Enforcement of COVID-19 mitigations in Kane County restaurants, bars remains inconsistent

Resident alleges businesses are allowed to do whatever they want

CAMPTON HILLS – In response to Illinois' rising COVID-19 positivity rate, Gov. Pritzker has prohibited restaurants and bars from serving customers inside, trying to stop the spread of the virus.

But some restaurants in Kane County – like Old Towne Pub and Luau Coffee in Campton Hills – have defied the restrictions.

An employee of Old Towne who answered the phone Friday said they were still serving inside, despite the governor’s restrictions.

“We have a lawyer who advised us to say nothing at this time,” he said, and hung up.

A voice mail message left for Neal Anderson of Luau Coffee was not returned.

Campton Hills resident Scott Johansen said he cannot understand why there does not seem to be enforcement of any kind happening in the village.

“The executive order is very clear and there is a process,” Johansen said.

From the Kane County Health Department to the Kane County State’s Attorney’s Office to Campton Hills police – Johansen said he is frustrated by what he sees as an utter lack of – well, anybody doing their job to protect the public during a life-threatening pandemic.

“They’re all, ‘Just let people do what they want to do,’” Johansen said.

“The arrogance and stupidity of these people," Johansen said. "This is worse than irresponsible. It’s absolutely ignorant. This is why one it’s one of the big reasons the virus is killing thousands of people in a week. … All they have to do is take it seriously. They need to read it as a matter of life and death. … I am disgusted.”

On Friday, llinois set a new state record for coronavirus cases, with more than 15,000 in one day, state health officials said. Kane County's positivity rate is around 17%.

Non-compliance

The process for enforcement is for complaints to be sent to the Health Department, which issues notices of non-compliance that are delivered by local police.

For example, Luau Coffee was issued this notice on Aug. 25.

The non-compliance notices tell defiant restaurants what they already know – that they’re not following the guidelines.

If they don’t step up, the next enforcement will be a cease and desist order, that tells them their “establishment is unlawfully operating amidst a declared limitation on service that is necessary and proper to prevent further spreading of the COVID-19 virus.”

The notice also warns, “Should we receive additional reports of non-compliance, further action may be taken” such as an order disperse patrons and employees or charges of a Class A misdemeanor.

But exactly who is supposed to do what to enforce the rules is … elusive.

Johansen complained to the Health Department about Luau Coffee and Old Towne Pub.

In an Oct. 19 email response to Johansen, Health Department spokeswoman Susan Stack wrote:

“Thank you for bringing this to our attention. We are in agreement with you about why we cannot contain this virus because not everyone is doing their part. We appreciate those like yourself who are not afraid to get involved and alert us to this happening,” the email stated.

“We are in negotiations with the facility, law enforcement and the State’s attorney. Again thank you for alerting us and please continue to do so we need more citizens like yourself. Stay safe,” Stack’s email stated.

In an email, Kane County State’s Attorney Joe McMahon stated, “Nothing has been referred to us for prosecution from the health department or from any local police agency.”

McMahon’s email further explained the sequence of events for enforcement:

“When the health department hears of noncompliance, under state law, it can issue a formal notice of noncompliance. If noncompliance continues, especially in the context of gatherings, the health department can issue an administrative order to disperse, signed by the director,” the email stated.

“Continued violations are referred to local law enforcement, which can issue citations for violations of the Communicable Disease Act. No citations have been issued,” McMahon’s email stated.

Investigating complaints

In a Nov. 4 email response to questions about an apparent lack of enforcement, Stack wrote, “The Kane County Health Department investigates every complaint, which requires evidence. Unfortunately, according to the laws and Executive Orders, the first step is not to shut them down but start the violation process.”

The Health Department denied a Freedom of Information Act request Oct. 5 seeking the names of businesses, schools and organizations that have been cited for not being in compliance with COVID-19 restrictions.

"Records created in the course of administrative enforcement proceedings are exempt where their disclosure would interfere with active administrative enforcement proceedings conducted by the public body that is the recipient of the request,” the response denying the records stated.

“This matter is an active administrative enforcement proceeding and disclosure of the requested records would interfere with witness recollection. It would also unavoidably disclose the identity of persons who file complaints with administrative agencies, which is exempt pursuant,” the response stated.

"We are not able to say because it is a legal matter," Stack said. 'Beyond that, I cannot respond. We are not the only county, not the only state with noncompliance. It's not matter of shutting them down, but to do it according to the rules and regulations that are given to us."

'It falls on the Health Department'

Local police departments and the Kane County Sheriff deputies have followed up on complaints to the health department to verify, to serve the notices of non-compliance, and to advise the business owners if they are not in compliance, according to law enforcement records.

But local police apparently have not gone beyond that.

Campton Hills Police Chief Steven Millar said in earlier comments that he refers all complaints to the Kane County Health Department.

The problem is, Millar said, the governor’s order is not a law and police cannot enforce an order that is not a law.

“It falls on the Health Department,” Millar said. “It’s a directive from the governor, but it’s not a law. The Health Department has the authority to take away their license. … The Health Department can shut them down, can issue fines.”

St. Charles Mayor Ray Rogina said the city's hands are somewhat tied in enforcing a state ban on indoor dining and bar service put in place because of a rising number of COVID-19 infections across the region.

"The fact is that the city of St. Charles has no local authority under any city ordinance to enforce the governor's order," he said during the Nov. 2 St. Charles City Council meeting.

According to a FOIA response on Friday to Johansen about what enforcement for the governor’s executive orders in Kane County, the County Board responded, that, “The governor’s authority to issue the recent series of COVID-19 executive orders comes from Section 7 of the Illinois Emergency Management Agency Act.”

“In the case of a disaster such as a viral epidemic, the governor can issue a proclamation declaring that disaster, allowing him to exercise the emergency powers authorized in the act for a period of up to 30 days. State and local police can work together to enforce orders given under these emergency powers,” the response stated.

To Johansen, the Health Department, State’s Attorney’s Office and local police are complicit in providing no enforcement, which is contributing to the spread of the virus.

“This is not some negotiating session,” Johansen stated in an email. “This is exactly why this pandemic is completely out of control – complicity of the local legal authorities ( in our case the SAO), Police Departments and the local governing bodies. Meanwhile, thousands of people are dying as a result of their negligence and bad acts.”

Still, Johansen held out hope that one more email Nov. 12 to the Health Department might result in some action.

“It has been almost a month since I notified you and the Health Department and still nothing has changed here,” Johansen’s email stated.

“That is ridiculous and reckless,” according to his email. “Has the Health Department notified Luau and Old Towne bar in Campton Hills formally and begun the process of fines and eventual shutdown? If you have not, can you give me a reason?”

In a follow up email, Stack responded that the department was in receipt of his recent FOIA request.

"Unfortunately, our authority is not as clear cut as we wish," Stack's email stated. "We are awaiting further clarification through the State and working in joint efforts with State’s Attorney’s Office, Sheriff and local municipalities."

Kane County Chronicle reporter Eric Schelkopf contributed to this report.