1

2
1138 NORTH ALMA SCHOOL ROAD, SUITE 101
3 MESA, ARIZONA 85201
Telephone: 480.461.5300 | Fax: 480.833.9392
4
Joel E. Sannes (SBN 015999)
5 jes@udallshumway.com
David R. Schwartz (SBN 009624)
6 das@udallshumway.com
James B. Reed (014015)
7 jbr@udallshumway.com
docket@udallshumway.com
8
9 Timothy J. Eckstein (SBN 018321)
OSBORN MALEDON, P.A.
10 2929 North Central Avenue Suite 2100
Phoenix, Arizona 85012-2793
11 E-mail: teckstein@omlaw.com
12 Attorneys for Plaintiff
13 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
14 IN AND FOR THE COUNTY OF MARICOPA
15 MOUNTAINSIDE FITNESS CASE NO.: CV 2020-093916
ACQUISITIONS, LLC, an Arizona CASE NO.: CV2020-007617
16 limited liability company, (Consolidated under CV 2020-093916)
17 Plaintiff,
PLAINTIFF MOUNTAINSIDE
18 v. FITNESS’ PETITION FOR CIVIL
CONTEMPT
19 DOUGLAS A. DUCEY, Governor of
Arizona, in his official capacity;
20
Defendant.
21
22 FITNESS ALLIANCE, LLC dba EOS
Fitness, an Arizona limited liability
23 company,
Plaintiff,
24
v.
25
DOUGLAS A. DUCEY, Governor of
26 Arizona, in his official capacity;
27 Defendant.
28
 1 Pursuant to Ariz. R. Civ. P. 7.3 and 65(f), Plaintiff, Mountainside Fitness
2 Acquisitions Center, LLC (“Plaintiff”), by and through undersigned counsel, files this
3 Petition for Order to Show Cause requiring Defendant, the Hon. Douglas A. Ducey,
4 (hereinafter “Defendant”), to appear and show cause why Defendant should not be held
5 in civil contempt for violating this Court’s orders of August 4 and August 7, 2020.
6 Memorandum of Points and Authorities
7 I. Introduction
8 The Court’s August 4 ruling 1 was clear: Defendant must “enforce[] EO 43
9 according to its terms….” EO 43 allowed fitness centers to re-open, notwithstanding if
10 they “complete[d] and submit[ted] a form as prescribed by [ADHS] that attest the entity
11 is in compliance with guidance issued by ADHS related to COVID-19 business
12 operations.” Id. The Court found that this process satisfied procedural due process and
13 required Defendant to implement it “within one week” from August 4. The Court
14 permitted Defendant “some discretion in dealing with applications to reopen,” but
15 required that the process “operate[] in a timely fashion.”
16 On August 10, Defendant implemented a process that does not follow the Court’s
17 ruling. Instead of allowing Plaintiff and other fitness centers to reopen upon attesting
18 “compliance with guidance issued by ADHS related to COVID-19 business
19 operations,” (EO 43 and 8/4/2020 Order at p. 18), Plaintiff must now navigate a
20 byzantine procedure containing no firm deadlines nor any discernible requirements with
21 which it can comply to be allowed to reopen. This leaves Plaintiff in the same place it
22 was before: closed for business and with no “meaningful” chance to prove it can safely
23 reopen its doors.
24 A civil contempt order is appropriate because Defendant has failed to “enforce
25 [EO 43] according to its terms.” To the contrary, Defendant has thrown together a
26
27 1
Exhibit A hereto is a timeline of the litigation in lieu of a statement of procedural
28 posture.
2
 1 process with 1) no timeline, 2) amorphous standards that are applied at ADHS’
2 unilateral discretion, and 3) elements that Plaintiff literally cannot satisfy. Even worse,
3 the disarray and ambiguity of Defendant’s offered procedures seem calculated to defeat
4 the clear intention of the Court’s orders: allow meaningful procedural due process
5 through a clear, time-sensitive application process leading to prompt reopening of
6 attesting businesses.
7 II. Standards for Contempt for Violating Court Orders
8 “The court may issue sanctions for civil contempt . . . as allowed by law, against
9 a party or person who violates an injunction.” Ariz. R. Civ. P. 65(f)(1). Disobedience
10 of an injunction may be punished as a contempt of court. Ariz. R. Civ. P. 65(f)(1).2 “A
11 court's inherent authority to sanction parties for failing to comply with its orders exists,
12 in part, to prevent ‘'disobedience [of] the orders of the Judiciary.’”
13 Green v. Lisa Frank, Inc., 221 Ariz. 138, 152, ¶ 37, 211 P.3d 16, 30 (App. 2009)
14 (citation omitted). “Civil contempt arises when a party refuses to do an act he lawfully
15 is ordered to do, and the power to punish for contempt is inherent in the trial court.”
16 Holt v. Hotham ex rel. County of Maricopa, 197 Ariz. 614, 616, 5 P.3d 948, 950 (Ct.
17 App. 2000). “A finding of civil contempt requires that the contemnor (1) has knowledge
18 of a lawful court order, (2) has the ability to comply and (3) fails to do so.” Lund v.
19 Donahoe, 227 Ariz. 572, 583, 261 P.3d 456, 467 (Ct. App. 2011). “A contempt sanction
20 is considered civil if it either coerce[s] the defendant into compliance with the court's
21 order, [or] ... compensate[s] the complainant for losses sustained.” Trombi v. Donahoe,
22 223 Ariz. 261, 267, 222 P.3d 284, 290 (Ct. App. 2009). “Coercive civil contempt
23 requires that the contemnor be given an opportunity to avoid punishment through
24
25 2
Issuance of an order to show cause generally requires an affidavit. Ariz. R. Civ. P. 7.3(a);
26 Ariz. R. Civ. P. 65(f)(3). Because all of the matters addressed in this Petition are based
on orders of the Court and public record, Plaintiff moves that the Petition be accepted
27 without an affidavit. Any affidavit would merely repeat the Court’s orders and recite
28 documents that are in public record. Plaintiff is prepared to submit an affidavit if required.
3
 1 compliance.” Id. Because Defendant’s conduct meets all three elements, a contempt
2 remedy is warranted.
3 III. Argument
4 “A state post-deprivation remedy is considered adequate unless it can readily be
5 characterized as inadequate to the point that it is meaningless or nonexistent and thus,
6 in no way can be said to provide the due process relief guaranteed under the fourteenth
7 amendment.” Scott v. McCaughtry, 810 F. Supp. 1015, 1019 (E.D. Wis. 1992) (internal
8 quotation omitted). To determine if the State’s remedy is adequate, the court should
9 consider “(1) the private interest at stake; (2) the risk of an erroneous deprivation of
10 that interest through the procedures used and the probable value (if any) of alternative
11 procedures; (3) the government's interest, including the possible burdens of alternative
12 procedures.” Kuck v. Danaher, 600 F.3d 159, 163 (2d Cir. 2010).
13 Here, Defendant’s issuance of a post-deprivation remedy is clearly inadequate.
14 EM 2020-02 incorporates—for the first time—community transmission metrics as a
15 pre-requisite to opening by application. If transmissions metrics within a given county
16 are too high, a business “must remain closed” unless it receives a waiver. The waiver
17 application process is ambiguously defined and untimely on its face. Defendant’s
18 attempt to satisfy procedural due process requirements is thus rendered “meaningless.”
19 It also violates the Court’s ruling, which required the implementation of EO 43
20 “according to its terms3” and in a “timely” manner. Defendant clearly knew about the
21 Court’s ruling, had an opportunity to comply with it, and yet failed to do so.
22
23
24 3
Most of the apparatus constructed by Defendant and ADHS (i.e. community
transmission metrics, the need to take “extra steps,” and the convoluted waiver
25
application process) were not part of the “terms” of EO 43 or the reopening guidelines
26 submitted to the Court before the hearing. Because Defendant added all of these elements
after the Court’s ruling, Defendant’s literally calculated intention to undermine the
27 Court’s ruling and obstruct the outcomes which the Court clearly intended is particularly
28 transparent.
4
 1 Accordingly, Defendant’s failure to obey the ruling demonstrates contempt of this
2 Court’s orders.
3 A. The Court’s August 4, 2020, Ruling
4 On August 4th, the Court found EO 2020-43, as implemented, did not give
5 Plaintiff procedural due process. Instead, Defendant required Plaintiff to remain
6 shuttered without any ability to prove its business was just as safe as other businesses
7 that EO 2020-43 allowed to remain open. In response, the Court “order[ed] that EO 43
8 be enforced according to its terms,” (Ruling at 18), by requiring Defendant to permit
9 fitness centers such as Plaintiff “to complete some type of form or application to receive
10 authorization to reopen.” The Court gave Defendant “some discretion” in implementing
11 the Court’s order, but stated “the process put in place must be one that operates in a
12 timely fashion” and should “move with deliberate speed” because “[f]itness centers
13 have already been closed for several months this year, and it is imperative that their
14 Constitutional rights be respected.”(Ruling at 19, n. 10).
15 B. Emergency Measure 2020-02
16 In response to the Ruling, Defendant and the Arizona Department of Health
17 Services issued Emergency Measure 2020-02 (“EM 2020-02”), attached as Exhibit B.
18 Although EM 2020-02 creates a theoretical “process” by which Plaintiff can reopen, it
19 does not comply with the Court’s explicit order that the attestation process operate in a
20 “timely fashion.” The essential elements of EM-2020-02 are as follows:
21 1. All fitness centers are to remain closed as required by EO 2020-43 and EO 2020-
22 52.
23 2. Fitness centers can reopen only if they either (a) “meet, on an individual basis,
24 the terms and conditions for reopening,” or (b) “apply to ADHS for approval to
25 reopen, prove they have taken or will take such extra steps beyond those required
26 herein as may be necessary to operate safely, and are expressly granted by ADHS
27 approval to reopen.”
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 1 3. Before any fitness center can meet “the terms and conditions for reopening,” it
2 must be located in a county that meets certain “community transmission
3 metrics4,” that EM 2020-02 calls “Benchmarks.” Id. at ¶¶ 2, 4.
4 4. If the transmission Benchmark is “Minimal,” fitness centers can open, provided
5 they use certain sanitation and physical distancing protocols (called
6 “Guidelines”) and limit capacity to 50% occupancy. See Requirements for
7 Indoor Gyms and Fitness Clubs/Centers dated August 10, 2020, attached as
8 Exhibit C, at p. 4.
9 5. If the transmission Benchmark is “Moderate,” fitness centers can operate under
10 the same protocols as the “Minimal” Benchmark, but only at 25% occupancy.
11 Exhibit B at ¶ 4; Exhibit C at 4.
12 6. Under EM 2020-02, a county’s Benchmark must remain at a lower level for “14
13 consecutive days” before a fitness center can submit an attestation form and
14 operate at that level’s permitted capacity. Exhibit B at ¶ 2.
15 7. If, however, the community transmission Benchmark is “Substantial,” then
16 metrics are considered by Defendant and ADHS as too high in that county, and
17 a fitness center “must remain closed.” Id. at ¶ 4.
18 8. A fitness center that “must remain closed” may still “apply to ADHS for approval
19 to reopen if it can prove that it has taken or will take such extra steps, beyond
20 those required in the Guidelines and Benchmarks for counties whose community
21 transmission metrics are in the Moderate category.” Id. at ¶ 5 (emphasis added).
22 9. “Such businesses must prove to ADHS that it has taken and will take such
23 additional actions as are necessary to operate safely.” Id. (emphasis added).
24
25
26
4
These metrics are 1) the number of cases per 100,000 residents; 2) percent of COVID-
27 19 tests that are positive; and 3) the percentage of hospital visits “due to COVID-like
28 illness.” Exhibit C at 2 – 3.
6
 1 10. Importantly, any business filing an application to reopen under paragraph 5 of
2 EM 2020-02 “shall remain closed unless or until it is expressly granted approval
3 to reopen.” Id.
4 11. If an “application for approval to reopen is denied,” the affected business “may
5 request an Informal Settlement Conference with ADHS to discuss whether there
6 are conditions under which it may reopen….” Id. at ¶ 6.
7 12. If the informal settlement conference is unsuccessful, the business “has the right
8 to request a hearing before the Arizona Office of Administrative Hearings” to
9 “review the continuing closure.” Id. at ¶ 7.
10 C. Emergency Measure 2020-02 violates the Court’s Ruling
11 1. EM 2020-02 has no timeline.
12 Whatever else can be said about EM 2020-02, it cannot be called “timely” because
13 it contains no deadlines by which ADHS may exercise its discretion. How long can it
14 review a waiver application? EM 2020-02 does not say. When must the Informal
15 Settlement Conference be held? EM 2020-02 is silent on the issue. How long after the
16 Informal Settlement Conference before ADHS must issue its final approval or denial?
17 Who knows? Under EM 2020-02, ADHS can take as long as it pleases to do any of these
18 things. Regardless of Defendant’s intent, EM 2020-02 is tailormade to run out the clock.
19 Even assuming ADHS acts in good faith, the practical this process creates for
20 ADHS assures an untimely resolution. The process is the same for all business Defendant
21 deems high risk, including bars, dine-in restaurants, and fitness centers. There are
22 thousands of these businesses in Maricopa County alone. During a period of “Substantial”
23 community transmission (as defined in the community benchmarks), how will ADHS
24 review thousands of applications, schedule thousands of informal settlement conferences,
25 and issue thousands of final decisions? EM 2020-02 does not answer that question either.
26 This process would easily take weeks or months.
27
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 1 A fundamental requirement of due process is the opportunity to be heard in the
2 form of an “opportunity which must be granted at a meaningful time and in a meaningful
3 manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965). In short, nothing about EM
4 2020-02 “timely” or “meaningfully” addresses the procedural due process deprivation
5 created by EO 43 and EO 52.
6 2. EM 2020-02 is ambiguous.
7 EM 2020-02 is fatally ambiguous to a fitness center’s efforts at compliance. To
8 successfully obtain a waiver, a fitness center must “prove that it has taken or will take
9 such extra steps, beyond those required in the Guidelines and Benchmarks for counties
10 whose community transmission metrics are in the Moderate category.” Id. at ¶ 5.
11 Defendant does not say what those “extra steps” are, only that they must “go beyond” the
12 Guidelines and Benchmarks. The Moderate transmission metric already requires the
13 following:
14  25% Occupancy limit;
15  Hand Hygiene & Respiratory Etiquette;
16  Enhanced Cleaning;
17  Proper Ventilation;
18  Symptom Screening;
19  Physical Distancing (6 feet);
20  Masks; and
21  Closed communal spaces
22 Exhibit B at p. 4. There is no standard or guidance as to what the “extra steps” that “go
23 beyond” these requirements would be relevant or sufficient. Does 10% occupancy work?
24 What about “super enhanced” cleaning and “extra proper” ventilation? 10 feet of physical
25 distancing? These examples may be absurd but only because the undefined nature of the
26 requirement is absurd. How do these “extra steps” (whatever that means) make a fitness
27 center safer than what is required in the Moderate Guidelines, which are themselves based
28
8
 1 on CDC guidelines? In addition to lack of a real definition of “extra steps,” EM 2020-02
2 lacks any guidance about the uniform application of “extra steps.” Plaintiff cannot read
3 EM 2020-02 and determine what it needs to do get waiver; everything is left to the
4 discretion of ADHS. The Ruling agreed that Defendant should have “some discretion in
5 dealing with applications to reopen,” but EM 2020-02 stretches the word “some” beyond
6 all recognition. Such unrestrained exercise of agency power, with a fitness center’s only
7 remedies, per Defendant’s justification, consisting of pursuing Office of Administrative
8 Hearings review (discussed infra) and filing a lawsuit, offends procedural due process to
9 such an extent as to support no conclusion other than Defendant has intentionally defied
10 the rulings of this Court.
11 Plaintiff cannot be “meaningfully heard” if it cannot show ADHS that it meets the
12 “extra steps” requirement of the emergency measure. Thus, EM 2020-02’s ambiguity
13 violates the Court’s ruling, thus making Defendant subject to a civil contempt order.
14 3. It is impossible to comply with EM 2020-02.
15 Plaintiff cannot be “meaningfully heard” if it is literally impossible to comply with
16 at least part of the emergency measure. EM 2020-02 says a business applying for a waiver
17 must take “extra steps, beyond those required in the Guidelines and Benchmarks for
18 counties whose community transmission metrics are in the Moderate category. This is an
19 impossible task. The Benchmarks only reflect the level of community transmission of
20 COVID-19. No business can meet the Benchmarks—much less take “extra steps, beyond
21 those” Benchmarks—because businesses have nothing to do with those Benchmarks and
22 literally cannot “go beyond” them (whatever “go beyond” would even mean in this
23 context). Accordingly, EM 2020-02, in addition to being untimely and ambiguous, is also
24 impossible to satisfy.
25 4. The OAH Appeal Process is No Process at All
26 Assuming, after Plaintiff runs the gauntlet of the indeterminate schedule of
27 applying to reopen, has its informal settlement conference, and then gets a response on
28
9
 1 an unspecified time frame after the settlement conference, the remedy EM 2020-02
2 provides is that Plaintiff can appeal to the Office of Administrative hearings. The appeal
3 process is unique in its standard-lessness. There are no stated criteria by which OAH
4 could evaluate an appeal. There is no defined burden of proof. Although the Office of
5 Administrative hearings is efficient, in a 2019 report to Defendant, Senate President Fann
6 and Houses Speaker Bowers reported average timelines of 78.49 days from a request for
7 hearing to agency action. See https://azoah.com/24thAnnualReport.pdf (accessed
8 8/12/2020). In other words, the ultimate remedy of an OAH appeal is not really a remedy
9 because there are no standards for an appeal and the time for an appeal, under these
10 circumstances, makes the OAH appeal meaningless, especially if there are potentially
11 hundreds or thousands of waiver applications.
12 IV. Requested Remedy
13 The Court’s August 4 ruling required Defendant to implement an application or
14 attestation process that Plaintiff could use to prove it complied with ADHS guidelines
15 then in effect. EO 2020-43 represented there would be a protocol and an attestation
16 process. Defendant told this Court and two other courts that the attestation process and
17 the protocols would be available by July 27th. On July 22nd, ADHS posted draft
18 protocols. Exhibit D. The attestation process was complete. See Defendant’s August 1,
19 2020 “Notice of Posting of Attestation Form.”
20 Two of Plaintiff’s expert witnesses, preeminent industrial hygienists, declared
21 that fitness centers that followed the July 22 protocols were at a baseline risk of COVID
22 transmission that is no greater than other businesses that are allowed to remain open.
23 Former ADHS Director Will Humble declared and testified the same. This was all in
24 the context of the fact that the State cannot show a single instance where a COVID
25 infection is traceable to an Arizona fitness center nor any example of an outbreak of
26 COVID-19 associated with any fitness centers nationally.
27
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 1 However, Defendant has arbitrarily adjusted the requirements for fitness centers
2 to open, transparently as responses to Plaintiff’s requests for relief and this Court’s
3 orders. The July 22nd protocol contained a 50% occupancy requirement, which
4 Plaintiff’s experts testified were sufficiently protective. Defendant produced the July 22
5 protocols with extensive input from the Arizona fitness industry. On July 23rd,
6 Defendant issued EO 2020-52, negating any possibility of opening with attestation in
7 direct contradiction of the Court’s July 7th order. Plaintiff filed its second request for
8 temporary restraining order on July 24th. A hearing was scheduled for August 3rd.
9 Defendant asserts the protocols were updated on August 1st with a July 31 protocol –
10 this time with a 25% occupancy requirement.5 The Court issued its ruling on August
11 4th. On August 5th, Defendant filed a Notice of Posting the July 31 updated protocols
12 and moved to stay the Court’s order. On August 7th, the Court denied the stay request,
13 reaffirming that Defendant must provide fitness centers with a meaningful, post-
14 deprivation remedy. So, on August 10th, Defendant changed the entire process by
15 linking reopening to metrics that themselves appear to be arbitrary, with more restrictive
16 protocols that do not appear to have any rational relation to the metrics.
17
18 CONCLUSION
19 For the foregoing reasons, Plaintiff requests the Court find Defendant in
20 contempt of its August 4 order, which requires that Defendant implement EO 2020-43
21 or another order that affords equivalent due process. Plaintiff requests the Court order
22 that Defendant, through ADHS, open the attestation process and that fitness centers that
23 attest to comply with the July 22 protocol be allowed to reopen as a remedy to
24 Defendant’s refusal to follow the Court’s orders.
25
26
5
Although Defendant asserts the updated July 31 protocol was posted to the ADHS
27 website before the August 4 hearing, a historical search of the ADHS archived website
th
28 would establish they were posted after August 4 , not before the hearing.
11
 1 RESPECTFULLY SUBMITTED this 12th day of August, 2020.
2 UDALL SHUMWAY PLC
3
/s/ Joel E. Sannes
4 Joel E. Sannes
Carson T. H. Emmons
5
James B. Reed
6 1138 North Alma School Rd., Suite 101
Mesa, AZ 85201
7
8 OSBORN MALEDON, P.A.
Timothy J. Eckstein
9 2929 North Central Avenue
Suite 2100
10
Phoenix, Arizona 85012-2793
11
Attorneys for Plaintiff
12
13
14 Electronically filed through www.azturbocourt.gov
and COPIES served via Turbo Court
15 and emailed this 12th day of August, 2020
with a COPY sent via electronic means to:
16
Attorneys for Defendant:
17
18 Brett W. Johnson
Colin P. Ahler
19 Tracy
A. Olson
Snell & Wilmer LLP
20 One
Arizona Center
400 E. Van Buren St., Ste. 1900
21 Phoenix,
AZ 85004-2202
bwjohnson@swlaw.com
22 cahler@swlaw.com
tolson@swlaw.com
23
24 Anni
L. Foster
General Counsel
25 Office
of Arizona Governor Douglas A. Ducey
1700 W. Washington Street
26 Phoenix,
AZ 85007
afoster@az.gov
27
///
28
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 1 Attorneys for Plaintiff Fitness Alliance, LLP, dba
EOS Fitness:
2
3 Robert B. Zelms
Anthony S. Vitagliano
4 Nishan J. Wilde
Manning & Kass, Elrod, Ramirez, Trester, LLP
5 3636 N. Central Ave. 11th Floor
Phoenix, AZ 85012
6 rbz@manningllp.com
asv@manningllp.com
7 njw@manningllp.com
8
9 By: /s/ Taylor Jensen

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EXHIBIT A
EXHIBIT B
EXHIBIT C
 Requirements for Indoor Gyms and
Fitness Clubs/Centers
August 10, 2020

8.10.2020 | Requirements for Indoor Gyms and Fitness Clubs/Centers 1

 Benchmarks
There are two key components to resuming business operations. First is the quality of the establishment’s
implementation of COVID-19 mitigation strategies. This plan outlines mitigation strategies tailored for specific types of
business operations. Business must attest to their implementation of these strategies prior to operating. The second
is the level of spread occurring in the community. The Centers for Disease Control and Prevention (CDC) defines
community spread as follows:

Minimal Community Spread: Evidence of isolated cases or limited community transmission, case
investigations underway; no evidence of exposure in large communal setting.

Moderate Community Spread: Sustained transmission with high likelihood or confirmed exposure within
communal settings and potential for rapid increase in cases.

Substantial Community Spread: Large scale, controlled community transmission, including communal
settings (e.g., schools, workplaces).

ADHS further defines community spread levels with the thresholds outlined below. These thresholds are consistent
with the national standards set by the Coronavirus Task Force.

Benchmarks Minimal Moderate Substantial

Cases <10 cases/100,000 10-100 cases/100,000 >100 cases/100,000

Percent Positivity <5% 5-10% ≥10%

Covid Like Illness <5% 5-10% >10%

8.10.2020 | Requirements for Indoor Gyms and Fitness Clubs/Centers 2

Understanding the Benchmarks

Cases Percent Positivity COVID-like Illness

Benchmark: Two weeks below 100 cases Benchmark: Two weeks with percent Benchmark: Two weeks with hospital visits
per 100,000 positivity below 10% due to COVID-like illness below 10%

Data Source: ADHS MEDSIS Confirmed

and Probable Cases
Available by: County
Data Source: ADHS Electronic Laboratory Data Source: BioSense Syndromic
Data Surveillance Platform

Available by: County Available by: BioSense Region

• Northern: Apache, Coconino, Navajo,
Yavapai Counties
• Central: Gila, Maricopa, Pinal
Counties
• Southeastern: Cochise, Graham,
Greenlee, Pima, Santa Cruz Counties
• Western: La Paz, Mohave, Yuma
Counties

8.10.2020 | Requirements for Indoor Gyms and Fitness Clubs/Centers 3

 Requirements for Indoor Gyms and Fitness Centers
ADHS Requirements for Indoor Gyms and Fitness Centers

Indoor Gyms and Fitness Centers

Hand
Physical Communal
Community Hygiene & Enhanced Proper Symptom
Occupancy Distancing Masks Spaces
Spread Level Respiratory Cleaning Ventilation Screening
(6 feet) Closed
Etiquette

50% until
Minimal < 3% x x x x x x x
positivity.

Moderate 25% x x x x x x x

Substantial Closed N/A N/A N/A N/A N/A N/A N/A

8.10.2020 | Requirements for Indoor Gyms and Fitness Clubs/Centers 4

 Per the Centers for Disease Control and Prevention (CDC) and Arizona Department of Health Services (ADHS) guidance,
under all circumstances, the following precautions must be taken by people utilizing indoor gyms and other fitness venues:

Stay home if you are sick.

Protect yourself while visiting gyms:

• Arizonans are safer at home and should evaluate their personal risk of using an indoor gym or other fitness
venue based on the Arizona COVID-19 Risk Index.
• Avoid close contact and stay more than 6 feet away from others.
• You are required to wear a mask while at the facility.
- Masks should not be placed on children less than 2 years of age, anyone who has trouble
breathing, or is unconscious, incapacitated, or otherwise unable to remove the cover without
assistance.
- In accordance with CDC guidelines, individuals who are engaged in high intensity activities, like
running, may not be able to wear a mask if it causes difficulty breathing.
- If unable to wear a mask, these individuals should not participate in
activities conducted at indoor gyms and fitness centers.
• Wash your hands often, especially after leaving the gym, with soap and water for at least 20 seconds. If soap
and water are not available, use an alcohol-based hand sanitizer that contains at least 60% alcohol.
• Avoid touching your eyes, nose, and mouth with unwashed hands.
• Cover your cough or sneeze with a tissue or your sleeve (not your hands) and immediately throw the tissue
in the trash.
• If possible, use touchless payment methods. If you must handle money, a card, or use a keypad, use hand
sanitizer or wash your hands immediately after.
• If you are at higher risk for severe illness, you should avoid visiting gyms. People at higher risk for severe
illness include adults 65 or older and people of any age who have serious underlying medical conditions.

8.10.2020 | Requirements for Indoor Gyms and Fitness Clubs/Centers 5

 The Arizona Department of Health Services requires the following additional steps be
taken by gyms and fitness providers and providers shall take measures to ensure that
employees and guests follow these guidelines:

Implement occupancy limitations as required based on the community transmission category within the county your
establishment operates.
• Substantial: closed unless special dispensation received from ADHS
• Moderate: 25% of the permitted fire code occupant load with ADHS mitigation requirements
• Minimal: 50% occupancy with ADHS mitigation requirements until < 3% positivity
Implement and enforce physical distancing precautions that maintain more than 6 feet between individuals who do
not live in the same household:
• Close communal spaces and common areas where people are likely to congregate and interact.
- If unable to close the area, restrict access and have employees staff the area to enforce physical
distancing.
• Arrange waiting areas, service areas, and break rooms to enforce physical distancing, and sanitize areas
regularly between use.
- If not closed, severely limit access to waiting areas, service areas, and break rooms, and have
employees staff the area to enforce physical distancing, if feasible.
- Do not allow guests to wait or linger in waiting areas, service areas, break rooms, or lobbies.
• Enforce similar physical distancing requirements in employee-only spaces, such as break or dining rooms,
uniform control areas, and shared office spaces. Consider closing or restricting access to these spaces.
Implement temperature checks or symptom screening at the door for all guests.

Consider touchless check-ins, such as guests scanning their own membership tag.

8.10.2020 | Requirements for Indoor Gyms and Fitness Clubs/Centers 6

 Require online or phone pre-bookings or reservations for fitness classes and limit the number of guests in the class
to allow for appropriate physical distancing.
• Do not conduct back-to-back fitness classes. It is recommended that no less than 15 minutes elapses
between classes to allow for full sanitization and to prevent crowding from participants entering/exiting
the area.
- Time between classes is needed to allow for the air to recirculate and for staff to thoroughly clean
spaces and equipment between classes and provide proper ventilation.
• Provide lines/markings on fitness class floors to clearly demonstrate where guests should stand to ensure
physical distancing.

Consider a reservation system for guests to use the facility.

Offer virtual or outdoor classes or training where feasible.

Arrange fitness equipment or block off machines from use so that guests can adhere to appropriate physical
distancing.

Mandate the use of masks for all guests while at the facility. Physical distance of more than 6 feet must still be
adhered to.

Sharing of equipment shall be minimized or limit the use of equipment to one user at a time with a staff cleaning and
disinfecting between use.

Post signage at entrances about how to stop the spread of COVID-19, properly wash hands and practice other
protective measures, as well as advising those with symptoms of illness to not enter.

Post signage at entrances about rules for the facility, and ensure that all patrons are notified by email or other
contact methods of new rules and changes in rules.
8.10.2020 | Requirements for Indoor Gyms and Fitness Clubs/Centers 7
 Ensure that ventilation systems of indoor spaces operate properly.
• Increase the circulation of outdoor air as much as possible by opening windows and doors.

Where possible, implement one-way traffic for entrance to and egress from the facility.

Ensure that all water systems like drinking fountains, decorative fountains, pools, and hot tubs are safe to use after a
prolonged facility shut down to minimize the risk of Legionnaires’ disease and other waterborne diseases.

Encourage or require guests to bring their own water bottles and water.
• Consider shutting down water systems like drinking fountains, decorative fountains, and hot tubs.

Provide adequate supplies to support healthy hygiene behaviors, including soap, hand sanitizer with at least 60%
alcohol, disinfecting wipes, tissues, and no-touch trash cans.
• Provide access to soap and water for handwashing or an alcohol-based hand sanitizer at stations around
the gym for use by employees and clients.

Encourage or require guests to bring their own towels and mats. If mats are shared they must be sanitized by a staff
member after use.

Implement comprehensive sanitation protocols, including sanitizing gym equipment and mats, after every use.
• Identify and, if possible, dedicate staff for cleaning and sanitizing.
• Provide disposable disinfectant wipes, cleaner, or spray so that guests can wipe down frequently touched
surfaces on gym equipment.
- If feasible, provide each guest with their own sanitation spray bottle during their visit.
• Wipe any pens, counters, or hard surfaces between each use, including after use by the customer.
• Remove equipment that is difficult to clean, such as yoga blocks and foam rollers.
• Consider limiting gym hours to allow for proper sanitation.

8.10.2020 | Requirements for Indoor Gyms and Fitness Clubs/Centers 8

 Consider closing locker room areas.
• If not closed, limit access to locker room areas to 25% of normal capacity, and have employees staff the
area to enforce physical distancing.
• Implement enhanced sanitization of locker rooms, showers and lockers, if utilized (e.g., at least every two
hours for high-touch surfaces like handles, sinks).
• Require patrons to wipe down locker room amenities before and after use.
• Require patrons to provide their own lock for lockers (only applies to lockers who have removable locks).
• Must provide hand sanitation or hand washing stations in the locker rooms.
• Require employees and patrons to clean out day use lockers nightly to facilitate overnight deep cleaning
processes (this does not apply to long term rented lockers).
• Ensure lockers available for use are at least 6 feet apart to allow for appropriate physical distancing, such
as restricting access to 2-3 lockers in between every locker available for use.
- Do not allow lockers available for use directly above or below other lockers.
- Clearly mark usable lockers.
• Ensure patrons can remain physically distanced by at least 6 feet in showers or are physically separated
by stalls or a barrier.
• Eliminate items that are shared by patrons, such as toiletries (shampoo, mouthwash, deodorant, etc).
Instead, require patrons to bring their own toiletries from home.
• Encourage or require patrons to provide their own towels.
- If towels must be provided, provide individual towels for each patron.
- Patrons should be informed to not shake used towels and to discard used towels into appropriate bins.
- Towels must be laundered and disinfected in between patrons.

Use a system that separates the already cleaned and disinfected items from the items that need to be cleaned and
disinfected.

See additional CDC guidance and EPA guidance on cleaning and disinfecting.
The list of EPA-approved disinfectant products for use against the virus that causes COVID-19 can be accessed here.

8.10.2020 | Requirements for Indoor Gyms and Fitness Clubs/Centers 9

 The Arizona Department of Health Services requires the following additional steps be
taken for staff. Providers shall take measures to ensure these guidelines are followed:

Require sick employees to stay home and not return to work until they have met criteria to return to work.
• Employees who appear to have symptoms or who become ill while at work should immediately be
separated from others and sent home.
• Document and communicate sick leave policies to employees and staff.
Consider implementing flexible sick leave policies that permit adherence to public health isolation and quarantine
guidance.

Implement symptom screening or temperature checks for employees prior to the start of their shift.

Train all employees on appropriate cleaning and disinfection, hand hygiene, and respiratory etiquette.

Ensure that all employees are notified of new facility rules and any changes in rules.

Ensure that employees maintain more than 6 feet of separation from other individuals, when possible.

Provide appropriate personal protective equipment (PPE) for employees in accordance with public health
recommendations.

Provide adequate supplies in employee workspaces to support healthy hygiene behaviors, including soap, hand
sanitizer with at least 60% alcohol, disinfecting wipes, tissues, and no-touch trash cans.

8.10.2020 | Requirements for Indoor Gyms and Fitness Clubs/Centers 10

 Enforce the use of disposable gloves while laundering towels and clothing and, in accordance with manufacturer’s
instructions, use the warmest allowable water temperature and ensure items are completely dried.
• Do not shake used towels.
• Clean and disinfect bins that hold used towels.
• Wash hands right away after removing gloves and handling used towels.

See Department of Labor and Occupational Safety and Health Administration (OSHA) COVID-19 guidance for
employers and workers.

The list of EPA-approved disinfectant products for emerging viral pathogens expected to be effective against COVID-19
can be accessed here.

8.10.2020 | Requirements for Indoor Gyms and Fitness Clubs/Centers 11

 For additional guidance on cleaning, visit CDC’s Cleaning and Disinfecting
Your Facility page and CDC’s Reopening Guidance for Cleaning and
Disinfecting Public Spaces, Workplaces, Businesses, Schools, and Homes.

For COVID-19 questions, please call the Arizona COVID-19

Hotline at: 1-844-542-8201
Businesses impacted by E.O. 2020-43 and 2020-52 are required to complete an attestation prior to resuming
operations. Approval for resuming operations is dependent upon community transmission within the county the
establishment is physically located and the establishment’s implementation of ADHS required mitigation steps.
Further information can be found in the ADHS COVID-19 Guidance for Businesses.

Any business affected by these provisions may request an informal settlement conference to dispute their
categorization on reopening. A denial after an informal settlement conference becomes a final agency action
that is appealable to the Office of Administrative Hearings.

For more information on Arizona’s response to COVID-19, please visit: azhealth.gov/COVID19.

8.10.2020 | Requirements for Indoor Gyms and Fitness Clubs/Centers 12

EXHIBIT D
 
 

DRAFT DOCUMENT: 
SUBJECT TO CHANGE 
 
NOTE: Gyms are currently closed under Executive Order 
2020-43 and have not been opened in the state of Arizona. This 
document is being provided as a courtesy for the industry to 
prepare for a potential opening on a date not yet specified. It 
is subject to change. This should not be interpreted as an 
allowance to open as enforcement action will continue to be 
taken in the interest of public health. 
 
Requirements for Indoor Gyms and Fitness Clubs/Centers 
Latest Updated: July 22, 2020 
 
Per the Centers for Disease Control and Prevention (CDC) guidance, under all 
circumstances, the following precautions must be taken by p​ eople utilizing indoor 
gyms and other fitness venues​: 
● Stay home if you are sick​. 
● Protect yourself while visiting gyms:  
○ Avoid close contact and stay more than 6 feet away from others. 
○ Wear a mask/cloth face covering while at the facility. 
■ Make sure to maintain more than six feet of distance between you and 
other people while your cloth face covering is off.  
■ Coverings should not be placed on children less than 2 years of age, 
anyone who has trouble breathing, or is unconscious, incapacitated, or 
otherwise unable to remove the cover without assistance.  
■ In accordance with CDC guidelines, individuals who are engaged in high 
intensity activities, like running, may not be able to wear a mask/cloth 
face covering if it causes difficulty breathing. If unable to wear a 
mask/cloth face covering, these individuals should consider conducting 
the activity in a location with greater ventilation and air exchange (for 
instance, outdoors versus indoors) and where it is possible to maintain 
physical distance from others. 

Updated 7/22/2020
 ○ Wash your hands often, especially after leaving the gym, with soap and water 
for at least 20 seconds. If soap and water are not available, use an 
alcohol-based hand sanitizer that contains at least 60% alcohol. 
○ Avoid touching your eyes, nose, and mouth with unwashed hands. 
○ Cover your cough or sneeze with a tissue or your sleeve (not your hands) and 
immediately throw the tissue in the trash. 
○ If possible, use touchless payment methods. If you must handle money, a card, 
or use a keypad, use hand sanitizer immediately after.  
○ If you are at h
​ igher risk​ for severe illness, you should avoid visiting gyms and 
fitness providers. People at higher risk for ​severe illness​ include adults 65 or 
older and people of any age who have serious underlying medical conditions. 
 
Gyms and fitness providers must take measures to ensure that employees and guests 
follow these guidelines. 
 
The Arizona Department of Health Services requires the following additional steps be 
taken by​ gyms and fitness providers​: 
● Implement and enforce physical distancing precautions that maintain more than 6 
feet between individuals who do not live in the same household: 

○ Operate with 50% or less occupancy and capacity (not including 

employees/staff) based on the size of the facility. 
○ Close communal spaces and common areas where people are likely to 
congregate and interact.  
■ If unable to close the area, restrict access and have employees staff the 
area to enforce physical distancing.  
○ Arrange waiting areas, service areas, and break rooms to enforce physical 
distancing, and sanitize areas regularly between use.  
■ If not closed, severely limit access to waiting areas, service areas, and 
break rooms, and have employees staff the area to enforce physical 
distancing, if feasible.  
■ Do not allow guests to wait or linger in waiting areas, service areas, break 
rooms, or lobbies.  
○ Enforce similar physical distancing requirements in employee-only spaces, such 
as break or dining rooms, uniform control areas, and shared office spaces. 
Consider closing or restricting access to these spaces. 
● Implement temperature checks or symptom screening at the door for all guests. 
● Consider touchless check-ins, such as guests scanning their own membership tag.  
● Require online or phone pre-bookings or reservations for fitness classes and limit the 
number of guests in the class to allow for appropriate physical distancing.  
○ Do not conduct back-to-back fitness classes. Thoroughly clean spaces and 
equipment between classes and provide proper ventilation.  
○ Provide lines/markings on fitness class floors to clearly demonstrate where 
guests should stand to ensure physical distancing.  
● Consider a reservation system for guests to use the facility.  
Updated 7/22/2020
 
● Consider continuing to offer virtual classes or training.  
● Arrange fitness equipment so that appropriate physical distancing can be adhered 
to.  
● Mandate the use of cloth face coverings for all guests while at the facility, unless 
vigorous exercise makes wearing a cloth face covering unsafe. Physical distance of 
more than 6 feet must still be adhered to.  
● Sharing of equipment shall be minimized or limit the use of equipment to one user 
at a time with a staff member cleaning and disinfecting between use.  
● Post signage at entrances about how to stop the spread of COVID-19, properly wash 
hands and practice other protective measures, as well as advising those with 
symptoms of illness to not enter. 
● Post signage at entrances about rules for the facility, and ensure that all members 
are notified by email or other contact methods of new rules and changes in rules.  
● Ensure that ventilation systems of indoor spaces operate properly.  
○ Increase the circulation of outdoor air as much as possible by opening windows 
and doors.  
● Where possible, implement one-way traffic for entrance to and egress from the 
facility. 
● Ensure that all water systems like drinking fountains, decorative fountains, pools, and 
hot tubs are safe to use a ​ fter a prolonged facility shut down​ to minimize the risk of 
Legionnaires’ disease​ and other waterborne diseases. 
● Encourage or require guests to bring their own water bottles and water.  
○ Consider shutting down water systems like drinking fountains, decorative 
fountains, and hot tubs.  
● Provide adequate supplies to support healthy hygiene behaviors, including soap, 
hand sanitizer with at least 60% alcohol, disinfecting wipes, tissues, and no-touch 
trash cans. 
○ Provide access to soap and water for handwashing or an alcohol-based hand 
sanitizer at stations around the gym for use by employees and clients. 
● Encourage or require guests to bring their own towels and mats. If mats are shared 
they must be sanitized by a staff member after use. 
● Implement comprehensive sanitation protocols, including sanitizing gym equipment 
and mats, after every use.  
○ Identify and, if possible, dedicate staff for cleaning and sanitizing 
○ Provide disposable disinfectant wipes, cleaner, or spray so that guests can wipe 
down frequently touched surfaces on gym equipment.  
■ If feasible, provide each guest with their own sanitation spray bottle 
during their visit. 
○ Wipe any pens, counters, or hard surfaces between each use, including after 
use by the customer. 
○ Remove equipment that is difficult to clean, such as yoga blocks and foam 
rollers.  
○ Consider limiting gym hours to allow for proper sanitation.  
○ Implement enhanced sanitation of locker room areas.  

Updated 7/22/2020
 
■ Close locker room areas.  
● Use a system that separates the already cleaned and disinfected items from the 
items that need to be cleaned and disinfected. 
● See additional ​CDC guidance​ and ​EPA guidance​ on cleaning and disinfecting. 
 
The list of EPA-approved disinfectant products for use against the virus that causes 
COVID-19 can be accessed h ​ ere​.  
 
The Arizona Department of Health Services requires the following additional steps be 
taken for s​ taff:  
● Require sick employees to stay home and not return to work until they have met 
criteria to return to work. 
○ Employees who appear to have symptoms or who become ill while at work 
should immediately be separated from others and sent home.  

○ Document and communicate sick leave policies to employees and staff 

● Consider implementing flexible sick leave policies that permit adherence to public 
health isolation and quarantine guidance. 
● Implement symptom screening for employees prior to the start of their shift, and 
implement temperature checks at the door. 
● Train all employees on appropriate cleaning and disinfection, hand hygiene, and 
respiratory etiquette. 
● Ensure that all employees are notified of new facility rules and any changes in rules.  
● Ensure that employees maintain more than 6 feet of separation from other 
individuals, when possible.  
● Provide appropriate personal protective equipment (PPE) for employees in 
accordance with public health recommendations.  
● Provide adequate supplies in employee workspaces to support healthy hygiene 
behaviors, including soap, hand sanitizer with at least 60% alcohol, disinfecting 
wipes, tissues, and no-touch trash cans. 
● Enforce the use of disposable gloves while laundering towels and clothing and, in 
accordance with manufacturer’s instructions, use the warmest allowable water 
temperature and ensure items are completely dried.  
○ Do not shake used towels. 
○ Clean and disinfect bins that hold used towels.  
○ Wash hands right away after removing gloves and handling used towels. 
 
For additional guidance on cleaning, visit CDC’s C
​ leaning and Disinfecting Your 
Facility​ page and CDC’s ​Reopening Guidance for Cleaning and Disinfecting Public 
Spaces, Workplaces, Businesses, Schools, and Homes​. 
 
For COVID-19 questions, please call the Arizona COVID-19 Hotline at:​ 1-844-542-8201. 

Updated 7/22/2020