In a blow to Governor Doug Ducey, a judge ruled on Tuesday that Arizona gyms must be given the opportunity to prove that they can safely reopen amidst the pandemic.
In late June, when COVID-19 cases were surging in Arizona, Ducey issued an executive order that shut down businesses like bars, gyms, and movie theaters. Mountainside Fitness, a local gym chain, promptly sued, only to have its demand for an injunction on the shutdown order thwarted by the courts.
Tuesday's decision comes after Ducey extended his recent order shutting down certain businesses, including gyms.
Maricopa County Superior Court Judge Timothy J. Thomason ruled that the governor's order violates "procedural due process" and that he must provide fitness centers with a "prompt opportunity to apply for reopening." He added that the application process must be ready within one week.
In a statement, Ducey spokesperson Patrick Ptak wrote that the governor's office is "reviewing" the order.
"Our focus is on protecting public health, and working with the private sector on how and when to safely reopen," Ptak said.
In Ducey's original shutdown order, he stated that gyms could apply for reopening by proving they are complying with state public health guidelines. Specifically, gyms could submit a form to demonstrate their readiness.
Tuesday's ruling states that no such form was made available to gyms prior to July 27, which was the end date of the original shutdown order. Additionally, Ducey's extension of the shutdown order makes no reference to such a process — effectively leaving gyms in limbo in their bid to reopen.
"While the Form and the requirements have been made available, they provide no process until the mandatory shut down order is lifted," Thomason wrote. "As such, any due process is illusory.
"It is in fact the duty of this Court to ensure that affected businesses receive an opportunity to be heard in a meaningful way," the judge's ruling continued. "Not allowing businesses any due process until the Governor decides, in his discretion, to end mandatory shutdown periods, deprives these businesses of any meaningful due process. In fact, under [Executive Order] 52, the Governor can simply continue to extend the shutdown periods for two weeks at a time indefinitely, depriving fitness centers any opportunity to be heard."
The ruling did not, however, dispute the legality of Ducey's shutdown order.
Thomason wrote that the governor "clearly had a rational basis" for shutting down gyms, based on input he was receiving from public health experts.
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The judge pointed out that the governor has not enacted a state-wide mask mandate, as many critics have called for, and he poked at Ducey for his decision to shutter gyms while allowing some bars to continue to operate.
"Any Arizonan is very much aware that most businesses are open," Thomason wrote. "Many of these businesses, such as restaurants and grocery stores, are often quite crowded. While most businesses seem to be trying to operate safely, there are few, if any, mandatory governmental safety protocols applicable to most businesses. Indeed, there is not even a State-wide mask policy.
"There are many businesses operating in this State with no mandated protocols, such as social distancing, mask-wearing, crowd control and the like," he continued. "Yet, these businesses are up and running, potentially exposing the public to illness. Fitness centers, willing to ensure that their centers are not crowded and are operating safely, however, have to remain closed."
"It is very understandable that fitness center operators feel like they are being unfairly singled out," he added.