NJ Seeks Another Virus Fine Over Gym's 'Outrageous' Stunts

By Jeannie O'Sullivan
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Law360 (December 11, 2020, 6:05 PM EST) -- New Jersey asked a state court to impose nearly $124,000 in fines against a Camden County gym for disobeying Gov. Phil Murphy's statewide COVID-19 business restrictions, blasting the gym's ongoing documentation of "outrageous" defiance stunts on social media.

In a letter brief Thursday, Deputy New Jersey Attorney General Stephen Slocum detailed 13 videos and one photo posted online by Atilis Gym co-owner Ian Smith throughout November in which he and patrons appeared to be eschewing masks, social distancing and other safety protocols. Smith frequently stated his intention to defy the orders in the videos, one of which was titled "Freedom Doesn't Require Permission" in all capital letters.

The postings came in the wake of an October court order to adhere to modified business operations, such as outfitting the Bellmawr gym with plastic dividers and 6-foot demarcations to facilitate social distancing. The state wants to enforce the roughly $15,500-a-day fine provision of the order for each of the eight days it claims the gym defied the order in November.

The social media posts depict Atilis and Smith "affirmatively and openly mocking this court's authority, engaging in wanton contempt, and encouraging others to undermine this court's authority, demonstrating willful and intentional contempt," Slocum wrote in the letter brief.

Previous "outrageous conduct" has included Smith and co-owner Frank Trumbetti kicking down the barrier erected by authorities in front of the gym after the owners removed the doors from their hinges, according to the letter brief.

The imposition of the daily fines added to mounting legal costs for the gym, which was previously hit with a $134,000 judgment for defiance. The legal battle began in May, 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.

The federal suit was transferred to state court when New Jersey Health Commissioner Judith Persichilli sought to compel the gym to obey the shutdown orders, which have been loosened to allow limited operations for businesses, subject to anti-virus precautions.

Slocum's letter came two days after the gym filed a motion asking the court to reconsider the fine because it held Smith and co-owner Frank Trumbetti individually liable.

The gym argued on Dec. 8 that the order for the fine didn't square with the court's other order refusing to stay the civil litigation while Smith and Trumbetti fought criminal charges in municipal court for remaining open despite the shutdown. The court reasoned in the stay matter that the individuals weren't parties in the civil matter, so it had no bearing on the municipal matter.

Therefore, it was "inconsistent" of the court to hold the co-owners individually liable in the civil matter after previously failing to recognize them as individuals in the civil matter, according to the gym's motion.

During election season, the gym also argued that it was immune from the fines and orders because it was no longer a gym but a political campaign headquarters for Rik Mehta, a Republican who unsuccessfully challenged incumbent U.S. Sen. Cory Booker, D-N.J.

Representatives for the parties didn't immediately respond to requests for comment.

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 James G. Mermigis of The Mermigis Law Group PC and 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 Ellen Johnson.

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

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