Re-Opening Is Slow And Many Continue To Struggle
The Novel Coronavirus, or COVID-19, has thrown society as we know it into chaos. In March, schools, restaurants, parks, and other businesses either closed, changed to offer virtual learning or remote work, or switched to curbside, takeout, and/or delivery only. This includes gyms. Some of these entities made changes on their own, but many businesses had no choice but to make changes or close when Governor Cuomo issued the “New York State on PAUSE” executive order, which took effect on March 22, 2020, at 8:00 pm. The order limited in-person gatherings ordered many so-called non-essential businesses closed and made significant restrictions on businesses that were allowed to remain open, including putting social distancing requirements in place. What was a gym to do?
According to a lawsuit filed by the New York Attorney General’s (NYAG) Office, two popular gyms, New York Sports Clubs and Lucille Roberts continued to charge clients' credit cards after the clients tried to cancel their memberships. This Hotel California approach (you can check out anytime you like, but you can never leave) to running a gym resulted in over 1800 complaints to the NYAG Offices. According to the lawsuit, the gyms continued to bill clients even when the gym’s doors were boarded shut and the client’s complied with proper cancelation procedures. Fortunately, on October 2, 2020, a New York Supreme Court Judge issued an Order which went into effect immediately and remains in force until a late-October case hearing. The Order stops gyms from allegedly continuing to charge dues, fines, or penalties to any New York state members whose home gym remains closed today.
While not condoning the continued billing of gym clients, the question remains: how could gyms remain open without income? Unfortunately for gym owners, staff, and patrons, gyms were deemed non-essential. More specifically, the essential businesses (such as grocery stores, law enforcement, and healthcare), explained how a non-listed business can be designated essential, and had a list of businesses which could not be declared as essential, and that last list included gyms.
The Executive Order included: “Businesses ordered to close…including…physical fitness centers, are presumed to be compliant with NYS issued restrictions and must remain closed and are not eligible for designation as an essential business for purposes of this guidance.”
Federal resources, state resources, and private business accommodations poured in, albeit sometimes with bureaucracy, to help the owners and employees who were impacted by the closures. Likewise, restrictions on court proceedings (including the closure of the courts to non-essential cases) and temporary restrictions on issues like evictions helped to stem the negative effects of the closures. Employees were able to receive unemployment compensation, including more than they would normally receive, businesses were not dinged for employees filing for unemployment, business owners received loans and grants, and banks offered payment deferments and forbearances.
People were couped up in their houses, not working, and not seeing their friends and family. Likewise, scientists began to learn more about COVID-19, its effects, and how it spreads. As time went on, even as the death toll climbed in both New York State and across the country and world, people became anxious. Eventually, some gyms began scraped by on an “underground” or “speakeasy” basis, meaning they were operating in secret. In addition to running the risk of facing civil or criminal penalties, including possible jail time, for violating the stay-at-home order, gyms could lose their business license, and the individuals at these gyms faced a risk of spreading the COVID-19 virus to their friends, family, and others they came in contact with. Lastly, a gym operating on this basis could face possible lawsuits for negligence or recklessness if the virus spread through their clandestine operations.
In what appeared to be a further insult to gyms, some “professional sports” were allowed to continue to train in New York. Obviously, this begged the question: isn’t boxing and MMA a professional sport? Aren’t our fighters under medical supervision? Even as an amateur boxer I need a medical every year, a doctor examines me before each match and the doctor is at ringside. This exists at a higher level of supervision at the professional level. The medical procedures and resources seemed to already be in place and at most would need a little tweaking to allow professional fighters and even amateur fighters to continue training. Yet, we continue to be the step-child in the sports arena.
All hope was not lost. In August, the stay-at-home order was lifted in relation to gyms. Yet, it was not a return to business as usual, as there were many restrictions put in place. Gyms had to take a myriad of precautions, including requiring masks for patrons and staff, limiting patrons to 1/3 of the normal capacity, increased cleaning, requiring social distancing, and conducting health screenings for employees and patrons, amongst others. The August re-opening order listed both mandatory practices and recommended best practices; obviously gyms only had to do the mandatory ones in order to be compliant with the law.
However, going above and beyond the mandatory practices may assist a gym in the event they are sued for COVID-19 spread. The United States has not seen a pandemic like this in over 100 years, obviously, times have changed since the great pandemic of 1918, including of course lawsuits and liability. We have not yet seen lawsuits related to COVID-19 spread, but most lawyers, legal analysts, and even non-lawyers anticipate them. Of course, it is hard to predict how these lawsuits will pan out, but there are a few general things to keep in mind. First, as said above, the more precautions a business takes, the better their defenses will be against a lawsuit. Second, following the best practices, or even doing more, makes the gym and its owner’s good corporate citizens. As a result, this can result in good publicity for taking the right actions, as well as it will keep their employees and customers safe. Lastly, as we are still figuring everything about COVID-19, it remains to be seen whether businesses will be held liable. Of course, proving where a person obtained the virus will be difficult, but again, the more protections a business takes, the better. Some things are out of the hands of the business, such as an asymptomatic carrier spreading the virus; it is likely that a business would not be held liable for that. However, if a business fails to sanitize, and a customer catches the virus, the customer is likely to point the finger at the business.
As we navigate these uncharted waters together let's continue to be safe, continue to be honest with each other about our health, support our gyms, have our gym owners support us, and above all else, let's continue to train.
Norm Steiner is a true believer in the inspiring quote: "So often in life, things that you regard as an impediment turn out to be great good fortune." -Ruth Bader Ginsburg. For the past 23 years, Norm has devoted his entire legal career to ensuring Ruth Bader Ginsberg’s words ring true to his clients. His clients are often facing the most difficult time in their lives - suffering from catastrophic injuries or seemingly impossible criminal cases. Norm understands and cares about the impediment the client is facing. Turning the circumstances around, providing the finest representation and hopefully assisting the client in putting the circumstances behind them - as they grow from the experience and move forward with their lives - is the greatest good fortune and reward.
Norm’s nearly 25 years in the legal community began as an intern at one of the city’s finest Criminal Defense Firms. He was next hired as a Staff Attorney at The Public Defender’s Office for New York City. Having obtained constant trial and suppression hearing victories Norm was promoted to a Senior Staff Attorney and then Trial Trainer. After surviving his own near-fatal catastrophic injury collision, Norm decided to protect the rights of other injured victims and was immediately hired as a trial attorney by the then leading Personal Injury Firm in NYC. At the firm, Norm was a trial attorney on Medical Malpractice and Toxic Tort injury cases. Norm remains a highly sought-after trial attorney for many NYC Personal Injury firms.
As a highly respected trial lawyer Norm has the very rare distinction of belonging to the both of 2 top tier elite trial lawyer clubs: he has, 1) won murder trials and, 2) has achieved verdicts and settlements in excess of One Million Dollars. Most trial attorneys consider it enough to just belong to one of these clubs.
Norm’s represented many fighters, including 3 World Champions, on numerous issues. Norm is an avid amateur boxer. He regularly competes in USA Boxing sanctioned events. He is also a mentor and contributing leader in Gleason’s Gym Give a Kid a Dream program. Norm is also a Certified Krav Maga Instructor.