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SAVANNA – It's pretty obvious: Poopy's is taking great delight in poking the bear.
Of course, it helps that the bear has no teeth – or at least, seems pretty reluctant to bite.
It's been 5 weeks since one state agency threatened to shut the biker bar down, and 3 weeks since it got its second cease-and-desist letter from yet another state licensing agency, but the owners appear to have no intent to comply with the restrictions outlined in the state executive order governing COVID-19 safety regulations.
Poopy's Pub 'N Grub, a major regional destination for motorcycle enthusiasts, opened for curbside delivery May 1 and, in violation of Gov JB Pritzker's order, allowed patrons to eat and drink beverages, including beer, "on premises" – in this case, outdoors at tables spaced 10 feet apart.
Five days layer, on May 6, it got a cease-and-desist letter from the Illinois Liquor Commission, which threatened to pull its liquor license if the on-site activity continued.
In response, Poopy's owners, Kevin and Peggy Promenschenkel, sued Pritzker in Carroll County Court on May 11, then had the case moved to federal court. They claim that, by issuing an order that effectively shuts down their business but gives them no avenue to appeal, Pritzker violated their constitutional right to due process.
They opened up the bar and restaurant entirely on Memorial Day weekend, a week ahead of the June 1 implementation of Phase 3 of the Illinois Reopen plan. Hundreds of bikers and others showed up for the live music, food and drink,most ignoring the state requirement that masks and social distancing be employed.
That drew the attention of the Illinois Gaming Board, which sent its own cease-and-desist letter, dated May 29, threatening to yank the bar's license for that particular pursuit. The letter reads in part:
"As an establishment licensed by the IGB, you have an ongoing duty to conduct your business in a manner that is not injurious to the public health and general welfare of the people of the State of Illinois ... Additionally, your business must not engage in activities that discredit the State of Illinois or its gaming industry.
"Continued violations of the executive order puts the bar at risk of having its gaming license suspended or revoked."
Poopy's posted that letter, and its attorney's response, on its Facebook page on June 3. It reads in part:
"At no time relevant have any gaming machines ever been in operation on my client’s premises, so for the life of me I’can’t possibly imagine why you would be threatening its licensure.
"Unless your agency has recently been anointed pontiff over public health matters, we find no purpose for your correspondence other than to be another 'tool' of intimidation being wielded against the small businesses of Illinois by the executive branch.
"Having said that, our client thanks your agency for it correspondence and respectfully declines to take any action relative thereto, but rather chooses to exercise the liberties and freedoms given to them by God and guaranteed by law."
The letter goes on to say Poopys’s will take “swift and decisive legal action” should the gaming board take any action against the bar.
The Promenschenkels are represented by Thomas DeVore; he also represents state Rep. Darren Bailey, R-Xenia, and and a handful of other clients with lawsuits across the state who argue that Pritzker lacks state constitutional authority to issue successive 30-day disaster proclamations, which in any event are not laws and therefore cannot be enforced.
The latter certainly seems to be the case: Local authorities – the Savanna Police Department, the Carroll County Sheriff's Department and the county health department – as well as the Illinois State Police have made it clear that they do not consider it their job to enforce the executive order, that they will not arrest anyone who violates it, and that their position is, conflicts arising from it should be settled in court.
The Mount Carroll couple are not alone in their frustration with the restrictions: According to published reports, in addition to his clients, DeVore has said he's helping more than 200 businesses that also are defying the order.
Poopy's continues to serve food and drink to its patrons, hire bands, has opened its grounds to free camping (no coolers, though, you must buy your beverages from Poopy's), and it's hosting a Camaro vs. Mustang show today, with more live music.
Spokesmen from the Gaming Board and the Liquor Commission say the next step in the process would be for either agency to either issue fine, or a revoke or suspend either license, all moves that the Promenschenkels could appeal.
This in the email from Terry Horstman, Liquor Control Commission spokesman:
"Also, as laid forth in guidelines provided in part of Phase 3 of Restore Illinois, businesses in violation may also be subject to additional regulations on outdoor dining by units of local government and local health departments.
"All agencies with law enforcement authority, including but not limited to Illinois Liquor Control Commission, Illinois State Police, Illinois Department of Public Health, and Local Law Enforcement may coordinate and enforce the new restrictions as appropriate."
As mentioned, police are not coordinating or enforcing, and so far, the state hasn't revoked any licenses for violating the COVID-19-induced restrictions.
The initial status hearing in the Promenschenkels' federal is set for Friday in U.S. District Court in Rockford.
Phase 4 of Pritzker's Reopen Illinois plan, which further lifts restrictions on bars, restaurants and other businesses, is on track to be implemented at the end of the month.