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Update: Judge denies petition by 7 DeKalb County restaurant owners to delay COVID-19 mitigations expected to begin Saturday

SYCAMORE – A DeKalb County Judge on Friday afternoon denied a petition by seven DeKalb County restaurant and bar owners to delay COVID-19 resurgence mitigations expected to begin Saturday.

The petition for a temporary restraining order – asking that restrictions on indoor dining planned to start this weekend be delayed so a judge could hear testimony on how those mitigations are "unfair" to local businesses being impacted by larger case surges in surrounding counties such as Winnebago – was denied by Circuit Clerk Judge Bradley Waller Thursday at the DeKalb County Courthouse.

"The balance here is such that the decision by the governor to impose these types of restrictions is governed by rational basis,” Waller said.

In his ruling Friday, Waller said he made his determination because the law states that operating a business is not a fundamental right under the constitution, though said he feels for local businesses impacted by further shutdowns.

“This affects every citizen in the state of Illinois," he said. "Certainly we are in a very unusual time.”

County over region

Seven DeKalb County restaurant owners on Thursday filed a lawsuit against Gov. JB Pritzker and the Illinois Department of Public Health seeking a temporary restraining order to stop state officials from forcing them to shut down indoor dining beginning Saturday.

Bradley Melzer, of Sycamore-based Cronauer Law, is representing the owners of Fatty's Pub & Grill in DeKalb, Remington Gastropub in Malta, The Lincoln Inn and Faranda's Banquet Center in DeKalb, Ellwood Steak & Fish House in DeKalb, The Junction Eating Place in DeKalb, MVP Sports Bar in Sycamore and El Jimador Mexican Grill, which opened in downtown DeKalb on Tuesday.

"The restaurants and small businesses in this lawsuit have already been shut down once for months," Melzer said. "By equating the positivity of the rest of the region with DeKalb County, they are at risk of shutting down again, for an indefinite amount of time. This could be the final nail in the coffin for these restaurants and others in DeKalb County."

In response to the news they'd have to shut down their indoor dining just months after being allowed to reopen it again this week, many restaurant owners expressed deep dismay, fearing continued loss of business would spell disaster for their ability to remain afloat.

As of Thursday, DeKalb County reported 29 new COVID-19 cases. IDPH positivity data is reported with a three-day lag, and on Thursday DeKalb County reported a 7.1% positivity rate from Sept. 28, the most recent available data, below the 8% threshold the state requires to concede resurgence mitigations.

The lawsuit – which names Pritzker and IDPH Director Ngozi Ezike – claims the governor's actions during the pandemic have been "unlawful and unconstitutional in that it defies the County's Emergency Management Act," unfairly punishing DeKalb County businesses for positivity rate and resurgences outside of the county.

Mitigations for Region 1 – which includes Boone, Carroll, DeKalb, Jo Daviess, Lee, Ogle, Stephenson, Whiteside and Winnebago counties – were put into place this week effective Saturday due to high positivity rates of the viral respiratory disease in the region as a whole. At the time of the governor's announcement Tuesday, positivity rate breakdowns for counties included in the region showed Winnebago County with the highest.

As of Tuesday, Winnebago County has been a major contributor to the uptick in the positivity rate. It's conducted about 40% of the region's tests, and had a rolling seven-day positivity rate of 9.3%, according to the IDPH. Three of the past four days leading up to the announcement Tuesday, Winnebago County was at 10.3% positive or higher.

Whiteside County on Tuesday (with the three-day lag) came in at 7.5%, Ogle County at 6.9%, Lee County at 9.4% and DeKalb County at 7.4%.

Melzer says the DeKalb County Health Department is also tracking positivity metrics, and has in place its own protocol called the Emergency Management Act to determine when an appropriate time is to haul out mitigation measures locally.

"DeKalb County is under the Governor's 8% positivity rate and is being arbitrarily lumped together in a "region" where only 3 of the 8 counties currently exceed that threshold," he said. "Our clients in DeKalb County have taken this pandemic seriously and have been following all the appropriate guidelines. To now be punished for another counties' spike in COVID-19 cases is not only unjust, but could result in closing these businesses forever and the loss of additional jobs."

Instead of laying out consequences by health region – as outlined by the Restore Illinois plan, which designates health regions based on regional hospital surge capacity – Melzer said local business owners are asking public health officials to instead make those determinations based on individual counties.

"This lawsuit aims to use the data already being collected at the county level to make the Illinois Department of Health take a county by county scientific approach to the restrictions needed to keep everyone safe, which we believe is required by the state constitution," Melzer said. "Our goal in this lawsuit is for small businesses to survive and not lose additional jobs from this pandemic. If we are applying science and collecting data on a county by county basis why are we not applying the data county by county?"

What's next for lawsuit

The closures are expected to begin Saturday, though some in Region 1 – including the Winnebago County Sheriff – have already said they will not enforce the new regulations.

Thomas Verticchio, assistant chief deputy attorney general representing Pritzker and Ezike, declined to provide comment when asked what would if restaurants refused to shut down indoor dining. Lisa Gonzalez, director of the DeKalb County Health Department, said enforcement would fall to health departments.

The health departments already enforce restaurant health permits. Enforcement will be via the complaint system, she said. If someone calls the health department to report a business not following the rule, department staff could step in, she said.

Throughout the nearly two-hour hearing Friday, Verticchio stressed that the governor's emergency powers in the event of a pubic health emergency supercede local control, and filed a motion to have the lawsuit transferred to the Sangamon County Courthouse in Springfield, where several others await ruling.

"The right to assemble extends to public property, not private," Verticchio said. "And COVID-19 mitigations have ruled the right to assemble cedes in cases of public health emergencies."

Nicholas Cronauer, of Cronauer Law, told Waller his clients aren't contesting the governor's powers in this case as lawful, only his attribution of those powers as it relates to further shutdowns locally using a regional metric that unfairly impacts DeKalb County businesses.

"We're in a tight spot," Cronauer said after the ruling. "Obviously, we bear the burden of lots of clients who's businesses are going to be impacted, which is upsetting, but the judge applied the law as he saw fit. The thing about DeKalb County is we're a nice county, our clients are going to follow the law."

Waller will rule on the motion to transfer the case to Springfield on Oct. 26 at 2 p.m.

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