Updated: McHenry County State’s Attorney’s Office won’t enforce governor’s indoor dining ban

The McHenry County State’s Attorney’s Office will not enforce the governor’s ban on indoor dining, State’s Attorney Patrick Kenneally announced Wednesday.

The office will, however, enforce related orders requiring employees and customers to wear masks, maintain social distancing and adhere to capacity limitations.

Kenneally’s decision not to enforce the indoor dining ban rested on two main considerations.

First, no provision in the executive orders or the Illinois Emergency Management Act requires or authorizes the state’s attorney’s office to enforce Gov. JB Pritzker’s executive orders, Kenneally said.

“Second, there is the legitimate question, currently being litigated, as to whether the executive orders, which require the Governor to exercise ‘emergency powers,’ are authorized under Illinois law or otherwise constitutional,” Kenneally said in the release.

Pritzker announced the mitigation restrictions Oct. 28 as the region made up of McHenry and Lake counties entered its third consecutive day above the 8% positivity threshold.

COVID-19 mostly is spread by respiratory droplets when people talk, cough or sneeze, according to the U.S. Centers for Disease Control and Prevention. The virus also may spread by hand from a contaminated surface and then to the nose or mouth, causing infection. That’s why restaurants that offer limited drive-thru, takeout and curbside pickup services are believed to present the lowest risk, according to the CDC.

But as restaurants throughout the county continue to defy the governor’s indoor dining ban in an effort to stay afloat, enforcement of masks and social distancing remains paramount, McHenry County Board Chairman Jack Franks said.

“We have to deal in the real world and be practical,” Franks said in an interview Tuesday, ahead of Kenneally’s announcement. “So we understand that there’s not going to be enforcement of the indoor dining, OK ... but knowing that, we need to try to reduce the harm and how do you do that?  By enforcing the other things – the social distancing and the masking. That’s how you handle this.”

Why enforce some rules and not others?

The difference, Kenneally said in an interview, lies in where the orders are being passed down from.

Guidance about enforcing rules surrounding masks and social distancing are laid out in the Department of Public Health Act, Kenneally said. That act allows the Illinois Department of Public Health to declare and enforce quarantine and isolation rules, and amend them as they see fit.

The governor's indoor dining ban, however, is rooted in the Illinois Emergency Management Act. Unlike the Department of Health Act, the Illinois Emergency Management Act doesn't require or authorize enforcement by the state's attorney's office, Kenneally said. If the IDPH hypothetically were to adopt and enforce the indoor dining ban, then Kenneally would have the authority to enforce the rule, he said.

The legitimacy of Pritzker’s consecutive emergency executive orders regarding business operations during the COVID-19 pandemic has been the subject of several lawsuits statewide.

Two lawsuits filed in McHenry County by local bars and restaurants were consolidated with a lawsuit referencing similar complaints in Sangamon County. That case is ongoing.

Lingering questions about the governor’s executive powers could have “been easily answered by the Illinois Legislature,” which has offered little guidance as of Wednesday, Kenneally said.

“To date, and despite having ample opportunity, the Legislature has offered nothing,” Kenneally said. “In other words, the People’s representatives, charged with advancing the will and interests of residents, have yet to consider or legislate on one of the most important issues the State has ever faced.”

Kenneally said Pritzker’s orders lack “any identifiable criteria or process.”

“As such, we cannot 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.

What could enforcement look like?

Violators of the governor’s executive orders may still face consequences from other agencies, including the Illinois State Police, Illinois Attorney General, Illinois Liquor Control Commission and the Illinois Gaming Board.

The county state’s attorney’s office will enforce other administrative rules, such as limits on business occupancy and requirements that employees and customers wear masks and maintain at least 6 feet of social distancing at all times, according to the release.

Businesses in violation of one of those orders would be warned through written notice. If it refuse to comply with that notice, the business, not an individual person, could be charged with a Class A misdemeanor, according to Illinois law. If charged, the business could face a fine of as much as $2,500.

Business owners facing fines for breaking the state’s COVID-19 rules – including the ban on indoor dining – could also go through an expedited adjudication process instead of the courts under a proposal approved by the McHenry County Board of Health on Monday.

The county board has yet to consider that proposal, which centers on the creation of an administrative adjudication program that would allow the McHenry County Department of Health to process violations of COVID-19 restrictions for businesses more efficiently.

The MCDH has referred 11 complaints involving restaurants and bars violating restrictions on indoor dining to the state’s attorney’s office, Director of Environmental Health Patricia Nomm said in a county Board of Health meeting Monday.

The majority of those complaints exclusively referenced businesses that have continued to allow indoor dining, Kenneally said. Although his office won’t pursue legal action concerning those complaints, Kenneally will look into a smaller handful of complaints that cited mask, social distancing or capacity violations, he said.

• Northwest Herald reporter Kelli Duncan contributed to this report.