SLO board denies Kennedy Club Fitness’ appeal of COVID fines. But the gym’s not done yet
Kennedy Club Fitness in San Luis Obispo has been denied its administrative appeals of $8,000 in fines issued for violations of the city’s COVID-19 emergency safety order.
But the gym isn’t giving up its fight.
The business now has the option to continue its appeals process in San Luis Obispo Superior Court, which the fitness center plans to pursue.
“It is our belief barring any change of opinion by the review board, once they ratify their ruling, we will make our decision to appeal to the Superior Court,” said Brett Weaver, the gym’s managing partner.
In hearings in front of San Luis Obispo’s Administrative Review Board (ARB) that took place over the past couple of months, Kennedy contested citations in November and December relating to the city’s emergency services order on COVID-19.
The gym’s lawyers contend the city had not established a rule or regulation that clearly defined the violations the gym committed, and its lawyers say nobody’s life ever was imperiled by the gym’s operations, as the city determined.
The city’s multiple citations, however, were based on its interpretation of its state and municipal laws related to COVID-19 safety, and that the gym’s indoor operations were in violation of those orders, while putting lives and health and safety at risk.
The $8,000 in fines are of a total $10,000 the gym is facing over COVID-19 health violations.
What the board decided
The ARB members have twice voted 3-0 to uphold the city’s citations, at hearings in January and February.
A Jan. 20 hearing vote has been formalized with a written ruling against Kennedy. And a Feb. 9 hearing is pending the written adoption, which would trigger a 20-day period for the gym to appeal the case in court.
The Administrative Review Board — a panel of three citizens typically with legal backgrounds — relied on city and state orders on emergency directives in response to the COVID-19 pandemic, saying the fines were warranted for any act that may “imperil the lives or property of inhabitants of this city.”
“We have a terrible problem in this county and country, and we have a business that’s flouting the law,” ARB Vice Chair Alex Karlin said at Tuesday’s hearing. “Their argument is based on an alleged flaw in the law, and I don’t buy that argument.”
Kennedy Club Fitness, which has thousands of members and four locations countywide, is represented by Assemblyman Jordan Cunningham’s law firm, Cunningham Law Group, which he operates with his wife, Shauna Cunningham. The citations only concerned the SLO gym.
Kennedy has been open about its position that gyms are an essential business and operations can be done safely indoors while helping members build up their immune systems.
“On a factual level, in our view, there was no proof that allowing patrons to exercise indoors with appropriate safety protocols (using masks, distancing, sanitizing) ‘imperiled life,’ and there was no credible evidence provided by the city of any such imperilment,” Shauna Cunningham said in an email to The Tribune.
SLO issues Kennedy gym citations
All told, Kennedy has been fined a total of $10,000, all of which has been appealed.
The fines of $1,000 for each individual violation were cited under the city’s emergency services resolution against those who refuse to comply with state health orders.
An initial appeal hearing concerned $2,000 in fines, reflecting violations for indoor gym operations on Nov. 30 and Dec. 2, according to Cassia Cocina, SLO’s code enforcement supervisor.
A separate case concerned $5,000 worth of fines for indoor operations the week of Dec. 7-11.
A hearing on Jan. 7 was for a single citation for $1,000 for indoor operations that was issued on Nov. 23.
Kennedy has contested an additional $2,000 in fines it received in the course of the monitoring, but it missed the deadline to file for appeal on those, so they weren’t part of the administrative review cases, Cocina said.
Christine Dietrick, SLO’s city attorney, explained the city’s justification for the fines in an email to The Tribune.
“The state public health official and the governor have determined by state order that indoor gym operations present an unacceptable spread of COVID-19, which clearly imperiled the lives of many in our county, including the more than 200 members of our community who have lost their lives,” Dietrick said.
The city levied the fines after recording numerous videos of members entering the gym’s indoor area. That came after the gym started requiring a warrant for access in late November. Before that time, city code enforcement staff observed members exercising indoors after being allowed into the gym.
Kennedy Club Fitness argues no safety issues
Representing Kennedy, Jordan Cunningham argued the case in front of the panel on Zoom, and filed supporting written arguments along with his wife, Shauna.
Kennedy’s lawyers told The Tribune in an email that the citations “were problematic from both a factual and legal basis,” and said they’ll discuss with their client the next steps for continuing their appeal.
In an email response, Shauna Cunningham told The Tribune the city’s laws didn’t apply to the gym’s case because they required proof of two things:
▪ that a person did an act contrary to a ‘lawful rule or regulation’;
▪ and that the act imperiled life or obstructed the protection of life.
The Cunninghams also contended the city didn’t establish a clearly defined municipal rule or regulation, only a resolution they say doesn’t authorize the citations.
As part of a 44-page legal brief, the gym’s lawyers wrote that the city’s emergency services director never used his authority to issue a rule or regulation that would pertain to Kennedy.
Therefore, “there is nothing upon which to predicate a violation of the city’s emergency services resolution,” the Cunninghams wrote, adding that a city resolution doesn’t hold the weight of a city law and “denotes something less formal.”
But Dietrick contends that resolutions do have lawful authority when it comes to emergency services, including identifying punishable acts that imperil lives.
At a Jan. 7 hearing, Assistant City Attorney Mark Amberg said the legal basis for citation relied on state Department of Public Health (CDPH) authority, saying it’s indisputable the spread of COVID-19 endangers lives.
“The city is not a public health authority,” Amberg said. “The decisions that gyms and fitness centers shall be closed to indoor operations at this time is a decision made by CDPH, the state public health authority. (SLO) is enforcing that public health direction through the city’s code enforcement procedures.”
The City Council initially passed a resolution March 17 declaring COVID-19 a city emergency. And the city has cited the governor’s March 19 executive order, which directed residents to heed the state public health directive from the Department of Public Health, a SLO staff report noted.
On Jan. 19, the City Council added a municipal ordinance, which Dietrick said clarified the issue, which she said is on solid legal footing to begin with.
The Cunninghams argue, however, that the new law made significant changes and serves to act as an improper retroactive legal remedy.
“These amendments changed a number of substantive things in the city’s law, which expanded liability, created presumptions for liability, and expanded the ability for the city to issue fines,” they wrote in an email to The Tribune.
Kennedy says it’s essential
Kennedy Club Fitness openly has argued for essential business status, along with a Wellness Coalition of gym members in SLO County and statewide, saying workouts can be done safely and are needed for mental and physical health.
In November, Weaver said the business was following the state’s original guidelines for reopening, with social distancing in mind, while “conducting business as close to normal indoors as we can.”
Kennedy Club Fitness still has some equipment outdoors and several group exercise classes, Weaver said.
“We are urging other businesses to do the same,” Weaver said. “I think businesses have to do what they can to survive. I talk a lot to business owners, especially restaurant owners, and they’re very stressed and feeling the hardship of all this. I honestly don’t know how they’re making it.”
This story was originally published February 13, 2021 at 2:39 PM.
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