As soon as Governor Greg Abbott announced a plan for reopening businesses, it was only a matter of time before a locality decided to enforce the closure orders on a business looking to reopen its doors.
The first domino fell last week as Glen Rose Police Chief Buck Martin ticketed patrons to a gym that opened despite the city’s closure orders. That gym was Goetz Physical Culture Center, Inc., owned and operated by Mark and Radonna Goetz.
Their facility had been closed for all of April in conjunction with the closures but reopened on May 1 in tandem with Governor Greg Abbott’s first phase of reopening the state.
This was the first instance of citations being given to patrons of a business rather than the business itself. Dallas salon owner Shelley Luther had gained notoriety for her stand against the county’s closure order, but she was the only one cited, not her customers.
Luther appeared in court Tuesday for that citation and was given seven days in jail and fined $7,000.
His determination to open, Goetz told The Texan, was made based upon the data within Somervell County and its surrounding area and his analysis of what was allowed under the governor’s order.
Under Abbott’s order, outdoor sports of up to four individuals were permitted. Goetz’s gym, he said, operates with about a 10-person average occupancy and spans 9,000 square-feet. That occupancy rate, however, has seriously deflated after reopening and the enforcement that followed thereafter.
As a gym owner, Goetz has sanitation materials ready-at-hand, something he said that is not available in the typical outdoor setting described by the governor.
He also questioned how possible intermingling “groups of four” outside was any safer than individuals conducting their own, individual workout with sanitary supplies readily available. Establishments such as movie theaters — although limited to 25 percent capacity — were included in those permitted to reopen.
Goetz questioned, “How is my facility a higher risk of spread than the approved places?”
As of Friday, May 1 when he opened, Goetz said there had not been a single positive coronavirus case within the county. The only positive test was from someone who lived in an adjacent county but came to Somervell to be tested.
According to the Texas Department of State Health Services (DSHS), Somervell County is not even listed on the COVID-19 tracker dashboard.
As of 2019, Somervell County had fewer than 10,000 residents.
Goetz said that as of Monday night, its adjacent counties — Bosque, Erath Hood, and Johnson counties — each have an infection rate of 0.04 percent or less. On Tuesday, that number had increased to 0.05 percent.
“In the counties adjacent to Somervell, and in Somervell itself, there is no prevailing infection. Those statistics and the nature of my facility, it poses no real risk of spreading the virus,” he emphasized.
And so, Goetz decided to reopen his business in the first phase.
Back in late March, Goetz said he was in conversation with local executive authorities on the potential closure of businesses. “Back then, I told them that if there were any complaints filed about my business to contact me and I will shut it down,” he stated. That call did come, and Goetz closed his doors almost immediately. It lasted for a month.
Fast forward, and Goetz sent a letter to the city manager explaining his intention to reopen May 1. “I asked that if the local authorities felt they had to take action, that they take it against me,” Goetz stated.
He did not want his patrons to be held liable for his decision to open.
The city manager, Goetz said, strongly encouraged him not to open.
A report by local station K-HITS stated the city “believed the gym owner was trying to make a bold statement, and he wanted to be charged with a Class B misdemeanor, arrested, and jailed for his defiance of the Governor’s orders.”
“In some way, my letter came across as a challenge to their authority and it was never intended that way,” Goetz added.
On Friday, Goetz received a call from Chief Martin stating his intention to cite every person in the building.
Goetz, a former police officer, replied saying that taking action against his patrons instead of himself, “Would no longer constitute a neutral enforcement action.”
Statutorily, the governor’s order directly addresses the conduct of individuals but only indirectly addresses the conduct by which businesses must abide. In part, the order reads, “Every person in Texas shall, except where necessary to provide or obtain essential services, minimize social gatherings and minimize in-person contact with people who are not in the same household.”
Chief Martin told Goetz that the business owner could not be the one cited. However, Chapter 7.02 of the Texas penal code states, “(a) A person is criminally responsible for an offense committed by the conduct of another if… acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.”
This would suggest that while Goetz could not be held liable under the executive order, he could be under regular penal statute.
When Martin got to the gym to perform the enforcement, Goetz refused to let him in without a search warrant. The chief waited in the parking lot for a few hours, ticketing the various patrons as they walked to their cars.
Later, Goetz said an employee of his was pulled over upon leaving the gym’s parking lot, though the officer declined to issue a citation upon learning it was an employee rather than a patron.
In a statement, the city stated it chose “a less dramatic approach” than a Class B misdemeanor, and “Police Chief Martin issued tickets to members of the public who were using the gym for violating the City’s Emergency Management Ordinance under which Governor Abbott’s orders had been adopted.”
“Violation of that ordinance is a class C misdemeanor, which is equivalent to a traffic violation. We do not like having to take action against local citizens and businesses, but we all know that COVID 19 is a serious virus and can have deadly results. As Mayor, I have a responsibility to protect public health and defend the most vulnerable members of our community,” the statement continued.
“My biggest objection is the manner in which they enforced the action. They could have cited everyone, including me and Radonna, but they chose to only cite the patrons,” Goetz emphasized.
He added, “There’s only one reason behind that: to influence, leverage, or motivate us to change our position.”
Citing his experience as an officer, Goetz pointed out that a pivotal aspect of law enforcement is discretion — choosing the right times and methods for enforcement. Glen Rose officials, Goetz added, told him they had no authority to change the order — a suggestion with which he agreed.
What he takes issue with was their suggestion that they had to enforce it in the manner in which they did.
“That’s a misrepresentation of what their responsibilities are. They did not have to do it that way,” he lamented.
When asked about the financial stresses being closed may have caused, Goetz stated that did not seriously affect their decision to reopen. He did say that they lost 75 percent of their revenue while closed in April.
“At the end of the day,” Goetz stated, “the city has accomplished exactly what it set out to do, nobody is going to come to my gym knowing the law enforcement official may issue them a ticket.”
Today, Governor Abbott announced gyms would be allowed to open on May 18 at 25 percent capacity.
Update: The City of Glen Rose changed the citations given to gym patrons to “warnings.” Read the announcement and statement from Mark & Radonna Goetz on that, here.
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Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad watching and quoting Monty Python productions.