Monday, July 6, 2020

BREAKING: "The Empire Strikes Back", AZDHS Files Civil Action To Shut Down Mountainside Fitness; Hearing Tomorrow

As promised, the Arizona Department of Health Services has filed a civil action to shut down the Mountainside Fitness centers that have been defying last Monday's Executive Order to re-close gyms until at least July 27.

The State filed its Complaint and a Request for a Temporary Restraining Order Monday afternoon. Judge Daniel Kiley will hold a hearing on the demand Tuesday, July 7, at 2pm.

The State has hired Sherman & Howard attorney Gregory Falls to represent it in this matter.

(This is a developing story and more information will be filed as it becomes available.)


Original article: "The Gym Rebellion, Chap. 5": Updates From Mountainside/EOS vs. Governor Doug Ducey; Judge Plans To Rule On Tuesday (WATCH HEARING)

The judge plans to rule tomorrow after hearing Monday morning arguments about whether Arizona Governor Doug Ducey's Executive Order suddenly closing down indoor gyms to slow the spread of COVID-19 violated the gyms' due process rights.

Mountainside Fitness and EOS Fitness - two of the largest chains of fitness centers in the state - filed now-combined court challenges after last Monday's Executive Order (which also temporarily shut down bars, water parks, movie theaters and tubing operations). Superior Court Judge Timothy Thomason set today's emergency hearing on whether the order should remain in place. Mountainside has continued to operate pending the hearing and has received citations from municipalities; EOS chose to close down until the judge could rule*.

The parties were filing pleadings explaining their arguments over the weekend. Outside counsel representing the Governor told the court that Mountainside's effort to claim that the Executive Order violates Arizona's emergency statutes "relies on the absurd notion that the Governor, in the middle of a worldwide pandemic where information is changing on a daily and even hourly basis, must publicly notice a meeting (in accordance with public meeting laws), call together fourteen different people and get their sign off prior to making any decision to address the emergency. Such process would negate any ability to govern during emergencies."

Judge Thomason questioned the attorneys about their arguments. He indicated that while he did not work as hard as the parties' counsel did over the holiday weekend, "but I did work pretty hard" and hopes to be able to rule Tuesday.

Mountainside's attorney, Joel Sannes, explained to the court that their gyms were following the protocols that were set up by the state (in coordination with the White House and the CDC), and therefore there was no "rational basis" for the  Governor's new order shutting down the gyms that may have been in compliance. (E.g. no proved cases coming from compliant gyms.)

"Times have changed", says Governor's attorney Brett Johnson, explaining why gyms that reopened have to re-close even if they were in compliance with the CDC protocols.

"I thought this was written in a manner that the businesses could reopen on July 27," said Judge Thomason. "That is our hope," responded Johnson. The judge later said that the state's plans and comments are "less than reassuring that there really is" a valid "post-deprivation" process.


There is also a case against the Governor's Executive Order in federal court, filed by a chain of boutique fitness centers. That case was today assigned to District Court Judge Diane Humetewa.


*The Governor's attorney praised EOS for going "above and beyond" in their efforts to re-open safely, and for closing once the Executive Order was issued. On Friday, the state also praised Life Time Fitness for agreeing to close.

*



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