covid-19 of-interest

Superior Court Denies Request For Injunction By Mountainside Fitness

The Governor has raised compelling arguments on procedural due process that will make it difficult for Mountainside to prevail.

- Judge Timothy J. Thomason

Wright Law Firm Update

On June 29, 2020, Governor Ducey entered a follow-up executive order “pausing” the reopening of Arizona. The executive order targeted many specific industries, including gyms. The executive order is an effort to slow down the spread of COVID-19.

After the first lockdown, Mountainside fitness followed federal guidelines including implementing strict physical distancing and sanitation protocols. Mountainside purchased state-of-the-art sanitation equipment, rearranged the physical layout of its facilities to allow for strict social distancing, implemented contact-less check-in procedures, and required employees to have their temperatures checked before each shift.

In response to Governor Ducey's recent shutdown order, Tom Hatten, founder, and CEO of Mountainside Fitness bravely announced that his company would not obey the executive order. Not only that, but Hatten promised to sue Arizona on the Constitutional grounds for Gov. Ducey’s order. On June 30th, Tom Hatten followed through and filed a Complaint seeking injunctive and declaratory relief.

  • An Injunction is a judicial order that restrains a person from beginning or continuing an action threatening or invading the legal right of another, or that compels a person to carry out a certain act, e.g., to make restitution to an injured party.
  • Declaratory relief refers to a judgment of a court that determines the rights of parties without ordering anything be done or awarding damages. By seeking a declaratory judgment, the party making the request is seeking for an official declaration of the status of a matter in controversy.

Decision by the Court

The Complaint seeking an injunction against Ducey’s closure order called the Governor’s decision arbitrary and irrational. Mountainside Fitness had suspended membership payments beginning March 20, 2020, when all indoor gyms in Arizona were required to close by one of Governor Ducey’s previous executive orders. A copy of the Complaint can be downloaded here.

Mountainside argued that it was not given equal protection under the law and that the Governor’s Order violated due process.

Judge Timothy Thomason disagreed. After listening to oral arguments from Mountainside Fitness and the state of Arizona Judge Thomason ruled against Mountainside Fitness this morning. The EO [executive order] clearly had a rational basis, the ruling states

These are unprecedented times. Governmental leaders at the local, state, and national levels are being called on to make critical decisions, when the available medical information is constantly changing. It is not the function of this Court to second guess those decisions.

The Court specifically cited “declarations” submitted by Dr. Cara Christ, Director of ADHS, and Dr. Marjorie Bessel, Chief Clinical Officer for Banner Health. Both stated in their declarations their belief that:

  • indoor gyms and fitness centers present high risks of infection
  • physical exercise is often not conducive to mask-wearing
  • exercising results in respiratory droplet secretions that can be easily spread
  • physical distancing can be difficult in gyms
  • the nature of indoor gyms makes management difficult due to the use of multiple machines and moving around the facility, the water fountains and the use of locker rooms

In reading Judge Thomason’s Order it appears that he was particularly persuaded by the opinions of Christ and Bessel. At least he used their declarations to find safe harbor for his decision.

The judge went on to say that Mountainside Fitness will not be irreparably harmed by the executive order and that Mountainside Fitness had not demonstrated that it was “likely [to] prevail” in the lawsuit, which is one of the criteria for granting an injunction.

The burden that Mountainside has is immense. The Governor does not have to prove that his decision was correct. This Court must give extreme deference to the EO [executive order]. The EO clearly had a rational basis. It is unlikely that Mountainside will prevail on the merits....

Read the full ruling here . It is an informative read because Judge Thomason outlines the Governor's legal basis for the executive orders.

What happens Next?

Well, the state of Arizona won this battle. However, the lawsuit may continue. All that was decided today was whether Mountainside Fitness could continue to operate. For now it cannot.

Hatten spoke at a press conference Tuesday afternoon following the court’s ruling.

I wouldn’t say this was a runaway train. I think it ended up becoming a significant week certainly for Mountainside but really I think for the state of Arizona as we are disappointed with the ruling today for a lot of the obvious reasons for the first and foremost that our employees aren’t going to be working although still paid, members will not have a place to exercise for at least the next 20 or so days. That was certainly disappointing.


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