St. Louis County has filed a lawsuit to try to close two gyms that have reopened in defiance of the COVID-19 stay-at-home order.

Despite St. Louis County’s continuing stay-at-home order, House of Pain Gym, with two locations at 251 Chesterfield Industrial Blvd., Chesterfield, and 12632 Dorsett Road, Maryland Heights, reopened May 4 when Gov. Mike Parson lifted his statewide lockdown keeping businesses closed.

The county filed suit Monday to shut the gym down and get a list of contact information for all its customers who have entered since March 19 so that they can be tested for the coronavirus. The county asks that House of Pain pay for the cost of the tests.

A videoconferenced hearing is scheduled for 4 p.m. Wednesday for a judge to decide whether to issue a temporary restraining order forcing the business to close. County Circuit Judge Lorne Baker recused himself, and the case will now be heard by Circuit Judge John Lasater.

The court action follows a series of letters exchanged last week between County Counselor Beth Orwick and Chris McDonough, an attorney for the gym. Orwick issued a cease-and-desist order, but McDonough said the “tyrannical” government had no right to contact his client.

The separate county and state orders went into effect in March and April to prevent the spread of the coronavirus. The state order left it up to local jurisdictions to decide which businesses would stay open, and the county order separated businesses into “essential” businesses like grocery stores, pharmacies, hospitals and restaurants, while most other businesses fall into the “nonessential” category and had to close to prevent the spread of COVID-19.

The county order issued by County Executive Sam Page will continue through at least May 18, when parts of it are set to lift. But even in that first phase of reopening, gyms will not be allowed to open because they are considered areas of “high transmission.”

Page said at a briefing Monday with reporters that the county’s public-health officials have told him that those high-risk businesses should not reopen May 18: “Gyms, spas and other gatherings are high risk for transmission of COVID-19 even with PPE (personal protective equipment),” Page said. “So I’m going to follow their advice and we’ll see where this takes us. At this point, my top responsibility is the health and welfare of St. Louis County… Most people want to know what the safe thing to do is, what the right thing to do is.”

With more than 30,000 businesses in St. Louis County, only a few have defied the order, Page noted.

If the gym continues to operate, Assistant County Counselor Steven Capizzi argued in a court filing Monday, it would endanger the “health of St. Louis County residents through the increased risk of spreading COVID-19 in the community.” In letters to the gym, the county warned that violating the stay-at-home order is a misdemeanor punishable by a year in jail, a fine of up to $2,000 or both.

In a May 5 letter to House of Pain, Orwick wrote, “I direct you to immediately cease operation of the business in violation of the order.”

In response, McDonough replied to Orwick, “St. Louis County Government has no authority to suspend the Constitution during the COVID-19 pandemic or otherwise.”

McDonough is running as a Republican for a judgeship in neighboring St. Charles County, where he lives.  He said on a radio show Tuesday that gyms should be allowed to reopen now because they are included in President Donald Trump’s guidance for the first phase of reopening after shutdowns.

Nationwide, some areas are allowing gyms to reopen and others are keeping them closed to prevent transmission of the disease. It is not believed that the coronavirus can transmit through sweat, but it can be transferred through high-contact surfaces frequently passed between people like gym equipment.

On its website, House of Pain says it is a “hardcore, old-school gym” where people come to “sweat, strain and shred muscle.” But McDonough said the gyms are keeping proper social distancing protocols and sanitizing between customers so that the virus doesn’t spread.

In a Facebook video posted Sunday night, owner Jon Corbett said he’d received some pushback and even threats about his defiance of the stay-at-home order, but he felt he was doing the right thing.

“Our purpose for doing this is not based on publicity or picking a fight or a showdown with the government, that’s not our intention at all — I’d rather be riding my Harley than dealing with this stuff,” Corbett said. “But we feel that with the government this is definitely an overreach and we feel like they’re ruling with a heavy hand here, and we’re doing what we feel is right for small business and right for our members and for the people that we serve.”

But other gyms have complied with the stay-at-home order while House of Pain has defiantly stayed open, the county said, advertising on its website that it is currently open from 8 a.m. to 7 p.m. daily. The St. Louis County Police officer who hand-delivered the cease-and-desist letters, Richard Vencill, said in an affidavit that he saw a packed parking lot and “numerous” customers working out on the equipment when he went into the gym.

After police took notice that both locations of the gym were open Thursday, Orwick sent a letter to McDonough stating that if the gyms didn’t shut down by 5 p.m. Sunday, the county would take legal action to force them to shutter.

The House of Pain attorney responded in a letter to the county that the stay-at-home order is “blatantly unconstitutional”  and the county was conducting a “tyrannical persecution of the gym.”

In the letter to Orwick, McDonough also disagreed with the county’s classification of his client’s gym as “nonessential.” Every business is essential, he argued.

“I assure you, every small business is essential to the people who have invested their life savings into it. Every business is essential to the employees who depend on their jobs to earn essential paychecks which they need to put essential food on their families’ tables,” McDonough argued. “How is it that the Government can decree that liquor stores are considered essential, but gyms like House of Pain which help people stay fit and healthy are not? How is it that people can go to any gas station in St. Louis County and purchase beer, lottery tickets and cigarettes (all apparently considered essential by the Government), but they can’t go to a gym to exercise?”

The county has had a series of lawsuits filed against it due to the forced shutdown, including a federal lawsuit in which a judge ruled Friday, siding with the county that, in times of public-health threats, local authorities have sweeping powers to shut businesses and force residents to stay home as long as it’s on a temporary basis. The county cited the judge’s ruling in that case in its county court filing Monday against House of Pain.

“In exercising its broad health powers, St. Louis County is authorized to protect its citizens from known health hazards using any reasonable method,” the county argued in its petition.

Referring to the county police officer who delivered the letters, McDonough said that a “government agent” sat outside the gym Wednesday “in an obvious effort to intimidate my client, its employees and members. Ms. Orwick, your office is to have no further contact with my clients. My clients and their members will not be bullied or intimidated by their Government. You would do well to remember, you work for them. It is not the other way around. From this point forward, no Government employee or agent is permitted to enter upon my client’s property without a search warrant.

“Let me be clear. My clients have every right to operate their business and they will continue to do so while voluntarily observing proper physical distancing, cleaning and sanitization protocols. The Order, and your letter ‘directing’ House of Pain to ‘cease operation’ of its business, are blatantly unconstitutional.”

Echoing the arguments made in the federal lawsuit against the county, McDonough said that the order violates his clients’ and their customers’ First Amendment rights of assembly and association and their 14th Amendment right to due process.

The county is violating the equal-protection clause by allowing big-box stores to operate and sell televisions while gyms that are much more important to a person’s fitness are not allowed to operate, McDonough argued.