HUMWAY AT LAW SIMS. 195:5 I JUN302020 CLERK OF THE A. 1138 NORTH ALMA SCHOOL ROAD, SUITE 101 ELERK MESA, ARIZONA 85201 Telephone: 480.461.5300 I Fax: 480.833.9392 Joel E. Sannes (SBN 015999) Bs@udallshumway.com av1d R. Schwartz (SBN 009624) Iames B. Reed (014015) jbr%udallshumway.com doc et@udallshumway.com Attorneys for Plaintiff IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA MOUNTAIN SIDE FITNESS CASE NO.: ACQUISITIONS, LLC, an Arizona limited liability company, Plaintiff, COMPLAINT (Injunctive Relief; Declaratory Relief) DOUGLAS A. DUCEY, Governor of Arizona, in his official capacity; Defendant. Plaintiff, Mountainside Fitness Acquisitions Center (hereinafter ?Plaintiff?), by and through undersigned counsel, for its complaint against the Defendant Douglas A. Ducey (hereinafter ?Defendant?), alleges and states as follows: PARTIES, JURISDICTION AND VENUE 1. Plaintiff is an Arizona limited liability company with its principal place of business in Marionpa County, Arizona. 2. Defendant is the Governor of the State of Arizona, sued in his official capacity. 3. The acts complained of in the above-captioned action occurred in Maricopa County, Arizona. 4. Venue properly lies in this Court pursuant to A.R.S.- 5. Jurisdiction is proper in this Court pursuant to A.R.S. 12-123. GENERAL ALLEGATIONS 6. - Plaintiff is the sole member of indoor exercise doing business under the trade name ?Mountainside Fitness.? 7. Mountainside Fitness has 18 locations in Maricopa County. 8. Plaintiff?s services include providing equipment for personal exercise, personal training, basketball courts, group fitness classes, health and wellness instruction, nutritional programs, saunas and steam rooms and full-service locker rooms. 9. Plaintiff also provides child care for its members while they are using Plaintiff?s facilities. 10. Prior to approximately March 1, 2020, Plaintiff had over 90,000 members. 11. On March 11, 2020, Defendant issued a declaration of a Public Health State of Emergency to address the 2019 novel coronavirus 12. On March 19, 2020, Defendant issued executive order 2020-09 ?Limiting the Operations of Certain Businesses to Slow the Spread of Under executive order 2020-09, beginning March 20, 2020, all indoor in Arizona were required to close access to the public. 13. Plaintiff?s business was severely impacted ?nancially by executive order 2020-09. Plaintiff derives its revenue from member payments. Member payments were suspended to and through June 1, 2020. Members were allowed to freeze their membership, paid in full memberships were extended to cover the time of the closure, personal training sessions were rolled over during the closure, and some members canceled their memberships. 14. On March 23, 2020, Defendant issued executive order 2020-12 ?Prohibiting the Closure of Essential Services? withdrawing authority of towns, cities meadow-l:me and counties to exercise their authority to order the closure of businesses deemed ?essential.? 15. Home, Stay Healthy, Stay Connected,? which limited activities of Arizona residents On March 30, 2020, Defendant issued executive order 2020-18, ?Stay outside of their personal residences to those involving transacting Essential Activities or Essential Functions or for non-essential business provided the business did not require in-person, on?site transactions. 16. After the closure mandated by executive order 2020-09, Plaintiff?s revenue from its 18 locations declined to -- [zero]. 17. On April 29, 2020, Defendant issued executive order 2020-33 ?Amending the Stay Home, Stay Healthy, Stay Connected? Order providing that businesses who were not classified as essential could operate and provide goods to their customers provided the businesses establish and implement best practices for preventing the transmission of 18. On May 8, 2020, retailers, cosmetologists and barbers were able to open for customers. 19. On May 11, 2020, restaurants were permitted to resume offering dine-in services to customers. 20. On May 12, 2020, Defendant issued executive order 2020-36 ?Stay Healthy, Return Smarter, Return Stronger,? recognizing that Arizona had entered ?Phase in the federal ?Guidelines for Opening Up America Again? published by the Centers for Disease Control and the White House Coronavirus Task Force (hereinafter, ?federal guidelines?). Executive order 2020-36 rescinded executive orders 2020-18, 2020-24 and 2020-33. 21. The Phase I federal guidelines provided, ?Gyms can open if they adhere to strict physical distancing and sanitation protocols.? Defendant explained in a May 12, 2020 press conference that in Arizona cou1d reOpen. 22. The Phase I federal guidelines also provided that large venues such as sit- down dining, sporting venues and places of worship may operate under physical distancing protocols. In addition, elective surgeries could resume. 23. However, under the Phase I federal guidelines, ?Bars should remain closed.? 24. In anticipation of reopening, Plaintiff invested substantially in providing training to its employees to ensure Plaintiff complied with strict physical distancing standards between members and between employees and members. Plaintiff purchased state-of?the art sanitation equipment. Plaintiff rearranged the physical layout of its facilities to allow for strict physical distancing. Plaintiff rearranged group fitness schedules to reduce the number of members in each fitness class. Plaintiff initiated contact-less check-in procedures for members. Plaintiff installed sanitizing stations throughout the facilities. Plaintiff required employees ?to have their temperatures checked prior to each shift, and any child in the childcare centers were required to have their temperatures checked. 25. During the week of June 22, cities and towns in Maricopa County adopted orders that required the use of masks in general when maintaining physical distancing was impossible or impractical. Plaintiff reviewed its policies and provided additional training to its employees to help ensure that members wore masks in common areas and locker rooms. Plaintiff also required employees to wear masks at all times while working. 26. On June 29, 2020, without any notice to Plaintiff, Defendant issued executive order 2020?43, ?Pau?sing of Arizona?s Reopening, Slowing the Spread of Under executive order 2020-43, ?[i]ndoor and ?tness clubs or centers? were ordered to ?pause operations until at least July 27, 2020, unless extended.? mumm-prHoxomqmm-p-GSES 27. . In executive order 2020?43, were treated in the same category as ?[b]ars . . . whose primary business is the sale or dispensing of alcoholic beverages,? ?[i]ndoor movie theaters,? and ?[W]ater parks and tubing operators.? 28. Under executive order 2020-43, and other affected businesses may ?receive authorization to reopen? after they ?submit a form as prescribed by the Arizona Department of Health Services that attests the entity is in compliance with guidance issued by ADHS related to business operations.? 29. Executive order 2020-43 was effective at 8:00 pm. on June 29, 2020. 30. Despite the orders effective date and time, there is to date no ?form as prescribed by the Arizona Department of Health Services? for Plaintiff to complete and submit so that it may receive authorization to reopen. 31. ADHS has published and updated a ?Guidance for and Fitness Providers.? The guidance is located on the worldwide web at URL address [imess ggdt. belief, the guidance on the webpage is the guidance with which Plaintiff must attest that The webpage indicates it was ?Updated 5/14/20.? On information and it is in compliance. 32. 33. compliance with ADHS guidelines before the effective time of 8:00 pm. on June 29, Plaintiff is in compliance with the guidance. If ADHS had developed a process for Plaintiff to attest that it is in 2020, Plaintiff would have so attested and would ?receive authorization to reopen.? Count I (Violation of Procedural Due Process, Ariz. Const. Art. 2, 4; Injunction and Declaratory Relief) 34. Plaintiff incorporates all preceding allegations. 35. Article 2, 4 of the Arizona Constitution also prohibits deprivation of life, liberty or preperty without due process of law. 36. Plaintiff?s right to conduct business lawfully is a protected pr0perty interest. 37. Plaintiff was entitled to an opportunity to be heard before enactment of executive order 2020-43 to establish that Plaintiff?s operation of its facilities is not a threat to public health. 38. Alternatively, Plaintiff is entitled to an opportunity to be heard after enactment of executive order 2020-43 to establish that Plaintiff?s operation of its facilities is not a threat to public health. 39. Executive order 2020-43 allows Plaintiff to ?receive authorization to reopen? after submitting a form as prescribed by ADHS that attests that Plaintiff complies with guidance issued by ADHS related to COVID-19 business operations. 40. Executive order 2020-43 may satisfy Plaintiff?s procedural due process right to be heard, but to date there is no form available from ADHS to complete, and ADHS has not to date identified whether the guidance on the ADHS website is the guidance with which Plaintiff must comply. 41. Defendant?s failure to provide Plaintiff with a pre?deprivation opportunity to be heard is a violation of Plaintiff?s procedural due process rights under Article 2, 4 of the Arizona Constitutions. 42. Defendant?s failure to provide Plaintiff with a post-deprivation opportunity to be heard is a violation of Plaintiff?s procedural due process rights under Article 2, 4 Arizona Constitution. 43. The Governor exceeded his authority in issuing executive order 2020-43 without affording Plaintiff due process. 44. This Court may enjoin Defendant?s enforcement of executive order 2020- 43. ?The provisions of this [Arizona] Constitution are mandatory, unless by express words they are declared to be otherwise.? Ariz. Const. art. 11, 32 45. 46. A justiciable controversy exists between Plaintiff and Defendant. Plaintiff is entitled to declaratory relief that the adoption of executive order 2020-43 violated Plaintiff?s procedural due process rights and so is not enforceable. 47. Resolution of this litigation affects owners and operators of statewide. Absent this litigation, Defendant will continue to use Defendant?s authority enforce executive order 2020?43. Exercise facilities specifically serve an important public function. 48. Plaintiff is entitled to an award of its attorneys? fees and costs pursuant to the private attorney general doctrine. Cave Creek Um?ed Sch. Dist. v. Ducey, 231 Ariz. 342, 353, ll 35, 295 P.3d 440, 451 aff?d, 233 Ariz. 1, ?Il 35, 308 P.3d 1152 (2013). Count II (Violation of Substantive Due Process, Ariz. Const. Art. 2, 4; Injunction and Declaratory Relief) 49. Plaintiff incorporates all preceding allegations. 50. There is no rational basis for the closure of in Arizona. 51. Alternatively, there is no rational basis for the closure of Plaintiffs facilities when Plaintiff is observing recommended protocols to prevent the transmission of COVID 19. 52. Defendant?s closure of in Arizona is arbitrary and irrational, violating Plaintiff 5 right under Article 2, 4 of the Arizona Constitution to be free from deprivation of property without due process of law. 53. 43. ?The provisions of this [Arizona] Constitution are mandatory, unless by express This Court may enjoin Defendant?s enforcement of executive order 2020- Words they are declared to be otherwise. Ariz. Const. art. II, 32. 54. 55. order 2020-43 violated Plaintiffs procedural due process rights and so is not A justiciable controversy exists between Plaintiff and Defendant. Plaintiff is entitled to declaratory relief that the adoption of executive enforceable. 56. statewide. Absent this litigation, Defendant will continue to use Defendant?s authority Resolution of this litigation affects owners and operators of enforce executive order 2020-43. Operation of businesses in general and exercise facilities specifically serves an important governmental function. 57. the private attorney general doctrine. Cave Creek Uni?ed Sch. Dist. v. Ducey, 231 Ariz. 342, 353, 35, 295 P.3d 440, 451 (App), aff'd, 233 Ariz. 1, it 35, 308 P.3d 1152 (2013). Count ("Violation of Equal Protection, Ariz. Const. Art. 2, 13; Injunction and Plaintiff is entitled to an award of its attorneys? fees and costs pursuant to Declaratory Relief) 58. Plaintiff incorporates all preceding allegations. 59. Arizona law prohibits Defendant from enacting any law that grants any person, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations. Ariz. Const. Art. 2, .13. 60. Executive order 2020-43 creates an arbitrary classification between gyms, which are subject to closure, and other businesses, which are not subject to closure. 61. Executive order 2020-43 arbitrarily classifies with bars for purposes of the closure requirements. 62. Executive order 2020-43 arbitrarily classifies such as Plaintiffs facilities that Operate with appropriate COVID protocols with that do not operate with appropriate COVID protocols. 63. This Court may enjoin Defendant?s enforcement of executive order 2020- 43. ?The provisions of this [Arizona] Constitution are mandatory, unless by express words they are declared to be otherwise. Ariz. Const. art. II, 32. 64. 65. A justiciable controversy exists between Plaintiff and Defendant. Plaintiff is entitled to declaratory relief that the adOption of executive order 2020?43 violated Plaintiff procedural due process rights and so is not enforceable. 66. Resolution of this litigation affects owners and operators of statewide. Absent this litigation, Defendant will continue to use Defendant?s authority enforce executive order 2020-43. Exercise facilities specifically serve an important public function. 67. Plaintiff is entitled to an award of its attorneys? fees and costs pursuant to the private attorney general doctrine. Cave Creek Uni?ed Sch. Dist. v. Ducey, 231 Ariz. 342, 353, ll 35, 295 P.3d 440, 451 (App), aff'd, 233 Ariz. 1, 11 35, 308 P.3d 1152 (2013. WHEREFORE, Plaintiff prays for relief against Defendant as follows: A. For temporary, preliminary and permanent injunctive relief prohibiting Defendant from enforcing executive order 2020-43 against fitness centers generally and against Plaintiff specifically; B. For a declaration that enforcing executive order 2020-43 against fitness centers generally and against Plaintiff specifically violates Art. 2, 4 and 13 of the Arizona Constitution; C. For an award of Plaintiffs? taxable costs and attorneys? fees; and D. For such other relief as the Court deems just and appropriate. b0 maga-meHODOqum-tht?to RESPECTFULLY SUBMITTED this 29 day of June, 2020. SWY PLC Joel'E Sannes David . Schwartz James B. Reed 1138 North Alma School Rd., Suite 101 Mesa, AZ 85201 Attorneys for Plaimfi?c 10