SYOSSET, NY — Gym owners across New York filed a class-action lawsuit Wednesday against Gov. Andrew Cuomo, the state Attorney General’s Office and the state itself after gyms were yanked from phase four of the state’s coronavirus reopening plan.
The fourth and, for now, final phase went into effect on Long Island Wednesday, leaving gym owners frustrated and not knowing when they’ll be able to get back to making a living.
The lawsuit alleges the Equal Protection and Due Process clauses of the 14th Amendment, as well as the Takings Clause under the Fifth Amendment, were violated by the state, in addition to state law. James Mermigis, an attorney representing the gym owners, is asking for his clients to be paid if the state continues its shutdown of gyms.
“Basically, they’re taking away our clients’ livelihood, our clients’ business, for public use or public purpose, which is, according to the governor, to stop the spread of COVID,” Mermigis told Patch. “Therefore, pay these people. Pay the gym owners, because how are they supposed to survive?”
The plaintiffs are seeking an injunction of the executive order that would allow gyms to reopen, as well as damages to be compensated for all the money lost as a result of being shut down, Mermigis said.
“We’re looking to open up the gyms and to rule that the continuation of this executive order is unconstitutional,” he said. “We’re not arguing that when Cuomo put the executive orders in place, he had emergency powers. He had the right to do that. Now, we feel the emergency is over, at least here in New York, where we can strike a balance and let people earn a living.”
Gyms were taken out of phase four and there is no phase five, Mermigis said. He questioned the fairness of gym owners continuing to incur rent and overhead when they can’t run their businesses.
“It’s a problem, because most of these gyms, if they don’t open within the next 30 days, they’re going to be done,” he said.
Charles Cassara, owner of SC Fitness in Farmingdale and Hicksville, is one of many gym owners represented in the lawsuit. Cassara, who considers himself level-headed and patient, said he needed 12 hours to digest the news he wouldn’t be able to reopen his gyms on Wednesday.
“Angry would be an understatement,” he said.
The state is still reviewing a decision on gyms, according to Cuomo’s press office.
“…There are some things that don’t fit neatly into a phase that are going to require further study and we’re going through that right now,” Jason Conwall, a spokesperson for Cuomo said. “We’re not going to be like other states that are inviting a second wave.”
Cuomo told CNN on June 25 that New York has the “virus under control,” Mermigis said. New cases and coronavirus deaths have steadily decreased in the state.
“We have the best, meaning the lowest infection rate in the country,” Mermigis said. “I think it’s time to open up the gyms.”
Gyms won’t open to the same extent they had been before the coronavirus, Mermigis said; they’d adhere to the same safety guidelines as other businesses.
“All we want is to be treated similarly to every other business,” he said. “That’s all we want. Treat us the same. We’re not saying Cuomo doesn’t have the right to govern over a pandemic. We’re just saying, ‘You know what? Treat our business just like you’re treating Home Depot, Target, or tanning salons or tattoo parlors.'”
Gyms were removed from phase four after they were deemed unsafe to reopen due to fears that the air conditioning system might recirculate the virus, Cuomo said, News 12 Long Island reported.
“How about the air-conditioning in a Target?,” Mermigis told News 12. “How about the air conditioning in a Walmart? Why is air conditioning only relevant in a gym or a movie theater? So we want to be treated similarly to other businesses.”
Cassara said gym owners “were all confident” they’d be able to take the necessary safety precautions and meet all state and federal guidelines had they been given the opportunity to reopen.
Gyms were one of many industries to close in the state on March 16 when Cuomo issued an executive order in a bid to slow the spread of COVID-19, meaning gyms have been shuttered for nearly four months. Restaurants, bars, barbershops, spas and other industries have since reopened under various phases. Malls will be allowed to reopen Friday, Cuomo said. Gyms across the United States, including those in New York’s neighboring states Connecticut, as well as some in Pennsylvania, have reopened. New York gym owners like Cassara are still waiting their turn, however.
Cassara cited the state’s declining hospital and death rates as reasons gyms should be able to get their chance.
“At this point, we have been New York Strong. We have been New York Tough,” Cassara said. “We are asking Governor Cuomo to be the same, because he is not right now. Our lives are being affected here. Our industry’s being affected. Our families’ lives. Homes are going to be lost. Businesses are going to be lost. He has no answer for that. That’s not right. It’s not fair to just say we’re closed and then give us no recourse. No nothing. No time limit. No, ‘This is what we’ve got to do, and here’s how we’re going to help you guys survive while we implement new plans.’ There’s nothing.”
The lawsuit argues Cuomo’s initial executive order shutting down gyms was based on the perceived need to “flatten the curve” and avoid overwhelming the state’s hospitals, “not to eradicate the virus.”
“Although the curve has been flattened for more than a month now, the Governor has nonetheless issued stricter and confusing executive orders that unreasonably and unnecessarily interfere with Plaintiff’s, and those similarly situated, constitutional rights,” the lawsuit says.
“I would just say to the community, hang in there,” Cassara said. “We’re trying to fight for you guys, too. Our communities do need us; we do provide a service. Support us in any which way. Write your letters to your senators, governor and mayor, and have our voices be heard.”
Cassara said his landlords have been “awesome,” though he knows that may not always be the case for fellow gym owners. He’s concerned about what happens when gyms are finally given the green light.
“Let’s say you were able to work with your landlord for those five to seven months,” he said. “We can’t open at full occupancy, so how do we go about paying that back? How do we go about not just paying it back, but being able to pay payroll and ourselves an actual living wage? That’s where decisions will be made. It’s not all about the rent or bills that need to be paid. Can we make a living even when we’re forced to open seven months from now? It’s getting to be a very tough situation.”
The SC Fitness membership base has dropped more than 40 percent, Cassara said, even after membership fees were frozen. Other than clients who’ve paid for workouts through Zoom meetings and rented equipment, Cassara’s gyms have taken in no income, he said. Yet, there are still carrying costs as well as insurance, rent, cable and other fees SC Fitness has had to pay. Cassara is still trying to help clients who have been affected by the coronavirus.
“We gave free nutrition, we did free private programming for people,” he said. “We tried to keep our community as supplied as we could.”
Mermigis said he began working on the lawsuit just over a week ago and is hoping for an answer by the end of next week. He said he will “likely fast track” it.
“We are facing an emergency here,” he said. “If these gym owners do not open their businesses, more likely, more than 50 percent of them will be out of the business.”