Letter highlights Gov. Cooper’s “interpretation” of order keeping gyms closed

Letter from N.C. Attorney General to plaintiff's attorney sends "clarification" that gyms can be used if "medical purposes" apply

North Carolina Gov. Roy Cooper speaks during a briefing at the Emergency Operations Center in Raleigh, N.C. Photo via NC Dept. of Public Safety

RALEIGH — During a June 4 hearing on the case filed by health club owners seeking to stop Gov. Roy Cooper’s orders keeping gyms closed, the North Carolina Attorney General’s Office mentioned an “interpretation” of the order allowing gyms to be used for “medical purposes.”

In a letter sent to Chuck Kitchen of Kitchen and Turrentine, the firm representing the health club owners, Special Deputy Attorney Phil Rubin said that “The Governor interprets Executive Order No. 141 to allow the use of indoor gyms or fitness facilities when that use is prescribed by or directed by a medical professional.”

The governor’s interpretation of his own order seems to imply one can go work out so long as they claim it was under a doctor’s order. Health laws such as HIPAA would prevent club owners from inquiring about a medical reason for using their facilities which in turn raises questions about how police would go about enforcement.

Rubin goes on to state that this “interpretation” would apply regardless of the outcome of the pending suit against the governor. This clarification by the governor could possibly be used to lay the groundwork for dismissal of any citations that have been issued to fitness centers or gyms which tried to open up.

“This understanding of Executive Order No. 141 applies even if the Court denies the Smith Plaintiffs’ request for a temporary restraining order,” Rubin wrote.

The letter goes on to say that having a doctor’s exception to use a gym is acceptable because the “number of individuals taking advantage of this exception will be low,” and would be less risky than a full reopening.

The gym owners who have filed the suit tell North State Journal they had prepared for a partial reopening like salons and restaurants and had not expected to reopen at 100%. They also said that cleaning and disinfection were already routine for their facilities prior to COVID-19 but had put in place extra measures to protect their clients.

“I wanted to make sure to put this clarification in writing after our conversations yesterday and today, in part to provide guidance to the public and in part because it appeared there may have been confusion during rebuttal concerning what we had acknowledged was allowed under the law,” Rubin wrote in the closing sentence of the letter.

While no decision has been rendered on the request for a temporary restraining order, Robin Smith, one of the plaintiffs, said their group was not dropping their complaint. The group expects that a decision in the case may come this week.

While the complaint waits for a decision by a judge, a bill to get gyms and health clubs reopened, House Bill 594, is making its way through the General Assembly. The bill enacts a number of safety measures, such as cleaning, disinfecting, social distancing and contactless check-ins. It also mimics other industries with a 50% capacity rule.

“It’s time to let people get healthy again by allowing them to exercise at the gym. Gov. Cooper walked with a throng of protesters without wearing a mask; it defies logic that after doing that, he would continue prohibiting people from exercising alone or sitting at an outdoor table to have a socially distanced drink,” said Sen. Rick Gunn (R-Alamance), a main proponent of the bill.

Every state surrounding North Carolina has reopened gyms, fitness centers and dance studios.

Democrats have opposed the bill because it “takes power away from the governor,” according to remarks made by Sen. Wiley Nickel.

During a COVID-19 briefing on June 8, Cooper indicated he was likely to veto it just as he vetoed a bill designed to allow bars to reopen like restaurants did. He said that bills like these “took power away” from his office and would make it harder for him to be able to close down businesses again.

In response to Democratic pushback on the bill, changes were made to allow for re-closure of businesses by the governor provided he obtains the proper concurrence from the Council of State per state statute.

House Bill 594 was taken up by the senate this afternoon, passing the measure by a vote of 36-13 and has been placed on the house calendar for Wednesday, June 10.

About A.P. Dillon 272 Articles
A.P. Dillon is a North State Journal reporter located near Raleigh, North Carolina. Find her on Twitter: @APDillon_