comply to be allowed to reopen,” the motion said.

“This leaves Plaintiff in the same place it was before: closed for business and with no ‘meaningful’ chance to prove it can safely reopen its doors.”

Mountainside hopes a judge will view the benchmarks as unsatisfactory and lacking compliance with a previous ruling requiring the state give gyms a way to apply for reopening within one week.

The requirements were released after Maricopa County Superior Court Judge Timothy Thomason ordered the state last Tuesday to give gyms a swift reopening application process.

The ruling said a previous attestation form didn’t adequately give gyms a way to apply for reopening as set forth in the executive order issued by Gov. Doug Ducey on June 29.

On that day, Ducey issued the order that again closed indoor gyms and fitness centers, bars, movie theaters, water parks and tubing.

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

“It’s been an ever-changing set of protocols since the day we were shut down for the second time on June 29,” Mountainside Fitness CEO Tom Hatten said in a press release.

“We have been desperately trying to understand first why we were forced to close, where’s the evidence, which we also proved in court that there wasn’t any evidence to prove that we should be closed.”

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