By Howard Fischer
Twitter: @azcapmedia

PHOENIX — A judge refused late Monday to find Gov. Doug Ducey in contempt.

In a six-page order, Maricopa County Superior Court Judge Timothy Thomason found various problems with the process set up by the Arizona Department of Health Services to allow gyms and fitness centers to reopen in counties where the risk of COVID-19 remains substantial. He agreed with Joel Sannes, the attorney for Mountainside Fitness, that these kinds of operations are not told what will or will not satisfy the state.

“The lack of standards is a bit troubling,” the judge wrote.

But Mr. Thomason also concluded that Mr. Ducey has technically complied with his earlier order that requires there be a waiver process of some sort. In fact, he pointed out, there are two businesses — EoS Fitness and Training for Warriors-Estrella — that have managed to navigate the procedures.

“Mountainside has not even given the process a chance to work,” the judge said.

Monday’s ruling may not end the legal battle. It could be just the latest in what has become a monthslong fight between not just Mountainside but other businesses — and not just fitness centers — to once again open their doors.

The latest comes after Mr. Thomason earlier this month ordered Mr. Ducey to develop a system to tell businesses what they need to do to reopen.

State Health Director Dr. Cara Christ responded with a set of metrics, essentially telling gyms and fitness centers they can open their doors only when the spread of COVID-19 is no longer “substantial.” But so far that applies to only Yavapai and Cochise counties.

Even then, they would have to limit attendance to no more than 25% of capacity.

But under orders from Mr. Thomason, Dr. Christ said other businesses can apply to reopen even in those other 13 counties if they can show their operations would not endanger public health.

But Mr. Sannes pointed out that they were not told what that would take. So he asked Mr. Thomason to hold the governor in contempt.

Mr. Thomason said Mr. Sannes is correct that Dr. Christ set no standards to get those waivers.

“Fitness centers applying to reopen would have no idea what they are expected to do,” the judge wrote.

“In essence, they are being asked to meet a goal they know nothing about,” he continued. “The fitness centers are told they need to explain what additional measure they are taking to operate safely, but also told nothing about what level of precautions is necessary to satisfy ADHS.”

Still, Mr. Thomason said, the process that the state set up for businesses to petition for relief does satisfy his original order.

He said if the health department does not find a business has submitted a satisfactory plan, there is an “informal settlement process ... that can be used to ‘iron out’ an acceptable plan.” And that process, the judge said, is interactive “and does provide fitness centers a reasonable opportunity to be heard.”

Documents obtained by Capitol Media Services show what EoS did is agree to limit occupancy to 10%, require electronic reservations for all clients, require masks, keep saunas and steam rooms closed and pause group activities like basketball.

But it’s not just EoS that sought a waiver from the rules that now keep certain businesses closed because they’re located in areas of substantial risk of COVID-19 spread.

Brett Johnson, the governor’s attorney, indicated in his arguments that 258 fitness centers have applied to reopen out of about 900 statewide, with EoS and Training for Warriors the only two that had been approved. There also are 95 applications by businesses licensed as bars to be allowed to bring customers inside, and five from movie theaters.

Four businesses have been denied.

Mr. Johnson argued to the judge that it makes no sense for Mountainside to try to hold the governor in contempt because it does not like how the health department might handle its application.

“If you don’t get a driver’s license, you don’t sue the governor,” Mr. Johnson said. “You go after the DMV.”

And his defense of the governor was even more basic.

“To say the governor is somehow subject to contempt for everything he and his administration is doing is quite honestly offensive,” Mr. Johnson said.

He also said there is a remedy if Mountainside wants to know what Dr. Christ found acceptable by EoS — file a public records request.

The businesses denied reopening are:

• Fourth Avenue Gym, Foothills location;
• Achieve Strength and Fitness;
• Brennan’s Pub & Grub;
• Rockabilly Grill.

State health officials say each of these businesses have an opportunity to request an informal settlement conference with the department.