Case Number: PC-2020-08357

Filed in Providence/Bristol County Superior Court

Submitted: 12/3/2020 2:19 PM
Envelope: 2860120
Reviewer: Alexa G.

STATE OF RHODE ISLAND : SUPERIOR COURT

PROVIDENCE, S.C. '

STATE OF RHODE ISLAND

By and Through,
ITS RHODE ISLAND DEPARTMENT
OF HEALTH

v. : C.A. No.: PC-2020-_08357

FOURTH MAXX LINCOLN LLC

dba

MAXX FITNESS CLUBZZ

MEMORANDUM IN SUPPORT OF PLAINTIFF STATE OF RHODE ISLAND’S

MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY
INJUNCTION and MANDATORY PERMANENT INJUNCTION

INTRODUCTION

Now comes the State of Rhode Island, by and through its Rhode Island Department 0f

Health (hereinafter “State of Rhode Island”), and hereby petitions this Honorable Court for a

Temporary Restraining Order, Preliminary Injunction and Mandatory Injunction against the

Defendant, Fourth MaXX Lincoln LLC, dba MaXX Fitness Clubzz (hereinafter “MaXX Fitness”), a

foreign LLC doing business in the Town 0f Lincoln, restraining and enjoining MaXX Fitness

from engaging in and continuing t0 Operate and conduct business as an indoor gym and/or health

fitness center and any indoor or outdoor group fitness classes in Violation of Executive Order 20-100

(hereinafter “Order”)(State’s Exhibit #1); the Rhode Island Department of Health’s Immediate

Compliance Order (hereinafter “Compliance Order”), issued pursuant t0 RIGL 23-1-21.

The Order mandates that all such gym and/or health fitness centers cease indoor operations and

close for a temporary “Pause,” so-called, from November 30, 2020 until December 14, 2020 and/or as

may be extended by further order 0f the Governor. On 0r about November 30, 2020, after an onsite

inspection of MaXX Fitness by health inspectors employed by the Rhode Island Department 0f Health,
Case Number: PC-2020-08357
Filed in Providence/Bristol County Superior Court
Submitted: 12/3/2020 2:19 PM
Envelope: 2860120
Reviewer: Alexa G.

MaXX Fitness was observed t0 be open for business and operating indoor operations as a gym and/or

health fitness center in Violation 0f the Order; the Compliance Order issued pursuant t0 RIGL 23-1-21.

Therefore, the State hereby respectfillly requests that the Honorable Court forthwith restrain and

enj oin Maxx Fitness from engaging in any further indoor operations and any indoor 0r outdoor

group fitness classes as a gym and/or health fitness center in Violation 0f the Order, Compliance Order

issued pursuant t0 RIGL 23-1-21; order MaXX Fitness t0 cease and desist engaging in any further

indoor operations as a gym and/or health fitness center in Violation of the Order and Compliance Order

issued pursuant to RIGL 23-1-21 order

;
MaXX Fitness to pay a fine of Five Hundred ($500.00)

Dollars per day for each day MaXX Fitness is open and operating in Violation 0f the Order and

Compliance Order issued pursuant to RIGL 23-1-2 1; and, order any further injunctive relief as

this Honorable Court deems appropriate and just.

FACTUAL BACKGROUND

Executive Order 20-100 (“Order”) is the latest in a series of executive orders issued by

Governor Gina Raimondo Which provide rational mandatory public health, safety and welfare

guidance and regulation for disparate types 0f businesses Which operate in the State 0f Rhode

Island during the ongoing C0Vid-19 Pandemic (hereinafter “Pandemic”). Section 29 of the Order

requires all gyms and/or health fitness centers t0 cease indoor operations and close for a

temporary “Pause,” so-called, from November 30, 2020 until December 14, 2020 and/or as may

be extended by further order of the Governor. The Order was issued after another dangerous and

deadly spike in C0Vid-19-Cor0na Virus infections in the State of Rhode Island. (See State’s

Exhibit #2-Order 0f the Director of the Rhode Island Department 0f Health)

On 0r about December 1, 2020, after an onsite inspection 0f MaXX Fitness by health

inspectors employed by the Rhode Island Department 0f Health, MaXX Fitness was observed t0

be open for business and conducting indoor operations and activities as a gym and/or health

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Case Number: PC-2020-08357
Filed in Providence/Bristol County Superior Court
Submitted: 12/3/2020 2:19 PM
Envelope: 2860120
Reviewer: Alexa G.

fitness center in Violation of the Order and Compliance Order issued pursuant to RIGL 23-1-21.

Gyms and/or health fitness centers have long been considered potentially higher—risk settings for

acquisition and spread of Covid—19 by medical and infectious disease specialists because of the

methods by which the Virus is spread and the nature of the activity which occurs gyms and health

fitness centers. (See State’s Exhibit #3-AffidaVit of Nicole Alexander—Scott). Predominantly, it

spreads through respiratory droplets produced When an infected person coughs, sneezes, or talks,

but it is also spread through airborne transmission and, to a lesser extent, personal contact, such

as touching objects or surfaces containing the Virus then touching one’s mouth, nose or eyes, and

fomite on shared obj ects. (Li) And, most recent medical data and information shows that

Covid—19 is more likely to spread indoors. (I_d.) Patrons of gyms engage in Vigorous exercise,

which generates increased levels 0f respiratory droplets indoors. According t0 one study, “the

moist, warm atmosphere in a sports facility coupled With turbulent air flow generated by intense

physical exercise can cause more dense transmission of isolated droplets.” See, Jang, et a1.,

Cluster 0f Coronavirus Disease Associated with Fitness Dance Classes, South Korea, Emerging

Infectious Diseases, V01. 26, No. 8, Aug. 2020, available at

https://wwwnc.cdc.gov/eid/article/Z6/8/20—0633 article. These droplets can remain airborne for

“up t0 3 hours, making the potential for spread in crowded and confined spaces such as fitness

studios problematic.” See, Riles, Julia, “Here’s Why COVID—19 Can Spread So Easily at Gyms

and Fitness Classes,” Healthline, June 10, 2020, available at www.healthline.com/health-

news/heres—Whv-covid-l9-can—spread—so-easilv-at-gyms—and-fitness—classes. A recent study

shows, furthermore, that “on average across metro areas, full service restaurants, gyms, hotels,

cafes, religious organizations and limited-service restaurants produced the largest predicted

increase in infections when reopened.” (Chang, et a1, “Mobility network models of COVID-19
Case Number: PC-2020-08357
Filed in Providence/Bristol County Superior Court
Submitted: 12/3/2020 2:19 PM
Envelope: 2860120
Reviewer: Alexa G.

explain inequities and inform reopening,” m, Nov. 10, 2020, available at

www.nature.com/articles/s4158 6-020-2923-3)

Despite the issuance of the State’s Compliance Order, MaXX Fitness continues to operate

and be open for business and conduct indoor operations and activities as a gym and/or health

fitness center thereby constituting a willful and dangerous potential source of the spread 0f the

C0Vid-19 Virus. Further, as a consequence 0f MaXX Fitness remaining open for business, Maxx

Fitness is an ongoing and continuing threat to the health, safety, and welfare of the general

public.

LEGAL ARGUMENT

I. TEMPORARY RESTRAINING ORDER/PRELIMINARY INJUNCTIONl

In order for injunctive relief to be granted, the movant must satisfy four (4) criteria: (1)

[w]hether the moving party established a reasonable likelihood 0f success 0n the merits; (2)

Whether the moving party will suffer irreparable harm Without the requested injunctive relief; (3)

Whether the balancing 0f the equities, including the public interest, weigh in favor 0f the moving

party; and (4) whether the issuance of the [injunctive relief] serve[s] to protect the status quo

ante.” R.I. Coalition Against Domestic Violence V. Carcieri, 2008 R.I. Super. LEXIS 148 at *4

(R.I. Super. Ct. 2008) (quoting Sch. Comm. ofN. Kingstown V. Crouch, 808 A.2d 1074, 1077

(R.I. 2002) (citing Iggv's Doughbovs Inc. V. Giroux, 729 A.2d 701, 705 (R.I. 1999)).

Likelihood 0f Success on the Merits

1
The State 0f Rhode Island first seeks a Temporary Restraining Order and then a Preliminary injunction. Given the
overlapping criteria required for the issuance 0f these types 0f injunctive relief, the State argues them
contemporaneously in this Motion for Injunctive Relief.
Case Number: PC-2020-08357
Filed in Providence/Bristol County Superior Court
Submitted: 12/3/2020 2:19 PM
Envelope: 2860120
Reviewer: Alexa G.

In Narragansett Indian Tribe V. Guilbert, 934 F. 2d 4, 6 (lstCir. 1991), the First Circuit Court

0f Appeals indicated that the likelihood 0f success is “often. .critical” in determining Whether t0
.

grant injunctive relief. In the matter before the Court, MaXX Fitness has almost no likelihood of

succeeding on the merits of this case.

The Order and the Compliance Order issued by the State are lawful and required to

maintain the health, safety, and welfare of the general public during the Pandemic. C0Vid-19

Virus is a potentially lethal infection that must be contained. As noted previously, indoor gyms

and health fitness centers pose a particularly dangerous threat to the public’s safety and the

potential spread 0f the Covid-19 Virus because of the nature 0f the activity which occurs in same,

the nature of the Virus, and the way the Virus is spread.

“It is well settled that When the language of a statute is clear and unambiguous, this Court

must interpret the statute literally and must give the words 0f the statute their plain and ordinary

meanings.” Accent Store Design, Inc. V. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I. 1996).

In the instant matter, the Order and the Compliance Order, while not statutory in nature, are

certainly analogous t0 duly enacted statutes and carry the same force 0f law and penalties for

Violation 0f same as do duly enacted statutes. Further, the statutory language of RIGL 23-1-21 is

clear and unambiguous and authorizes the R.I. Director of Health (hereinafter “Director”) t0

issue mandatory compliance orders When the health, safety and well-being of the general public

is threatened, as is the case in the instant matter now before the Honorable Court.

Therefore, the clear and unambiguous language and directive of the Order and the

Compliance Order issued pursuant t0 RIGL 23-1-21 must be given their plain and ordinary

meaning and enforced as such. The Order and the Compliance Order require indoor gyms and/or

health fitness centers t0 “Pause” indoor operations and indoor and outdoor group fitness classes

for a period 0f fourteen (14) days in order t0 effect a slow-down and/or drop in the present

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Case Number: PC-2020-08357
Filed in Providence/Bristol County Superior Court
Submitted: 12/3/2020 2:19 PM
Envelope: 2860120
Reviewer: Alexa G.

drastic spike in potentially lethal Covid-19 virus infections in the State of Rhode Island. The

Director has the delegated authority to enforce the Order, and, separately, the statutory authority

to issue the Compliance Order based upon her determination that “there exists a violation of any

law, rule, or regulation within the jurisdiction of the director which requires immediate action to

protect the health, welfare or safety of the public.”

Both Orders are narrowly drawn; temporary in duration; medically required to help effect

a slow-down and/or drop in the rate of Covid-19 virus infections in the State of Rhode Island

during a worldwide Pandemic; necessary to protect the health, safety, and welfare of Maxx

Fitness’ patrons and the general public; And rationally applied to businesses, such as indoor

gyms and/or health fitness centers like Maxx Fitness, because of the nature of the activity which

occurs in same and said activity’s direct correlation with the potential rapid spread of the Covid-

19 virus.

The State of Rhode Island’s likelihood of success on the merits of this case is strong

given the clear and unambiguous language of the Order and the Compliance Order issued

pursuant to RIGL 23-1-21. The Rhode Island Department of Health has the authority to act as it

has in this matter for the health, safety, and well-being of the general public to curb the rapid

spread of Covid-19 during this Pandemic. Maxx Fitness is in willful violation of the Order and

the Compliance Order as authorized pursuant to RIGL 23-1-21. In a recent WPRI Channel 12

news story a spokesman for Maxx Fitness commented on why it chose to defy the orders: “It was

between all the owners, discussing the company and what was best for the company…That’s

what it is, it’s best for the company, it’s best for the members and staff, so all around it’s the best

idea to do right now.” (See State’s Exhibit #4-WPRI Channel 12 News Story dated December 1,

2020-Udated December2, 2020) Maxx Fitness’ defiance of the orders is willful and clearly

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Case Number: PC-2020-08357
Filed in Providence/Bristol County Superior Court
Submitted: 12/3/2020 2:19 PM
Envelope: 2860120
Reviewer: Alexa G.

based upon what it perceives to be its own monetary self—interest and clearly not what is in the

best interest of the health, safety, and welfare of its patrons and the general public. Based upon

the clear evidence 0f an ongoing and rapidly escalating C0Vid-19 Virus crisis and Pandemic in

Rhode Island, it is evident that if MaXX Fitness is allowed t0 remain open, it presents a clear and

imminent danger t0 the health, safety, and welfare of its patrons and the general public.

Irreparable Harm

Irreparable harm has been held t0 constitute the prime requirement for the granting of

injunctive relief. “If the ultimate relief sought by plaintiff can be satisfied by an award of money

damages, the plaintiff s alleged harms are not irreparable.” S.W. Industries, Inc. V. Aetna

Casualty and Surety C0,, 646 F. Supp. 819, 821 (D.R.I. 1986).

In the instant case, it is evident that irreparable, and perhaps fatal, harm Will result from

failing to grant the State the relief it now requests from the Honorable Court. The continued

operation 0f MaXX Fitness during the current Pandemic environment is likely t0 result in the

spread of the C0Vid-19 Virus to its patrons and the general public. Strict enforcement of the

Order and the Compliance Order issued pursuant to RIGL 23-1-21 is required to curb the

ongoing spike and rapid rate of increase in Covid-19 Virus infections in the State 0f Rhode

Island.

Balancing 0f the Equities

The balancing of the equities and consideration of public interest weigh strongly in favor

of the State of Rhode Island in this case and require the issuance of an injunction against Maxx

Fitness t0 prevent irreparable harm t0 the health, safety, and welfare 0f the general public. As

stated above, the Order and the Compliance Order have been carefully crafted t0 balance the

need t0 protect the public from the devastating effects 0f the C0Vid-19 Virus and ongoing
Case Number: PC-2020-08357
Filed in Providence/Bristol County Superior Court
Submitted: 12/3/2020 2:19 PM
Envelope: 2860120
Reviewer: Alexa G.

Pandemic with the needs of businesses engaged in the type of indoor activity which occurs at

MaXX Fitness and like business entities. A fourteen (14) day “Pause” in business activity does
not place an undue burden on the Respondents. The public interest is not served in allowing

Maxx Fitness t0 flagrantly contravene the Order and the Compliance Order issued pursuant to

RIGL 23-1-21.

II. MANDATORY INJUNCTION

A mandatory injunction “commands action from a party rather than preventing action.”
King V. Grand Chapter of Rhode Island Order 0f E. Star, 919 A.2d 991, 995 (R.I. 2007). A party
seeking mandatory injunctive relief is required t0 show, in addition to the elements required to

obtain injunctive relief outlined above, that there is “great urgency” in the situation and that its

right to the requested relief is “very clear.” See Industrial National Bank of Rhode Island V.

SLrles, 442 A.2d 436, 438 (R.I. 1982).

In the present case, the State respectfully contends that there is both “great urgency” in

the present situation and that the State’s right t0 the requested relief is “very clear.” The instant

case is one in Which there is in fact “great urgency” in granting the State the relief it seeks

because of the imminent danger t0 the health, safety, and welfare 0f the patrons 0f MaXX Fitness

and the general public if same is not restrained and enjoined from continuing indoor operations

and indoor and outdoor group classes.

As to the right 0f the State to the requested relief, as outlined in detail above, it is evident

and “very clear” that the type of activity Which occurs indoors at MaXX Fitness, unlike in

ordinary non-Pandemic conditions, is a clear and present danger t0 the health, safety, and welfare

0f the general public. The Order and the Compliance Order issued pursuant to RIGL 23-1-21

strike a temporary balance between the need t0 protect the general public from the rapid and
Case Number: PC-2020-08357
Filed in Providence/Bristol County Superior Court
Submitted: 12/3/2020 2:19 PM
Envelope: 2860120
Reviewer: Alexa G.

potentially deadly spread of the Covid-19 Virus during the Pandemic and the needs of a business

such as MaXX Fitness to operate during same. The “Pause” mandated by the Order and the

Compliance Order is temporary in nature yet absolutely necessary and required under current

health conditions as they exist in the State of Rhode Island.

CONCLUSION

Based on the foregoing, the State 0f Rhode Island prays that this Honorable Court issue a

Temporary Restraining Order, Preliminary Injunction and Mandatory Injunction against the

Defendant, MaXX Fitness:

(a) Restrain and Enj oin MaXX Fitness from engaging in any further indoor

operations as a gym and/or health fitness center and any—indoor or outdoor—group

fitness classes;

(b) Order MaXX Fitness to pay a fine of Five Hundred ($500.00) Dollars per day

for each day MaXX Fitness is open and operating indoor operations as an indoor gym

and/or health fitness center and any indoor or outdoor group fitness classes in Violation of

the Order and Compliance Order;

(c) That the State be granted any other and further injunctive relief this Honorable

Court deems appropriate and just.

Respectfully submitted,

Plaintiff, Stateof Rhode Island

By and through its Attorneys,

//s// Matthew B. Smith

Matthew B. Smith, Esq. (#4120)

Morgan Goulet, Esq. (#9612)
RI OHHS
Case Number: PC-2020-08357
Filed in Providence/Bristol County Superior Court
Submitted: 12/3/2020 2:19 PM
Envelope: 2860120
Reviewer: Alexa G.

RI Department of Administration
Division of Legal Services, 4th Floor
Providence, Rhode Island 02908
(401) 222-8880
(401) 222-4280 {Fax}
Email: Matthew.Smith@doa.ri.gov
Morgan.Goulet@ohhs.ri.20V

CERTIFICATION

hereby certify that, on the 3rd day of December 2020, I filed and served the Within
I

document through the electronic filing system on all registered service contacts for this case.

The document electronically filed is available for Viewing and/or downloading from the
Rhode Island Judiciary’s Electronic Filing System.

/s/ Morgan A. Goulet

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