In battle over gyms, judge denies Ducey’s Motion to Stay

Tom Hatten, CEO and founder of Mountainside Fitness, at Aug. 4 press conference after court ruling in his favor.

By Joyce Coronel

UPDATE Aug. 7

Superior Court Judge Timothy Thomason has denied Gov. Ducey’s Motion to Stay while still acknowledging the governor’s duty to protect public health: “The Court is very mindful of and deferential to the Governor’s efforts in keeping the citizens of this State safe. That is precisely why the Court upheld the Executive Orders and found only that post-deprivation procedural due process was not provided … Complying with this Court’s Order will cause no irreparable injury.

“The Governor claims only that ADHS will be inconvenienced by having to implement a process for applications to reopen … [T]he process to be designed by the Governor and ADHS could be as simple and straightforward as the Governor or ADHS want it to be … Inconvenience is no justification for depriving citizens of their Constitutional due process
rights, even during a pandemic.”

UPDATE Aug. 6

Gov. Ducey has appealed the order of Superior Court Judge Timothy Thomason. Ducey’s Motion to Stay the ruling by Thomason, filed Aug. 5, states in part: “Thus, to preserve the status quo, Governor Ducey seeks an order from this Court staying enforcement of the Order until one week after the Court of Appeals either denies special action jurisdiction or rules on the merits of the Petition for Special Action,whichever is later.” 

Aug. 4

Maricopa County Superior Court Judge Timothy Thomason has ruled that gym owners were deprived of their due process rights and must be provided with an opportunity to apply for reopening their doors by Tuesday, Aug. 11.

“There is very little credible scientific data supporting the notion that fitness centers operating with necessary safety protocols pose a danger or that shutting down well-run gyms has a significant public health benefit. Yet, fitness centers and gyms have been closed for weeks without any due process whatsoever,” Thomason wrote in his decision.

Mountainside Fitness and EOS Fitness were part of a legal battle with the State of Arizona over the second round of gym closures by Gov. Doug Ducey’s July 27 executive order.

Tom Hatten, CEO of Mountainside, called the decision by Thomason “historic” and said the reopening of gyms would be part of the greater economic good of Arizona.

“The severity of this pandemic is not lost in today’s decision,” Hatten said.

“We just wanted to make sure that like all businesses, the fitness industry was allowed to stay open if we all agree to a protocol that we would follow to stay open. I think this ruling today said exactly that.

“The ability for all businesses to be closed for this amount of time is not something that we’re prepared to do in this country.  It’s not sustainable for all of our employees and certainly as an industry.”

The ruling referred to medical experts called by both sides in the dispute and acknowledged that the initial closures were necessary for public health but that “fitness centers and gyms are constitutionally entitled to some mechanism for petitioning for reopening. They must have some meaningful opportunity to be heard.”

“We feel like this ruling allows us to do that and go forward together as a society and beat this virus together,” Hatten said of the decision.

Gerry Lee, owner of Mega Fit in West Chandler, was elated by the ruling.

“I’m so relieved. The mortgage is the big thing and all the other bills, insurance costs, utilities. About the only thing that’s really gone down is my payroll,” Lee said. He said the reopening process for Mega Fit will be quick. He’s waiting to see what the state requires but then will begin the process of opening his doors again.

“I’ve cancelled all the classes so I’ll need to set up more. It won’t take me very long to set it up. We’re getting close,” Lee said. “I can be going in four hours—that’s my plan.”

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