Publisher's note: This post appears here courtesy of the Carolina Journal, and written by Kari Travis.
Ann and Neil Strother of Victory Fitness in Wilson, NC | Photo: Victory Fitness
Like many gym owners in North Carolina, Neil Strother and his wife, Ann, just want to reopen their Wilson business, Victory Fitness
The couple tried to do so Memorial Day weekend, after Gov. Roy Cooper announced fitness centers would stay closed through Phase Two of his COVID-19 reopening plan. Gyms, along with private bars and clubs, were blindsided by news they would spend five more weeks with the lights off while restaurants and salons were allowed to reopen.
Strother is now one of eight plaintiffs leading a lawsuit
against Cooper, demanding that gyms, workout studios, and martial arts centers be allowed to immediately open. The lawsuit is one of at least two filed so far by fitness professionals who oppose the governor's decision to keep their doors closed and members inactive.
Fifteen or 20 people showed up to work out May 22 when Strother and his wife opened at 5 p.m. The gym owners were delighted. They playfully bet on which gym members would turn up at their doors. For many who come to Victory Fitness, working out is a boost for both physical and mental health. Some depend on it as a supplement to physical therapy, Strother told Carolina Journal.
"You could see pure joy on their faces,"
Strother said of the customers who showed up for his gym's reopening. The event felt like a celebration.
It wouldn't last.
A police officer phoned Strother while the gym owner was out to dinner Friday night. The officer was kind, but persistent. If Strother didn't close the gym, the police would issue more than a warning, the officer said.
Strother stood firm. This was his business, his livelihood. The gym lost $30,000 to $40,000 every month it was closed during the pandemic shutdown. Victory Fitness would stay open as long as it could, Strother and his wife decided.
The plan lasted through the holiday weekend. On Tuesday, May 26, Strother was charged with a Class 2 misdemeanor, accused of violating Cooper's order. He closed the gym.
The couple joined a lawsuit against Cooper, filed in Wake County
the next day. Cooper's Executive Order 141 is unconstitutional, the lawsuit argues, citing the "Fruits of Your Labor" clause in the state's constitution. That provision ensures "the enjoyment of the fruits of their own labor"
is an inalienable right for state residents.
A hearing is set for June 2, said Chuck Kitchen, the lawyer handling the case. But Cooper has requested that a single judge be assigned to handle all lawsuits challenging against his executive orders. That could change the timeline, Kitchen told CJ.
The governor is facing lawsuits - and threats of lawsuits - from several corners of North Carolina's economy and society. On May 28, another gym owner, Jennifer Durst of Jet Fitness, filed a lawsuit in Iredell County.
Durst redirected CJ's interview request to her attorney, Clark Tews.
Unlike Kitchen's Wake County lawsuit, which focuses on the constitutional right to "enjoy the fruits of your labor,"
Tew's case argues Cooper violated North Carolina's separation of powers.
Durst, the plaintiff, was hit hard by the COVID-19 shutdown, the lawsuit says. In February, Durst opened a new gym in Mooresville. The project cost roughly $2.7 million, and, before the pandemic hit North Carolina, it looked to be a profitable business.
"This nascent prosperity would be stunted within less than a month,"
the lawsuit says.
Durst's lawsuit is set to be heard virtually June 3, Tew told CJ. The Statesville lawyer hasn't received notice Cooper will try to consolidate his case with Kitchen's.
Cooper has said he won't modify his "Safer at Home Phase Two" and reopen gyms, even under legal pressure. Fitness centers are at higher risk of spreading COVID-19 among members, the governor says. N.C. Department of Health and Human Services Secretary Mandy Cohen repeatedly cites those concerns during news conferences and interviews.
But in many cases, gyms are just as prepared as a chiropractor or physical therapy office to sanitize and enforce social distancing.
More than one month ago, Steve Pinkerton, a Concord businessman who owns Vitality Fitness, appealed to Sen. Todd Johnson, R-Union, asking to open his business under stringent cleaning and social-distancing measures. He bought hydroxyl generators to kill airborne viruses. He paid to have his facility cleaned and disinfected every week. He planned one-on-one workouts where trainers and clients would stand six feet apart.
"It's one of the safest, cleanest places you can have,"
he told Carolina Journal in April.
Johnson referred Pinkerton's request to DHHS. It ended up at the N.C. Department of Revenue, where it was denied.
Members of the General Assembly, including House Speaker Tim Moore, R-Cleveland, slammed the governor's decision to open some businesses but leave others closed.
Why can salons, restaurants, and stores open, while gyms, bars, and clubs can't? What makes social distancing impossible in one place, but possible in another? Moore said.
"What's troublesome is you had a lot of business owners who were led to believe they could open,"
Moore said of gyms during a May 28 news conference. "The governor has given me the best excuse ever to say, 'I can't go to the gym.'"
Strother was one of many who thought his business would be included in the reopenings of Cooper's Phase Two. Financial uncertainty isn't a new game for Strother, a former hog farmer who spent 25 years in that industry before switching careers.
But the losses are still painful.
"I've done everything I can, at this point,"
Strother told CJ. He has no plans to reopen Victory Fitness until it's considered legal to do so. He hopes a judge will block Cooper's executive order. He hopes his own misdemeanor charge - scheduled to be heard in court July 13 - will be dismissed.
He hopes his members will be able to resume their workouts. Soon.
"For those who like to go to the gym, outdoor exercise just isn't enough,"
he said. "At the gym, you feel like you're doing something. Accomplishing something."
For now, there's nothing more Strother and his wife can do. Except wait.
"We're pretty well resigned to our fate."