NJ Gym Fined $134K Over COVID-19 Shutdown Defiance

By Jeannie O'Sullivan
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Law360 (August 19, 2020, 3:17 PM EDT) -- The New Jersey gym that's repeatedly flouted COVID-19 pandemic orders to shut down was hit with a $134,000 judgment by a state court judge who on Tuesday slammed the business' "willful and contumacious" defiance during an unprecedented public health crisis.

Superior Court Judge Robert T. Lougy granted the sanctions bid by Health Commissioner Judith Persichelli against Atilis Gym in what has emerged as the Garden State's most contentious battle over Gov. Phil Murphy's coronavirus order for nonessential businesses to shutter or limit operations.

The gym contends the state needs to provide a scientific basis for forcing businesses to close, but the court said owners Ian Smith and Frank Trumbetti should have challenged the order by appealing it, not through defiance.

"While defendant has decried a lack of due process during the court's all-too frequent involvement in this matter, defendant has failed, until most recently, to avail itself of the processes available to it as of right," Judge Lougy's decision said, citing New Jersey court rules for challenging agency decisions in the appellate division.

"And defendant's legal arguments do not and cannot obscure its ongoing violation of this court's orders," the decision said.

The judgment breaks down to $123,981 in sanctions and $10,481 in counsel fees for the state. If the Bellmawr-based facility continues its defiance, it will have to pay $15,497.76 for each day it remains open, according to the decision.

The court noted that Smith and Trumbetti have been vocal about their insistence on remaining open as evidenced by their public statements and social media posts. One of Smith's Instagram videos depicted the duo knocking down a barrier that had been placed around the gym by the state to block entrants.

"As established by plaintiff, as memorialized and celebrated by defendant's owners on social media posts referenced in plaintiff's application, and as tacitly acknowledged by defendant in its opposition, defendant continues to facilitate and host such prohibited activity in a willful and contumacious manner," the decision said.

The owners will be on the hook for the cost the state will incur to construct a new barrier, according to the decision.

Murphy has gradually lifted the coronavirus restrictions he first implemented in March as part of the state's phased recovery plan but has not provided a date when gyms can reopen.

The battle began in federal court with Atilis' May lawsuit alleging that Murphy's shutdown of nonessential businesses ran 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.

In June, the gym's claims moved to state court, where Murphy and health officials already had an action pending over the gym's refusal to close. Smith and Trumbetti remained open, chronicling their defiance on Instagram and in the media, which resulted in a contempt order on July 24.

The pair responded that weekend by knocking the barricade off their gym, leading to their July 27 arrest on charges of contempt, obstruction and violation of the New Jersey Disaster Control Act.

The court held a telephone hearing Friday on the state's $15,000-a-day sanctions bid. A state deputy attorney general argued that the owners started a GoFundMe account to support their contempt, while an attorney for the gym said the business' livelihood was at stake.

Smith and Trumbetti also have a pending motion to stay the state's contempt motion until they resolve the 14 criminal complaints they're facing out of Bellmawr Municipal Court.

In an emailed statement, Attorney General Gurbir S. Grewal said, "This decision recognizes that gym owners – like everyone else – must do their part and follow the law. As we've said before, we're in the middle of a global pandemic, yet these defendants have defied multiple court orders designed to protect the public. We hope that today's order puts an end to this dispute."

Gym attorney John McCann told Law360 that gyms in the neighboring states of New York, Pennsylvania and Delaware are allowed to open and the judge's decision is very limited in scope.

"Clearly, the state has no evidence that this gym is a public health danger otherwise they would have publicly provided the evidence in this proceeding to support their case. My clients have stated publicly that if the state can demonstrate that the Atilis Gym is unsafe and/or as compared to other business, they would not allow people to visit their gym," McCann said in email.

"So far 19,000 visitors agree with their view. Ultimately, at some point, we will get to the science. Standing up for constitutional rights is not easy in a climate of fear. Smith and Trumbetti's bravery is something this country is lacking right now," the email said.

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

The gym is represented in the state lawsuit by James G. Mermigis of The Mermigis Law Group PC and John McCann.

The state 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 JoVona Taylor.

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

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