How should indoor water parks be treated under the governor's order to close businesses as a means to reduce the spread of the coronavirus?

Butler County lawyer Tom Breth wrangled with a federal judge during a day-long court hearing Tuesday over which conclusions the Centers for Disease Control and Prevention reached relating to indoor parks and chlorinated water, and how it relates to a recent state order shutting indoor water parks down under the umbrella of entertainment businesses.

Butler law firm Dillon McCandless King Coulter & Graham filed a complaint Dec. 13 in the U.S. District Court for the Western District of Pennsylvania on behalf of Conley Resort & Golf Club in Penn Township and Kalahari Resorts & Conventions in the Pocono Mountains, asking a judge to reverse the order.

Tuesday's hearing lasted more than eight hours and during the sprawling procedure conducted over Zoom, various topics were discussed. U.S. District Judge Mark Hornak considered such topics as the nature of water as it relates to the spread of the virus, the length of the pandemic and the government's responsibility to keep the public safe.

The suit comes in response to Gov. Tom Wolf's move to close entertainment venues and gyms, ban indoor dining at restaurants and temporarily halt school sports and other extracurricular activities to stop the spread of the virus. The closures were scheduled from Dec. 12 to Jan. 4.

“I think your argument cuts too far,” Hornak said in response to Breth's assertion that the CDC found recreational waters don't spread the virus and, therefore, indoor water parks should be allowed to stay open.

The judge continued, “You're saying water parks are a force field against COVID. But then, CDC wouldn't have all these suggestions on cleaning and disinfection and social distancing if that was the case. Even Aristotle separated waters and vapors, right? That goes back to ancient Greece. You better go back and read that guidance, Mr. Breth.”

Along with water parks, businesses that are classified as entertainment venues include casinos, theaters, concert halls, museums, zoos, amusement parks, carnivals, playgrounds and botanical gardens.

Tuesday's hearing revolved around testimony from representatives of Kalahari Resorts & Conventions in the Pocono Mountains and J.D. Turco, chief financial officer of St. Barnabas Health System.

Conley Resort & Golf Club is part of St. Barnabas Hospitality Group.

Daryl Morris, general manager of Kalahari, told Hornak the indoor water park is willing to abide by any government mandates and health restrictions. He said the business closed March 17 and reopened June 19. It stayed open until Dec. 12 when the most recent order forced it to close the indoor aspect of the business.

“We are America's largest waterpark,” Morris said.

Morris said its ventilation systems provide fresh air to the indoor part of the park to reduce the spread of the virus. He said they would occasionally kick people out of the park for not observing virus precautions such as wearing a mask when entering the park.

And Turco testified the water park has an occupancy of 50 people. He said the facility is closed because it is undergoing improvements to its sun roof. Turco said the business would be prepared to open after Wolf's order expires Jan. 4.

Because of this, Hornak wondered if the business had a legal standing to make a claim against the government since it wouldn't be able to open currently, regardless of orders that are in place.

For the state, Chief Deputy Attorney General Karen Romano called Sarah Boateng, executive deputy secretary for the Department of Health, to testify. She said indoor water parks were included in the entertainment designation because unlike a restaurant that offers to-go food, “a waterpark is designed as a place used to dwell and spend time.”

And this provides an opportunity for the spread of the virus, she said.

Boateng also noted that in a water park it's not possible to adhere to universal masking since the CDC found that wearing a mask in a pool is unsafe.

Breth called the government measures “unduly harsh” and a source of hardship for businesses.

“We have a clear liberty claim here — that is been denied us through these orders,” Breth said.

Hornak said the government's objective is to provide health and safety to its people. And in this case, that meant taking measures to stop the spread of the virus. But the judge acknowledged that Breth and the others were questioning the measures used by the government.

“Mr. Breth is saying that the order is like Swiss cheese — it's not all inclusive and there's too many loopholes,” Hornak said, noting he wasn't yet making a decision.

“Mr. Breth's argument is that his client is doing everything he can to follow guidelines. And guidance that's specific to waterparks, he's following — so why is he still shut down?” Hornak said.

Romano countered that Breth may think he could come up with better safety measures, but that doesn't mean the state has violated the constitution.

Hornak said he would make a decision before the expiration of the government's order on Jan. 4.