The chain alleges that the executive order violates the Arizona state constitution and state law by preventing the gym chain from doing business, not providing the company the opportunity to prove that its operations are not a public health risk, and arbitrarily shuttering gyms and bars while keeping other businesses open. Mountainside Fitness also filed a motion seeking an injunction on Ducey's new shutdown order, which he rolled out yesterday amid rapidly increasing COVID-19 case numbers and hospitalizations in Arizona.
The suit was filed in Maricopa County Superior Court on June 30.
“Governor Ducey gave us less than 5 hours to alert all 100,000 members and figure out how we can keep 1500 employees on the payroll,” Tom Hatten, CEO of Mountainside Fitness, said in a news release. “We are not a small business. We didn’t qualify for the Payroll Protection Plan. Our employees still need a paycheck and rely on our medical benefits. We have been forced to file this suit and we are asking the courts to issue a stay of the order.
“We are just as concerned about this virus as everyone but singling out and closing health clubs, after we sat closed for two months is not going to keep the virus from spreading," he added. "Every business in America, should be concerned that our civil liberties are being compromised and taken from us. The randomness of these decisions have [sic] no factual basis and the lack of transparency to all the information to support this is non-existent!”
The filing highlights that Mountainside Fitness is adopting public health measures like requiring employees to wear masks, rearranging gym layouts to maintain physical distancing, and installing sanitizing stations in its facilities, in accordance with federal guidelines. It goes on to argue that the state Department of Health Services has yet to provide an official form that Mountainside Fitness can complete to receive authorization from the state to reopen, a process outlined in Ducey's executive order.
"There is no rational basis for the closure of gyms in Arizona," the filing states. "Alternatively, there is no rational basis for the closure of Plaintiff's facilities when Plaintiff is observing recommended protocols to prevent the transmission of COVID-19."
Hatten said in the news release that he has "no plans to close his doors this time."
Mountainside Fitness is not alone. The release noted that other gym franchises, like Life Time, Orange Theory, and F45 "will remain open as well."
Natalie Bushaw, a spokeswoman for Life Time, confirmed to New Times that the gym plans to keep its facilities open despite the governor's executive order. While the company supports the lawsuit against Ducey, it has decided to "not formally join the Mountainside suit," she said.
"In support of the nearly 1,500 Life Time team members in Arizona, we are concerned with further disrupting their livelihoods after the challenging impact posed by the shutdowns in place since mid-March," Bushaw wrote. "With this in mind, we intend to continue serving members in every area of the club. We can attest that our enhanced cleaning protocols and safety measures in our spacious destinations are in compliance with the guidance issued by the Arizona Department of Health Services with respect to COVID-19. Because of this and the ample space provided by our large health, fitness and entertainment destinations, we believe Life Time is as safe as other businesses, including those remaining unaffected by these revised restrictions."
A message from New Times to Orange Theory's media line seeking comment went unanswered. But employees who answered the phone at two Orange Theory gyms in the Valley confirmed that their facilities are still open.
Patrick Ptak, a Ducey spokesman, defended the governor's new shutdown order in an email to New Times.
"The governor’s executive order is clear. Gyms and other indoor fitness clubs or centers, regardless of size, shall pause operations until at least July 27. This is a public health issue, particularly among our younger demographic, and we are looking for cooperation and compliance from our business community in the name of public health," he wrote. "We know this is a sacrifice. The order provides clear enforcement authority to local government to cite these businesses, 'up to and including summary suspension for any license that the business holds.' The order is also enforceable under A.R.S. 26-317, which carries the penalty of a Class 1 misdemeanor and a fine of up to $2,500. Our office has talked with law enforcement from around the state and local leaders."
"Again, we are looking for compliance, and we expect this order to be enforced," Ptak added.
Law enforcement has already started citing gym operators who violate Ducey's executive order. On the morning of June 30, Scottsdale police officers responded to a Mountainside Fitness location after receiving several reports of it still being open, according to a news release sent late Tuesday afternoon. After officers attempted to educate the gym's management about the order, the officers returned later in the afternoon and found it still open. They cited Mario Arce, the gym's Chief Operating Officer, with a Class One misdemeanor. Other Scottsdale gyms are "under investigation and may also be charged with similar violations," the release added.
The role of gyms as vectors of COVID-19 transmission isn't cut and dried. An article recently published in Emerging Infectious Diseases, a publication of the Centers for Disease Control and Prevention, found an association between a cluster of COVID-19 cases in South Korea and dance-fitness classes in numerous facilities. However, a study — which has not been peer-reviewed— found that people who attended gyms in Norway that implemented some public health protocols weren't more likely to contract COVID-19 (although it's also a fact that the COVID-19 outbreak in Norway is significantly less severe than in the United States). Generally, public health experts have cautioned that COVID-19 is easily transmitted through aerosolized droplets in confined indoor settings, making indoor gyms risky.
Correction and update: Although Hatten said originally that the Goldwater Institute, a Libertarian think-tank, was helping him in the lawsuit, a spokesperson for the group denied it was involved.