PHOENIX — A company that franchises out fitness studios wants a federal judge to rule that there are limits on the unilateral authority of the governor to close them down, even during an emergency like the coronavirus pandemic.
There’s no doubt that Governor Doug Ducey has authority to act to protect public health, Alex Weingarten who represents Xponential Fitness told Judge Diane Humetewa on Monday. And Weingarten is not directly challenging Ducey’s June 29 order reclosing gyms and fitness centers about six weeks after he first allowed them to reopen.
What Weingarten argues is that the 50 fitness centers have presented evidence that they will be operating under guidelines by the Centers for Disease Control and Prevention. Yet Ducey’s order says they cannot open again until at least July 27 — if not later.
“If we’re not doing anything wrong, why are we closed?” Weingarten asked.
But attorney Brett Johnson, hired by Ducey to defend his actions, told the judge this was merely a “pause” in fitness center operations that the governor believes is necessary due to a sharp uptick in the number of COVID-19 cases in the state. Arizona “is not just one of the hotspots in the country but is one of the hotspots in the world,” Johnson said.
And Johnson pointed out that the biggest increase has been among those in the 20 to 44-year-old age group, precisely those most likely to be clients of gyms and fitness centers.
Anyway, he told Humetewa that the state health department will be putting out forms sometime before July 27 telling these facilities exactly what they need to do to reopen and allowing them to once again have clients once they attest they are meeting those standards.
“The governor appreciates all of the fitness centers who have put in significant amount of data as to what they are doing and what they are willing to do as part of the attestation process,” Johnson said.
Weingarten said that’s not an answer. Platitudes only go so far,” he told Humetewa. “We need to be able to operate our business.”
Weingarten said the franchise operations are ready to go now. To delay it further, he said, simply because the governor set that July 27 date denies the fitness centers their rights.
The argument could prove an uphill fight.
Last week a Maricopa County Superior Court judge rejected similar arguments by the owners of Mountainside Fitness and EoS Fitness that claimed they were acting in a responsible fashion and sought to remain open.
Weingarten said Xponential’s franchise operations are different, operating around the state as Club Pilates, Stretch Lab, CycleBar, Pure Barre, Yoga Six, AKT, and Row House.
He called them “boutique” fitness centers versus “big-box” gyms, able to much easier do things like maintain social distance and keep equipment clean. And Weingarten said there are no confirmed cases of community spread from any of the 1,500 operations under those flags nationwide.
“Those are points the governor has not and cannot refute,” he said.
But there are other things working against Weingarten and his clients.
Humetewa said there are legal precedents saying that, in general, courts should not try to second-guess health decisions made by elected officials. She said they lack the expertise.
Weingarten said it’s not that simple.
“Here you have the governor making what is a well-intentioned but ultimately incorrect decision and a lack of any ability by us or any aggrieved parties to challenge that action if the governor’s interpretation is correct,” he responded.
“The governor has broad power,” Weingarten continued. “The governor does not have unlimited power.”
But Humetewa also questioned whether Xponential even has standing to sue.
“Making a profit is not a property right,” she said during Monday’s hour-long hearing.
Weingarten also told Humetewa she can look at the reasonableness of the governor’s order. For example, he said, Ducey is allowing tattoo parlors to remain open. Ditto liquor stores.
“There are no public health benefits associated with liquor stores or tattoo parlors,” Weingarten said. “But yet gyms, that do confer public health benefits ... were closed.”
The judge said she will issue an order “shortly.”
