By Howard Fischer
Twitter: @azcapmedia

PHOENIX — A federal judge late Tuesday rebuffed a bid by Xponential Fitness to allow it to reopen its 50 facilities around the state despite the order by Gov. Doug Ducey to keep them shut for at least another two weeks.

"The court does not doubt the earnestness of plaintiffs’ desire to open their businesses, generate revenue, earn a living, and employ — and as importantly — pay — others,” wrote Judge Diane Humetewa. And the judge said she recognizes “the economic and emotional hardships” that the orders by the governor dealing with COVID-19 can impose on people and individuals.

But Humetewa said she was powerless to simply void Ducey’s orders.

“In our constitutional republic, the decisions of whether, when, and how to exercise emergency powers amidst a global pandemic belong not to the unelected members of the federal judicial branch, but to the elected officials of the executive branch,” she wrote.

Humetewa said a crisis like that created by the coronavirus calls for “quick, decisive measures to save lives.”

“Those measures can have extreme costs — costs that often are not borne evenly,” she said. “The decision to impose those costs rests with the political branches of government, in this case, Gov. Ducey.”

Humetewa acknowledged that Ducey’s order closed down gyms and fitness centers while other kinds of businesses were allowed to remain open. Alex Weingarten, the attorney for Xponential, argued those other businesses actually would be more likely places where the virus could spread.

But the judge called that irrelevant.

“Gov. Ducey’s June 29 executive order does not violate the Equal Protection Clause (of the Constitution) simply because it does not close every business where transmission is possible,” she wrote. Anyway, Humetewa wrote, the decision to close gyms temporarily is “reasonable and rational” because medical advisors have told him that these facilities pose undue risks — even those that operate within certain guidelines.

Finally, the judge said rejected Weingarten’s claim that allowing his clients to reopen is in the public interests, at least in part because of the mental and physical benefits from the services they offered.

“COVID-19 is highly contagious and continues to spread at alarming rates, requiring public officials to constantly evaluate the best methods by which to protect residents’ safety against the economy and a myriad of other concerns,” Humetewa said.

“Gov. Ducey has provide evidence that gyms create a uniquely dangerous environment for the spread of COVID-19 because exercise makes mask-wearing more difficult and (ITALICS) less effective, (ROMAN) and individuals emit more virus-spreading respiratory droplets during exercise,” she continued. “Allowing gyms and fitness facilities to operate in Arizona, at this time, could increase the risk of transmission of COVID-19 — not just for those who visit plaintiffs’ particular facilities, but for everyone in the community.”

Xponential has franchise operations around the state operating around the state as Club Pilates, Stretch Lab, CycleBar, Pure Barre, Yoga Six, AKT, and Row House.

This is the second defeat for gyms in as many weeks.

Last week a Maricopa County Superior Court judge rejected similar arguments made by the owners of Mountainside Fitness and EoS Fitness who also argued that their facilities can be operated in a safe fashion.