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December 4, 2020

Amanda Underwood

News • December 4, 2020

Why the McHenry County State’s Attorney won’t enforce an indoor dining ban

By

MCHENRY COUNTY – From the perspective of restaurant and bar owners and employees, this is partly a story of survival of the restaurant business, the livelihood of thousands of workers, and the impact upon our economy.  For the Governor of Illinois, this is partly a story of his executive power to ban indoor dining for the safety of the state against a pandemic. For the State’s Attorney of McHenry County, this is partly a story of how he’s not really butting heads with the governor but explaining how he can enforce executive orders. For the McHenry County Department of Health, this is partly a story of efforts to keep the county residents using safe health practices against COVID-19. Taken all four components together, what we have here are very serious messages with health and safety a priority but not everyone is on the same page.

We’ll start the story with the phenomenon that’s swept the nation and in our own neighborhoods.  People are lodging complaints against those failing to wear a mask, improper social distancing, gathering in large numbers, or restaurants ignoring banned indoor dining.

By early this month, the McHenry County Department of Health had received 78 complaints on restaurants and bars operating despite the indoor dining ban imposed by Governor J.B. Pritzker through an executive order a few weeks ago. Eleven files stemming from complaints for failure to wear a mask, social distancing, capacity violations, or indoor dining were sent to the McHenry County State’s Attorney’s Office.  MCDH is not continuing to update the State’s Attorney’s Office on numbers of mitigation complaints although the health department consults with the State’s Attorney’s Office routinely on other COVID-19 related complaint responses. It’s possible that MCDH may soon receive the power from the McHenry County Board to process COVID-19 violations.

The McHenry County Department of Health staff continues receiving COVID-19 related complaints as residents fill out the complaint form on mcdh.info or contact the Division of Environmental Health, (815) 334-4585. “Enforcement of these additional restrictions has not been a simple process,” according to the health department’s response to Sun Day questions. It’s this very question of enforcement that has had the McHenry County State’s Attorney’s Office receiving feedback from “both sides of the aisle,” according to Patrick Kenneally.

As State’s Attorney of McHenry County, Kenneally said he doesn’t want his recent decision further misinterpreted as to why he is refusing enforcement of Pritzker’s executive order banning indoor dining for restaurants and bar service.  One can reasonably infer from the first line of the Kenneally news release that a battle between the Governor and McHenry County State’s Attorney was launched by the news release.  The first line read, “The McHenry County State’s Attorney’s Office will not be enforcing Governor Pritzker’s executive orders banning indoor dining.” Sun Day sought to question Kenneally directly on his intentions.

After the news release sparked serious media coverage, Kenneally said his office has heard from a lot of people that said the State’s Attorney’s Office needs to enforce the executive order. Kenneally encourages residents of McHenry County that agree or disagree with the State’s Attorney’s Office to provide feedback and know his office works to respond to every single inquiry.

“There are people thinking that I’m picking politically one side. The point I am making is this is strictly a decision based on the law as I am reading the law and it doesn’t necessarily have anything to do with me trying to say this approach to COVID-19 is right versus another approach to COVID,” Kenneally explained.

Pritzker is trying to stop the spread of COVID-19 and has stated repeatedly he’s using science and the Illinois Department of Public Health to issue executive orders.  The McHenry County State’s Attorney’s Office is upholding and enforcing all other related administrative rules, ordinances, and statutes that includes masking, occupancy, and social distancing.

“The rule does not include a ban on indoor dining,” according to Kenneally.

Kenneally wants to make it clear, “I would be happy to enforce a ban on indoor dining if I would receive the mechanism in order to do so.”

He said his message is aimed at the Illinois Legislature and not Pritzker specifically. “It’s so galling and scandalous about the whole COVID thing which is that the Illinois Legislature has allowed the governor to just sort of unilaterally make these decisions based on no process, based on nothing other than his own conscience,” Kenneally said.

He pointed at what he considers glaring deficiencies in the laws that the legislature could easily clean up if they would hold a session.  “They could work with the governor to come up with a law that makes sense and also doesn’t have these holes in it where it leaves people like me without the ability to enforce on what may or may not be the will of the legislature,” Kenneally said.  He would hope the Illinois Legislature could include an invitation to all our local representatives for the regional interests of all residents.

Kenneally looks at how Pritzker’s executive orders for the past ten months have impacted the day-to-day lives and constitutional rights of Illinois residents. “We can’t in good conscience enforce the ban on indoor dining, which may result in hundreds of McHenry County businesses permanently being shuttered, without some definitive validation by the Legislature or courts of the Governor’s continued use of emergency powers,” Kenneally said.

 

 

John Dickson of the Dickson Law Group in Crystal Lake had recently led a group of 37 local bars and restaurants in McHenry County Court trying to stop Pritzker’s indoor dining ban. Dickson argued for a temporary restraining order against the ban.  Similar attempts were made in Cook and DuPage Counties and in all, judges denied the requests.  “I am proud of Kenneally for sticking up for our small business community.  Evidence of community transmission of COVID-19 in restaurants is dubious, but evidence of the damage caused by Pritzker’s response is certain,” Dickson said.

 

In a statement provided on request, Dickson wrote about our democracy and how it depends upon checks and balances to protect liberty and prevent tyranny. “The most fundamental check on abusive government is the discretion of every prosecutor to refuse to enforce unjust laws.  Kenneally has sent a strong message that governance that upends our lives without justification, reason, or explanation is unacceptable,” Dickson said.

 

The primary reason for Kenneally’s actions is really a matter of interpretation of the law and as he sees the law, the executive orders are not enforceable. “What the governor says that when you violate the executive order with respect to indoor dining, that somehow triggers a fine.  That is exactly wrong,” Kenneally said.  As he explained further, Kenneally said, “There is no enforcement provision within the executive order itself or within the law enabling the governor to give executive orders in times of emergencies that says if one of these provisions is violated, this is the consequence.”  For further clarification, Kenneally used as an example a situation where a victim is punched and the attacker is arrested because you just can’t hit someone without consequences. “If you do this, you are guilty of a Class A misdemeanor. With executive orders, you can’t do this, but Kenneally asked about the consequences. “There is nothing that comes after that with respect to how these executive orders should be enforced.  So there is no fine, no penalty, no probation; there’s nothing that sets forth anything that would allow me to do my job in enforcing the executive orders.”

 

The McHenry County Department of Health has provided extensive training and education to restaurants and bars in the county.  The training and education includes “implementing mitigation measures and universal precautions, and most have made good efforts to comply with the recommendations,” according to information gathered by Lindsey Salvatelli of the MCDH.  “Multiple agencies have the authority to respond to complaints of non-compliance and have been given authority to enforce those restrictions, including the health department. We are working with the Illinois Department of Public Health’s legal division on potential enforcement of mitigation violations and will forward mitigation complaint files to them for possible further action.

 

The McHenry County Department of Health’s top priority remains the health and safety of those living in our county or visiting our county. To continue pursuing its top priority from the beginning of the pandemic to the present, the health department will continue tracking the spread of COVID-19 in the county. “We ask everyone to do their part by practicing the 3W’s—washing hands, social distancing, and wearing a mask, and only leaving home when absolutely necessary.”