The state of Vermont has withdrawn an injunction to force Club Fitness in Rutland to close after it received counter injunctions from the gym’s lawyer challenging the legality of the shutdown.
The gym has been reopened and closed again twice since Scott issued lockdown orders for businesses across the state two months ago. The state will continue with a lawsuit against the gym, while the gym still has its own litigation against the state.
On Friday, Gov. Phil Scott announced that gyms can reopen on June 1 with up to 25 people inside. The state Agency of Commerce and Community Development (ACCD) has issued health and safety requirements and procedures for “close contact businesses” to resume operations. The guidelines cover gyms, fitness centers, nail salons, spas and tattoo parlors, as well as cleaning services and similar services that do home visits.
Vermont’s Attorney General TJ Donovan on May 15 requested a preliminary injunction against Club Fitness owner Sean Manovill. This week Manovill’s lawyer, St. Johnsbury attorney Deb Bucknam, filed a counter request for a preliminary injunction against the state so that her client can re-open his gym. It questioned the governor’s legal authority to force businesses to close in response to the coronavirus outbreak, which has killed 54 Vermonters, mostly seniors.
Manovill’s lawyer also questioned whether the governor’s orders even warranted the restraining order.
“I tried to show that it went beyond his authority in the statute, and also that it was unconstitutional, since a governor cannot just declare an emergency and decide what that emergency is and how long that emergency is going to last without some kind of limitations either by the court or by the legislature,” Bucknam told True North by phone.
“What the governor is doing essentially is he is legislating by issuing orders regarding the closing of businesses,” she said.
Bucknam also demanded that the state allow the gym to operate at full capacity.
Bucknam said another issue involved in the litigation relates to the requirement that if property is taken by the state, the state is obligated to cover the expenses incurred from the seizure. She said a regulation that essentially causes a business to close “is considered at taking.”
Donovan said he will continue with his lawsuit against Manovill, which threatens civil penalties up to $1,000 per day.
Bucknam said that in light of the governor’s decision to allow gyms to reopen, she must review the situation with her client and make any necessary adjustments.
“We would by Monday let the state and the court know which parts of the order are acceptable and if there are any parts that are not acceptable, and then hopefully hold a hearing by the end of the week,” she said.
She said she hasn’t yet discussed with Manovill what would be acceptable terms for reopening.
“If the governor says 25 people, and that’s acceptable to him, then we may withdraw our own motion,” she said.
Manovill has told True North the shutdown has been devastating for his finances, and he has a family to care for, including two young children.
Bucknam said that the governor is allowed executive powers if there is an emergency, as long as it is limited to the duration of the emergency. However, she says the law was never intended for a prolonged outbreak that can last for months.
“At least one court has said it’s no longer an emergency if the legislature has time to deal with it,” she said.
Bucknam explains that if this coronavirus is to be a new benchmark for an emergency to justify a state takeover of the economy without any due process, it sets a dangerous new precedent.
“Under that criteria, you could declare anything an emergency,” she said.