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Law360 (May 12, 2021, 7:50 PM EDT) -- A New Jersey state court judge imposed $124,000 in additional fines on a Camden County gym that made headlines for flagrantly defying the government's COVID-19 business restrictions, ruling that the gym's social media videos showed it continued to violate orders.
In a ruling Wednesday, Mercer County Superior Court Judge Robert Lougy granted state Health Commissioner Judith Persichilli's motion to impose penalties for several days in November that Atilis Gym flouted pandemic restrictions, despite earlier orders and fines in the year-long court battle.
The gym claimed the civil litigation and fine brought by Persichilli should be stayed until municipal charges over the gym's defiance are resolved, lest owners Ian Smith and Frank Trumbetti incriminate themselves. Judge Lougy said there was no reason to change his prior order in which he refused the stay on the basis Smith and Trumbetti weren't parties in Persichilli's suit, so the municipal charges had no bearing on the civil litigation.
The Bellmawr fitness facility's owners became vocal challengers of Gov. Phil Murphy's shutdown of nonessential businesses last year during the height of the pandemic, and often posted video proof of their defiance online. The judge pointed to several examples of videos the gym's owners posted on social media in November depicting the gym filled with unmasked patrons who weren't practicing social distancing, with no barriers erected between exercise stations.
"Accordingly, the court finds that the video recordings establish, by a preponderance of the evidence, that defendant was operating in violation of the commissioner's order and the orders of this court on each of the above dates," the decision said.
Judge Lougy also denied the gym's motion to reconsider a $134,000 fine he imposed over the summer and his refusal in the fall to stay the litigation, reasoning that the gym's owners haven't shown that any flaws plague the original orders.
The gym claimed the civil litigation and fines brought by Persichilli should be stayed until municipal charges over the gym's defiance were resolved, lest owners Ian Smith and Frank Trumbetti incriminate themselves. Judge Lougy said there was no reason to change his prior order in which he refused the stay on the basis Smith and Trumbetti weren't parties in Persichilli's suit, so the municipal charges had no bearing on the civil litigation.
"Defendant's request for a stay was and remains unwarranted — defendant would still be bound by the commissioner's order and defendant has no entitlement to flout the commissioner's directives — and defendant raises no material fact or controlling law that the court overlooked," the decision said.
Judge Lougy also rejected the argument that his reasoning that Smith and Trumbetti weren't parties in the civil litigation, which just names the gym as a defendant, doesn't square with his order holding them jointly and severally liable for the fine.
"The inclusion of these two most culpable individuals within the scope of sanctions imposed upon the entity that they solely own and control was not accidental or in error and was, to the contrary, compelled by their instrumental control over and involvement with the contemptuous conduct," the decision said.
The decision addressed the gym's bids to reconsider the court's orders in August imposing the fine — along with about $10,000 in attorney fees for the state — in October enforcing modified shutdown mandates, and in November refusing to stay the case.
The legal battle began in May 2020, when the gym launched a federal lawsuit accusing Murphy of violating the Constitution with what was at the time a shutdown of all nonessential businesses. Smith spoke to local and national media outlets to express opposition to the pandemic rules.
The federal suit was transferred to state court when Persichilli sought to compel the gym to obey the shutdown orders, which have since been lifted for all New Jersey businesses as long as they obey social distancing protocols. Smith and Trumbetti also racked up municipal charges from the town of Bellmawr over the gym's refusal to close.
Over the course of the legal battle, the state has taken issue with the owners' social media postings showing noncompliance at the gym, including one video depicting them knocking down a barricade that authorities had put in place.
The state has also decried the gym's "outrageous" election-season argument that the mandates didn't apply because it was no longer a gym but political campaign headquarters for Rik Mehta, a Republican who unsuccessfully challenged incumbent Democratic U.S. Sen. Cory Booker.
Atilis Gym attorney John McCann said the gym is exploring options for continuing to "defend the constitution."
"We believe that we provided in our motion scientific evidence that supports the idea that New Jersey's public policy decisions were not based on science effectively after September 2020," McCann told Law360 in a phone call on Friday.
"New Jersey has never provided scientific support for its [COVID-19] decisions," he added.
A representative for the New Jersey Office of the Attorney General declined to comment on the ruling Wednesday.
New Jersey is represented in the state lawsuit by Stephen Slocum of the Office of the Attorney General.
The gym is represented in the state lawsuit 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 County.
--Editing by Janice Carter Brown.
Update: This article has been updated to include commentary from Atilis Gym attorney John McCann.
Correction: An earlier version of this article mischaracterized the nature of the $124,000 fine. The error has been corrected.
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