* From Jeff Wilhite at the Sangamon County Department of Public Health…

Rich,

If you’re interested, below are details from the recent public health related court hearing in Sangamon County.

A lawsuit filed by a Thayer bar against the Sangamon County Department of Public Health on November 25th was thrown out Wednesday afternoon. Represented by Attorney Thomas DeVore, Brewzrz Pub claimed that the Public Health Department violated Illinois law by suspending its food license on November 19, 2020 as a result of the bar’s failure to comply with Sangamon County’s Covid-19 mitigation restrictions prohibiting indoor dining and bar service. The bar asked the Court to order the County to reinstate its suspended food service license. The Motion to Dismiss filed by Sangamon County State’s Attorney, Dan Wright, characterized the arguments in the suit against the County as “devoid of merit” and amounted to “analytical snake oil in the midst of a deadly global pandemic which continues to surge in Sangamon County.” In dismissing the case, Sangamon County Judge Gail Noll found that the suit failed to state a valid claim under Illinois law and did not establish a likelihood of success on the merits.

Excerpts from the Motion to Dismiss​ from State’s Attorney Dan Wright

Plaintiff’s arguments are devoid of merit and amount to analytical “snake oil” in the midst of a deadly global pandemic which continues to surge in Sangamon County. The Court should reject Plaintiff’s erroneous arguments, deny the Motion for Temporary Restraining Order and dismiss the Complaint with prejudice.

Plaintiff failed to exhaust administrative remedies under the plain language of Section 5.20.080 (Suspension of Permits) which requires a petition to the Sangamon County Board of Health to “request a hearing for abatement of the order” which suspended Plaintiff’s food permit. See Sangamon County Code, Section 5.20.080. Plaintiff did not file a petition to request a hearing before the Board of Health. Moreover, Plaintiff has failed to “make application for a reinspection for the purpose of reinstatement of the permit” under Section 5.20.090 (Reinstatement of Permits).

Section 2 of the Department of Public Health Act provides the procedures that the Department must adhere to when “a person or group of persons [is] to be quarantined or isolated” or it orders that “a place [must] be closed and made off limits to the public to prevent the probable spread of a dangerously contagious or infectious disease.” 20 ILCS 2305/2(b-c) (emphasis added). Specifically, Section 2 requires that:

… [N]o person or a group of persons may be ordered to be quarantined or isolated and no place may be ordered to be closed and made off limits to the public except with the consent of the person or owner of the place or upon the prior order of a court of competent jurisdiction. Id.

Contrary to the repeated, unsupported, and conclusory allegations of the Complaint, neither the November 10 Notice nor the November 19 license suspension purport to require Plaintiff’s business to be “closed and made off limits to the public” for any and all purposes as required to trigger the procedural and substantive requirements of 20 ILCS 2305/2. Plaintiff’s bald assertions that the actions of Defendants “made [Plaintiff’s premises] off limits to the public” are unsupported by any allegations of specific facts. Complaint, ¶¶ 8-9, 11, 16, 19-20, 23-24, 26-27, 29, 31, 34, 36. Plaintiff simply invites the Court to join it in making the misguided analytical leap that suspension of a food license pursuant to the Sangamon County Code somehow equates to a closure order under the Public Health Act.

The November 10 Notice merely notified food service license holders of conditions found to constitute a “substantial immediate hazard to the public health” under Section 5.20.080 of the Sangamon County Code, e.g. indoor dining. The November 10 Notice did not, in any manner, make the premises off limits to the public for any other food service purposes such as outdoor dining, carry-out, or curbside service. The November 19 Notice of Violation attached to the Complaint as Exhibit “B” which suspended Plaintiff’s food service license merely prohibits food service without a valid license (“Permit suspended at time of inspection and all food service operations are to be immediately discontinued.”). It did not order the physical closure of the premises and make them off limits to the public for any and all purposes as would a “closure order” under the Public Health Act. Any complete closure of the premises was voluntary as a matter of law and not compelled by actions of Defendants.

For example, Defendants do not have jurisdiction over Plaintiff’s local liquor license which is subject to the authority of the Illinois Liquor Control Commission and the Liquor Commissioner for the Village of Thayer. Put simply, unlike a closure order under the Public Health Act, Defendants’ suspension of Plaintiff’s food service license did not make the premises off limits to the public or prohibit any lawful use of the premises other than unlicensed food service.

While Defendants’ actions were not premised upon any gubernatorial executive order, the Appellate Court recently held that Governor JB Pritzker’s Executive Order No. 2020-61 did not implicate “section 2(c) [of the Public Health Act] because its measures were not tantamount to quarantine orders, isolation orders, or business-closure orders. Instead [the Governor’s Executive Order] prescribed guidelines that restaurants must follow to safely operate while a region’s [COVID-19] positivity rates exceed state guidelines.” Fox Fire Tavern, LLC v. Pritzker, 2020 IL App. (2d) 200623, ¶41 (emphasis added) (citing Cassell v. Snyders, 458 F. Supp. 3d 981, 1002 (N.D. Ill. 2020) (holding that restrictions on large gatherings do not amount to orders of quarantine, isolation, or business closure)).

In Cassell, the Court succinctly articulated the threshold issue in the current case, stating:

Plaintiffs invoke Illinois’s Department of Health Act, 20 Ill. Comp. Stat. 2305/2(a). Under that Act, the “State Department of Public Health [or local public health authority]… has supreme authority in matters of quarantine and isolation.” Id. § 2305/2(a). Before exercising its authority to “quarantine,” “isolate,” and make places “off limits [to] the public,” however, the Department must comply with certain procedural requirements. Id. § 2305/2(c). As Plaintiffs see it, the Act vests the Department with the exclusive authority to quarantine and isolate Illinoisans, making Governor Pritzker’s orders ultra vires. The problem for Plaintiffs is that the challenged Order does not impose restrictions that fall within the meaning of the Act.

Just as in FoxFire and Cassell, the Defendants’ actions in the current matter “were not tantamount to quarantine orders, isolation orders, or business-closure orders” and did “not impose restrictions that fall within the meaning of the Act.” Id. Plaintiff cannot escape the reality that no action by O’Neill or the Department made its premises entirely “off limits to the public” for any and all purposes as necessary to apply the requirements of Section 2 of the Public Health Act. The Complaint contains insufficient facts to permit the Court to reach any other conclusion. Indeed, Plaintiff cannot ethically allege any set of facts that would permit the Court to find Defendants’ actions imposed restrictions that fall within the meaning of Section 2 of the Public Health Act. Id. Accordingly, the Complaint must be dismissed pursuant to Section 2-615.

Plaintiff ignores the legal reality that review of acts of administrative discretion, such as the November 10 Notice and November 19 license suspension under Section 5.20.080, is highly deferential. Bigelow Group, Inc. v. Rickert, 377 Ill. App. 3d 165, 174 (2d Dist. 2007). “The ‘arbitrary or capricious’ standard must be applied in light of the limited purview prescribed the judiciary by the separation of powers doctrine—the judiciary must limit itself to infringing on official discretion only where that discretion can be shown to have violated the law.” Id. at 174. Put another way, “arbitrary and capricious” review is a “single inquiry into the legality of the official decision.” Id. It is “the most deferential standard of review—next to no review at all.”

The November 10 Notice was lawfully issued as a finding of the Board of Health through its authorized representative in response to a public health emergency. Defendants’ actions were undertaken in direct reliance upon the expert recommendations of the BOH Physicians Advisory Group and in compliance with pre-existing Sangamon County Code provisions governing food service establishments, i.e. Section 5.20.080. Accordingly, the Defendants’ actions were not - under any good faith interpretation - arbitrary, capricious, or ultra vires as erroneously alleged by Plaintiff.

DeVore said he’d appeal the ruling on Greg Bishop’s radio show today. He said he’d go all the way to the US Supreme Court if need be.

* Greg asked DeVore whether he’d paid the $1,000 bounty of footage of Pritzker celebrating Thanksgiving with friends and family. As you know, I posted a photo of Pritzker and his wife on a Zoom chat during Thanksgiving dinner. DeVore’s response…

Well one, I want to clarify that. The thousand dollars that I offered for footage from a journalist to take a picture of the governor should they see him out celebrating with friends and family. Friends and family being a generic term. I didn’t even know he had kids until I put that out. So he has kids, OK, I don’t care about that. But no, I didn’t pay it out because, again, you know I was looking for the governor. He’s using the word bounty, I didn’t use the word bounty. But no, I didn’t pay it out.

* DeVore was also asked about whether it was time to stop filing lawsuits since he’s losing so many of them…

If they think that any of this is going on is about winning or losing lawsuits, the people that say that need to consider if they’re as intelligent as they think they are. This isn’t about winning lawsuits. If I want to win lawsuits, Greg, and that’s the goal and not to protect people, I’ll go into the federal court. It’d be a lot easier.

You can’t protect people by losing countless lawsuits. You can only give them false hope.

…Adding… From comments…

Also, just to point out, (1) Devore fought like crazy to keep Bailey’s case out of federal court when the AG tried to remove to federal court, and (2), his only “wins” have occurred in state court.