Clerk of the Superior Court
*** Electronically Filed ***
08/05/2020 8:00 AM

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2020-093916

08/04/2020

HONORABLE TIMOTHY J. THOMASON

MOUNTAINSIDE FITNESS ACQUISITIONS L
LC

CLERK OF THE COURT
N. Johnson
Deputy

JOEL E SANNES

v.
DOUGLAS A DUCEY

BRETT W JOHNSON

ANTHONY S VITAGLIANO
TIMOTHY ECKSTEIN
JAMES B REED
ANNI L FOSTER
CRAIG A MORGAN
GREGORY W FALLS
WILLIAM JON-VINCENT LICHVAR
RYAN JAMES REGULA
JUDGE THOMASON

RULING
Plaintiffs Mountainside Fitness Acquisitions, LLC (“Mountainside”) and Fitness Alliance,
LLC dba EOS Fitness (“EOS”) have filed Renewed Applications for Temporary Restraining
Orders and Preliminary Injunctions.1 The Governor of the State of Arizona (the “Governor”) filed
a Response to the Renewed Applications. Mountainside then filed a Supplement to its Renewed
Application. The Court denied the request for a Temporary Restraining Order on July 27, 2020.
The Court has considered the evidence submitted in connection with the hearing held on August
3, 2020 and rules as follows on plaintiffs’ request for a preliminary injunction.

1

The parties agreed to treat the “Renewed” Applications as new Applications.
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GENERAL BACKGROUND
The general factual background of this dispute is set forth in the Court’s July 6 Order. By
way of summary, State of Arizona Executive Order 2020-43 (“EO 43”), dated June 29, 2020,
provided that “(i)ndoor gyms and fitness clubs or centers” had to “pause operations until at least
July 27, 2020.” EO 43 continued:
To receive authorization to reopen, entities shall complete and submit a
form as prescribed by the Arizona Department of Health Services that
attest the entity is in compliance with guidance issued by ADHS related
to COVID-19 business operations. The form shall also be posted in an
easily visible public place on the entity’s premises. ADHS shall provide
information to the public on those entities that have submitted such
attestations on its website.
This portion of EO 43 will be referred to as the “Form Provision” and the form referred to
in the Form Provision will be referred to as the “Form.”
It is undisputed that no Form was available to businesses that were forced to shut down
until July 23. In fact, the final attestation Form was not posted on the ADHS website until July 31,
2020.
On July 23, 2020, the Governor issued Executive Order 2020-52 (“EO 52”), which
provided that the provisions in EO 43 regarding business “pauses” would remain in effect and
would be “reviewed for repeal or revision every two weeks.” No mention was made in EO 52
about the Form Provision. (EO 43 and EO 52 are collectively referred to as the “Executive
Orders”).
The Governor has argued to this Court that the Form Provision provide adequate postdeprivation due process. In a similar case filed in federal court, the Governor represented that there
would be an available post-deprivation remedy available soon. The federal court stated, in response
to the Governor’s representations:
The June 29, 2020 Executive Order provides that affected businesses may
submit a form to ADHS attesting that it is in compliance with guidance
issued by ADHS related to COVID-19 business operations. To date,
Governor Ducey has failed to provide the affected businesses with such a
form. At the Hearing, Governor Ducey’s counsel stated that the form was
“almost finished” and could be expected “quite soon.” As Judge
Thomason noted in Mountainside Fitness, the lack of timeline to make the
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waiver process available to affected business is suspect. Nonetheless, the
failure to make the attestation form available, at this time, does not render
the post-deprivation process insufficient, particularly in light of the
Governor’s representations that one would be forthcoming soon.
Xponential Fitness v. State of Arizona, No. CV-20-01310-PHX-DJH, 2020 WL 3971908, *6 (D.
Ariz. July 14, 2020).
On July 15, 2020, the Governor, in response to Mountainside’s request for accelerated
briefing on the appeal in this very case, told the Arizona Court of Appeals:
Here, by contrast, the order Mountainside challenges is scheduled to last
only until July 27, 2020…Thus, Mountainside’s alleged harm could be
eliminated on July 27, 2020, and it is asking the parties and the Court to
scramble and prioritize this matter over all others for relief that could last
only two days.
(Governor’s Response to Mountainside’s Motion to Accelerate Appeal (emphasis in original),
Exh. 2 to Mountainside’s Renewed Application.)
This Court’s July 6 Order found that EO 43 provided on its face sufficient procedural due
process because of the Form Provision. The Court also made it very clear that the Form Provision
needed to be followed and a Form needed to be provided in a timely manner in order for EO 43 to
pass Constitutional muster. The Court noted that “(i)f process is not provided in a reasonably
timely fashion, then there really is no process…There must be real post-deprivation process…The
Court is greatly concerned about implementation…[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.” (July 6 Order at 7-8.)
As noted above, the draft Form was not available until July 23 and the final version of the
Form was not available until July 31. ADHS “draft” requirements for gyms and indoor fitness
centers relating to re-opening were published (the “proposed requirements”) on July 23. Final
requirements were posted on July 31, 2020 (the “requirements”).
The Form does not give fitness centers an opportunity to re-open during any mandatory
shutdown period. Rather, gyms that fill out the Form must attest that they will remain closed
through any mandatory shutdown periods.

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Applicants must also attest that they will strictly adhere to all policies and guidelines from
the Center for Disease Control (“CDC”), the Arizona Department of Health Services (“ADHS”)
and the Department of Labor, Occupational Safety and Health Administration (“OSHA”). Even if
affected businesses make such an attestation and strictly adhere to ADHS requirements, they are
still forced to stay closed during mandatory shutdown periods.
The Form also requires applicants to attest that they will, among other things, implement
comprehensive sanitation protocols; operate with reduced occupancy and capacity; ensure that it
will monitor for symptoms of illness; ensure that customers and staff use face coverings at all
times; provide employees with protective equipment; allow for virtual visits and teleworking when
feasible; post physical and/or electronic signage prohibiting individuals who are symptomatic from
entering; implement symptom screening for employees and require sick employees to stay home.
There are a myriad of other requirements. As such, fitness centers can implement all of these
protocols and requirements and still not be allowed to open until the Governor repeals or revises
the mandatory shutdown period. Even then, applicants complying with all of the protocols would
be required to shut down again if the Governor again so ordered.
When EO 43 was issued, there had been 73,908 diagnosed cases of COVID-19 and 1,588
deaths in Arizona. As of July 23, when EO 52 was issued, there were 152,944 diagnosed cases and
3,063 deaths. The weekly Arizona State Report issued by the White House Task Force, as of July
19 (the “July 19 White House Report”), identified all but two Arizona counties in the “red zone,”
which means there were new cases above 100 per 100,000 population and a diagnostic test
positivity result above 10%. The July 19 White House Report also noted that new cases were down
13.6% for the prior week and deaths were up approximately 70%.
The July 19 White House Report included a recommendation that bars and gyms remain
closed. No explanation is provided as to why gyms that follow all safety protocols required by the
ADHS should remain closed.
ADDITIONAL EVIDENCE
The Court allowed the parties to submit additional evidence for the August 3 hearing via
declaration.2 The declarations are summarized as follows.

2

Witnesses who provided declarations were made available for cross-examination at the August 3 hearing. Dr. Cara
Christ, Dr. Jeffrey Singer, Mr. Will Humble, Dr. Marjorie Bessel, General Michael McGuire and Lauren Bouton were
examined at the hearing.
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Mountainside
1. Will Humble. Mr. Humble is the Executive Director of the Arizona Public Health
Association. He was the Director of ADHS from 2009-2015. Mr. Humble reviewed
the “Requirements for Indoor Gyms and Fitness Clubs/Centers-Latest Updated:
July 22, 2020” (“proposed requirements”). Mr. Humble opined that, if implemented
by a fitness facility, the proposed requirements would be sufficient to make the
facility as safe as any other ordinary business operating pursuant to observance of
Arizona COVID-19 safety protocols, such as a home improvement retail store or a
grocery store. In fact, the proposed requirements are very specific and more
stringent than the standards applied to other commercial businesses. Mr. Humble
also stated that a fitness facility offers no particular risk of COVID-19 transmission
if it has a COVID-19 industrial hygiene and mitigation plan. Mr. Humble then went
through the steps that he believed a center would need to follow to comply with
such a plan. Mr. Humble expressed his disagreement with the Governor’s alleged
reliance on a study regarding COVID-19 transmission coming out of a fitness dance
class in South Korea. Mr. Humble also pointed out the differences in risk
transmission at bars and nightclubs with fitness centers. Fitness centers following
the proposed requirements pose far less risk of COVID-19 transmission than bars
and nightclubs. Rather, they pose a similar or even lower, risk than retail and
grocery stores.
Mr. Humble also submitted a rebuttal to the declarations of Dr. Jeremy Phillip
Feldman, Dr. Cara Christ, Dr. Luis Manuel Tumialan, Dr. Andrew Carroll, Dr.
Paloma Beamer, Major General Michael McGuire, Michael Wisehart and Sandra
Watson. According to Humble, the declarations of those witnesses do not establish
that fitness centers following the proposed requirements pose a greater risk of
COVID-19 transmission than other businesses allowed to remain open, such as
retail stores, restaurants and nail salons.
2. Blair McHaney. Ms. McHaney is the president and CEO of MXM, a company that
uses statistical data from the fitness industry to provide feedback to fitness centers
and health clubs regarding member experiences. Based on information she
admitted was anecdotal, McHaney found that the ratio of “check ins” to positive
reports at fitness centers was a rate of .005%. The evidence led McHaney to
conclude that none of the positive reported cases arose inside a fitness facility. Ms.
McHaney also concluded that the general nature of the fitness industry already
provides a healthy environment. She also believes that fitness centers that were
open during the COVID crisis emphasized safety in order to retain members.

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3. Dr. Jeffrey Singer, M.D. Dr. Singer is board certified in general surgery. He is a
principal at Valley Surgical Clinics, Ltd. He is also a fellow at the Cato Institute
and a visiting fellow at the Goldwater Institute. He has reviewed ADHS proposed
requirements. In Dr. Singer’s opinion, the proposed requirements, if followed,
would significantly reduce the risk of transmission of infectious diseases, such that
centers that follow the requirements would not pose any greater risk of transmission
than other commercial businesses, such as retail centers. He also believes that
regular exercise is generally beneficial to health.
4. J. Lindsay Cook. Mr. Cook is the president of the American Industrial Hygiene
Association (“AIHA”). He is a consultant in environmental, health and safety areas.
Cook has reviewed ADHS proposed requirements. He has concluded that the
proposed requirements are more protective against COVID-19 transmission than
the guidelines recommended by either the AIHA or the CDC. Fitness centers that
follow ADHS proposed requirements pose no more risk than businesses generally.
Mr. Cook opined that ADHS proposed requirements adequately address the
interests of physical distancing and covering mouths and noses.
5. Dr. Thomas Fuller, Sc.D. Dr. Fuller is the president elect of the International
Occupational Hygiene Association (“IOHA”). He is a professor in occupational
safety and health at Illinois State University. He has reviewed ADHS proposed
requirements. He concluded that, if requirements are properly implemented, fitness
centers such as Mountainside are no more of a threat to the spread of COVID-19
than any other business of similar size. Dr. Fuller is also of the view that ventilation
systems used in larger fitness centers significantly help clean the air of viruses,
making such fitness centers safer than businesses that do not use such ventilations
systems.
Dr. Fuller also submitted a rebuttal to Dr. Cara Christ’s declaration. Dr. Fuller states
there is no peer-reviewed study showing that fitness centers pose an increased risk
of airborne viral transmission, although it may be reasonable to hypothesize that
unregulated fitness centers that do not follow the proposed requirements could pose
an increased risk. He notes that the South Korean study cited by Dr. Christ did not
involve safety protocols, such as wearing masks and social distancing.
6. Randy Karr. Mr. Karr is a founder of the California Fitness Alliance (“CFA”). He
is also the CEO of California Family Fitness, which operates 19 fitness centers in
California. Karr submitted a July 21, 2020 press release purporting to report the
results of CFA’s member surveys comparing the number of visits to fitness centers
to the number of fitness centers where members tested positive for COVID-19. The
press release reports that no cases of COVID-19 have been traced to California
fitness centers.

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The Governor
1. Dr. Jeremy Feldman, M.D. Dr. Feldman is a pulmonary, critical care and neurocritical care specialist. He has worked regularly with those who have contracted the
COVID-19 virus. Dr. Feldman stated that the epidemic curve began to change in
May-June of 2020, which coincided with the reopening of the State. Numbers
began to rise even more by the end of June. The largest number of positive results
were in the 20 to 40 year age range. Dr. Feldman opined that gyms and fitness
center are high risks because heavy workout activity causes droplets to be
transmitted farther and in greater quantities. The indoor environment means that
this increase in droplets poses a more significant risk. Dr. Feldman opined that
indoor health facilities represent an unnecessarily high risk. He felt this was the
case even without proof that fitness centers have caused an outbreak. The doctor
believed that closure of fitness centers was “of the utmost necessity.” Dr. Feldman
also stated that he believed that plaintiffs’ arguments that there is no risk or minimal
risk with re-opening health facilities to be specious and/or downright reckless. Dr.
Feldman believes that the decision to close fitness centers was sound and rational.
Dr. Feldman also submitted a rebuttal to the declaration of Mr. Humble. Dr.
Feldman agreed that the South Korean study was not the best or sole support of the
Executive Orders. However, the decision temporarily closing fitness facilities was
absolutely necessary based on community spread. He cited a study based on the
transmission of COVID-19 on the Diamond Princess Cruise Ship, which supports
the theory that aerosols are important in the transmission of the virus. Mr. Humble
allegedly has no medical or scientific data showing that indoor fitness facilities pose
no or limited risk. Although six feet of social distancing is known to be appropriate
for non-exercise activities, it is not known how much distance is required during
exercise, but it is unlikely that six feet is enough.
Dr. Feldman also rebutted Ms. McHaney’s declaration. He noted that the data cited
by McHaney was not published or peer reviewed. Moreover, the data was flawed
because there was no information about how many customers were included or the
community prevalence of COVID-19.
Dr. Feldman rebutted Dr. Singer’s declaration stating Dr. Singer claimed no special
knowledge of COVID-19.
He also rebutted Dr. Fuller’s declaration, pointing out that Dr. Fuller did not cite
any meaningful peer reviewed data, but merely asserted that modern ventilation
systems can eliminate the virus in a room during exercise. He said that Dr. Fuller’s
claims about the efficiency of ventilation systems were exaggerated.
Dr. Feldman rebutted Mr. Cook’s declaration, pointing out that there have been
recent reports from Major League Baseball of rapid spread of the virus among
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players, coaches and staff, causing baseball to step-up coronavirus protocols. He
also cited outbreaks experienced by sports teams of several universities.
2. Dr. Cara Christ. Dr. Christ is the Director of ADHS. She is an infectious disease
epidemiologist. According to Dr. Christ, COVID-19 is known to spread mainly
through respiratory droplets produced when an infected person coughs, sneezes,
talks or even breathes. Physical activity results in more exerted breathing, which
increases the output of viral respiratory droplets. Indoor spaces such as gyms
increase the likelihood of individuals breathing in these respiratory droplets.
Intense physical activity in confined spaces increases the risk of infection. A South
Korean study reveals that intense physical exercise in densely populated sports
facilities could increase the risk of COVID-19 infection. Dr. Christ stated that gyms
and fitness centers pose threats because physical exertion in closed environments
results in increased release and spread of infectious droplets. She does not believe
that indoor ventilation systems change the analysis. Certain physical activities
make wearing masks difficult. Dr. Christ opined that the nature of indoor gyms
makes management of COVID-19 difficult. Users of fitness centers tend to stay for
longer periods and return multiple times per week. Other states have identified
gyms as high risk. ADHS has concluded that indoor gym and fitness centers are
high risk. The only high risk activity not presently subject to mandatory compliance
with ADHS guidance are casinos operated on sovereign tribal lands. Dr. Christ also
discussed the attestation process for reopening. When deemed safe to re-open, gyms
can attest to following the best practices deemed necessary by ADHS to minimize
the spread of the virus. Dr. Christ opined that the Executive Orders were necessary
to prevent Arizona from facing an even larger increase in COVID-19 illness.
Dr. Christ submitted another declaration to clarify or rebut certain statements or
opinions in Mountainside’s declarations. She stated that the ADHS requirements,
while necessary, are “not a failsafe that alone will (or ever could) prevent”
community spread of COVID-19 at the levels seen in Arizona. She opined that
indoor gyms and other high-risk activities must cease “because that is the most
effective way to slow” community spread. Dr. Christ stated that the ADHS
requirements “alone are not sufficient to lower Community Spread to acceptable
levels.”3 Dr. Christ cited the White House COVID-19 Task Force Guidance
(“White House Guidance”), updated as of July 26, 2020. The White House
Guidance continued to recommend that Arizona “[c]ontinue bar and gym closures
in hot spot counties.” Ten of Arizona’s 15 counties were identified as “hot spots.”
The White House Guidance did not address whether gyms could open if following
3

During her testimony on August 3, Dr. Christ testified that she did not believe that it was prudent for fitness centers
to open, even if operating under the ADHS requirements. She cited concerns about the level of physical activity,
breathing heavily and demographics (young adults exercise more and they are often asymptomatic) as reasons why
fitness centers are still dangerous, even if patrons are acting responsibly and wearing masks.
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strict ADHS guidelines. Dr. Christ cited additional articles/studies concerning
spread of the virus in indoor recreational facilities.
In addressing Mr. Humble’s declaration, Dr. Christ noted that Mr. Humble is not a
doctor or epidemiologist. She stated that her opinions are based on much more than
the South Korean study.
Dr. Christ stated that the data Ms. McHaney relied on is untested and unreliable.
3. Dr. Luis Manuel Tumialan. Dr. Tumialan is a board certified neurologist. He is the
lead physician on the HonorHealth COVID-19 Mitigation Task Force. According
to Dr. Tumialan, any form of meaningful exercise increases respiratory rate and
tidal volume, both of which are especially germane in the transmission of COVID19. Exercise escalates the mechanism of transmission of the virus. The doctor
opined that people exercising need more than six feet of social distancing. Dr.
Tumialan also stated that the very nature of exercise creates a greater risk for
transmission. The doctor opined that the Executive Orders were not only rational,
but necessary.
4. Dr. Andrew J. P. Carroll, M.D. Dr. Carroll is a primary care physician. He has
provided frontline care to COVID-19 patients. Dr. Carroll stated that indoor fitness
centers involve particular risks because of indoor enclosed spaces, heavy exercise
resulting in increased respiratory droplets, close proximity of equipment, use and
sharing of equipment, common restrooms and showers, and significant HVAC
ventilation needs. Dr. Carroll supported the implementation of the Executive
Orders.
In his rebuttal declaration, Dr. Carroll stated that one out of every five Arizonans
tested is positive for COVID-19. With 3,454 deaths, the mortality rate in Arizona
is roughly 1 out of 2,100. The number of deaths will continue to grow. Fitness
centers pose a greater risk than other establishments, such as grocery stores,
because people are increasing their heart rates and respiration as they exercise. He
was critical of the data cited by McHeney and claimed that she was disingenuous
and trying to minimize the significance of the pandemic.
5. Dr. Paloma Beamer, Ph. D. Dr. Beamer is an environmental engineer and is a
professor at the University of Arizona. She is the president of the International
Society of Exposure Science. Dr. Beamer teaches exposure assessment and controls
of occupational exposure. During times of high physical exertion, exhalation rates
increase and it becomes more likely that an infected person could propel droplets
of all sizes at a much further distance and at greater acceleration. In addition, people
who are exercising take in a larger volume of air and therefore inhale a greater
number of viruses. Dr. Beamer opined that gyms should remain closed until
community transmission decreases and the World Health Organization updates its
guidance on airborne transmission so that ADHS guidance for gyms can be
updated.
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Dr. Beamer stated in her rebuttal declaration that the reopening of the gyms
coinciding with an increase in positive cases was no coincidence. The widespread
community transmission warrants the reclosing of fitness centers because younger
asymptomatic carriers frequent them.
6. Major General Michael T. McGuire. General McGuire is an adjutant general for
the Arizona National Guard and the Director of the Arizona Department of
Emergency and Military Affairs. He leads the Division of Emergency
Management’s response to the COVID-19 pandemic. General McGuire provided a
discussion of the pandemic and the mobilization of the Arizona National Guard in
addressing the pandemic. Although he gave no specific information on fitness
centers, he opined that the limitations placed on Arizonans by the Governor’s
“collective” executive orders are appropriately limited in scope and critical to
reducing the spread of COVID-19.
7. Michael Wisehart- Mr. Wisehart is the Director of the Arizona Department of
Economic Security (“DES”). Mr. Wisehart discussed the financial ramifications of
the pandemic. He offered nothing directly relevant to the issues before the Court.
8. Sandra Watson. Ms. Watson is the President and CEO of the Arizona Commerce
Authority. Ms. Watson is familiar with the state and federal government’s
economic response to the COVID-19 crisis, as well as the direct economic relief
available to small businesses and impacted individuals. She opined that the
Executive Orders are consistent with federal guidance and actions taken by other
states and countries. She also believed that the various executive orders issued by
the Governor have been balanced to maintain economic viability while ensuring the
public health. Ms. Watson discussed the financial aid and loan programs available
to impacted businesses.
9. Jessica Rigler. Ms. Rigler is the Assistant Director of the Division of Public Health
Preparedness at ADHS. She discussed, like many others, the increased risk in
COVID-19 transmission in indoor fitness centers. Ms. Rigler opined that
Mountainside’s initial failure to abide by EO 43 caused a serious threat to public
health and welfare by exacerbating the spread of COVID-19.
10. Lauren Bouton. Ms. Bouton is the Director of Community and Stakeholder
Engagement for the Office of the Governor. She has been involved with a series of
meetings with fitness club and gym owners and operators “to solicit feedback on
how the State could best implement practices to not only protect Arizonans from
contracting and spreading the virus, but also ensuring businesses operate safely in
the future.” On July 16, 2020, Ms. Bouton sent to the relevant “stakeholders”
ADHS’ draft requirements and draft attestation form. She stated that the Governor’s
Office has received a significant amount of data from the fitness industry.
According to Bouton, the Governor’s office and ADHS have worked diligently to
ensure all relevant information is considered in decision-making.
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11. Dr. Marjorie Bessel. Dr. Bessel is the Chief Clinical Officer at Banner Health. She
has been the emergency operations center director for Banner’s planning, response
and execution of COVID-19 activities. Dr. Bessel discussed the virus and its highly
contagious nature. While her declaration stated that Banner Health supported the
need to close businesses such as bars, nightclubs and gyms, the vast majority of her
declaration discussed the dangers of bars. No meaningful information was provided
on fitness centers.4
12. Rodger Lurie. Mr. Lurie is a Scottsdale resident and was a Mountainside patron.
He has tested positive for COVID-19. He was told that one employee of
Mountainside “had the virus.” He speculates that he contracted the virus at
Mountainside.
LEGAL ANALYSIS
The operative questions before the Court presently are whether plaintiffs’ Constitutionallyprotected post-deprivation procedural due process rights and substantive due process rights have
been violated. In assessing whether injunctive relief is proper, the Court must assess the probability
of success on merits. As part of that analysis, the Court first addresses whether the case involves a
Constitutionally-protected property interest and whether the Governor’s actions were legislative
or quasi-legislative, issues not previously fully addressed by the Court.
I. PROBABILITY OF SUCCESS ON THE MERITS
A. Do Gyms Have A Constitutionally-Protected Property Interest To Conduct
Business?
Property interests are not created by the state or federal Constitutions. Rather, they are
created and defined by state law that secures certain benefits and supports claims of entitlement to
those benefits. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972) (assistant
professor under contract had no property interest in having his contract renewed). “To have a
property interest in a benefit, a person clearly must have more than an abstract need or desire for
it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim
of entitlement to it.” Id.
Arizona law does recognize a property interest in conducting business. For example,
Arizona allows claims for damages for interference with contracts and business expectancies.
4

During her testimony on August 3, Dr. Bessel indicated that she had concerns about fitness centers being open at the
present time, even if operating in conformity with the requirements. To be fair to plaintiffs, this testimony does not
appear to have been in Dr. Bessel’s declaration.
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Miller v. Hehlen, 209 Ariz. 462, ¶ 32 (App. 2005). Arizona also looks unfavorably on restrictive
covenants and favors free enterprise. Orca Communications Unlimited, LLC v. Noder, 233 Ariz.
411 (App. 2013) (decision affirmed and ordered depublished on other grounds). Plaintiffs certainly
have a protected interest in continuing their businesses. See Barr v. Johnson, 777 Fed. Appx. 298,
303 (11th Cir. 2019) (business suddenly closed down by city official “successfully
demonstrate[d]” an actionable procedural due process claim); Women’s Med. Prof’l Corp. v.
Baird, 438 F.3d 595, 611-612 (6th Cir. 2006) (“due process protects an interest in the continued
operation of an existing business”).
The Governor relies on Coll. Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense
Bd., 527 U.S. 666, 675 (1999). In Florida Prepaid, the Supreme Court stated: “The assets of a
business (including its good will) unquestionably are property, and any state taking of those assets
is unquestionably a ‘deprivation’ under the Fourteenth Amendment. But business in the sense of
the activity of doing business, or the activity of making a profit, is not property in the ordinary
sense—and it is only that, and not any business asset, which is impinged upon by a competitor's
false advertising.” Id. The issue in Florida Prepaid was whether the state could be sued for false
advertising. The Supreme Court found that plaintiff had no right to be free from a business
competitor’s false advertising about its own product. The case did not involve a business
shutdown.
The Governor reads Florida Prepaid too broadly. The Supreme Court in Florida Prepaid
actually said that goodwill is a property interest. Goodwill of a business includes “the ability to
earn income in excess of the income that would be expected from the business viewed as a mere
collection of assets.” Black’s Law Dictionary (11th ed. 2019). If a business could not sell goods or
services and earn an income, it obviously could have no goodwill. As such, a forced government
shutdown of more than a short duration involves the taking of a property interest.
The Governor also cites In re Premier Auto. Services, Inc., 492 F.3d 274 (4th Cir. 2007),
which held that a holdover tenant on state-owned land did not have the right to compel a new lease.
A holding that a tenant was not entitled to a new lease is a far cry from holding that an operational
business has no property interest in continuing to operate and generating revenue.
According to the Governor, a governmental body forcing a business to shut down for
absolutely no reason cannot be a Constitutional violation because no property interest is
implicated. This is incorrect. The operations of a business and the ability to earn income from that
business are clearly property interests.
The Court previously found that a short shutdown might not implicate a protected property
interest. At the same time, it is evident that the government forcing a business to shut down
indefinitely, to the point where it might not be able to survive, implicates a property interest. An
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ongoing revenue stream, and the goodwill attendant thereto, is certainly a property interest. There
is no legal or logical support for the proposition that a permanent or long-term forced shutdown of
a business does not involve a Constitutionally-protected property interest.
B. Are the Executive Orders Legislative, Quasi-Legislative or Administrative?
The salient body of law does not appear to have contemplated emergency orders that would
shut down businesses for months at a time. This is unprecedented.
The Executive Orders here mandate the shutdown of certain businesses. This is not a
situation where all businesses are ordered to cease operations. It is also not a situation where all
non-essential businesses are ordered to be shut down. Rather, certain specific businesses have been
targeted. In addition to fitness centers, certain types of bars, indoor movie theatres and water parks
were ordered closed. A very small percentage of Arizona businesses are currently ordered to be
shut down.
Due process rights do not attach to legislative and quasi-legislative acts. An act is
legislative if it applies to “general conduct binding upon many persons.” Brown v, Winter, 50 F.
Supp. 804, 806 (W.D. Wis. 1943). If the act “is one in which a ‘relatively small number of persons
[are] concerned, who [are] exceptionally affected, in each case upon individual grounds,’ then the
process is adjudicatory and due process rights attach.” Blocktree Properties LLC v. Pub. Util. Dist.
No. 2, 380 F. Supp. 3d 1102, 1121 (E.D. Wash. 2019).
A relatively small number of businesses are affected by the Executive Orders. The
determination of which businesses would have to shut down was determined on an individual,
business-by-business, basis. Indeed, the Governor admitted that the decision to shut down was
made based on characteristics of specific businesses.
At least two courts have recently held that post-deprivation due process rights attach to
executive orders closing businesses in an effort to stop the spread of COVID-19. See Benner v.
Wolf, __ F. Supp. 3d__, 2020 WL 2564920, *5 (M.D. Pa. May 21, 2020); Friends of Danny DeVito
v. Wolf, 227 A.3d 872, 898 (Pa. 2020). These decisions support the conclusion that orders targeting
selected businesses are not legislative in nature.
In Best Supplement Guide, LLC v. Newsom, 2020 WL 2615022 (E.D. Cal. May 22, 2020),
cited by the Governor, the court stated:
[G]overnmental decisions which affect large areas and are not directed at
one or a few individuals do not give rise to the constitutional procedural
due process requirements of individual notice and hearing; general notice
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as provided by law is sufficient.” Plaintiffs do not allege the current gym
closures are targeted at individual gym owners or particular facilities.
Rather, the State and County orders prohibit the operation of all gyms and
workout facilities within their respective jurisdictions.
Id. at *5 (internal citations omitted). The question in Best Supplement was whether the county
“should have afforded [the gym owners] some sort of legal process prior to enacting and
threatening to enforce their stay at home orders.” Id. (emphasis added). The court did not address
whether the gyms should be afforded post-deprivation process. As discussed below, the court in
Hartman v. Acton, __ F. Supp. 3d __, 2020 WL 1932896 (S.D. Ohio April 21, 2020), noted that
no hearing at all is required in the circumstances involve a generally applicable law or order. The
EOs here are not generally applicable orders.
Hartman, 2020 WL 1932896, at *7, also cited by the Governor, involved an order from the
Ohio Department of Health director ordering closure of all “non-essential” businesses for one
month from April 2, 2020 to May 1, 2020. The court stated:
Usually, due process requires that a hearing be conducted before a
deprivation of a property or liberty interest occurs. A post-deprivation
hearing is sufficient, however, when “a government official reasonably
believed that immediate action was necessary to eliminate an emergency
situation.” United Pet Supply, Inc. v. City of Chattanooga, Tenn., 768 F.3d
464, 485–86 (6th Cir. 2014). A hearing is not required at all, however, in
those circumstances where the State has issued a generally applicable law
or order. See Neinast v. Bd. of Trustees of Columbus Metro. Library, 346
F.3d 585, 596–97 (6th Cir. 2003) (“Governmental determinations of a
general nature that affect all equally do not give rise to a due process right
to be heard.”).
Id. (emphasis added). The Executive Orders at issue here, however, are not generally applicable
orders directed at all non-essential businesses. Rather, they are targeted at specific businesses.
The court in Hartman further stated:
The Supreme Court of the United States has long observed that the rights
of an individual affected by a law of general applicability “are protected
in the only way that they can be in a complex society, by [the affected
individual's] power, immediate or remote, over those who make the rule.”
Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445, 36 S.
Ct. 141, 60 L. Ed. 372 (1915); see also Logan v. Zimmerman Brush Co.,
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455 U.S. 422, 433, 102 S. Ct. 1148, 71 L.Ed.2d 265 (1982) (noting that
an individual's due process rights are not violated by a law of general
applicability since “the legislative determination provides all the process
that is due.”). The Supreme Court has determined that this exception to
due process applies even to agency action—so long as the agency's actions
are prescriptive or legislative as opposed to adjudicative. See United
States v. Florida East Coast Ry., 410 U.S. 224, 93 S. Ct. 810, 35 L.Ed.2d
223 (1973) (determining that no due process right to hearing was triggered
by agency action where it was applicable “across the board to all common
carriers” and “no effort was made to single out any particular railroad for
special consideration based on its own peculiar circumstances.”).
Id. at *8. Thus, the Hartman court concluded that “[t]he State's Order directing non-essential
businesses to cease operating their physical locations did not violate Plaintiffs' due process rights
because the Director's Order was a generally applicable order affecting thousands of businesses,
and not a decision targeting an individual or single business.” Id. The court further stated that the
plaintiff was not entitled to a post-deprivation hearing because the order was not “targeted to a
particular individual, business, and/or fundamental right.” Id. at *9.
Of course, here the Executive Orders are directed at particular businesses and sectors. As
such, the rationale from Hartman does not apply. In fact, the rationale from Hartman supports the
conclusion that the EOs are not legislative in fashion.
EO 43 actually demonstrates on its face that lack of legislative action here. The Governor
understood that the ultimate determination of whether an affected business could reopen had to be
on a case-by-case basis.5 That led to the Form Provision. Despite a general fitness industry
shutdown for a limited period of time, the ultimate determination of whether a business could open
was going to be based on the safety protocols put in place by each business. The fact that the
Governor has, at this time, deprived businesses of the ability to utilize the Form process does not
detract from the notion that the determination of what specific businesses would be closed for more
than a short period would be done on a case-by-case basis.
Of course, some executive agencies engage in quasi-legislative functions to which no
procedural due process rights attach. This case, however, involves no such thing. Rather, this case
involves the Governor issuing an order that impacts certain selected businesses in very severe

5

Notably, Executive Order 2020-09, which closed all non-essential businesses, did not have a Form Provision or
similar procedure for reopening.
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ways. This is clearly not a legislative function. Indeed, if it were it would likely be a violation of
the separation of powers doctrine.6
The Executive Orders are not legislative or quasi-legislative. Rather, they affect only a
small amount of businesses. Plaintiffs are likely to prevail on this issue.
C. Has Adequate Due Process Been Provided?
Procedural due process does not completely disappear in time of hardship. Benner v. Wolf,
2020 WL 2564920, at *5. The Benner decision upheld shutdown orders by the Governor of
Pennsylvania. The court made it clear, however, that some post-deprivation process was required.
Id. While the procedural due process need not reach perfection, it does need to “achieve adequacy.”
Id; see also Friends of Danny DeVito v. Wolf, 227 A.3d at 898 (waiver procedure satisfied due
process).
It appears as if the Form Provision and the attestation process will provide adequate due
process, when available. That process, however, does not even begin until after the shutdown order
is lifted. Prior to that time, no process is provided. Further, once reopening is permitted, the
applicant must attest, as a condition of reopening, that it will shut down again, without notice or
opportunity to be heard, should the Governor order another shutdown.7
During the July 27 hearing, it was evident the Governor’s counsel recognized that there
was a potential procedural due process problem. Indeed, counsel argued that adequate due process
was provided during the time of the shutdown, but was unable to explain what that process
consisted of. When asked what process was provided, counsel said that “if anybody disagrees [with
the shutdown order] and they have medical testimony, they have some other guidance, some other
statements, whatever it might be…then they are able to review…” It is not clear what “review”
counsel was referring to. In response to the Court’s follow up question, counsel said that if affected
businesses “disagreed” with the Governor’s shutdown order, they could point to their own
“rational basis” and that the “judiciary” makes the determination.
This entire discussion was confusing. It was clear, however, that the Governor’s counsel
was not able to explain what due process was actually available during the shutdown period. In
fact, there is nothing in the Executive Orders, as currently being implemented, that provides for
6

The issues framed before this Court do not extend to the general powers of the Governor to issue emergency orders.
Clearly, however, the Governor, even in emergencies, cannot assume the role of the legislature and start issuing orders
targeted at specific businesses with long lasting ramifications.
7
During her testimony on August 3, Dr. Christ confirmed that no process will be provided until some undetermined
future date. She testified that fitness centers could not petition to reopen until COVID-19 numbers have decreased to
some undefined amount.
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any review of the Governor’s shutdown decision or review of any fitness center’s request to
reopen. The Executive Orders also do not allow affected businesses an opportunity to present their
own “rational basis,” as argued by counsel.
Of course, the Court is the ultimate safeguard and makes the determination as to whether
the Executive Orders have a rational basis. The notion that a party can come to court to seek relief
certainly does not mean, however, that the Executive Orders provide adequate post-deprivation
due process. On the contrary, if the Court is the only source of due process, then the Executive
Orders themselves clearly do not provide for due process.
Executive Order 2020-14, dealing with the moratorium of evictions, has an explicit judicial
bypass provision. Such a provision provides an adversely affected party an express opportunity to
be heard and ensure that its Constitutional rights are protected. The Executive Orders here contain
no similar judicial bypass mechanism. No explanation has been provided as to why the Executive
Orders at issue here do not have such a procedural provision.
While the Form and the requirements have been made available, they provide no process
until the mandatory shut down order is lifted. As such, any due process is illusory.
It is in fact the duty of this Court to ensure that affected businesses receive an opportunity
to be heard in a meaningful way. Not allowing businesses any due process until the Governor
decides, in his discretion, to end mandatory shutdown periods, deprives these businesses of any
meaningful due process. In fact, under EO 52, the Governor can simply continue to extend the
shutdown periods for two weeks at a time indefinitely, depriving fitness centers any opportunity
to be heard.8
It is not presently possible to determine when the shutdown period will end and the Form
attestation process can begin. EO 52 continued the shutdown for an additional two weeks. It will,
in all likelihood, be continued thereafter, possibly for the foreseeable future. Indeed, the Governor
maintains the right to continue the shutdown period indefinitely, without providing any
opportunity for any gym to reopen, even if the gym is following every possible safety protocol
from State and federal authorities. Yet, the only process provided is after the mandatory shutdown
period ends. In fact, EO 52 does not mention the Form Provision at all. There clearly has not been
adequate process.

8

The Court is not, in any way, suggesting that the Governor has extended or will extend the shutdown period
arbitrarily. It is the risk of arbitrary governmental action, however, that necessitates meaningful due process of law.
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The Governor and ADHS have clearly stated that fitness centers will be allowed to open if
they are following the requirements, but just not yet. According to the plaintiffs, there is no
meaningful difference between operating under the safety protocols today and operating under
same protocols at whatever time in the future the Governor says the fitness centers can reopen. If
they are operating safely, so they contend, then they are operating safely, whether that is presently
or at some time to be determined over the ensuing weeks or months. Yet, the Executive Orders
provide no mechanism for the plaintiffs to be heard on whether they can operate safely presently.
Once the mandatory shutdown periods end, the fitness centers will be able to submit the
Form. Until that time, however, there is no process. The failure of the Executive Orders to provide
any process before the shutdown period end violates plaintiffs’ Constitutionally-protected rights
to procedural due process.
EO 43 provides:
To receive authorization to reopen, entities shall complete and submit a
form as prescribed by the Arizona Department of Health Services that
attest the entity is in compliance with guidance issued by ADHS related
to COVID-19 business operations. The form shall also be posted in an
easily visible public place on the entity’s premises. ADHS shall provide
information to the public on those entities that have submitted such
attestations on its website.
The Court previously found that EO 43 did provide for adequate post-deprivation due
process because of this Form Provision. As now implemented, however, no due process is provided
during the mandatory shut down period.
The Court orders that EO 43 be enforced according to its terms. Fitness centers must be
allowed to complete and submit some type of form or application to receive authorization to
reopen. Of course, the attestation form can mandate compliance with the requirements. However,
it cannot require fitness centers to attest that they agree to be shut down during any mandatory
shutdown period.
The Court rules only that fitness centers and gyms are Constitutionally entitled to some
mechanism for petitioning for reopening. They must have some meaningful opportunity to be
heard.

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It is not the Court’s function to dictate how this process will be structured or implemented.
It is also not the Court’s function to ascertain how any application to reopen will be resolved.9 As
long as fair and meaningful process is provided, ADHS certainly has the discretion to deny
individual applications.
As noted in the July 6 Order, the Court is mindful that the process should not be so
extensive or complicated that it taxes an already overtaxed system. The process for applying to reopen does not have to be complicated and can be as simple and straightforward as the Governor
or ADHS want it to be.10
Plaintiffs should have already been provided with an opportunity to apply for reopening.
The fitness centers are still closed. As such, time is of the essence. The system for applying to
reopen needs to be put in place promptly. In order to ensure that the procedural due process rights
of plaintiffs are protected, the process for reopening must be implemented within one week from
the date of this Order.11
D. Do The Executive Orders Comport With Substantive Due Process?
Under the rational basis test, a court will uphold a law “if it has any conceivable rational
basis to further a legitimate governmental interest.” Arizona Downs v. Arizona Horsemen’s
Foundation, 130 Ariz. 550, 555 (1981). A governmental act will be upheld so long as “any set of
facts…rationally justifies” the law. Id. at 556. The Court previously found that EO 43 passed this
very low threshold test. There certainly is a rational basis for shutting down gyms and fitness
centers for a period of time.
Plaintiffs, however, claim that the issue is presently not whether there is a rational basis for
shutting down fitness centers. Rather, plaintiffs claim the issue is whether there is a rational basis
for not allowing fitness centers willing to follow the requirements to open immediately.

9

The Court understands that the process that will be implemented after the mandatory shutdown period ends is one
that will be essentially automatic. In other words, once the proper attestation is made, the applicant will be allowed to
reopen. The process that the Court is ruling must be provided during the shutdown period certainly does not have to
result in automatic reopening if the proper form is filled out. It would be appropriate for the Governor or ADHS to
have some discretion in dealing with applications to reopen. At the same time, the Court is very mindful of the concern
that case-by-case review of applications could be taxing on the system.
10
Of course, the process put in place must be one that operates in a timely fashion. The Court is not in a position to
dictate how quickly the process moves along. Rather, the Court must assume that all interested parties act in good
faith and that the process will be one that moves with deliberate speed. Fitness centers have already been closed for
several months this year, and it is imperative that their Constitutional rights be respected.
11
Of course, if the mandatory shut down is terminated in the near future, the entire discussion about procedural due
process before the shutdown period ends becomes moot.
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At times, plaintiffs have also characterized the issue as whether there is a rational basis for
concluding that fitness centers following all of the requirements pose a greater danger to public
health than many other businesses, such as retail stores, grocery stores and nail salons, who are
presently open with little or no oversight on their safety precautions. Indeed, evidence submitted
by plaintiffs’ witnesses, including Mr. Humble, compared the unfairness of keeping fitness centers
complying with the requirements closed with other businesses that remain open.12
As noted above, there is clearly a rational basis for concluding that fitness centers should
shut down for a period of time. Whether one agrees or disagrees with the decision to shut down
the gyms, there is more than a rational basis for the conclusion to do so.
The Court certainly does not believe that the Governor is required to justify the decision to
keep fitness centers willing to follow the requirements closed based on comparing the safety of
those operations to other businesses that are permitted to remain open, such as retail and grocery
stores.13 Indeed, that might be an impossible task. Since the pandemic started, the Governor has
had to make numerous decisions affecting many different businesses and industries. Many
subjective factors had to be considered in making these decisions. For example, the Governor has
had to consider the “essential” nature of certain businesses and balance the necessity of the
business with the public health danger attendant to that business remaining open. As such, it is
not as simple as contending that fitness centers following the requirements are as safe or safer than
other businesses that are not required to follow strict safety protocols. Rather, other factors may
have been considered in deciding whether businesses, such as grocery stores, remain open. As
such, the Court does not believe that the appropriate analysis involves comparing the safety of
fitness centers that are willing to comply with the requirements with the safety of other businesses.
Rather, the Governor only has to show that there was a rational basis for the decision to keep
fitness centers and gyms that are willing to follow the requirements closed.
The Governor is elected by the people to make these decisions. It is not this Court’s
function to second-guess the Governor’s public health policy decisions, which involve the
balancing of many different factors and considerations.
The Executive Orders pass the rational basis test, even if barely so. It is true that the
Governor has provided little evidence that any fitness center following all of the rigid protocols in
the requirements poses any significant danger. Of course, the Governor is not necessarily required

12

During the hearing, counsel for Mountainside conceded that the Governor does not have to show specifically that
fitness centers willing to follow the requirements pose a greater danger than other specific businesses.
13
As noted above, counsel for Mountainside seemed to concede that point during the August 3 hearing. Nonetheless,
as also noted above, some of the plaintiffs’ witnesses have presented evidence comparing the unfairness of shutting
down fitness centers willing to follow the requirements to other businesses that remain open.
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to provide hard, scientific data to support his decision. There only has to be a rational basis for the
Governor’s decision.
The question about whether the Executive Orders have a rational basis was put to the
Governor’s counsel during the July 27 hearing. Counsel argued that the Executive Orders were
rational because the Governor was following advice from various advisors. The Governor is
certainly relying on exceptionally qualified medical advisors. These advisors, in particular Dr.
Christ, have advised the Governor that fitness centers should remain shut down for the time being,
even if following the requirements. The Governor is not making arbitrary decisions based on
whim. Relying on advisors such as Dr. Christ does provide a rational basis for the Executive Orders
and continuing shutdown period.
It is certainly true that the evidence presented to the Court provides very little specific
information on the dangers of fitness centers following the requirements. The Court has carefully
looked at all of the declarations provided to this Court. The only declaration that comes close to
addressing the operative question is at pages 2 and 3 of Dr. Christ’s rebuttal declaration. There Dr.
Christ states that even gyms following the strict ADHS requirements should not reopen because
the requirements are not a “failsafe” that will prevent transmission. Requiring that fitness centers
have a “failsafe” against virus transmission seems to be a nearly impossible standard. Yet, once
again, the standard to pass Constitutional muster is very low. The Governor is not required to
provide detailed specifics on whether fitness centers following the requirements continue to pose
safety risks.
Dr. Christ and Dr. Bessel did testify at the hearing that the requirements do not provide a
sufficient basis for reopening at the present time, even if other businesses are allowed to remain
open. Dr. Christ made it very clear that she believed that gyms were still too dangerous to open,
even if complying with the requirements. This Court is singularly not in a position to second-guess
the wisdom of the Governor’s advisors. It is certainly not the Court’s function to determine if Dr.
Christ’s position on whether fitness centers following the requirements pose a danger and should
not be allowed to open is the correct position or if she studied the issue carefully enough.
The Governor relied in his papers significantly on the White House Task Force
recommendation that gyms remain closed.14 There is no suggestion, however, that the White
House Task Force considered whether fitness centers who follow all of the rigid protocols in the
Form and the ADHS requirements should remain closed. Moreover, the Governor is not following
all of the White House Task Force recommendations; the Governor provides no explanation as to
why he is following this recommendation and not others. Once again, however, the Governor does
14

During oral argument on July 27, counsel for the Governor minimized the importance of the White House Task
Force recommendations, arguing that the decisions being made were “Arizona-centric.”
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not have to answer every conceivable question and explain every decision made in detail. Rather,
the White House Task Force is just one source of information relied on by the Governor’s advisors
in making the decisions in question.
This is not an area where there are currently peer reviewed scientific studies. The studies
that have been done have little reliability and are anecdotal in nature. Much is not yet known about
the coronavirus. The coronavirus has not been around long enough for the development of reliable
scientific studies. As such, the Governor has to rely on the judgment and experience of
professionals such as Dr. Christ. Following her advice comports with Constitutional due process.
Any Arizonan is very much aware that most businesses are open. Many of these businesses,
such as restaurants and grocery stores, are often quite crowded. While most businesses seem to be
trying to operate safely, there are few, if any, mandatory governmental safety protocols applicable
to most businesses. Indeed, there is not even a State-wide mask policy. As such, there are many
businesses operating in this State with no mandated protocols, such as social distancing, mask
wearing, crowd control and the like. Yet, these businesses are up and running, potentially exposing
the public to illness. Fitness centers, willing to ensure that their centers are not crowded and are
operating safely, however, have to remain closed. It is very understandable that fitness center
operators feel like they are being unfairly singled out.
For example, the papers submitted by the Governor talk a lot about the dangers of bars
being open. Yet, the majority of bars, those that serve food, remain open. One could certainly argue
that there does not appear to be any rational basis for allowing the vast majority of bars (those
offering food) to remain open, while fitness centers with safety precautions must remain closed.
Once again, however, the Governor is only required to show that there is a rational basis for the
decision to require fitness centers which are following the requirements to remain closed at the
present time. The Governor has made such a showing.
Plaintiffs have provided expert testimony confirming that fitness centers that are following
the various protocols are able to operate safely. The Governor has very little to rebut that position.
Again, however, very little is required. The question is not who is right and who is wrong. The
wisdom of the Executive Orders is not the salient question. Rather, the question is only whether
there is some rational basis. There is.
The Court agrees with the Governor’s position that his decision complies with substantive
due process because he is following the recommendations of others, including top-notch medical

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people. The Governor is not required to provide specific data to support his decision. As such, the
Executive Orders comport with substantive due process.15
II.

IRREPARABLE INJURY

Certainly, a short shutdown may not result in irreparable injury. However, we are no longer
dealing with a short temporary business interruption.16 Rather, the Governor’s orders have resulted
in an extended shutdown with no end in sight. Affected businesses are now in danger of being
forced to close permanently. In fact, it is unrealistic to think that fitness centers that have been
forced to close for weeks and months on end will be able to resume operations. Shutdown orders
across the country have resulted in thousands, if not millions, of business failures. These impacted
businesses are clearly facing permanent closure. Closed businesses impact not just the owners, but
also the livelihood of the thousands of individuals they employ.17 No injury could be more
irreparable than being forced out of business.18 Plaintiffs have shown the possibility of irreparable
injury.
III.

BALANCE OF HARDSHIPS

As the Court previously ruled, a short shutdown in order to stem the tide of COVID-19,
while resulting in significant hardship to plaintiffs, did not outweigh the public health interest
behind EO 43. There 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. Yet, fitness centers and gyms have been closed for weeks
without any due process whatsoever. Plaintiffs’ Constitutional right to due process has been
violated. As such, the balance of hardships now tilts in plaintiffs’ favor and entitles them to some
post-deprivation process.

15

Of course, the fact that the Court finds that the Executive Orders comport with substantive due process does not
mean that aggrieved fitness centers are not entitled to a meaningful opportunity to be heard, as discussed above.
16
Pursuant to Executive Order 2020-09, gyms were ordered to suspend operations from March 20 to May 20, 2020.
Thus, to date, gyms have been shut down for the vast majority of the past four plus months. Clearly, most businesses
forced to close for such long periods would not be able to continue in business at all.
17
The Court is certainly aware that various government aid programs have been put in place to help businesses and
employees. However, these temporary programs are no substitute for sustained employment now and after the
pandemic has ended.
18
Moreover, the Governor likely enjoys immunity from civil damages, rendering the damage done to plaintiffs left
without an adequate remedy. See A.R.S § 12-820.01 (providing absolute immunity to state officials in acting in their
official capacity); Kentucky v. Graham, 473 U.S. 159, 169 (“[A]bsent waiver by the State or valid congressional
override, the Eleventh Amendment bars a damages action against a State in federal court.”).
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DISPOSITION
The Executive Orders, as implemented, violate procedural due process. As set forth above,
fitness centers must be provided a prompt opportunity to apply for reopening. The process for
doing so must be in place within one week from the date of entry of this Order. The Executive
Orders, however, do not violate substantive due process.

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