Can legal action from Mountainside Fitness stand up to Gov. Ducey's proclamation?
PARADISE VALLEY, AZ (3TV/CBS 5) -- Mountainside Fitness CEO and founder Tom Hatten announced that his company is planning to sue Arizona after Gov. Doug Ducey ordered a one-month pause that will consist of the closures of businesses like gyms, bars and movie theaters on Monday. The executive order is an effort to slow down the spread of COVID-19. Hatten's company filed a notice of claim, which is a precursor to a lawsuit, against Gov. Ducey on Tuesday. The court paperwork is seeking an injunction against Ducey’s closure order, calling it arbitrary and irrational.
Hatten also confirmed on Tuesday that the company had received "a few" citations because gyms were still open. He didn't say which locations, only that it was in a "couple cities." The Scottsdale Police Department then confirmed officers went the location near 116th Street and Shea Boulevard this morning around 9:45 to give education to staff about breaking Ducey's executive order. But when they returned around 2:25 p.m. the gym was still open, so the location was cited for a class one misdemeanor.
Hatten said certain businesses shouldn't be forced to close while others get to stay open. "We can't run around as a society as I feel and start to legislate everyone's choices. We can group together to fight this virus. If it is this serious, everybody shut down. If it's that serious, not just to go, we're going to make it look like we're doing something," Hatten said.
"You have to feel bad for the Mountainside Fitness people. They say, 'We did everything you told us to do,'" said Dan Barr, who is a partner in the law firm of Perkins Coie and an expert in Constitutional law.
Barr says during times of emergency, governors have wide latitude to take measures meant to protect public health.
"The Mountainside Fitness lawsuit admits what they have to show here, that the governor's actions were unreasonable, that his closing down of the fitness facilities are not reasonably tied to slowing the growth of COVID. That's a tough standard to meet," said Barr.
Hatten held a news conference at the Mountainside Fitness location in Paradise Valley on Monday to further explain the decision to take legal action.
"Now, with five hours notice, being the oldest health club business in Arizona celebrating our 29th year here, we were given five-hour notice," said Hatten while talking to local news outlets at the press conference.
Hatten says the company has done everything in its power, and asked for clarity and communication from state leaders. At this point, he says he doesn't know what to expect. He insists that he is not only speaking for Mountainside, but for all businesses in Arizona.
"To say I'm going to know what's going to happen tomorrow, I can't say that for sure," said Hatten. "The arbitrary nature of this decision is why I am standing here today. All businesses need momentum. They need clarity. They need leadership and direction to move forward."
Hatten added that his company wasn't able to get any government assistance during the first shutdown because it has more than 500 employees. As a result, they had to find other ways to get help. Hatten said they depended on banking partners and landlords for assistance. He said they even started a funding program for employees who were suffering from the pandemic while they were out of work.
Hatten says that Mountainside Fitness has invited club members to wear masks if they so choose. He also stressed that his facilities have implemented social distancing. "From the workout facility to the cardio areas -- make sure that everybody could be safe and still function in this environment just like they would in Safeway or Home Depot," he said.
Hatten also emphasized his company understands how serious COVID-19 is and how he wants to partner strongly in fighting the virus, but doesn't think shutting down businesses is the answer. "If it is truly as bad as what we are being told, I don't think health clubs closing tomorrow will solve the problem. I don't think closing a movie theater that hasn't been open is going to solve the problem."
Life Time Fitness impact
Another gym plans to comply with Ducey's order while keeping their Arizona locations open. Jason Thunstrom of Life Time Fitness says their facilities provide a wide range of health and entertainment services, amenities and programs. The company said it would reopen the fitness floor and related programs and classes to all its members starting on Wednesday. Staff strongly suggests members wear masks at all times. Life Time Fitness is not accompanying Mountainside Fitness in this looming lawsuit.