Fitness v. Arizona
| Decision Date | 14 July 2020 |
| Docket Number | No. CV-20-01310-PHX-DJH,CV-20-01310-PHX-DJH |
| Parties | Xponential Fitness, et al., Plaintiffs, v. State of Arizona, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
NOT FOR PUBLICATION
Plaintiffs are franchisors of boutique fitness studios that provide physical fitness services to consumers across North America, including Arizona, that have been temporarily closed by Defendant Arizona Governor Doug Ducey's Executive Order 2020-43, issued and effective on June 29, 2020 ("June 29, 2020 Executive Order"). Understandably, Plaintiffs seek to reopen. They claim that the June 29, 2020 Executive Order violates their rights under the United States and Arizona Constitutions, and they seek a temporary restraining order ("TRO") and preliminary injunction ("PI") to prevent Governor Ducey from enforcing the June 29, 2020 Executive Order.1 In accordance with an expedited briefing schedule, Governor Ducey filed a Response (Doc. 39), and Plaintiffs filed a Reply (Doc. 41). The Court held a telephonic hearing2 on Plaintiffs' Motion on July13, 2020, at which argument was presented (the "Hearing").
The Court's limited role of judicial review is not to assess the wisdom of the June 29, 2020 Executive Order, but rather to determine whether it violates the law. Having carefully considered the briefing submitted by the parties and the arguments presented by counsel, the Court finds that Plaintiffs are not entitled to the extraordinary remedy of injunctive relief and will therefore deny the Motion.
Arizona, the United States, and the entire world are in the middle of an unparalleled public health emergency. The novel coronavirus, SARS-CoV-2, and the disease it causes, COVID-19, first appeared in December 2019, and has since spread to most countries in the world, including the United States. In the short time since, the virus "has thrust humankind into an unprecedented global public health crisis." Gayle v. Meade, 2020 WL 2086482, at *1 (S.D. Fla. Apr. 30, 2020), order clarified, 2020 WL 2203576 (S.D. Fla. May 2, 2020). "Experts consider this outbreak the worst public health epidemic since the influenza outbreak of 1918." Altman v. County of Santa Clara, 2020 WL 2850291, at *1 (N.D. Cal. June 2, 2020).
The virus "is extremely easy to transmit, can be transmitted by infected people who show no symptoms, has no cure, and the population has not developed herd immunity." Id. According to the Center for Disease Control ("CDC") the virus that causes COVID-19 is believed to spread mainly through close person-to-person contact via respiratory droplets. Ibarra-Perez v. Howard, 2020 WL 3440298, at *4 (D. Ariz. June 23, 2020). Additionally, physical activity results in more exerted breathing, which increases the output of viral respiratory droplets. (Doc. 40 at 29). Confined spaces within gyms increase the ability of individuals to breathe in these respiratory droplets, contract COVID-19, and spread COVID-19 within the community. Indeed, intense physical activity in confined spaces increases the risk of infections, and those risks increase with higher intensity exercise. (Id. at 30).
Additionally, it is possible to contract COVID-19 by touching a surface or object that has the virus on it. (Doc. 40 at 7). "The CDC recommends that to avoid exposure and transmission, individuals should maintain a physical distance of at least six feet from others, wear cloth face covers, frequently wash their hands or use hand sanitizer, and disinfect frequently touched surfaces." Id.
As of the date of this order, COVID-19 has sickened at least 13,177,855 people worldwide and 3,397,069 in the United States, and has killed 574,793 people globally and 136,117 nationally. Center for Systems Science and Engineering at Johns Hopkins Univ., COVID-19 Dashboard, https://gisanddata.maps.arcgis.com/apps/opsdashboard/index.html#/bda7594740fd40299423467b48e9ecf6 (last visited July 14, 2020). In Arizona alone, 128,114 people have been infected and 2,341 people have died. New York Times Staff, Arizona Coronavirus Map and Case Count, NEW YORK TIMES, https://www.nytimes.com/interactive/2020/us/arizona-coronavirus-cases.html (last visited July 14, 2020). Since May 13, 2020, Arizona has seen a sharp increase in the number of new COVID-19 cases reported each day, and on July 1, 2020, Arizona set a record for newly reported cases. (Doc. 40 at 10). As of July 8, 2020, there was no country in the world where confirmed COVID-19 cases were growing as rapidly as they were in Arizona. Jen Fifield, Is COVID-19 spreading more rapidly in Arizona than anywhere else in the world? Here's what data shows, AZCentral.com (July 9, 2020, 12:22 PM), https://www.azcentral.com/story/news/local/arizona-health/2020/07/09/how-arizonas-covid-19-cases-compares-rest-world/5399832002/. Furthermore, Arizona's rate of positive COVID-19 test is 26.8%, which is the highest in country and the third highest in the world. Id.
Recent data shows that the spread of COVID-19 is greatest among the demographic 20-44-year-olds. (Doc. 40 at 29). In the month of June, 53% of all COVID-19 cases reported in Arizona were in 20-44-year-olds. (Id.) Additionally, as of July 3, 2020, hospitals reported that 90% of intensive care beds and 85% of impatient beds in Arizona are now filled. (Id.) And these numbers, as shocking as they are, likely actually understatethe damage inflicted by the virus, because a lack of testing masks the true number of infections and underreporting masks the true number of confirmed COVID-19 cases and fatalities.
In response to the extraordinary challenge that containing novel coronavirus poses, Governor Ducey has issued what are known as "shelter-in-place" orders. Such orders typically require non-essential businesses to close; limit individuals' ability to travel; and require individuals to avoid behaviors that make transmission of the virus more likely. The purpose of such orders is to slow virus transmission as much as possible, to protect the most vulnerable, and to prevent the health care system from being overwhelmed.
On April 29, 2020, Governor Ducey issued Executive Order 2020-33 instituting a "Stay home, Stay health, Stay connected" policy to promote physical distancing, while also encouraging social connectedness ("April 29, 2020 Executive Order"). (Doc. 1 ¶ 30). Under the April 29, 2020 Executive Order, all businesses classified as "Essential Functions" were to establish and implement social distancing and sanitation measures established by the United States Department of Labor or Arizona Department of Health Services ("ADHS"). In addition, effective May 8, 2020, retailers not classified as essential under the April 29, 2020 Executive Order, and whose business involves the sale of goods, were allowed to open, operate, and offer goods for sale to customers in their stores provided they established and implemented protocols and best practices for businesses to address COVID-19 as outlined in the Order. (Id.)
On May 4, 2020, Governor Ducey issued Executive Order 2020-34 ("May 4, 2020 Executive Order") providing that barbers and cosmetologists may resume operations effective May 8, 2020, provided they establish and implement protocols and best practices for businesses to address COVID-19. (Id. ¶ 31). On May 12, 2020, Governor Ducey issued Executive Order 2020-36 ("May 12, 2020 Executive Order") instituting a "Stay Healthy, Return Smarter, Return Stronger" policy allowing businesses to gradually and safely open, effective May 16, 2020, in compliance with federal guidelines to mitigate and prevent thespread of COVID-19. Under the May 12, 2020 Executive Order, any business operating in Arizona shall develop, establish and implement policies based on guidance from the CDC, Occupational Safety and Health Administration ("OSHA"), and ADHS to limit and mitigate the spread of COVID-19. The May 12, 2020 Executive Order also included specific guidance for gyms and fitness centers. Additionally, ADHS made clear that this guidance could change if the trajectory of COVID-19 changed. (Doc. 22-1 at 7).
On June 17, 2020, Governor Ducey issued Executive Order 2020-40 ("June 17, 2020 Executive Order") providing that businesses shall assist in efforts to "Contain the Spread," by updating and enforcing written policies in accordance with May 12, 2020 Executive Order. Governor Ducey subsequently issued the June 29, 2020 Executive Order requiring that all "[i]ndoor gyms and fitness clubs or centers," among other businesses, "pause operations" effective June 29, 2020, at 8:00 p.m., until at least July 27, 2020, unless extended. (Doc. 1 ¶ 36). Under this Order, businesses closed may "receive authorization to reopen" after they "submit a form as prescribed by [ADHS] that attests the entity is in compliance with guidance issued by ADHS related to COVID-19 business operations." (Id.)
Dr. Cara Christ, Director of ADHS, provides that on May 12, 2020, she concurred with Governor Ducey's decision to issue his May 12, 2020 Executive Order, which detailed a plan for the safe and progressive reopening of Arizona businesses. (Doc. 40 at 8). Dr. Christ avers that since gyms and other businesses were allowed to reopen on May 13, 2020, Arizona has seen a sharp increase in the number of new COVID-19 cases reported. (Id.) Additionally, Dr. Christ notes that Arizona has seen a sharp increase in the number of 20-44-year-old people testing possible with that age group now representing 50 % of all newly reported positive tests. (Id.) In response to this data, Dr. Christ avers that she advised and concurred with Governor Ducey's June 29, 2020 Executive Order, which temporarily paused Arizona's reopening by closing some businesses and activities, including indoor gyms and fitness clubs. (Id. at 11). Dr. Christ opines that ...
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