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Northern Illinois restaurant gets TRO to remain open despite Governor's orders


by Joe Tabor, Senior Policy Analyst
Illinois Policy


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.

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."


Originally published by Illinois Policy on October 28, 2020. Published by permission.

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