NJ Slams Gym's Campaign HQ Stance In Virus Rules Fight

By Jeannie O'Sullivan
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Law360 (September 11, 2020, 4:24 PM EDT) -- The state of New Jersey has blasted a gym's purported reinvention as a political campaign headquarters subject to relaxed COVID-19 pandemic rules, deeming it an "incredible" argument in the Garden State's highest-profile legal battle over coronavirus business restrictions.

Atilis Gym is obviously still operating as a gym and therefore needs to conform to coronavirus-prompted crowd limits, Deputy Attorney General Stephen Slocum argued in a brief Thursday to Superior Court Judge Robert Lougy. The gym had unveiled its new concept to the court when the state moved to enforce Gov. Phil Murphy's rule last week limiting indoor occupancy to 25% for gyms.

Slocum said the gym touts itself as "South Jersey's Premier Fitness Facility" on its own website, which makes no reference to politics. Atilis claims it's now an extension of the campaign of Rik Mehta, the Republican congressional candidate hoping to unseat Sen. Cory Booker, D-N.J. But the state doesn't buy it.

"As of the filing of this letter brief, Atilis Gym holds itself out to the public as a gym, offering gym services, on at least five public platforms. Again, Atilis Gym's assertion is simply incredible," Slocum wrote, referring to the facility's postings on websites like Twitter and Instagram.

Further, the gym's argument that the 25% capacity rule is arbitrary and capricious "completely misses the mark" because only the Appellate Division has jurisdiction over challenges to administrative orders in enforcement proceedings, Slocum said.

In a brief filed late Thursday, a lawyer for Atilis shot back that any use of the facility's fitness amenities is secondary to its purpose as a volunteer for Mehta.

"As trained attorneys we are all aware of the heightened protections that come with political speech and our sacred right to peaceably assemble," wrote attorney Giancarlo Ghione of the Law Office of John McCann LLC.

Ghione compared Atilis' new incarnation to that of a police or fire department or prosecutor's office that maintains a gym despite its primary purpose to serve the public.

Ghione further argued that the court should waive a daily $15,497 fine, ordered in August at the behest of the state, for every day since Atilis has ceased to operate as a gym.

The tiff over the state's gym capacity limit is the latest battle in Atilis' fight against Murphy's coronavirus executive orders closing or limiting nonessential business operations during the pandemic. The gym launched a constitutional challenge to the orders in federal court in May, after which the brawl was folded into New Jersey's state court suit over the gym's refusal to shut down.

Atilis' continued defiance of the orders led to the owners getting arrested, fined $134,000 and stripped of their business license by the borough of Bellmawr, as State Health Commissioner Judith Persichilli continues her push to enforce the multitude of orders.

After Murphy announced that gyms could resume operations if they enforce a 25% capacity limit, Persichilli asked the court for permission to amend an Aug. 18 contempt enforcement order to encompass the new capacity rule and continue collecting the contempt order fines.

A  representative for the Office of the New Jersey Attorney General declined to comment. An attorney for Atilis did not immediately respond to a request for comment.

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 by John McCann and Giancarlo Ghione of the Law Office of John McCann LLC.

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.

--Additional reporting by Hailey Konnath and Bill Wichert. Editing by Abbie Sarfo.

Update: This article has been updated to indicate that the Office of the New Jersey Attorney General declined to comment. 

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

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