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Law360 (July 24, 2020, 2:33 PM EDT) -- A New Jersey judge on Friday held a gym in contempt for staying open during the COVID-19 shutdown mandate, an order that comes just four days after the jurist gave the business a hefty warning but stopped short of laying down sanctions.
Superior Court Judge Robert Lougy granted the state's renewed contempt motion that highlighted coronavirus safety hazards — including face mask violations and social distancing gaffes — unearthed by health inspectors and a surveillance team that closed in on Atilis Gym of Bellmawr over the past week after its owners publicly announced their plans for continued defiance of the coronavirus mandates.
The Camden County gym, which has gained national attention for its legal battle over Gov. Phil Murphy's coronavirus orders, must comply with the mandates and also pay a to-be-determined daily fine for each day it defies the mandate, according to Judge Lougy's order.
New Jersey Attorney General Gurbir S. Grewal said the orders aim to protect the public during an unprecedented public health crisis.
"While I wish it had not come to this, I am grateful that the court recognized the need for compliance," Grewal said in a statement. "The vast majority of businesses and residents are following these rules and doing their part to keep their friends and neighbors safe, and those few companies who flout our executive orders are once again on notice that we will hold them accountable, and that there will be serious consequences for their actions."
In an Instagram video after the contempt order was issued, co-owner Ian Smith said authorities were on their way to change the gym's locks or construct a barrier to prevent anyone from entering. He added that gym members were still welcome.
"We will not be backing down under any circumstances," Smith said.
Ruling on the state's previous contempt motion on Monday, Judge Lougy stopped short of holding the gym in contempt but advised it to comply with the state's mandates.
The battle began in federal court with Atilis' May lawsuit alleging that Murphy's March shutdown of nonessential businesses runs 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. The owners spoke to local and national media outlets, including Fox News, in support of their cause.
Judge Lougy last month said the arguments had to move to state court, where Murphy and health officials already had an action pending over the gym's refusal to close.
As the court battle proceeded, state health officials compounded Murphy's mandate with an order for the gym to shutter. The order was modified July 1 to allow for individualized indoor instruction.
Per the modified order, should multiple simultaneous instructions take place, they must happen in separate rooms or be separated by a floor-to-ceiling barrier.
After the state's initial contempt motion, which was rejected on July 20, co-owners Frank Trumbetti and Smith announced to news outlets and on social media that they weren't planning to comply with the modified order, and had in fact violated it since July 4. Smith then removed the gym's door from its hinges to frustrate the state's attempt to enforce the closure order, according to the state's contempt motion.
State health department investigators and police went to the gym on July 22 to confirm the noncompliance, but were denied access, according to the contempt motion.
However, the state claimed investigators were able to observe that staffers had no face masks or personal protective equipment; that masks were not required for workers and patrons; that windows were covered with paper; and that there were no required floor-to-ceiling partitions.
Also, the Camden County Prosecutor's Office surveilled the gym for two periods on July 22 and observed several instances of disregard for face mask and social distancing mandates, according to the contempt order.
An attorney for the gym, James G. Mermigis of The Mermigis Law Group PC, said he was disappointed in the ruling and said there was no evidence of contempt.
"The judge granted the contempt motion based on a surveillance of the parking lot by counting individuals entering the building. There are other businesses within the building and there was no proof that the individuals were actually working out," Mermigis told Law360 in an email.
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 and James G. Mermigis of The Mermigis Law Group PC.
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.
--Editing by Marygrace Murphy.
Update: This story has been updated with additional information and comment from an attorney for the gym.
For a reprint of this article, please contact reprints@law360.com.
