Attorney: Legal authority exists for gym owners to sue Ducey

Above: Mountainside Fitness announced Tuesday it will file a lawsuit against Arizona Gov. Doug Ducey Tuesday the CEO of the fitness chain says he arbitrarily selected health clubs to close again for a period of at least a month. Mountainside Fitness CEO and Founder Tom Hatten made the announcement after he learned of Ducey’s new order from watching his press conference. Business News | 4 Jul |

A number of gym owners are frustrated over Governor Ducey’s recent executive order shutting down gyms for the month of July 2020 and possibly longer.   Owners of training facilities, gyms, and other exercise clubs want to know whether there is legal authority to fight Governor Ducey’s enactment of Executive Order 2020-43, which became effective June 29, 2020 at 8 pm, and may be renewed by the Governor at the end of July 2020.  The answer is YES; legal authority exists.

One of the legal arguments is that Executive Order 2020-43 violates “procedural due process.”  In short, a gym has a legally protected right to conduct business.  And, prior to taking this right away, a gym must be afforded “due process” i.e., a right to be heard about the taking of this right.  Gyms were not afforded any right to be heard prior to the enactment of Executive Order 2020-43.  Similarly, Executive Order 2020-43 may violate procedural due process because the gyms are required to obtain some form of “clearance” from the government before reopening but there is nothing, as of today, allowing a gym to show that it has complied with cleaning, distancing, or other safety protocols such that the gym is cleared to reopen, thereby violating due process once again.

Another argument for the gyms is that there is no “rational” basis for the closure of the gyms.  The Executive Order sets forth no evidence, studies, or data, to show that gyms cause the spread of Covid-19 or that gyms with proper social distancing and cleaning measures put members at risk more so than any other business.

Finally, gyms have an “equal protection” argument.  This, too, is a constitutional right.  By classifying gyms that operate with appropriate safety protocols and lumping them together with bars that do not follow safety protocols, Governor Ducey may be violating equal protection rights afforded by the Arizona Constitution.

Thus far, courts around the country have given great deference to state governments in enacting coronavirus-based orders.  Here, however, the Executive Order may go too far in singling out one particular type of business.

If you believe the Government has improperly taken your right to earnings, profits, or compensation, or you have questions about these decisions, please contact me at patrick@mandglawgroup.com or 602-533-2840.

 

Patrick R. MacQueen is a founder of MacQueen & Gottlieb, PLC.

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