PHOENIX — Arizona gyms and fitness centers could be allowed to reopen within a week.
In an extensive order Tuesday, Maricopa County Superior Court Judge Timothy Thomason said it was wrong for Gov. Doug Ducey to shut down these facilities indefinitely without giving them a chance to appeal. He said that violates the constitutional due process rights of the owners.
Thomason said he is not faulting Ducey for his initial decision to shutter these facilities. He said the governor, based on medical advice he was getting, had a “rational basis” for doing that.
But now, with these businesses shut down twice since the emergency was declared in March, Thomason ordered the governor to provide gyms and fitness centers “a prompt opportunity to apply for reopening.” The process must allow gyms to attest that they can live with guidelines already crafted by the state Department of Health Services to minimize the risk of the spread of COVID-19.
And he wants that quickly, as the fitness centers remain closed.
“As such, time is of the essence,” the judge said. His order says the state has to have a process for reopening within one week.
“It’s everything we wanted,” said attorney Joel Sannes, who is representing Mountainside Fitness, a Phoenix-area chain. “What we wanted was a process in place for gyms that can operate safely to reopen.”
And he interprets the order to mean that by next Tuesday his client and any other facility that agrees to the guidelines can again have customers coming through the door.
Whether that timeline sticks remains to be seen.
Thomason said the state does maintain some “discretion” in reviewing the promises submitted by gyms and fitness centers that they will operate under the rules. And he even provided an escape clause of sorts, allowing the health department to impose even higher standards than the ones already crafted.
Sannes conceded the point.
“The governor could say we’ve examined the protocols and they’re just not safe enough to allow anyone to reopen,” he said.
But Sannes said he would go back to Thomason and ask the judge to cite Ducey for contempt.
Whatever the state does, the judge said, has to happen soon. He said any process set up by the state “will be one that moves with deliberate speed.”
“Fitness centers have already been closed for several months this year, and it is imperative that their constitutional rights be respected,” the judge wrote.
The governor’s lawyers are reviewing the decision, said Patrick Ptak, Ducey’s press aide.
Tuesday’s order is the first legal defeat for the governor over his executive powers. Prior rulings — including one by Thomason — have rejected efforts to have his actions declared illegal.
What’s changed, the judge said, is he’s now had a chance to hear from experts about not just the virus, but the relative risks posed by gyms and fitness centers versus businesses the governor has allowed to reopen.
“Indeed, there is not even a statewide mask policy,” Thomason noted about protocols that the state has taken, or not.
“There are many businesses operating in this state with no mandated protocols, such as social distancing, mask wearing, crowd control and the like,” he wrote.
“Yet these businesses are up and running, potentially exposing the public to illness.”
By contrast, Thomason said, Mountainside Fitness and EoS Fitness, both of whom sued, have said they are willing to live within rules proposed by the health department, including limits on the number of clients and other restrictions. He said that also applies to other operators.
“It is very understandable that fitness center operators feel like they are being unfairly singled out,” the judge said.
But there’s more to the ruling than simply a question of whether gyms and fitness centers were being treated fairly.
In seeking to defend the closure order, Ducey argued that simply shuttering businesses for some period of time does not deprive owners of their property, meaning they are not entitled to any sort of due process.
“This is incorrect,” Thomason wrote.
Thomason said if the government wants to shut down certain businesses it has to provide them with “due process” to appeal that action. That, the judge said, does not change simply because of the pandemic.
“Procedural due process does not completely disappear in time of hardship,” he said.
