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Law360 (August 14, 2020, 8:19 PM EDT ) A New Jersey state attorney general urged a state court on Friday to impose a $15,000 daily sanction on two New Jersey gym owners who have drawn national attention for defying the state's COVID-19 shutdown orders.
During an oral argument held by telephone, Deputy Attorney General Stephen Slocum told a state court judge that the harsh penalty is necessary to enforce the contempt order imposed on Atilis Gym owners Ian Smith and Frank Trumbetti.
Slocum noted that the pair have moved into the Bellmawr facility with an entourage, turning the gym into a "bunker" with a dog guarding the entrance, and recently posted a video on social media depicting them knocking down a barricade that authorities had put in place.
"Quite simply, it has to stop," Slocum told the court.
John McCann, an attorney for Atilis, disputed Slocum's contention that his clients are disobeying the shutdown orders because they disagree with the mandate, saying that his clients' livelihood is at stake.
"The reason they're doing this is that they have no choice," McCann said.
McCann further argued that the state doesn't have one "scintilla" of evidence that the gym poses a public health danger and that his clients are entitled to a hearing on the merits of the matter.
Mercer County Superior Court Judge Robert Lougy said he'd reserve judgment on the state's sanctions motion. He also provided a briefing schedule for the gym's bid to stay the motion so Smith and Trumbetti can avoid incriminating themselves in the 14 criminal complaints they're facing in Bellmawr Municipal Court.
The hearing marks the latest brawl in the Garden State's highest-profile war over Gov. Phil Murphy's coronavirus mandates. Gyms have not been included among the businesses Murphy has designated as safe to reopen in the state's phased coronavirus recovery plan.
The battle began in federal court with Atilis' May lawsuit alleging that Murphy's March 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 state has since called upon the court to impose sanctions of $15,000 a day, a move the owners say was designed to deplete a GoFundMe account to support their legal costs.
Defending the state's bid to go after the GoFundMe money, Slocum said Friday that the account was formed specifically to "fund their contempt."
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 Steven Edelstone.
For a reprint of this article, please contact reprints@law360.com.
