McHenry County prosecutors will fail to enforce the governor’s ban on indoor dining, prosecutor Patrick Kenneally announced on Wednesday.
However, the office will enforce appropriate orders in which employees and customers must wear masks, maintain social distance and comply with capacity restrictions.
Kenneally’s decision not to enforce the indoor food ban was based on two main considerations.
First, no provision in the Executive Orders or the Illinois Emergency Management Act requires or authorizes the prosecution to enforce Governor JB Pritzker’s executive orders, Kenneally said.
“Second, there is a fair question as to whether the executive orders that require the governor to exercise” emergency powers “are constitutional under Illinois law or otherwise,” Kenneally said in the press release.
As restaurants across the county continue to defy the governor’s indoor dining ban to stay afloat, enforcement of masks and social distancing remains of paramount importance, said Jack Franks, McHenry County’s chief executive officer.
“We have to act in the real world and be practical,” Franks said in an interview on Tuesday before Kenneally’s announcement. “So we understand that there will be no enforcement of indoor eating, OK … but when we do know, we have to try to reduce the damage and how do you do that? By enforcing the other thing – social distancing and the masking. This is how you deal with it. “
Why enforce some rules and not others?
The difference, Kenneally said in an interview, is where the commands are passed from.
Guidelines on how to enforce rules related to masks and social distancing are included in the Department of Health Act, Kenneally said. This law allows the Illinois Department of Health to declare, enforce, and change quarantine and isolation rules at its sole discretion.
However, the governor’s indoor dining ban is enshrined in the Illinois Emergency Management Act. Unlike the Department of Health Act, the Illinois Emergency Management Act doesn’t require or approve enforcement by the prosecutor, Kenneally said. If the IDPH were to hypothetically pass and enforce the indoor dining ban, Kenneally would have the power to enforce the rule, he said.
The legitimacy of Pritzker’s successive emergency orders regarding business operations during the COVID-19 pandemic has been the subject of several national legal disputes.
Two lawsuits filed by local McHenry County bars and restaurants were consolidated into one lawsuit referring to similar complaints in Sangamon County. This case is still ongoing.
Remaining questions about the governor’s executive powers “could easily have been answered by Illinois lawmakers,” which provided little guidance until Wednesday, Kenneally said.
“To date, despite sufficient options, the legislature has not offered anything,” said Kenneally. “In other words, the elected officials charged with promoting the will and interests of the residents have yet to examine or legislate one of the most important problems the state has ever faced.”
According to Kenneally, Pritzker’s orders lack “identifiable criteria or processes”.
“As a result, we cannot confidently enforce the indoor eating ban, which could result in hundreds of McHenry County’s businesses being permanently closed without lawmakers or the courts finally confirming that the governor continues to exercise” emergency powers. ” . ” “Said Kenneally.
How could the enforcement look?
Violations of the governor’s executive orders may continue to be penalized by other agencies including the Illinois State Police, the Illinois Attorney General, the Illinois Liquor Control Commission, and the Illinois Gaming Board.
The McHenry County law firm will enforce other administrative regulations, according to the news release, such as: B. Business occupancy restrictions and requirements that employees and customers wear masks and maintain at least six feet of social distance.
Companies that violate any of these orders will be warned in writing. If they refuse to comply with this notice, the company, not an individual, may be charged with a Class A misdemeanor under state law. If a fee is charged, the company could face a fine of up to $ 2,500.
Entrepreneurs fined for violating state COVID-19 regulations – including banning indoor dining – could also face an expedited trial in lieu of the courts based on a proposal approved by the McHenry County Board of Health Monday.
The McHenry County Board has not yet considered this proposal. The focus is on creating an administrative case law program that will enable the district’s health department to process violations of COVID-19 restrictions for companies more efficiently.
The McHenry County’s Department of Health has forwarded 11 complaints to prosecutors about restaurants and bars violating indoor eating restrictions, environmental health director Patricia Nomm said at a health committee meeting Monday.
The majority of these complaints were related to companies that continue to allow indoor dining, Kenneally said. Although prosecutors will not take legal action related to these complaints, Kenneally’s office will investigate a smaller handful of complaints that cited masking, social distancing, or violations of capacity, he said.
• Northwest Herald reporter Kelli Duncan contributed to this report.