Judge says Mountainside Fitness gyms must close, comply with governor's order until case decided - AZCentral

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Ryan Randazzo Arizona Republic

Published 2:12 PM EDT Jul 7, 2020

Mountainside Fitness gyms must close while a court decides whether Gov. Doug Ducey's executive order to close through at least July 27 is lawful, a judge said in a ruling issued on Tuesday.

After a week of defiance, Mountainside founder and CEO Tom Hatten said shortly after the ruling was announced he would comply and close the company's 18 gyms by 2 p.m. Tuesday.

Ducey issued a new closure order on June 29, and Mountainside quickly announced it would sue to void that order, which it did. Mountainside also asked for a restraining order to prevent the order from taking effect and continued operating its gyms.

Maricopa County Superior Court Judge Timothy Thomason said in his ruling that the gyms must follow the order while the case is decided, even if it creates an unfair hardship on a good business.

"The hardships to Mountainside and those similarly situated have been severe and may have been unfair," Thomason's ruling said. "The public has a great interest in having businesses up and running in a profitable and safe manner. Mountainside is, by all accounts, an excellent, well-run company, that is not only profitable, but also a good citizen, concerned about the community."

However, he said, "We elect people ... to deal with emergency situations such as this one."

"People in high office must be given wide latitude in their decision making in emergency situations," the ruling said. "The public has a very strong interest in dealing with public health concerns like this one. The hardships could become even more immense if the spread of the virus is not curtailed."

Hatten said he was disappointed with the decision but respects the court.

“It’s a disappointing day and not the outcome or decision we had hoped for," he said in a prepared statement. "We will still be continuing our fight for Mountainside Fitness and other businesses across Arizona as we hope to prevail in the coming days when we go to court.”

He said he will continue paying his 1,500 employees through July 26, in apparent hopes the order expires July 27 without an extension. Mountainside reports 105,000 gym members in Arizona.

After the governor's order came out, EoS gyms said they would close their approximately 30 gyms in the area for only one day, rather than through July 27 as the governor ordered.

A separate legal challenge from its parent company, Fitness Alliance, was merged into the Mountainside case. The EoS website said Tuesday that all locations remain closed.

Thomason said during a Monday hearing in the case and again in his ruling that he is concerned about one element of the governor's order, which states that gyms will be given forms from the Department of Health Services to ensure they are in compliance with reopening standards so they can reopen possibly after July 27.

Those forms are not yet available, and Thomason said it is concerning that the process by which gyms will be allowed to reopen is not yet defined.

"The Court is greatly concerned about implementation," he wrote. "The Court will only say that, if the form is not available well in advance of July 27, then the Governor runs the real risk of depriving aggrieved businesses of any real process at all. If meaningful process is not provided, then injunctive relief may ultimately be ordered."

Meanwhile, the Arizona Department of Health Services has sued to close Mountainside Fitness gyms that are defying Gov. Doug Ducey's order to shut through at least July 27 to prevent spreading COVID-19 as Arizona cases increase and hospital capacity to treat the ill shrinks.

A hearing is scheduled for Tuesday afternoon in that case, though it could be moot if Mountainside decides to close its gyms voluntarily.

Yet another legal challenge to the order from a chain of smaller fitness studios has a hearing in federal court on Monday.

This is a breaking news story and will be updated.

Reach reporter Ryan Randazzo at ryan.randazzo@arizonarepublic.com or 602-444-4331. Follow him on Twitter @UtilityReporter.

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