A Crystal Lake attorney on Thursday filed a lawsuit on behalf of 37 McHenry County restaurants, hoping to bring the state’s mitigation plans to a halt and allow those restaurants to continue serving customers indoors.

On Wednesday night, Crystal Lake lawyer John Dickson wrote a 78-page lawsuit on behalf of bar and restaurant owners who said they can’t afford another two-week partial shutdown. Dickson’s petition will be heard 10 a.m. Friday in McHenry County court, where a judge could issue a ruling.

“At the end of the day, the state of Illinois needs to arrive at a solution that is the least harmful solution as possible,” Dickson said.

Taking legal action

The lawsuit, which claims Gov. JB Pritzker’s emergency powers expired on April 11, seeks to make void the governor’s order as it pertains to each of the restaurants joined in the suit. Dickson also filed a petition for an emergency temporary restraining order that would prevent Pritzker from enforcing the mitigation rules. Pritzker, the McHenry County Department of Health and the Illinois Department of Public Health all are named as defendants.

At his daily COVID-19 briefing Thursday, Pritzker addressed the crop of temporary restraining orders filed in response to looming mitigation.

“Well, we can’t stop attorneys from being snake oil salesmen,” Pritzker said. “These folks have been in business for time immemorial. The reality is we’re going to beat them in court. We already have.”

Lake in the Hills attorney Troy Owens is drafting a lawsuit of his own on behalf of a growing list of businesses, he said. As of Thursday, those businesses included Niko’s Tavern in Pingree Grove, Woodstock’s Niko’s Red Mill Tavern, Marengo’s Niko’s Pointer’s Saloon and Niko’s R&R Supper Club and Spring Grove’s KC’s Cabin.

“It’s the same everywhere,” Owens said. “[When] these Tier 1 restrictions on dining go into effect, it’s going to put restaurants out of business.”

A similar complaint was successfully filed in Kane County on behalf of FoxFire Restaurant against Pritzker, the IDPH and the Kane County Health Department. According to the lawsuit, Pritzker has exceeded the emergency powers that were given to him.

Pritzker and the IDPH have appealed the Kane County decision.

“He had 30 days to make a disaster declaration, and we’re well beyond 30 days,” Dickson said. “It’s unfair that small mom-and-pop businesses are getting shut down by the governor and Walmart isn’t.

“He’s killing small business in the state.”

McHenry County Judge Thomas Meyer could rule on Dickson’s request as soon as Friday morning. Should either party appeal that ruling, a decision should return from the Illinois 2nd District Appellate Court within two weeks, Dickson said.

Why bars and restaurants?

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

There were 6,769 positive cases of COVID-19 in McHenry County as of Thursday, up 138 cases from Wednesday, according to the IDPH data.

COVID-19 mostly is spread by respiratory droplets when people talk, cough or sneeze, according to the 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.

On-site dining with both indoor and outdoor seating where seating capacity has not been reduced and tables have not been spaced at least 6 feet apart, on the other hand, is considered the highest-risk option for food service businesses, according to the CDC.

That’s all to say that the more closely a person interacts with others and the longer that interaction lasts, the higher the risk of COVID-19 spread. The CDC has encouraged anyone visiting bars and restaurants to maintain a minimum distance of 6 feet from other guests and wear a face covering when they’re not eating.

Some businesses within McHenry County, including Texas Roadhouse in Crystal Lake, Black Bear Bistro in Algonquin and the Public House of Woodstock, temporarily closed at one point this year after learning staff had tested positive for or come in contact with someone who had COVID-19.

Pritzker’s announcement Wednesday means that bar and restaurant owners again will be required to refuse indoor services, although video gaming is allowed.

“It’s like dropping an atom bomb on an ant hill,” Dickson said. “The medicine isn’t worth the cure.”

Weighing the risk of staying open

As colder weather begins to restrict outdoor dining options, several local business owners have said they plan to remain open and risk potential state-enforced consequences.

“We’re certainly not rule-breakers. We’re not trying to politicize what’s going on with our restaurant,” said Sallie LaBue, owner of 750 Cucina Rustica in Cary. “We’re a two-generation family business. This is our livelihood. It’s not just a career we have.”

LaBue opened her business in Cary in 2017. In September 2018, a fire caused LaBue to close her restaurant for several months. She reopened in December 2018 and was again forced to close when statewide COVID-19 restrictions took effect in March.

“We can’t do it this time around,” LaBue said. “We don’t have the option of outdoor dining. I don’t have the heart to tell my staff they have to stay home.”

McHenry County was home to 6,631 COVID-19 cases as of Wednesday, up 99 cases since Tuesday, and 120 people in the area have died of COVID-19 since the pandemic began, according to McHenry County health department data. The county’s recovery rate remained at 97% as of Wednesday evening.

The restaurants included in Dickson’s suit are Andy’s Restaurant, Fire Bar, The Cottage, Around the Clock Restaurant, Tony’s Cafe, The Breakers, Pablo’s Family Fiesta, and Whiskey and Wine of Crystal Lake; Cary restaurants 750-degree Cucina Rustica, The Hidden Tap, The Tracks Bar & Grill, and Cary Ale House & Brewing Company; Algonquin’s Bold American Fare, Cattleman’s Burger and Brew, Burnt Toast II, Bubs Subs and Cucina Bella; and Woodstock’s D.C. Cobb’s, BBQ King Smokehouse, Offsides Sports Bar and Grill, Benton Street Tap, The Cabin and the Public House of Woodstock.

Others included were McHenry restaurants Metalwood Grille, D.C. Cobb’s, Buddyz Pizza, Kim and Patty’s Café and Windhill Pancake Parlor; Lake in the Hills’ Woods Creek Tavern and Dino’s Pizza & Pasta; BBQ King Smokehouse and Papa G’s of Huntley; Union’s Clasen’s Tavern; Hebron’s Harts Saloon and Hoops Sports Bar & Grill; Harvard’s Rosati’s; and Stucky’s Bar & Grille of Johnsburg.

Jennifer Guasta, owner of Windhill Pancake Parlor in McHenry said they joined the lawsuit out of necessity, not only for them but their employees.

The governor’s order will decrease business by so much, she said, at a time when Windhill was set to go into one of its biggest revenue times – the Christmas season. 

“This is what pays our mortgage at home,” Guasta said. “This is what pays for our kids’ college. This is what keeps our electricity on at home.”

Even when indoor seating was allowed, business at Windhill still went down as the restaurant could only seat half the dining room.

“We will defy the governor’s order, because that lawsuit, hopefully that order of protection will stand,” Guasta said. “And even if it doesn’t stand, we will continue to stay open.”

There seems to be some appetite from the public for continued indoor dining as well. On Thursday, the day after increased restrictions on restaurants on bars were announced by the state, several people called Windhill to make reservations, Guasta said.

Education and enforcement

The prospect of facing consequences for staying open indoors is concerning, several bar and restaurant owners said, adding that they don’t want to risk losing required licenses. Guasta even anticipates some customers might avoid Windhill in light of the restaurant’s decision to remain open. On the other hand, the same decision could garner more support, she said.

“This is America. I’m proud to be an American,” Guasta said. “I want to stand up for our rights. And I believe Gov. Pritzker has violated our rights.”

Steve Theofanous, who owns Around the Clock in Crystal Lake with his brother, Fano, hopes it doesn’t come to having defy the governor’s order. 

“We’ve been in the community for 45 years, we’ve always followed the law, and we’ve always wanted to be an example of a model restaurant,” Theofanous said. “And [the restrictions are] putting us in a very difficult position, because our employees, most of them will not have any other income other than their work.”  

Dickson said there wasn’t time to file a class-action measure that would work for all restaurants not named in the suit. If it’s successful, however, Dickson’s lawsuit could serve as an outline for other restaurants looking for similar relief, he said.

“They’re hurting from the first shutdown,” Dickson said. “They haven’t recovered from it.”

Regarding enforcement of the COVID-19 restrictions, on Facebook, Crystal Lake acting Mayor Haig Haleblian said if the city receives a complaint, a police officer will respond and verbally request compliance.

If the business still refuses to comply, the complaint will be forwarded to the McHenry County health department for further investigation enforcement.

McHenry Mayor Wayne Jett and Woodstock Mayor Brian Sager have released similar statements. Woodstock city records from March 1through May 3 show that community restaurants and bars lost more than $4 million in revenue, not including the loss of wages and jobs, Sager said in a statement Thursday.

Both cities plan to take educate restaurant owners about COVID-19 safety measures rather than enforce them when possible.

“If you choose to shop or dine out, please be mindful of that decision and continue to wear your mask, wash your hands and watch your distance,” Jett wrote in a Facebook post Wednesday.

Around the Clock in Crystal Lake already temporarily closed earlier this year because of COVID-19 restrictions, reopening this summer, when indoor dining was reinstated. During this time, they made renovations that Theofanous said will keep customers and staff safer. 

“We’re hoping that our lawyer and our lawsuit here for the restraining order is successful, so that we can keep our doors open legally,” Theofanous said. “I’ve talked to a lot of other restaurateurs who say we have to keep open, for our survival, for ourselves, and for our people, for our staff.”

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