State sues an Arlington gym for violating stay-home order

“It is my constitutional right to be open,” says a co-owner of PA Fitness. He plans to countersue.

ARLINGTON — Michael Jellison shut the doors to PA Fitness in March as COVID-19 spread across the state.

Gov. Jay Inslee had issued a stay-home order, and Jellison dutifully closed — as did owners of thousands of other businesses deemed by the state’s chief executive to be non-essential.

On May 11, Jellison unlocked the doors, welcoming customers back six days a week for “protest hours.” Working out is a “mentally and physically essential” activity, he said Tuesday, noting that President Donald Trump has called fitness centers essential.

Attorney General Bob Ferguson doesn’t agree. His office delivered a cease-and-desist order Friday morning.

On Monday, Ferguson sued Jellison in Snohomish County Superior Court, alleging that by remaining open his gym is endangering public health and engaging in unfair business practices because competitors have followed the state’s rules. That violates the state Consumer Protection Act, the attorney general said.

The same day, Ferguson filed an identical lawsuit against owners of a gym in Pierce County.

Jellison also got a letter Monday giving him until Wednesday to close down or face legal and financial consequences.

“We wish it had not come to this,” Assistant Attorney General Daniel Allen wrote. “While we understand the financial impact of ‘Stay Home, Stay Healthy’ on small businesses, it does not exempt you from complying.”

A court can impose fines of up to $2,000 per violation of the Consumer Protection Act. While the lawsuits are civil actions, local prosecutors could bring criminal charges if the gyms refuse to close, Ferguson said.

Power Alley Fitness, also known as PA Fitness, and Northwest Fitness Co. in Puyallup, are two of four businesses that have been sued by the Attorney General’s Office for violating the stay-home order.

The Stag Barber in Snohomish, which has operated in open defiance of the governor’s proclamation all month, could be next. The state Department of Licensing has been unable to get barber Bob Martin to stop serving customers. Its investigation is now in Ferguson’s hands.

Martin’s barber shop was open Tuesday. He remained resolute: “I am not going to close. I don’t think they‘d dare try that, but they can if they want to. My attorney is going to take care of this matter. There’s going to be a lot of heads rolling before this is over with.”

PA Fitness closed Tuesday night, said Jellison, a co-owner. He originally said he intended to stay open and sue the state Thursday to block it from enforcing the governor’s order, citing due process and other constitutional concerns.

“After words from our attorney, he stated that it would cost not only me, but my partners as well, millions of dollars to fight and we would lose,” he wrote on Facebook Tuesday night.

The lawsuit is still on, he said. Owners of at least 100 other fitness centers are likely to back the suit, he said.

“It is my constitutional right to be open,” he said prior to closing. “People in our community, in Washington and in our nation, are suffering. They need to have something.”

On its website, owners of PA Fitness write that they are in “a battle” with the state government over constitutional rights, and they ask for donations to help cover legal expenses or fines.

Jellison said a number of changes were made to comply with Centers for Disease Control and Prevention guidelines.

They cleaned locker rooms and bathrooms every hour and limited occupancy to 25% of normal, which works out to 75 people — 60 members and 15 staff. They moved equipment to create spacing, and they took temperature of everyone who enters. The gym did not require people to wear masks, he said.

“I want it to be safe. We’ve had 4,000 people in here in the last seven days, and no one has been over temperature,” Jellison said. “We’re still trying to find that unicorn of someone who has the disease.”

Public health experts have warned repeatedly that people can spread COVID-19 even if they don’t have symptoms. And scientists have found transmission of the virus can be greater when people are talking loudly, singing or breathing more heavily — during exercise, for example.

Under the state’s four-stage reopening strategy, gyms would be allowed to open at half-capacity in Phase 3. The most populous counties in the state are still in Phase 1. There’s no specific date set for when Phase 3 might arrive, though it’s not expected before mid- to late June in Snohomish County.

“These gyms right now are presenting a clear and present danger to the citizens of our state and they need to follow the law,” Gov. Jay Inslee said Tuesday.

They are not just risking the lives of their patrons, he said, but also families and neighbors of patrons, should they become infected.

“There’s just no reason why certain people would think they are kind of special and they have certain rights that others do not,” he said.

Jellison, who said the stay-home order is not a law, said he needed to stand up for his business and his customers.

“If this is the last hurrah,” he said, “then it is the last hurrah.”

This story has been updated to include that PA Fitness in Arlington closed Wednesday night.

Andrea Brown, Joseph Thompson and The Associated Press contributed.

Jerry Cornfield: 360-352-8623; jcornfield@herald Twitter: @dospueblos.

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