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Law360 (August 17, 2020, 3:30 PM EDT ) The state of New Jersey slammed a gym's bid to halt a civil contempt order until it resolves criminal charges over its refusal to close during the COVID-19 pandemic, arguing Monday that it's not asking the facility's owners to incriminate themselves.
The record already has plenty of evidence that Atilis Gym is in contempt of shutdown orders thanks to surveillance documentation by authorities and the owners' own public statements and social media videos chronicling their defiance, state Deputy Attorney General Stephen Slocum said in an opposition brief.
New Jersey is fighting the gym's motion to stay the state's bid for a $15,000-a-day sanction in what has become the Garden State's most notorious brawl over COVID-19 business mandates. The state contends it doesn't need any input from owners Ian Smith and Frank Trumbetti, who are facing 14 criminal complaints in Bellmawr Municipal Court and claim they need to keep mum in the civil case to avoid jeopardizing their criminal defense.
But the state hasn't asked for any discovery or testimony from the duo since the record amply supports the contempt motion, according to its brief.
"The record is replete with police reports, investigation reports from the local department of health, and Atilis Gym's own social media posts demonstrating open noncompliance with this court's orders," the brief said.
The state pointed out a "logical disconnect" Atilis Gym's assertion that affidavits or certifications denying their non-compliance with the shutdown orders would be self-incriminating.
"If anything, such a denial would support defendant's criminal defense," the brief said.
Also, the gym failed to meet the stay standards set by the 1982 New Jersey Supreme Court case of Crowe v. DeGioia
, the state argued, in which movants must show the likelihood they'll succeed on the merits, that they'll endure irreparable harm absent the relief and that the public interest weighs in favor of a stay. The public health risk in light of the global health crisis outweighs any economic harm a closure poses to the owners, according to the brief.The battle is rooted in Gov. Murphy's March order and subsequent renewals that nonessential businesses must close in order to contain the spread of the novel coronavirus. Murphy has since begun lifting restrictions as case and death tolls have flattened, but gyms are among the businesses that must remain shuttered
Atilis in May launched a federal lawsuit alleging the mandate runs 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 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.
During a hearing Friday, the gym told a Superior Court judge that the closure is threatening the gym's livelihood, while the state said the sanction was necessary to force the gym to comply.
Representatives for the parties didn't immediately respond to requests for comments on the opposition brief.
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 Gemma Horowitz.
For a reprint of this article, please contact reprints@law360.com.
