By Bill Wichert

Law360 (May 3, 2021, 8:46 PM EDT) -- A New Jersey gym has taken aim at nearly $140,000 in proposed fines over its alleged defiance of coronavirus outbreak measures by challenging the validity of the restrictions, a point the state health commissioner said has been repeatedly rejected by a state court throughout the parties' ongoing feud.

Atilis Gym in Bellmawr on Friday urged Superior Court Judge Robert T. Lougy to knock down Commissioner Judith Persichilli's demand for a fine of roughly $15,500 for each of the nine days late last year when the business purportedly violated the judge's court order by not following state protocols aimed at curbing the spread of COVID-19.

In a letter brief, the gym argued that such directives from Gov. Phil Murphy and Persichilli are "not constitutional because they are arbitrary and capricious because there is no basis in scientific fact to support these orders, and the delegation by the Legislature of their legislative authority to the executive branch is violation of the separation of powers provision of the New Jersey Constitution."

"To date, the state of New Jersey has not offered or published any scientific data to support lockdowns and the restrictions placed on businesses," Atilis said in the letter brief.

But New Jersey Deputy Attorney General Stephen Slocum, representing Persichilli, countered Friday in a letter to the judge that the court has repeatedly rejected the gym's challenge to the validity of the underlying pandemic-related rules imposed by the state and enforced by the court.

"This issue has been well-settled in this case, and defendant has neither sought interlocutory review nor reconsideration on that issue. Accordingly, defendant's opposition is of no weight," Slocum wrote, adding that the gym's opposition also was "grossly untimely."

After the judge had hit the gym with a $134,000 judgment for flouting pandemic directives, the commissioner initially brought the instant motion on Dec. 10 over the gym's violation of the judge's Oct. 8 order, which enforced an Aug. 28 order from Persichilli that allowed the business to open with certain restrictions.

The Oct. 8 order stated the gym and co-owners Frank Trumbetti and Ian Smith would be subject to a fine of nearly $15,500 for each day the business violates the order.

In the Dec. 10 motion, Persichilli claimed social media posts from Smith and gym patrons demonstrate that the gym and Smith did not follow the protocols on eight days in November, including instances where individuals were not social distancing or wearing masks.

The following month, the commissioner cited a social media post showing a ninth day of alleged noncompliance in December and requested total fines of nearly $140,000.

Slocum asserted in Friday's letter that Atilis "articulates no legal justification for its brazen contempt of this court's orders, and defendant offers no contradiction to the video and photographic evidence of open contumacious conduct."

In its letter brief Friday, the gym claimed that assessing such fines would force the business into bankruptcy and challenged the allegations that the gym violated COVID-19 protocols.

For example, Atilis noted that an executive order from Murphy "allows for persons to be near one another and using the same equipment if they were immediate family members, caretakers, household members or romantic partners."

"Plaintiff has no way of [possibly] knowing if the persons in the videos were not in the groups as contemplated in this section of the executive order," the gym said.

The gym also noted that "masks are unhealthy and should not be worn when conducting aerobic exercises."

"It is unequivocally unhealthy and impractical to wear a mask when working out at defendant's location because it would inhibit their health and increase their risk of contracting COVID-19," Atilis said.

Leland Moore, a representative of the state attorney general's office, said Monday the agency declined to comment. Counsel for Atilis did not immediately respond to a request for comment Monday.

Persichilli is represented by Stephen Slocum of the Office of the Attorney General.

The gym is represented by John McCann and Giancarlo Ghione of the Law Office of John McCann LLC.

The 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.

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