NJ Gym Not In Contempt Over Pandemic Order Defiance

By Dave Simpson
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Law360 (July 21, 2020, 9:01 PM EDT) -- A New Jersey state court judge declined to hold a gym in contempt for defying health officials' orders to close to prevent the spread of COVID-19 but did order the gym to comply with the rules, the Office of the New Jersey Attorney General said Monday.

New Jersey Superior Court Judge Robert Lougy also declined to allow the state to physically bar the entrance to the Atilis Gym of Bellmawr, according to his two-page order Monday.

"The New Jersey Superior Court again issued a ruling requiring Atilis Gym to comply with the terms of the Department of Health's order," Leland Moore, a spokesperson for the attorney general's office, said. "That Department of Health order paralleled Governor Murphy's Executive Order 157, limiting gym use to individual training sessions in separate rooms and barring unrestricted public use of the facility."

The court cautioned the gym owners that it must comply with the order, and "invited" the office to file another motion for contempt if the gym violates the order in any way, Moore said.

Last month, a New Jersey federal judge knocked out the gym's bid for permission to operate as it litigates its constitutional challenge to Gov. Phil Murphy's COVID-19 business shutdown orders, reasoning that the battle belongs in state court.

During a hearing held via Zoom, U.S. District Judge Robert B. Kugler declined to grant an injunction to Atilis over its objections that gyms have been arbitrarily excluded from the types of businesses allowed to operate during the state's phased reopening. Instead, Judge Kugler sided with the state's contention that the federal lawsuit is precluded by a doctrine barring federal courts from hearing civil claims arising from state court prosecutions.

Atilis was already facing summonses and a civil action in state court for opening in defiance of Murphy's nonessential business ban during the pandemic, Judge Kugler noted. The gym should have lodged its constitutional argument in the form of a state court appeal of the matters already underway in that forum, but the gym indicated it wasn't going to, the judge concluded.

Atilis made local and national headlines after it reopened May 18 and co-owner Ian Smith became a vocal critic of Murphy's orders, appearing on the Fox News show "Tucker Carlson Tonight" and drawing coverage from Philadelphia-area newspapers and TV news stations.

Police issued summonses after the gym continued to defy health officials' orders to close, and the state filed a civil action enjoining it from opening. Atilis responded with a May 26 lawsuit in federal court targeting Murphy's original March shutdown order and two 30-day extensions Murphy signed in May amid the continuing pandemic.

The gym claimed the orders run afoul of federal civil rights laws as well as the due process and equal protection clauses of the Fifth and 14th amendments to the U.S. Constitution. Atilis warned that the orders would inflict "massive and widespread economic damage" if left intact.

At a hearing in the federal court case, Atilis said it can afford better social distancing than those other types of businesses given its 14,000-square-foot space with 25-foot-high ceilings.

It further argued that when the shutdown orders came down in March, Atilis' owners turned the facility into a "fortress" of precautionary measures. Machines were spaced 6 feet apart, everyone got a disinfectant bottle and a thermal scanner was installed to take temperatures of those seeking to enter, the gym's attorneys said.

Attorneys for the gym did not immediately respond to requests for comment Tuesday.

New Jersey is represented by Stephen Slocum of the attorney general's office.

The gym is represented by Christopher Arzberger of the Russell Friedman Law Group LLP.

The case is Persichilli v. Atilis Gym of Bellmawr, case number MER-C-48-20, in the Superior Court of New Jersey, Mercer Vicinage Chancery.

--Additional reporting by Jeannie O'Sullivan. Editing by Jay Jackson Jr.

For a reprint of this article, please contact reprints@law360.com.

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