Maricopa County Superior Court: Fitness centers must be given opportunity to apply for reopening

PHOENIX - A court in Arizona has ruled that Governor Doug Ducey has a week from August 4 to lay out a process for fitness centers in Arizona to apply for reopening.

On the afternoon of August 4, FOX 10 received the court ruling in a lawsuit over the closure of health clubs, which was instituted in a bid to guard against the spread of the coronavirus. While fitness centers have been ordered to close, supermarkets, restaurants, and other businesses remain open.

Ruling: Executive Order, as implemented, violated due process

In the ruling, the Maricopa County Superior Court ruled that Gov. Doug Ducey's executive orders, as it is implemented, violated procedural due process, but that the orders do not violate substantive due process.

According to the Merriam-Webster Dictionary, procedural due process is defined as "a course of formal proceedings (such as legal proceedings) carried out regularly and in accordance with established rules and principles," while substantive due process is defined as "a judicial requirement that enacted laws may not contain provisions that result in the unfair, arbitrary, or unreasonable treatment of an individual."

"Fitness centers must be provided a prompt opportunity to apply for reopening," read a portion of the ruling.

In the ruling, the court found there is "very little credible scientific data" that supports the notion that fitness centers operating with necessary safety protocols will pose a danger, or that shutting down well-run gyms will have a significant public health benefit.

"Yet, fitness centers and gyms have been closed for weeks without any due process whatsoever. Plaintiffs’ Constitutional right to due process has been violated. As such, the balance of hardships now tilts in plaintiffs’ favor and entitles them to some post-deprivation process," red a portion of the ruling.

In the same ruling, however, the court rules that fitness centers and gyms are only constitutionally entitled to some mechanism for petitioning for reopening.

"It is not the Court’s function to dictate how this process will be structured or implemented. It is also not the Court’s function to ascertain how any application to reopen will be resolved," read a portion of the ruling. "As long as fair and meaningful process is provided, ADHS certainly has the discretion to deny individual applications."

Mountainside Fitness CEO, lawyer respond to ruling

In the hours following the ruling, Mountainside Fitness CEO Tom Hatten, who took the Governor to court, spoke out about the ruling, saying the ruling was a step in the right direction to reopen.

I think this ruling today said exactly that: it said the procedural due process was not followed, and needed to be," said Hatten. "The ability for all businesses to be closed for this amount is time is not something we're prepared to do in this country."

Attorney Joshua Black says while there are certainly some positives for the fitness center in the ruling, but overall, it seems the court sided with the state.

"The court did rule that it was a split decision, essentially, that between the different types of due process, that Governor Ducey hadn’t violated The Substantive Due Process right of Mountainside Fitness. It only violated the Procedural Due Process right, but that was because he didn’t have a clear guideline as to how these gyms could apply to reopen," said Black.

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Ruling followed court testimony by health experts, officials

On August 3, Dr. Cara Christ, director of the Arizona Department of Health Services, testified in a lawsuit filed by two health club chains challenging Gov. Doug Ducey’s gym closure order. The clubs lost an earlier challenge but renewed their reopening request after the governor extended the closure.

Unlike supermarkets and hardware stores, customers inside health clubs could cause the virus to spread through vigorous breathing within enclosed spaces, even when mask and social distancing requirements are followed, Christ said.

“There is an inherent risk, even when the guidelines are put in place,” Christ said, noting also that the young demographic who frequent health clubs could include asymptomatic spreaders of the virus.

The clubs argue they should be allowed to reopen because they require masks and social distancing and have reduced their overall capacity. They maintain they don’t pose any greater risk of spreading the virus than businesses that have been allowed to reopen.

Nearly a month ago, a judge rejected a request by the clubs to stop enforcement of Ducey’s shutdown, ruling that elected officials must be given wide latitude in making decisions in emergency situations.

Will Humble, executive director of the Arizona Public Health Association, testified on behalf of the health clubs, saying a club member who is wearing a mask and social distancing is safer than customers who take off masks as they talk, eat and drink across tables at restaurants.

“The circumstances are completely different in a gym,” said Humble, who previously served as director of the state Department of Health Services.

Judge Timothy Thomason, who is considering the clubs’ request, questioned why Christ had to justify the shutdown beyond saying she was concerned about the coronavirus spreading in health clubs.

“Isn’t that enough for her to say that?” Thomason asked.

Joel Sannes, attorney for Mountainside Fitness, said it wasn’t enough for Christ to justify her order by citing her authority as the state’s top health official. He questioned why clubs that follow COVID-19 prevention guidelines weren’t allowed to reopen.

Brett Johnson, an attorney representing Ducey, said it would be irresponsible to prematurely end the closure and that the governor and his staff are working hard to protect Arizonans. “They need that flexibility,” Johnson said.

Thomason said he hopes to issue a ruling on Tuesday morning.

In other developments: — Officials on August 3 reported 1,030 additional cases of the coronavirus and 14 more deaths.

Authorities have recorded more than 179,000 cases and 3,779 deaths from the virus in the state since the pandemic began. In-patient hospitalizations, ventilators in use and intensive care unit occupancy continue to trend downward slightly.

For most people, the coronavirus causes mild or moderate symptoms, such as fever and cough.

But for some people who contract the virus, especially those who are older or have underlying health conditions, it can cause more severe illness and death. The vast majority of people who are diagnosed with COVID-19 recover.

— Ducey’s office said that he plans to meet with President Donald Trump and members of the White House coronavirus task force on August 5 in the Oval Office. He also plans to take part in a session of the Council of Governors the following day and meet with other health officials to discuss the pandemic.

Washington requires travelers from Arizona and more than two dozen other states with high rates of virus spread to self-quarantine for 14 days after arriving. Ducey spokesman Patrick Ptak said the governor is exempt because he’s traveling on essential government business.

— Superintendent of Public Instruction Kathy Hoffman said that it’s unlikely schools can safely open for full in-person instruction by Aug. 17, when Ducey’s latest closure order expires. The virus is still too rampant in the community, she said.

The Department of Health Services is preparing a list of metrics that can guide schools in decisions about whether to re-open, which are supposed to be released by August 7. School districts will use the guidelines to decide if it is safe to reopen, and that’s not in sight, she said.

“Our state is simply not ready to have all our students and educators congregate in school facilities,” Hoffman said. “If we want to return to in-person instruction, every Arizonan must make it their mission to slow the spread of this virus.”

In order to protect yourself from a possible infection, the CDC recommends: 

• Avoid close contact with people who are sick.
• Avoid touching your eyes, nose, and mouth.
• Stay home when you are sick.
• Cover your cough or sneeze with a tissue, then throw the tissue in the trash.
• Clean and disinfect frequently touched objects and surfaces using a regular household cleaning spray or wipe.
• Cover your mouth and nose with a cloth face cover when around others
• Wash your hands often with soap and water for at least 20 seconds, especially after going to the bathroom; before eating; and after blowing your nose, coughing, or sneezing.
• Monitor your health daily

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CDC: How coronavirus spreads, symptoms, prevention, treatment, FAQ

Arizona COVID-19 resources, FAQ: azdhs.gov/coronavirus

On CoronavirusNOW.com, you'll find extensive coverage about COVID-19, including breaking news from around the country, exclusive interviews with health officials, and informative content from a variety of public health resources.

RELATED:

• Coronavirus in Arizona: Latest case numbers
• Coronavirus: Symptoms, testing and how to prepare amid growing COVID-19 outbreak 
• How coronavirus differs from flu: Symptoms to watch for

Symptoms for coronavirus COVID-19 include fever, coughing, and shortness of breath. These, of course, are similar to the common cold and flu. 

Expect a common cold to start out with a sore or scratchy throat, cough, runny and/or stuffy nose. Flu symptoms are more intense and usually come on suddenly, and can include a high fever. 

Symptoms of COVID-19 may appear more slowly. They usually include fever, a dry cough and noticeable shortness of breath, according to the World Health Organization. A minority of cases develop pneumonia, and the disease is especially worrisome for the elderly and those with other medical problems such as high blood pressure, obesity, diabetes or heart conditions.

RELATED: Is it the flu, a cold or COVID-19? Different viruses present similar symptoms

Right now there's one big difference between flu and coronavirus: A vaccine exists to help prevent the flu and it's not too late to get it. It won't protect you from catching the coronavirus, but may put you in a better position to fight it.

To protect yourself, wash your hands well and often, keep them away from your face, and avoid crowds and standing close to people.

And if you do find yourself showing any of these flu or coronavirus symptoms - don't go straight to your doctor's office. That just risks making more people sick, officials urge. Call ahead, and ask if you need to be seen and where.

The Associated Press (AP) contributed to this report.

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