Judge orders fitness center closed

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A judge has ordered the closure of a Plainview fitness center that defied Gov. Tim Walz’s latest COVID-19 order to shut down public accommodations, including gyms.

Wabasha County District Court Judge Christopher A. Neisen issued the temporary injunction on Wednesday morning. The order grants Attorney General Keith Ellison’s request to close the gym while his consumer protection lawsuit against the business plays out.

If the court ultimately rules against the company, House of Iron L.L.C., in the main consumer-protection action, owner Brandon Reiter, 34, could face a $25,000 fine for each violation of the executive order and be forced to pay both restitution and court costs.

Neisen’s order means the fitness center must close at least until Dec. 18, when the governor’s order expires.

However, the judge’s order notes, Walz could extend his order — something the governor hinted at during a Tuesday press conference. That could keep the gym closed longer.

Neisen, who heard oral arguments on the AG’s temporary injunction motion Tuesday, found Reiter’s arguments for remaining open unpersuasive in the face of the pandemic.

Reiter argued that Walz relied on flawed data in issuing his Nov. 18 order.

He cited a joint letter to Walz from Life Time Fitness, Anytime Fitness, Snap Fitness and the Rochester Athletic Club that included data suggesting gyms are not a primary source of COVID-19 spread. But gyms do contribute to the public health during the pandemic, the companies wrote, by helping customers stay fit.

Reiter’s attorney Vincent Fahnlander also asked the judge to weigh steps his client has taken to keep customers safe — enforcement of social distancing, disabling of drinking fountains, frequent equipment sanitization among other measures — and permit him to remain open. He said Reiter also has encouraged customers to wear masks while working out and would be willing to require it.

Fahnlander also argued that Walz exercised unconstitutional authority in issuing his shutdown order. It unfairly closes businesses like gyms while allowing retail stores to remain open, he argued.

The order also effectively creates new criminal penalties without legislative approval, and violates Reiter’s equal protection and due process rights without just compensation, his lawyer argued.

If Reiter is forced to close, his lawyer told the judge, he might be put out of business.

Twice denied

Neisen rejected both Reiter’s scientific and constitutional defenses.

The judge found that Walz’s order relies on sufficient evidence about COVID-19’s potential to spread in fitness centers. To make that case, Assistant Attorney General Elizabeth Odette cited Deputy State Epidemiologist Richard Danila, who oversees all COVID-19 case investigations and contract tracing.

Danila, in an affidavit, said that open gyms pose a significant risk to both the public health and the state’s health care infrastructure, which already is badly stressed by the major recent spike in COVID-19 cases. People breathe harder and faster during exercise, expelling more aerosolized droplets that can spread the virus, Danila’s affidavit said.

“Presumably, this is the science that Governor Walz references in the executive order,” Wednesday’s order says.

Reiter’s constitutional arguments were also unavailing, the judge ruled.

Odette had argued that the U.S. Supreme Court’s 1905 Jacobson v. Commonwealth of Massachusetts ruling requires courts to give significant deference to government’s emergency authority during public health crises.

Fahnlander countered that the state hoped to use that ruling as a “get-out-of-jail-free card giving broad powers to do whatever the state wishes during times of pandemic.” But the case is inapposite, he argued, because it didn’t address equal protections.

Neisen disagreed with Fahnlander, finding Jacobson does apply. Under its standard, a state action is susceptible to constitutional challenge only if the government’s order has no substantial connection to public health protections or plainly and palpably invades rights secured by fundamental law.

Neither is true of the governor’s order, the judge ruled.

Dahlberg factors

In oral arguments Tuesday, Odette told the judge he could issue an order without considering the five “Dahlberg factors” that courts typically weigh when ruling on temporary injunctions. Dahlberg rules require judges to consider the relative harm an order might cause, the likelihood of a case’s success on the merits and three other factors.

The court could instead rely on the lesser injunctive relief standard outlined in the state Court of Appeals’ 2005 State v. Cross Country Bank case, Odette argued.

But she also argued that the state would prevail even if the judge did consider the Dahlberg factors. And so it proved: Neisen, who opted to rely on Dahlberg, found all five factors weigh in the state’s favor.

Fahnlander argued that the first factor — whether an order would fundamentally change the nature of the relationship between the parties — cut in his client’s favor because an injunction would put his client out of business. The judge disagreed, ruling that the relationship of regulator to noncompliant business remains status quo, even with the order in place.

The second factor requires the court to balance potential harms created by an injunction; it, too, favors the attorney general, Neisen found. “Minnesotans will be exposed to irreparable injury absent a temporary injunction,” he ruled.

The third factor, whether the case will likely prevail on the merits, also cuts in the attorney general’s favor, the judge ruled, as does the fourth because public policy favors the state’s position.

Finally, because the court will not be burdened by the injunction, the judge ruled, the fifth factor falls toward the attorney general.

“In consideration of the Dahlberg factors,” Neisen concluded, “the weight of the evidence favors granting the state’s request injunctive relief.”

Reactions

Reached by phone Wednesday, Fahnlander said he had yet to speak with his client, so he did not yet know what his client’s next steps might be. The lawyer said he was disappointed by Neisen’s order.

“We thought that we had good arguments that the executive order was unconstitutional and that my client runs a very, very safe and well-cleaned gym,” Fahnlander said. “He believed that he should be allowed to stay open.”

Fahnlander acknowledged that the order resembles the Nov. 24 ruling in State v. Schiffler, in which a Stearns County District Court judge ruled that the governor’s COVID-19 restrictions did not invade an Albany, Minnesota-based restaurant-and-bar chain’s constitutional rights.

But there are big differences between the two cases, he said. “We thought that we should be treated more deferentially than a bar and that the court should consider the health benefits that are provided by gyms and health clubs,” he said.

Ellison, also speaking Wednesday, expressed empathy for Reiter and his business. “These COVID orders are tough,” he said. “They’re tough to deal with.”

Ellison said that small businesses need help to get through this period and hopes that lawmakers pass legislation to provide relief. “But while that’s true and I feel that way, we cannot allow the spread of COVID,” he said.

“It’s a deadly, lethal virus and it’s killing people at record numbers,” Ellison added. “And so people just have to comply. This is not meant to be punitive — it’s meant for me to be protecting of people.”