Marc Luxemburg, Gallet Dreyer & Berkey

Gathering places are pandemic hotspots, and in many co-ops and condos, this means gyms. There are two types of gyms that I'd like to talk about. The first type is in the basement of an older building; the second is the spiffy type in a new condo. What should boards in each of these buildings be concerned about?
 
Well, the reopening guidelines are not designed for private gyms or small exercise rooms. The rules as they are written make it very difficult, if not impossible, for a small, non-professional exercise room to operate. It probably would be better to start by talking about the more recent condominiums that were built with gyms that were designed to be  similar to a professional gym, with locker rooms and bathrooms, a manager and a staff, and lots of equipment. Because they're very similar to the professional gyms that these rules were really designed for, they should be able to comply. The rules have a lot of requirements and they make it difficult, but a gym that has professional staff should be able to manage.
 
The newer condo gyms are more like a commercial gym; if I'm in an older building and I've created an exercise facility, do these types of rules still have to be abided by?
 
The rules make no distinction between a little two treadmill exercise room in the basement of an older co-op, and a professionally run gym. I don't know if they didn't think about it, but they certainly didn't focus on the distinctions between them. So that theoretically, any exercise area is governed by these rules. There's no exception for being too small, or being private, or being cooperative or not having a professional look. There's nothing in the rules that makes any exceptions, so presumably they're all covered by it.
 
These rules will still apply in the winter months, unless the pandemic ends, correct?
 
Well, I don't think the pandemic is going to get over with anytime soon, but what may happen is that as we get more experienced in dealing with it, the rules may be relaxed or somebody may recognize that a small cooperative gym that can't take more than three or four people at a time does not need the same detailed rules that a larger gym does, and will either create an exception or modify the rules.
 
For a board contemplating keeping their modest gym open, are there risks that they need to be aware of, legally or with regards to insurance? Or are boards going to say to shareholders, “mask yourself and clean the 
Well, I don't think the pandemic is going to get over with anytime soon, but what may happen is that as we get more experienced in dealing with it, the rules may be relaxed or somebody may recognize that a small cooperative gym that can't take more than three or four people at a time does not need the same detailed rules that a larger gym does, and will either create an exception or modify the rules.
 
Given all these rules that an older co-op with a small exercise room is going to be unable to comply with, it would seem to me to be fairly safe to say to residents that they’re going to keep the facility closed, because the risk is pretty great.
 
That's absolutely the safest course. It's unfortunate, but that's the way it is.
 
The regulations don't really seem to have a penalty. The penalty seems to be that you can be shut down. The rules say that in order to operate, you have to comply. Or if you don't comply, presumably if somebody rats you out and says you’re operating a gym improperly and the authorities come in, they can force you to shut down the gym.  There are no stated criminal penalties, but then you get to the other question of what happens if, heaven forbid, somebody actually gets sick and can show that it is as a result of using the gym? The board runs a risk that it could get sued.
You could come up with a form release: “I understand that there is no monitor, I understand that there are no staff, I understand that I'm responsible for what goes on in here, I understand that I have to clean and keep a mask on, and if I don't and I catch COVID, it's my fault, not yours.” Will a court enforce that? There is a law that says that a landlord can't release itself or be released from its own negligence, would that law apply to this? Maybe. Would not complying with the regulations constitute negligence? Maybe. So there certainly is a legal risk of doing it that way. There are some buildings that may feel it’s worth the risk because people just want to get down and do their exercise, and I don't blame them. But they are running a risk by doing so.