South Jersey Gym Owners That Defied Murphy's Order File Lawsuit

BELLMAWR, NJ — The owners of a South Jersey gym have filed a federal lawsuit against state officials over Gov. Phil Murphy's stay-at-home executive order as their battle to reopen continues.

Ian Smith and Frank Trumbetti have filed a federal lawsuit that challenging the constitutionality of the state's "Draconian" shelter-in-place executive orders, which resulted in the closing of non-essential businesses. An injunction to allow the gym to reopen would be filed on Thursday, attorney James Mermiglis told Patch Wednesday morning.

"It's about time we reopen America," Mermiglis said.

When it comes to indoor activities, specifically involving gyms and religious services, Murphy said during a Wednesday afternoon news conference that he's hoping to be able to give some guidance sooner than later.

"There has been overwhelming good behavior and compliance," Murphy said. "We're talking to a lot of folks who are either spiritual leaders in the case of faith-based services and business leaders in the case of gyms."

Officials also said the vast majority of businesses are working with the state on their reopening plans. Although Murphy said he puts religious services in a different category because of what is being done when people are at these places, he addressed the two because of a pair of recently filed lawsuits.

In addition to Atilis Gym, four churches from South Jersey have also filed a joint lawsuit against the state in an effort to reopen. Read more here: 4 South Jersey Churches Sue State To Reopen

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In the lawsuit, the owners claim that if the executive order is permitted to stand, small businesses will continue to incur massive and widespread economic damage, which would force businesses to close and millions of people to lose their jobs.

"If we lose our small businesses, that's the very fabric of America," Mermiglis said.

It's a claim Smith alluded to during a speech at the Rally to Open New Jersey in Point Pleasant Beach on Memorial Day. Read more here: South Jersey Gym Opener Speaks At Reopen NJ Rally

The gym reopened three times last week in defiance of Murphy’s stay-at-home executive order. The gym was closed by order of the state on Thursday. It reopened on Friday, but was shut down again by court order on Friday.

The owners said this step violates the 5th Amendment's Takings Clause, and said the state's assertion of police power is unjustified and unnecessary.

In the order that shuttered the gym on Friday, state officials said they could take further steps to ensure the gym would remain closed to the public, including locking the doors.

After the gym was closed by court order, the owners said they would file an injunction to allow the gym to continue to operate. As of Wednesday morning, the gym was still not opened.

In the lawsuit filed on Tuesday, Smith and Trumbetti said the orders don't provide a remedy for businesses to question what is essential.

"There has never been any health inspection of the plaintiff gym, no analysis of the health status of gyms as essential and no analysis of plaintiff's health-related protocols to see if they meet the same health standards as allowed for essential business," they said in the lawsuit. "There was a list of businesses that were allowed to remain open that the classification was not reasonable or rational and was arbitrary and random without any data, and therefore a denial of due process."

Mermiglis said after all the precautions they took, Atilis deserves to operate.

"We're not challenging this order in March, we're challenging it in the third month," Mermiglis said. "There comes a point where you just have to trust people. We're grown adults. You have to trust your citizens to do the right thing."

They specifically questioned the need for liquor stores and big box stores such as Target, Walmart and Home Depot to remain open.

Prior to reopening last week, the owners said they would have measures in place to adhere to social distancing and health guidelines as set forth by the Centers for Disease Control and Prevention (CDC), but the state health department said those measures are not enforceable or sufficient to protect public safety.

The New Jersey Department of Health then signed an order to shut the gym down, and that order was posted by the county health department.

The order says gyms and fitness centers present particularly high-risk settings for spreading the coronavirus because "customers of these facilities engage in physical activities that increase the customers' respiratory activity, which in turn can increase the amount of respiratory droplets or aerosols in a confined setting."

There is also prolonged person-to-person contact, as well as the use of communal equipment and other items, such as barbells, dumbbells, and treadmill and cross trainer grips, that may harbor the virus. According to the National Institutes of Health, the virus may live on these surfaces for up to 72 hours. The gym is shut down until further notice.

While it was reopened, the gym had certain safety precautions, including:

• Capacity limited to 20 percent capacity, meaning only 44 people permitted inside at once;
• Temperatures taken at the door, and anyone with a fever of 100.4 degrees or more will not be allowed inside;
• Members must fill out a health questionnaire before being allowed in;
• Members must wear face covers at all times, unless they are doing sets; and
• Workout bags must be closed and clean at all times.

The gym had been reconfigured to allow for proper social distancing, as demonstrated by a photo used during Smith's appearance on The Tucker Carlson Show. Showers and water fountains will be closed, and there will be no group classes. Only members were allowed in, and no new members were being taken.

When asked about the situation last week, Murphy repeatedly said, "we're not there yet on gyms."

"We're not there yet," Murphy said during a news conference on Friday. "What good does it do us to say we're not opening gyms unless you have a good reason?"

Murphy said the problem is the gyms are indoors, where "you don't have ventilation," there's "sweat," people are within close proximity and sedentary.

Murphy was named as a defendant in the lawsuit, along with Attorney General Gurbir Grewal, Health Commissioner Judith Persichilli and State Police Superintendent Colonel Patrick Callahan.

In addition to the injunction to reopen and the declaration of the executive order as unconstitutional, Smith and Trumbetti are asking for damages, attorney's fees and any other relief the court deems just and appropriate.

Read more: NJ Coronavirus Updates: Here's What You Need To Know