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Judge Rules Arizona Gyms Can Appeal Governor's Shutdown Order

Arizona gyms and fitness centers could be open within a week.

In an extensive order, Maricopa County Superior Court Judge Timothy Thomason said he is not faulting Gov. Doug Ducey for his decision to shutter these facilities. He said the governor, based on medical advice he was getting, had a "rational basis" for doing that.

But Thomason said where Ducey went wrong is that indefinitely shutting down these facilities without a chance to appeal violates their constitutional right of due process.

So the judge ordered the governor to provide gyms and fitness centers "a prompt opportunity to apply for reopening," giving them a chance to show that they can live with guidelines already crafted by the state Department of Health Services to minimize the risk of the spread of COVID-19.

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"It's everything we wanted," said attorney Joel Sannes who is representing the locally owned Mountainside Fitness chain. "What we wanted was a process in place for gyms that can operate safely to reopen."

And he interprets the order to mean that, by this coming Tuesday, his client and any other facility that agrees to the guidelines can again have customers coming through the door.

Ducey press aide Patrick Ptak would say only that the governor's lawyers are reviewing the decision.

Tuesday's order is the first legal defeat for the governor over his executive powers. Prior rulings — including one by Thomason — have rejected efforts to have his actions declared illegal.

What's changed, the judge said, is he's now had a chance to hear from experts about not just the virus but the relative risks posed by gyms and fitness centers, which are closed, versus other businesses which the governor has allowed to reopen and other measures Ducey has — and has not — taken during the pandemic.

"Indeed, there is not even a state-wide mask policy," Thomason noted.

"There are many businesses operating in this state with no mandated protocols, such as social distancing, mask wearing, crowd control and the like," he wrote. "Yet these businesses are up and running, potentially exposing the public to illness."

By contrast, Thomason said, Mountainside Fitness and EoS Fitness, who sued — along with other similar operations — have said they are willing to live within rules proposed by the health department, including limits on the number of clients and other restrictions.

"It is very understandable that fitness center operators feel like they are being unfairly singled out," the judge said.

But there's more to the ruling than simply a question of equity.

In seeking to defend the closure order, attorneys for the governor argued that simply shuttering businesses for some period of time does not deprive owners of their property, meaning they are not entitled to any sort of due process. Thomason said that's wrong.

"Arizona law does recognize a property interest in conducting business," he wrote. "A forced government shutdown of more than a short duration involves the taking of a property interest."