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Fox Fire restaurant appellate decision is now legal precedent

Monday, Nov 16, 2020

* As I told you last week, the Pritzker administration asked the 2nd District Appellate Court to “publish” its opinion on the Fox Fire restaurant case upholding the IDPH mitigation rules. Publishing the case would make the decision legal precedent.

Well, on late Friday the court did just that. Click here for the published decision.

More background is here if you need it.

* Meanwhile, from a recent Decatur Herald & Review editorial

There’s scant evidence that open restaurants have led to any of the increases in COVID-19 positives.

Um, from a Wall Street Journal article

Researchers from Stanford University and Northwestern University have used the mobile-phone data of 98 million Americans to model how the virus spread during the first wave of Covid-19 in the spring.

The study, published in journal Nature this past week, showed that restaurants, gyms, hotels, cafes and religious organizations carried the biggest risk of spreading infections.

* On to the Illinois Municipal League. I’m not sure why they’re complaining about lack of help with enforcement. Do they ask for state assistance to deal with shoplifters, too? Just enforce the law. How difficult is that to do?…

The Illinois Municipal League (IML) is calling on Gov. J.B. Pritzker’s Administration to convene a working group comprised of mayors and other local officials to better coordinate coronavirus response efforts at the community level as cases surge across Illinois.

Since April, mayors across Illinois have repeatedly asked to be included in the process of developing mitigations and enforcement measures. A lack of communication from the state as well as little support in enforcing mitigation measures has frustrated mayors who are seeking to protect their communities but have been met with resistance. A more collaborative approach will help ensure the state is better informed of local issues caused by the pandemic, including challenges related to mitigation compliance, and will help promote a more effective community-level response by ensuring local officials are apprised of the latest data driving mitigation efforts.

“We have consistently advised all municipal leaders to abide by health guidelines issued by the Illinois Department of Public Health and the Centers for Disease Control and Prevention. However, there is a clear need for additional collaboration,” said Brad Cole, IML Executive Director. “The governor has called for an ‘All-in’ approach to address this crisis yet has rebuffed requests to work hand in hand with local officials to implement solutions that protect our residents. Simply blaming mayors for rising cases does nothing to address the underlying issues preventing more effective mitigation results, including distrust of state mandates among residents and the need for state and county enforcement of mitigation measures. It is time for the state to work together with mayors, not just point fingers at them, to stem this rising tide.”

Most cities, towns and villages have a limited set of tools when it comes to implementing coronavirus mitigation measures. For instance, they have no control over food licenses. It falls on the individual county public health departments to revoke an establishment’s food license for failing to abide by mitigation measures. And county state’s attorneys have the sole authority to prosecute violations of state laws and orders.

Further, many mayors are limited in their enforcement authority because they oversee non-home rule communities, where they are only able to put in place measures specifically allowed by state statute. There are 1,081 non-home rule communities in Illinois, compared to 217 home rule communities, which have more discretion to set their own stricter regulations or impose those outlined in the governor’s executive orders.

While mayors have been told by the state to refer enforcement issues to the county public health departments or state police, there has been little follow up by those entities. This has led to uneven compliance across our cities, villages and towns where some individuals and businesses are abiding by mitigation efforts, but others are blatantly disregarding state and local orders while facing no consequences. Confusion over how data is analyzed by the state has also made it difficult for mayors to explain to residents why additional mitigation efforts are required and why they are only applied to certain professions or specific aspects of the service economy.

“These sorts of inconsistencies have caused some residents to question all mitigation efforts, making it even more difficult for local officials to receive compliance with safety regulations,” said IML President Ricky J. Gottman, mayor of Vandalia. “We will keep asking our residents and businesses to comply with state mandates, but we must work together to put in place effective mitigation strategies to protect our communities and the wellbeing of everyone across the state.”

Um, one big reason why there is “distrust of state mandates among residents” is because so many local officials constantly scoff at the state. Before he caved to reality, Springfield’s mayor was confidently saying that the IDPH mitigations wouldn’t work, without citing a single source.

Also, I’ve asked about this non Home Rule bit. Can’t they just enforce state law?

* Sangamon County is finally taking action instead of belly-aching

Sangamon County Public Health officials have suspended the food permits of five Springfield-area restaurants for defying pandemic restrictions and continuing indoor service.

A Sangamon County spokesman told WAND News the action was taken against Charlie Parkers, D&J Cafe, Fox Run, Sweet Basil Cafe and Casa Real.

WAND News learned from county officials that three of the businesses, D&J Cafe, Sweet Basil Cafe and Fox Run, were cited Friday. All received citations for allowing indoor dining.

Each business was fined $500.

…Adding… Contrast that whiny can’t-do IML statement with this one from the Metropolitan Mayors Caucus…

The 275 Member Mayors of the Metropolitan Mayors Caucus called upon residents and businesses today to commit to some common sense steps to help the Chicago region flatten the COVID-19 curve for the second time.

Acknowledging the need to combat the exponential increases in COVID cases across Chicagoland and the State in recent weeks, regional Mayors ask area residents and businesses to take the following actions for at least the next three weeks or until the rate of infection consistently declines:

    • Continue to comply with regulations to wear face coverings whenever you are indoors at a public place or outdoors encountering people outside of your immediate household. The Center for Disease Control reinforced the importance of facemasks last week, saying they protect both the wearer and individuals they may encounter;
    • When leaving home, continue to practice social distancing by always staying 6-feet apart from others;
    • Continue to wash hands or use hand sanitizer often. Avoid touching surfaces frequently touched by others and keep your hands off your face;
    • Consider limiting trips outside your home to going to work, attending school, and obtaining vital goods and services, such as medical care, food, or household essentials;
    • Limit gatherings to no more than 10 persons – and remember it is safest to only associate with members of your own household;
    • If possible, avoid all non-essential travel.

Most of the requested actions are strategies recommended to residents since the pandemic began. These strategies are still on the regional Mayors’ recommendation list because of their history of successfully reducing coronavirus transmission. Newer recommended actions such as limiting trips and gatherings are consistent with those proposed by area public health officials. While each of our 275 member municipalities is unique, they all agree that it is critically important that we come together in the days and weeks ahead to combat the coronavirus pandemic. Endorsing these strategies is one of the most coherent methods for dealing with the current increase of positivity results

“We are at a critical point in the fight against the pandemic. This second wave requires serious attention from all of us,” said Mayor Joseph Tamburino, Mayor of the Village of Hillside. “Everyone needs to step up right now to bend the curve downward, save lives and help our businesses remain open or in some cases, to re-open.”

“These are common sense actions that we strongly urge all residents to take,” said Highland Park Mayor Nancy Rotering. “It is incumbent upon each of us to take personal responsibility to stop the spread of this virus. The sooner everyone consistently follows these steps, the better chance we have of reducing the rate of infection, keeping our local economies going and avoiding a complete shut-down.”

- Posted by Rich Miller        

48 Comments
  1. - DuPage - Monday, Nov 16, 20 @ 11:49 am:

    Wow. These restaurants don’t care if they cause people to die, as long as they get their money. When the pandemic is over, I will be sure to not ever go there to eat.


  2. - Downstate - Monday, Nov 16, 20 @ 11:52 am:

    Casa Real, one of the businesses whose license was suspended, posted on Facebook just hours ago saying they intended to continue operating and seating people indoors today.


  3. - Election Worker - Monday, Nov 16, 20 @ 11:53 am:

    Fox Run in Springfield has basically vowed on their Facebook page to continue serving indoors despite having their food permit suspended. Heck, they’re even advertising that people should go there to watch Monday Night Football. It’s honestly infuriating as someone who lives in the community and is high risk. What a weird hill to die on…with your patrons.


  4. - Cool Papa Bell - Monday, Nov 16, 20 @ 11:53 am:

    As those restaurants stayed open for dine in, 1 in Springfield handed out 500 free meals this weekend in a drive through fashion.

    I won’t forget who did what.


  5. - LakeCo - Monday, Nov 16, 20 @ 11:56 am:

    Wonder if Mike Murphy has any thoughts on Charlie Parkers


  6. - Norseman - Monday, Nov 16, 20 @ 11:59 am:

    Printing the decision great news. So far, the State Executive is doing his job and the courts for the most part have done their jobs it’s time for local government officials to do theirs.


  7. - Joe Bidenopolous - Monday, Nov 16, 20 @ 12:00 pm:

    I personally don’t think people have the willpower and that it’s going to take actual enforcement to bring this under control, if it even can be now with the sky-high case counts everywhere.


  8. - Cheryl44 - Monday, Nov 16, 20 @ 12:00 pm:

    I wouldn’t mind seeing that fine double every day they attempt to open. If it’s possible the police should hand out tickets to the customers as well


  9. - Anyone Remember - Monday, Nov 16, 20 @ 12:01 pm:

    Re Casa Real and Fox Run … can’t CWLP (Springfield’s water and electricity utility) just shut off their service?


  10. - Candy Dogood - Monday, Nov 16, 20 @ 12:02 pm:

    I hope that there are legal ramifications for the public officials that have refused to lift a figure to enforce mitigations to prevent the deaths of their constituents.


  11. - Precinct Captain - Monday, Nov 16, 20 @ 12:04 pm:

    For the “Pritzker should enforce state law” crowd that will inevitably show up on this post. What do you think local cops are doing all day? They’re not enforcing local laws.


  12. - Downstate - Monday, Nov 16, 20 @ 12:06 pm:

    Here are the Sangamon County mitigations for bars and restaurants: https://bloximages.newyork1.vip.townnews.com/wandtv.com/content/tncms/assets/v3/editorial/8/68/8680a866-23c5-11eb-bbe7-c38839f5c3e9/5fab4c6c9beb7.pdf.pdf


  13. - Chatham Resident - Monday, Nov 16, 20 @ 12:10 pm:

    Meanwhile in Springfield, the city’s public school District 186 actually thinks they could bring back in-person learning by the middle of January. Not looking good for that possibility right now.

    https://www.sj-r.com/news/20201115/district-186-hopes-to-bring-back-students-in-person-by-january


  14. - Cool Papa Bell - Monday, Nov 16, 20 @ 12:17 pm:

    @Chatham - Properly spaced school with mask wearing and other proper measures is far safer then opening a bar. Schools should be open and I’ve been very happy with the way our public school has operated since reopening in October.

    The Germans’ have a very good handle on the way schools can and should operate. Great story on NPR a week or so ago.


  15. - OH - Monday, Nov 16, 20 @ 12:22 pm:

    Thanks for calling “BS” on the IML, Rich.

    The rules that went through JCAR this summer gave local municipalities plenty of tools to enforce mitigation measures, if they are so inclined. Local police depts can issue citations to businesses that don’t require mask wearing and if they exceed capacity limits. So IML can spare us the “we can’t enforce things, even if we wanted to” argument. They absolutely can, most are choosing not to.


  16. - JoanP - Monday, Nov 16, 20 @ 12:26 pm:

    =Casa Real, one of the businesses whose license was suspended, posted on Facebook just hours ago saying they intended to continue operating and seating people indoors today. =

    They might want to chat with their liability insurer before they continue operating without a license.


  17. - Ducky LaMoore - Monday, Nov 16, 20 @ 12:27 pm:

    “Local police depts can issue citations to businesses that don’t require mask wearing and if they exceed capacity limits.”

    If only the police and sheriff’s deputies in my area actually wore a mask in the gas station or grocery store, that would be improvement enough. I don’t know how they expect anyone to have respect for the law when they don’t.


  18. - Give Us Barabbas - Monday, Nov 16, 20 @ 12:33 pm:

    It should be a carrot-and-stick approach; getting relief money to the law-abiding businesses as soon as possible, and punishing the scofflaws - but there hasn’t been enough “stick” used on the lawbreakers until now, and they’ve become emboldened. This is also what you get when raising little kids: They test the boundaries to discover where they really are, and if you never enforce a boundary, you end up raising a delinquent or worse.

    If they try to open without a permit and after being fined and warned umpteen times, I want to see an arrest made. And bring cameras.


  19. - Commisar Gritty - Monday, Nov 16, 20 @ 12:35 pm:

    There’s prominent members of the IML that I’ve contacted that refuse to enforce the rules in their own home town, but they want help enforcing it in others? Expardon me?


  20. - Huh? - Monday, Nov 16, 20 @ 12:44 pm:

    Various officials at county and municipal levels have made the conscious and overt political decision to not enforce the executive orders. This decision was/is based on the political party they claim. The republicant party has clung to the misguided notion that wearing a mask and social distancing to reduce the covid19 infection rate is fake news and an affront to their constitutional rights.

    Until these people face facts, and compelled to do their job, there is little Pritzker can do to protect the residents of Illinois.


  21. - TheInvisibleMan - Monday, Nov 16, 20 @ 12:44 pm:

    IML is getting worried about the cuts coming to LGDF, and trying to set up a situation in the public eye that they have been willing to work with the state.

    ===It falls on the individual county public health departments to revoke an establishment’s food license===

    Just this past week, the Will County health department publicly stated it does not have this exact authority.

    === county state’s attorneys have the sole authority to prosecute violations of state laws and orders. ===

    To my understanding, the state Attorney General also has this ability. It is not limited to local state’s attorneys. Every time a local official comes out and announces they will not be enforcing any of these orders, the AG should immediately put out a press release that their office will start a closer monitoring of the respective county/local office for any other responsibilities they decide they don’t want.

    IML has put itself on the wrong side of history.


  22. - Precinct Captain - Monday, Nov 16, 20 @ 12:45 pm:

    ==- Ducky LaMoore - Monday, Nov 16, 20 @ 12:27 pm:==

    You must have missed the FOP memo. Cops are above the law.


  23. - Oswego Willy - Monday, Nov 16, 20 @ 12:48 pm:

    For me, I see it in this prism;

    Those willing to treat this deadly virus as an enemy to public health and the goal is to save lives, they will enforce the measures.

    Those seeing the measures in a political framing or as a monetary issue of measure, and the way political signaling to others is to first remain open, and next not to enforce, they do not by any measure see this as a global health crisis.

    Choices to the vision of the dire straits we are in are simply (almost too simply) seen by this division.


  24. - Dotnonymous - Monday, Nov 16, 20 @ 12:53 pm:

    Just say No?…to any law one finds disagreeable?

    The Herald & Review reviews scientific evidence poorly.


  25. - Darth Ricketts - Monday, Nov 16, 20 @ 12:54 pm:

    Any explanation for why the governor continues to have rank-and-file state employees, many of them having the ability to work from home, coming into office buildings? The WIB in Springfield has had well over 20 positive cases and (rumor I’ve heard from 2 people who work in that building) at least 1 death. He was quick to send everyone home in March, but is dragging his feet now. Why?


  26. - thisjustinagain - Monday, Nov 16, 20 @ 12:54 pm:

    Great to see the Court decided to publish, giving it binding precedent authority. Another nail in the naysayer’s coffins. As for IML, they always want it both ways; someone else to do the dirty work, but all the tax revenue. So easy to not hold the businesses responsible, while whining about the State’s failures in timely enforcement. IML, tell your members to stop supporting idiocy.


  27. - Shemp - Monday, Nov 16, 20 @ 1:02 pm:

    The only mitigation “law” most State’s attorneys feel is enforceable was the mask mandate. t was the only thing to make it through jcar. Local authorities aren’t going to enforce what they don’t believe is enforceable under current law. The State has its own liquor inspectors and not one of them has pulled a license to my knowledge. One has to wonder why that is with some high profile, blatant flaunters of the rules out there…. Maybe the State should lead by example?


  28. - RNUG - Monday, Nov 16, 20 @ 1:03 pm:

    re Fox Run … personally, I think they should back off to just takeout and patio when the weather permits.

    But I also know one of the owners and they just barely survived the first shutdown; they won’t survive a second one without aid that doesn’t seem to be forthcoming.

    Most restaurants cant survive with 50% or less than normal income from doing just takeout / drive-thru Since Federal Aid doesn’t seem to be in the near future, the State should get innovative on aid to restaurants and bars. Give them property tax relief, give them sales tax relief, heck, maybe even give them unemployment tax relief on the kitchen staff still working during takeout only.


  29. - RNUG - Monday, Nov 16, 20 @ 1:07 pm:

    == This decision was/is based on the political party they claim. ==

    Not true that it is just one party. One example - Langfelder in Springfield is a Democrat and he’s been defiant or reluctant to enforce the Governor’s rules / guidelines.


  30. - cermak_rd - Monday, Nov 16, 20 @ 1:16 pm:

    Lovero is a Dem in Berwyn and he’s announced he’s not enforcing. I believe the owner of a local restaurant who is keeping the law has stated he is going to try to run against him (elections Spring of next year filing date mid-December)


  31. - Oswego Willy - Monday, Nov 16, 20 @ 1:17 pm:

    === Those seeing the measures in a political framing or as a monetary issue of measure, and the way political signaling to others is to first remain open===

    If it’s not politics, it’s the cash, the Green Party


  32. - State Employee - Monday, Nov 16, 20 @ 1:21 pm:

    ==Any explanation for why the governor continues to have rank-and-file state employees, many of them having the ability to work from home, coming into office buildings?==

    Secretary of State has just announced that drivers’ facilities statewide were going to close for the next 3 weeks due to the virus surge. However, unless something changes in the next few days all other SOS buildings in Springfield (Howlett and others in the Capitol Complex, Dirksen Parkway, etc.) are still open and all employees still expected to come to work. SOS has been all back open since June 1.


  33. - Darth Ricketts - Monday, Nov 16, 20 @ 1:29 pm:

    We just had a close family member to someone at my agency test positive. The message from above has been “see you tomorrow.” Way to set an example, I guess?


  34. - OH - Monday, Nov 16, 20 @ 1:29 pm:

    == It falls on the individual county public health departments to revoke an establishment’s food license ==

    Again, more crocodile tears from the IML. If a business has a liquor license, the mayor is the defacto judge, jury and executioner. I managed a suburban bar and grill many years ago. If the mayor said he didn’t like the color of the curtains hanging in the window, they’d come down immediately. I doubt there’s a bar or restaurant in the state that the local mayor couldn’t convince to follow Covid rules with one informal phone call.


  35. - 1st Ward - Monday, Nov 16, 20 @ 1:35 pm:

    A deeper look at assumptions by GOMB is needed. 2019 state revenues was $43.7Bn but GOMB doesn’t project us getting back to this number until 2026 with corporate taxes still 10% below 2019 numbers.


  36. - Time for action - Monday, Nov 16, 20 @ 1:44 pm:

    Now Menard, Cass, Christian, Logan and other surrounding county Sheriffs and Public Health Directors need to put people first and follow the leadership of Sangamon County Sheriff Jack Campbell and Public Health Director Gail O’Neill.


  37. - hisgirlfriday - Monday, Nov 16, 20 @ 1:45 pm:

    We need police enforcement of the rules now.

    This video is going around that purportedly shows Daddio’s in Bloomington IL from over the weekend.

    https://m.facebook.com/story.php?story_fbid=3995694603792920&id=100000572602057


  38. - Cheryl44 - Monday, Nov 16, 20 @ 1:46 pm:

    Governor Whitmer shut down bars and restaurants in MI. I don’t know why we can’t do that.


  39. - Monadnock Pigeon - Monday, Nov 16, 20 @ 1:47 pm:

    ==Wonder if Mike Murphy has any thoughts on Charlie Parkers==

    While I would be interested in his thoughts as well, I would note that he no longer owns it (he sold it before he ran for office).


  40. - Cool Papa Bell - Monday, Nov 16, 20 @ 1:51 pm:

    Mr. Pigeon - He was at a press conference a week or so back largely sticking to talking point that bars and restaurants were not a cause of outbreaks and they were being singled out to close or change they way they serve.


  41. - Joe Bidenopolous - Monday, Nov 16, 20 @ 2:16 pm:

    ===Governor Whitmer shut down bars and restaurants in MI. I don’t know why we can’t do that.===

    What she did was ban indoor service at bars and restaurants. Illinois has already done that with Pritzker’s mitigations by region


  42. - Veggieh8 - Monday, Nov 16, 20 @ 2:23 pm:

    @RNUG - If the owner is the same guy I saw on Sunday running around without a mask (even while talking to the cop that was handing him a fine) its kind of hard to feel sorry for the guy.


  43. - Monadnock Pigeon - Monday, Nov 16, 20 @ 2:32 pm:

    Cool Papa Bell - I’m aware. That’s why I also am interested in finding out whether he is still saying the same thing.

    Sorry if I came across as condescending or pedantic. I brought up the other simply as a point of information - there are a lot of people who still think he owns it.


  44. - crazybleedingheart - Monday, Nov 16, 20 @ 2:43 pm:

    ==But I also know one of the owners and they just barely survived the first shutdown; they won’t survive a second one without aid that doesn’t seem to be forthcoming.==

    In his case, good. Your friend won’t follow health and sanitation rules. He should not operate a restaurant.

    I’ll save my sympathy for those who are hurting because they did what was right.


  45. - countrygirl - Monday, Nov 16, 20 @ 3:57 pm:

    Hand of Fate in Petersburg booming last night for indoor business- it was packed, also the Mexican restaurant was open- guess maybe the owner of HOF still has an interest in the Funeral Home he worked at prior to opening the brewery..also Boars Head in Athens open and had bands both Friday and Saturday night- packed- the Sheriff of Menard County has made it clear he will not enforce anything in Menard County.


  46. - Demoralized - Monday, Nov 16, 20 @ 4:51 pm:

    Just wait until someone gets hurt at one of these restaurants and their insurance companies tell them to go fly a kite because they’ve been operating against the law. They think they are hurting now? Wait until an insurance claim definitively drives them out of business.


  47. - State Employee - Monday, Nov 16, 20 @ 5:57 pm:

    ==Any explanation for why the governor continues to have rank-and-file state employees, many of them having the ability to work from home, coming into office buildings? The WIB in Springfield has had well over 20 positive cases and (rumor I’ve heard from 2 people who work in that building) at least 1 death. He was quick to send everyone home in March, but is dragging his feet now. Why?==

    ==We just had a close family member to someone at my agency test positive. The message from above has been “see you tomorrow.” Way to set an example, I guess?==

    I’m surprised the union (especially AFSCME) hasn’t weighed in heavily on this. Or if anyone in the Springfield media (including even Jim Leach) picked this up, weighed in on it and asked the Governor this in his press conferences. Why still there’s a lot of state workers whom despite masking up, washing hands and social distancing, can’t work remotely if they are able to and can be trusted too.


  48. - Ryan - Monday, Nov 16, 20 @ 8:06 pm:

    The Stanford/Northwestern study has a quite different message than “close bars and restaurants”.

    They write that a large proportion of transmission can be traced to a small number of locations in a narrow range of times when they’re most heavily used, and that the most effective step to be taken is occupancy limits.

    I’m surprised to see that study wielded to support closure.


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