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Mountainside Fitness CEO vows to reopen after legal setback — again

(Facebook Photo/Mountainside Fitness)

PHOENIX – A day after receiving another legal setback, the CEO of Mountainside Fitness vowed to open his metro Phoenix gym chain in the next week.

“At the end of the day, one way or another, we’re going to be opening in the next seven days,” Tom Hatten told KTAR News 92.3 FM’s The Mike Broomhead Show on Tuesday.

On Monday, a Maricopa County Superior Court judge rejected a motion of contempt filed against Gov. Doug Ducey in Mountainside’s lawsuit over the state-ordered closure of gyms and other businesses considered high risk for spreading COVID-19.

Judge Timothy Thomason ruled that the state COVID-19 benchmarks and appeals process released last week met the order he issued for Ducey to provide gyms with a way to apply for reopening.

“There is a process in place,” the ruling says. “Fitness centers are taking advantage of the process, some of them successfully. Mountainside has not even given the process a chance to work.”

Tuesday wasn’t the first time Hatten and Mountainside have publicly announced intentions to reopen after a court ruling upheld the heart of Ducey’s executive order to close indoor gyms, bars/nightclubs, indoor theaters, water parks and tubing.

But Mountainside’s 18 Valley locations have remain closed and the chain continued pursuing its legal challenge of the order, which was issued June 29 as coronavirus cases skyrocketed across the state.

Meanwhile, the EOS Fitness chain has successfully applied for reopening under the state’s appeals process.

A business impacted by the executive order can resume operations ahead of the benchmarks being met if it proposes a stringent individualized COVID-19 mitigation plan and receives Arizona Department of Health Services approval.

The state-approved EOS plan includes, among other things, requiring guests to make reservations up to 24 hours in advance and limiting occupancy to 10% of capacity.

Hatten said Mountainside won’t propose a similar plan.

“To open at not just 10%, but to only 10% of capacity … no group fitness classes and no child care, for us, our model … isn’t sustainable,” he said.

The legal wrangling might not matter by next week.

If COVID-19 trends continue, Maricopa County could meet the benchmarks to reach the reopening stage before the end of August.

Every Thursday, the state health department updates the data for the three metrics used to determine if businesses can reopen.

When a county meets the moderate spread benchmarks in all three metrics for at least the previous two weeks, businesses can reopen as long as they’ve submitted an attestation form to the state and displayed it in a prominent location at the venue.

In the most recent data, Maricopa County meets one moderate benchmark — percentage of hospital visits for COVID-like illnesses. But it was just outside the moderate range in cases per 100,000 residents and percentage positivity of COVID-19 diagnostic testing.

With cases and positivity rates declining statewide, there’s a good chance Maricopa County will be fully in the moderate range after the Aug. 27 data update.

Under the state’s requirements, indoor gyms in moderate spread counties can open at 25% percent capacity. They must also follow detailed guidelines designed to keep COVID-19 from spreading, including requiring guests to wear face coverings and keep 6 feet away from others.

The gym capacity restriction increases to 50% in counties meeting the minimal spread benchmarks for two weeks in all three metrics.

Mountainside defied Ducey’s closure executive order at first and reopened for about a week until its injunction motion was rejected July 6.

The chain filed another injunction request Aug. 3. The judge ruled the next day that gyms still couldn’t open, but Ducey was ordered to give them a way to apply for reopening within a week.

Mountainside told members after that ruling it would reopen the following week, but that never materialized.

Ducey lost his challenge to the order but didn’t object when it was denied because the judge’s ruling clarified that the closure order remained valid.

On Aug. 10, the state released its complex reopening requirements with the benchmarks and appeals process. That plan was cited Monday when Thomason ruled against Mountainside again.

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