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 FoxFire
restaurant can stay open while the challenge to Gov. J.B. Pritzker’s exercise of
emergency powers works its way through the courts, a Kane County judge has
ruled.
On Oct. 26, Judge Kevin Busch granted the Geneva, Illinois, steakhouse’s request
for a temporary restraining order against Pritzker’s Executive Order 2020-61,
specifically as it relates to FoxFire’s ability to conduct indoor dining. The
judge barred the governor, the Illinois Department of Public Health and the Kane
County Health Department from enforcing the order.
The order applies only to FoxFire and allows the restaurant to operate with
indoor seating until the next hearing, or until the state appeals the ruling.
FoxFire’s petition for a temporary restraining order and preliminary injunction
argued that all of Pritzker’s COVID-19 subsequent disaster proclamations after
the initial March 9 proclamation were invalid. That first proclamation expired
on April 7.
Pritzker’s authority to issue executive orders limiting the
operation of restaurants during the COVID-19 pandemic comes from the Illinois
Emergency Management Agency Act. The Act limits the exercise of emergency powers
to 30 days after the governor has issued a disaster proclamation, but Pritzker
has continuously issued new proclamations to extend the timespan of his
emergency powers to almost 250 days so far. The Act itself is silent as to
whether Pritzker can extend his emergency powers indefinitely, and the
governor’s actions have met numerous legal challenges as well as criticism.
The General Assembly could resolve these questions with legislation, but has so
far declined, leaving Illinois to be governed by a series of executive orders
when it comes to the state’s COVID-19 response. As it stands, these challenges
will work their way through the court system.
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The governor is expected to appeal the ruling in
favor of the Geneva restaurant, but for now, FoxFire is the only
restaurant in its region legally open to indoor dining.
Restrictions were reimposed Oct. 28 on the Metro East region and
will be imposed Oct. 30 in Chicago, leading to a public debate
between Pritzker and Chicago Mayor Lori Lightfoot over the need to
again close bars and restaurants to indoor operations.
Half of the counties in Illinois are at a warning level for COVID-19
positivity, with the statewide 7-day average at 6.7% on Oct. 28. Of
the 11 regions designated for COVID-19 restrictions, six have a
positive test rate of at least 8%.
As many as 21,700 Illinois restaurants and food establishments could
permanently be shuttered as a result of the pandemic and repeated
closure orders.
The Illinois Restaurant Association is also looking at legal
remedies, President and CEO Sam Toia told Crain’s Chicago Business.
He said many in the industry feel they are being unfairly singled
out, and that the restrictions used at the pandemic’s start are no
longer helpful or effective.
“The science surrounding COVID-19 has evolved,” Toia said. “So must
the metrics for mitigation.”
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