An Endurance Test—Mountainside Fitness’ Continued Battle with Local Government

By Madison Leake.

On August 27, 2020, Tom Hatten, owner of Mountainside Fitness, opened the gym’s doors to the public despite the fact that the application to do so had been explicitly denied. This act of rebellion highlights the face-off between local business—particularly fitness centers and gyms—and local government.

The COVID-19 pandemic has temporarily closed businesses all across the country. Since re-opening plans are left to the states, each state has opened businesses in differing orders and at differing times. For example, Arizona’s neighbor, New Mexico, has taken the opposite approach to Arizona by opening gyms before indoor dining. Arizona has appeared to have taken a unique approach by opening almost everything, and then targeting a select few types of businesses for closure. The most recent closures extend only to water parks, theaters, bars, and gyms.

The State of Arizona has now determined metrics to decide when it is safe for businesses in each county to begin their reopening.  The county-by-county metrics include: the percentage of all COVID-19 tests that come back positive, the number of cases per 100,000 people, and the percentage of hospital visits that are for COVID-like illnesses. These factors use the benchmarks to create three categories: 1) minimal spread, 2) moderate spread, and 3) substantial spread. If a county is said to have substantial spread, then bars, gyms, and other businesses must remain closed. In order for those businesses to open, counties must meet the benchmarks for moderate spread for two weeks beforehand.

This photo by luizfilipe is licensed under CC BY-NC 2.0

Mountainside’s Fight

Throughout the closures, Mountainside Fitness has been fighting to remain open. Amid a surge of cases in Arizona, on June 29, Governor Doug Ducey ordered bars, nightclubs, gyms, movies theaters, and water parks closed for at least thirty days. The executive order was up for review every two weeks starting July 29.  On July 27, the court denied Mountainside’s request for a temporary restraining order after Ducey extended the closure of gyms.

Importantly, this executive order included a provision that allowed businesses to receive authorization to open if these business submitted a form by the Arizona Department of Health Services (ADHS) that attested that they were in compliance with COVID-19 guidance issued by ADHS. This form, however, was not posted until July 31, over a month after the closures and days after the closure was initially scheduled to end.

Due Process Violation

The concern with the timing of a form is one of procedural due process. A state may not “deprive any person of life, liberty, or property without due process of law.” Due process is only met when the state gives notice, the opportunity to be heard, and a decision by a neutral decision maker. Arizona law specifically recognizes a property interest in conducting business, and Mountainside’s attorneys contended that by not posting a form before the required date, the State denied them their right to be heard and therefore violated procedural due process.

As already stated, the form was not ready until July 31 (after the closure’s initial end date) and ADHS final requirements were not posted until the same day. Therefore, the court held that the failure of the executive orders to provide any process before the shutdown period ended violated Mountainside’s procedural due process rights. The court noted that “[i]f the form is not available well in advance of July 27, then the Governor runs the real risk of depriving aggrieved businesses of any real process at all. If meaningful process is not provided, then injunctive relief may ultimately be ordered.”

The court therefore ruled that fitness centers must be provided with a “prompt” way to apply for reopening. On August 10, ADHS did put in place an application process and guidelines to businesses for reopening.

Mountainside then applied for reopening, and was denied despite the fact that they went so far as to enlist the services of an independent certification company—HealthyVerify—which is said to be even more in-depth than local orders.

The Struggle Between Individual Liberty and Health and Safety Interests

Mountainside’s struggle is just another example of an age-old American question: how does a society built on individual liberty respond to threats to the community? What is interesting is the legal issues that arise from the novel coronavirus are not so novel after all. The Supreme Court ruled as far back as 1905 in the case of Jacobson v. Massachusetts that individuals can be compelled by the states to get vaccinated against diseases. The Court noted, “In every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand” and that “[r]eal liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.”But the Court cabined its ruling to some extent, saying that a state’s power, “whether exercised by the legislature or by a local body acting under its authority, may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression.”

Due process ensures that the State of Arizona is exercising its governmental powers such that it is not arbitrary. By giving gyms and other businesses the opportunity to be heard, perhaps these businesses can assure state officials that it is safe to be open. Indeed, common sense suggests that if retail, restaurants, and even bars with some food can be open (like they are in Arizona), it seems gyms following proper guidelines are no more or less risky. The court even went as far as to note that it was “understandable” that fitness center operators feel like they are being unfairly singled out. The court noted, “[T]here is very little credible scientific data supporting the notion that fitness centers operating with necessary safety protocols pose a danger or that shutting down well run gyms has a significant public health benefit.” In short, due process is a way to balance liberty interests with the State’s duty to keep its citizens safe.

Going Forward

Mountainside’s struggle is a microcosm of the constant struggle between individual liberty and community safety. Due process serves as the bulwark to ensure the government’s attempts to protect its citizens does not tread into oppression. And the lessons learned from Mountainside’s legal battle will be important as states continue to implement mandates in response to COVID-19. Some will continue to protest (rightly or wrongly) mandatory COVID-19 regulations, and due process will help ensure that the government does not become oppressive and violate its citizens’ liberty interests in its attempts to quell the pandemic.

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By Madison Leake.

J.D. Candidate, 2022.

Madison Leake is a 2L and staff writer for the Arizona State Law Journal. Before law school, she earned a degree in Criminology and Criminal Justice from Arizona State University. When she’s not at school Madison enjoys cooking, watching any movie on Netflix, and spin classes.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.