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*** UPDATED x1 *** IDPH issues new emergency rules

Monday, May 18, 2020

*** UPDATE *** I was wondering why there were no comments on this and then I realized I had turned them off because I was going to post this piece on Sunday and then decided to wait. Oops. Comments are now on. Sorry!

* From state statute

The State Department of Public Health has general supervision of the interests of the health and lives of the people of the State. It has supreme authority in matters of quarantine and isolation, and may declare and enforce quarantine and isolation when none exists, and may modify or relax quarantine and isolation when it has been established. The Department may adopt, promulgate, repeal and amend rules and regulations and make such sanitary investigations and inspections as it may from time to time deem necessary for the preservation and improvement of the public health, consistent with law regulating the following […]

Sec. 8.1. Whoever violates or refuses to obey any rule or regulation of the Department of Public Health shall be deemed guilty of a Class A misdemeanor. The Director of Public Health shall institute prosecutions and proceedings for violation of the rules and regulations adopted by the Department of Public Health, provided that he may designate a local board of health or local health officer to institute prosecutions or proceedings for violation of those rules and regulations adopted by the Department. Each State’s Attorney shall prosecute all persons in his county violating or refusing to obey the rules and regulations of the Department of Public Health. All fines or judgments collected or received shall be paid to the County Treasurer of the county in which prosecution is conducted.

Keep that line about “Each State’s Attorney shall prosecute” in mind for future reference this week.

* So, what IDPH has now done is implement some emergency rules to clarify how the statute should be enforced during the pandemic

1) Businesses and establishments that serve food or beverages, including, but not limited to, restaurants, food buffets, self-serve areas, bars, taverns, pubs, wineries, breweries, or beer gardens, that operate under a permit or license issued by the State or local health authority, shall not allow indoor on-site consumption of food or beverages. Service shall be limited to drive-through, delivery, curb-side, or pick up only. Businesses and establishments located in airports and hospitals are exempt from the requirements of this Section.

2) Businesses and establishments that offer indoor fitness, exercise, physical workout or non-medical wellness services, such as health clubs or centers, fitness clubs or centers, gyms, tennis clubs, swimming pools, shall not allow on-site indoor fitness, exercise, workout or non-medical wellness options to customers, including but not limited to, classes, personal training, or individual customer use of exercise equipment or facilities. Service shall be limited to the sale of retail goods via drive-through, delivery, or pick up only, or the use of exercise equipment or the indoor use of facilities for the recording and streaming of online classes and instructional videos only.

3) Businesses or establishments that offer cosmetology, esthetics, nail technology, barber, tanning, body art, or similar non-medical personal care services, treatments, procedures or therapies shall not provide on-site services. Service shall be limited to the sale of retail goods via drive- through, delivery, curb-side, or pick up only

Any person who violates the provisions of this Section shall be subject to the penalties set forth in Section 8.1 of the Act.

* Amanda Vinicky

Members of Pritzker’s cabinet described it as a new and gentler “tool” that law enforcement can use to keep businesses closed during the coronavirus pandemic – and therefore keep people safe – that’s less severe than other options, like closure orders or stripping establishments of their liquor licenses. […]

Pritzker’s top attorney, Ann Spillane, admitted a misdemeanor charge could be seen as “intimidating,” especially if it was targeted at bartenders or servers. But because it’s instead aimed at businesses, she said there’s no threat of jail time and believes it’s a “less dramatic” step than some other alternatives.

She described the charge as “very mild, like a traffic ticket … nobody’s getting arrested or handcuffed. But they are getting a citation where they would have to go to court.” […]

But if business owners continue to refuse, the next steps would have been to issue a closure order – meaning the establishment would have to shut down completely, including for curbside and delivery orders – or pull an establishment’s liquor license.

Spillane described getting a misdemeanor charge as less severe, and an opportunity for businesses to “pause to say: ‘OK, we’re going to close, this is not worth it.’”

“It’s going almost an extra step because we don’t want bars and restaurants that can do delivery and pickup, we don’t want them to be missing out on that business,” she said. “As a business dealing with this, it is probably much less expensive in terms of getting a lawyer to help you with a misdemeanor than getting a lawyer to deal with a license revocation hearing, or a public health closing hearing.”

* But not everyone sees it that way…

Illinois House Republican Leader Jim Durkin (R-Western Springs) released the following statement on the emergency provisions filed that would charge businesses with a Class A misdemeanor for violating the Governor’s stay-at-home orders:

“These rules are a legal overreach and beyond the scope of the Governor’s authority. It will be a dark day in Illinois when we charge small businesses with a jailable crime for salvaging their livelihoods.”

* This emergency rule is actually what Rep. Darren Bailey’s and Rep. John Cabello’s attorney Thomas DeVore has said the state ought to be doing

DeVore is alleging Pritzker does not have the authority to enforce his stay-at-home restrictions because that power rests with the state and local health departments. He is also alleging that if the state is using the law dictating how the Illinois Department of Public Health enforces the restrictions, it should follow the procedure outlined.

“Pritzker has perverted the emergency provisions of the (Illinois Emergency Management Agency Act) in an effort to rip the sacred responsibility of the health and lives of the people away from where the Legislature placed it, being local control of county health departments or the (IDPH), and in doing so he took complete control of the free movement of every citizen within the state of Illinois,” DeVore argued in a related lawsuit he filed on behalf of Republican Rep. John Cabello, from Machesney Park.

I assume the state will now use that very logic against Bailey in Clay County court this coming Friday.

* Still, expect an uproar on this in the days leading up to reconvening the General Assembly…


* From Rep. Cabello’s press release…

The rule changes also call for heavy fines and charges under a Class A Misdemeanor for any violators. Additionally, the rule under 20 ILCS 2305/2(k) states: “Any person who knowingly or maliciously disseminates any false information or report concerning the existence of any dangerously contagious or infectious disease in connection with the Department’s power of quarantine, isolation or closure order is guilty of a Class A Misdemeanor”.

“The Constitution of the United States is under siege here in Illinois,” Representative Cabello said. “We have a dictator Governor who is weaponizing our Department of Public Health to treat our citizens like criminals. The pure irony lies in the fact that the Governor is doing this at the same time that he is commuting sentences for murderers and rapists. The greatest danger today from the COVID-19 is the alternative universe that is being created here in Illinois.”

“People are resisting because they view the Governor’s Restore Illinois plan, and his general approach to the COVID-19 health crisis, as a hodgepodge of arbitrary rules and restrictions placed on citizens and businesses by a hypocritical leader,” Cabello added. “Recall the news stories about the Governor’s wife traveling to Florida while the rest of us are being told to lockdown. Now we are hearing that the Governor’s family has been up in Wisconsin too. In another case of irony those two states have been easing their restrictions.”

“I think our Governor needs to look in the mirror when he starts to criticize the people of Illinois for their lack of compliance and confidence in his approach to the COVID-19. Telling a family of four who just drove in the same car to the boat dock that only two of them at a time can be on a boat is not only stupid, it is just one example of things that undermine confidence in the way the entire issue is being handled. Perhaps the Governor should travel to Florida with his family next time and get some advice from their Governor,” Cabello concluded.

The “rule under 20 ILCS 2305/2(k)” doesn’t say that. The statute says that. And that particular statute went into effect on August 25, 2009.

* Related…

* Churches to reopen for Sunday service in defiance of Illinois’ stay-at-home order: Meanwhile, a northwest suburban church backed off its plan to host public services Sunday morning. Northwest Baptist Bible Church in Elgin said they were warned in a letter from the Kane County State’s Attorney’s office that they would face criminal enforcement of state health guidelines.

- Posted by Rich Miller        

6 Comments »
  1. - Demoralized - Monday, May 18, 20 @ 10:41 am:

    ==The Constitution of the United States is under siege here in Illinois==

    I wonder if he has the same criticism of Republican Governors who have done the exact same thing in their state?

    ==We have a dictator Governor ==

    You lost any sense of you being a serious critic when you use language like that.

    ==Governor’s wife traveling to Florida==

    He obviously is purposely ignoring the fact that the Governor has said multiple times now that she was already in Florida when the Stay at Home order was put in place.


  2. - Cubs in '16 - Monday, May 18, 20 @ 10:42 am:

    ===shall not allow indoor on-site consumption of food or beverages. Service shall be limited to drive-through, delivery, curb-side, or pick up only.===

    This doesn’t address the on-site outdoor seating Lightfoot mentioned.


  3. - MiddleGround - Monday, May 18, 20 @ 11:06 am:

    So do I read this to mean that outdoor dining after having picked-up a carry out meal is now ok provided that appropriate sanitation/distancing measures are followed? Note the presence of the word “indoor” in rule 1. First time I’ve seen that.


  4. - Nitemayor - Monday, May 18, 20 @ 11:54 am:

    As an old hippie,kinda reminds me when businesses put up the “No shirt, no shoes, no service” signs. Just add no mask and we are done. Whatever happened to the “We reserve the right to refuse service to anyone for any reason”? Nobody worried about the Constitution back then. Ahh, the good old days.


  5. - Anonymous - Monday, May 18, 20 @ 1:57 pm:

    With regards to “shall prosecute”, the Illinois Supreme Court has distinguished between the mandatory and directory versions of “shall”. In re Rita P. (2014 IL 115798) has two requirements, first that there must be a clearly stated consequence in the statute for non-compliance in order for “shall” to be mandatory in nature. From my review, the statute doesn’t have any consequence should the State’s Attorney’s choose to exercise their discretion. QED, the “shall” is directory, not mandatory. That said, just like Kim Foxx shouldn’t decide which categories of offenses she wants to prosecute, other state’s attorney’s should let the proofs available and intent of statute govern their decisions not to prosecute.


  6. - Mama - Monday, May 18, 20 @ 2:18 pm:

    Could you get your hair done if you stay outdoors? Drive-thru hair cuts?


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* Reader comments closed for the weekend
* Pritzker thanks Dr. Ezike, extends financial protections, points to progress, says no more daily COVID-19 briefings - Calls Trump tweets "reprehensible" - "I want to send my condolences to the family of George Floyd, and also to every African American in this country" - Defends budget decisions - Credits Illinoisans for progress against virus - No bill signing ceremonies - Hopes testing progress continues - "It seems as if President Trump is withdrawing us from the rest of the world" - No out of state travel plans - Talks contact tracing - Asks Illinoisans to be careful during reopening - Will sign Medicare for undocumented seniors bill - Refuses to criticize Lightfoot for Trump comments - Talks about difficulties in securing testing locations - Dr. Ezike and Pritzker respond to question about what they've learned about themselves and leadership - "We're no longer in a stay at home order"
* 1,622 new cases, 86 additional deaths
* *** UPDATED x1 *** What in the heck is going on in Rockford?
* COVID-19 roundup
* All metro areas reporting record high unemployment rates
* School seclusion and restraint bill derailed after opposition
* Attorney DeVore asks appellate court to dissolve another TRO
* Question of the day
* Madigan issues new guidance to members, staff
* Architects abandon alternative reopening plan
* SUBSCRIBERS ONLY - Supplement to today’s edition
* House of worship attendance limit expected to be removed from stay at home order
* Open thread
* SUBSCRIBERS ONLY - Today's edition of Capitol Fax (use all CAPS in password)
* *** LIVE COVERAGE ***
* Sheriffs file suit against state for refusing to accept jail transfers
* Pritzker says IDPH has offered "suggestions" to churches - Says he's received "pushback" from some private nursing homes - IDPH will file new rule on nursing homes - Still looking at what to do about IDPH rule - Dodges question about Willie Wilson - Employers should use "common decency" when bring workers back - Will wait on feds before making any more budget decisions - Central Illinois hospitalization numbers improve - "We might potentially have to move backwards in the phases - "Not our intention" to make changes to Phase 4 guidance - No plans to dine at restaurant this weekend - No decision about ending daily briefing - Repeats that he has never encouraged police enforcement - Suggests GOP demand for IDES audit could be a "political move" - Still pondering school reopening - All testing is free - Asked about dangers of Legionella in large buildings - Testing and tracing metrics are "internal goals" - Points to federal rules on unemployment and workers who refuse to return - "Difficult for us to open theaters in the near future" - Dr. Ezike talks rules for malls - Dr. Ezike monitoring outbreak at county jail with ICE detainees
* Yesterday's stories

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