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Vermont Attorney General TJ Donovan has withdrawn his request for a preliminary injunction against a Rutland gym owner who opened his facility earlier this month despite an executive order barring fitness centers from operating due to the coronavirus.
The move comes as Gov. Phil Scott is expected to announce Friday a timeframe for the opening of fitness centers in Vermont.
The withdrawal of the injunction request isn’t expected to end the legal wrangling in the only case brought so far in Vermont seeking to enforce the governor’s executive order, issued in response to the global coronavirus outbreak.
Donovan says he is still moving forward in his lawsuit against Sean Manovill, owner of Club Fitness, which includes the possibility of civil penalties against the gym operator of up to $1,000 per day in violation of the governor’s order.
Meanwhile, Manovill, through his attorney, has since submitted his own filings, including a counterclaim against Scott and Donovan seeking, among other things, the income he lost during the closure of his business for two months.
In a statement, Donovan said that his office was withdrawing the motion for an injunction in anticipation of the authorization of the reopening of gyms on May 29.
“In the interests of conserving Court and party resources,” Donovan said, “the State is withdrawing its motion for preliminary injunction to avoid litigating legal issues that are likely to be mooted that same day.”
Scott said earlier this week that he expected at his regular Friday press conference to provide the timeline for the reopening of fitness centers.
Asked if Donovan has had any conversations with Scott about the expected announcement, Charity Clark, the attorney general’s chief of staff, said Thursday that any communication that may have happened between the two “are privileged by attorney client privilege.”
Donovan had filed a request for a preliminary injunction and lawsuit May 15 against Manovill.
The filings stated that Manovill had been operating his gym in violation of the governor’s Executive Order 01-20, Addendum 4, which was issued in March and called for the closure of “close-contact” businesses, such as gyms, to help control the spread of Covid-19.
A Rutland judge that same day granted a temporary restraining order, preventing the gym from conducting in-person, indoor operations until the governor’s order allowed for it.
The Attorney General’s Office said it received reports that the gym opened earlier in May, eventually leading to talks with Manovill and the temporary closure of Club Fitness. That was until it reopened again May 15, the day Manovill claims the Attorney General’s Office told him earlier they believed the governor would allow fitness centers to reopen.
When that day came and went with no announcement regarding fitness centers, Manovill opened back up May 15, prompting Donovan to take legal action that same day.
A hearing on Donovan’s request for the preliminary injunction had been set for Friday in Rutland County Superior Civil Court. Now, with the agreement of both parties, that hearing has been turned into a status conference to discuss the scheduling of matters in the case moving forward.
Deborah Bucknam, Manovill’s attorney, said Thursday that while the attorney general is claiming he is withdrawing his motion due to expected action of the governor, she believed it was actually a filing she submitted a day earlier opposing the injunction request that prompted it.
“These unprecedented orders by the government require this Court to carefully determine whether they comport with statutory and constitutional law,” Bucknam wrote in that filing. “It is our position that they do neither.”
Bucknam is also seeking a preliminary injunction against the state on her client’s behalf, which calls for allowing Manovill to “fully open” his gym.
“We do not yet know what the parameters of the governor’s order are going to be regarding fitness centers,” Bucknam said. “If the governor says you can open without restrictions then we won’t need one.”
However, she said, her client’s counterclaim would still remain pending. Through that filing, Manovill is seeking compensation for “the taking” of his business since March 13.
The filing also calls for the awarding of damages for the “economic and emotional distress” suffered by her client due to “the Defendants’ unlawful taking without compensation.”
Clark, Donovan’s chief of staff, said Thursday that the Attorney General’s Office would file a written answer to Manovill’s counterclaim.
While both the court hearing and the governor’s press conference are expected to take place Friday morning, the attorneys will likely not know what Scott announced.
That’s because the court hearing is set for 10 a.m., while the governor’s briefing is scheduled for an hour later, at 11 a.m.
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