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Some restaurants in Illinois are defying closure orders as ban on indoor service spreads to Chicago suburbs

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Despite Gov. J.B. Pritzker’s recent order to shut down indoor service at bars and restaurants in northwest Illinois due to the coronavirus, Fozzy’s Bar and Grill near Rockford was among those that stayed open.

Owner Nick Fosberg said he had to leave the doors open to keep his employees working, pay his bills and stay in business. He says the workers wear masks, and customers wear masks on their way in and out, while tables are spaced 6 feet apart, at 25% capacity.

“We’re sticking to what we were doing and being safe about it,” he said. “We’re getting a ton of support. People are happy someone finally stood up and said, ‘I’m not closing.’”

The Oct. 3 closure order covering the northwest region of Illinois has the same restrictions coming Friday to DuPage, Kane, Kankakee and Will counties. Four regions of the state have exceeded 8% rate for positive COVID tests, which is one of the state-imposed thresholds for such restrictions, and the rest are trending in that direction.

Now other restaurant owners are declaring they, too, will stay open. The Facebook page of Lockport Stagecoach in Will County, a western-style saloon, states that it will remain open for indoor dining and stand by more than 30 employees who depend on the restaurant for their livelihoods.

“We are NOT trying to be rebellious or are anti-masks, anti-people’s health or any of the other nonsense,” the post stated. “This is a decision out of survival.”

Ki’s Steak and Seafood in west suburban Glendale Heights also declared its independence from “DICTATOR PRITZKER.”

“We are standing up for our freedom and WE WILL STAY OPEN!” Ki’s Facebook page announced. “We have been in business for 80+ years and no one is going to tell us we can’t live out the American dream.”

In Winnebago County, where Rockford is located, the closure orders are prompting a showdown between local businesses and health officials. The local health department issued closure orders to Fozzy’s and to two other bar/restaurants in Loves Park, and issued more than 30 other orders warning businesses they weren’t following the coronavirus regulations.

While no one source drove the recent rise in positivity rate in the region, county Public Health Administrator Sandra Martell said, bars and restaurants were “disproportionately impacted.”

“It is extremely frustrating that a very small number of restaurants/bars in Winnebago County are choosing not to comply with the Executive Order,” she said, “and are putting patrons and the greater community at risk for COVID-19 transmission and additional mitigations that will further impact recovery.”

But any closure must by law be enforced by a court order, and the county’s top prosecutor said she would consider each case individually.

“It is my goal to work with businesses to use mitigation measures while being able to continue to generate income and remain financially solvent,” State’s Attorney Marilyn Hite Ross stated. “… Consequently, it is my goal to encourage compliance through the use of alternative solutions. I believe this can be accomplished without involving the courts.”

The rebel businesses were also getting support from mayors and other local elected officials.

State Sen. Dave Syverson, a Rockford Republican, questioned why restaurants and bars were being singled out for closure of indoor service, when other businesses, including casinos, gyms and grocery stores, remain open. He noted that state officials conceded there is more transmission at work and school, and increasingly at home and social gatherings.

Health closures should follow traditional procedures based on specific violations, he said. If contact tracing finds an outbreak at a restaurant or bar, similar to finding unsanitary conditions, he argued, close that establishment, not all of them.

The violation notices state, “A reasonable belief exists that the premises identified in this Order has engaged or is suspected of engaging in a significant amount of activity likely to spread the following dangerously contagious or infectious disease.”

But none of the notices cite a specific outbreak.

The end of indoor service this fall and winter, Syverson said, would sound the death knell for many restaurants and bars that were following the rules, and send people to private gatherings and parties with no masks or distancing.

“If you find a health violation, then deal with that,” he said. “How can that be right for one group of people to be terminated and lose everything?”

Faced with such opposition, on Friday, the Winnebago County Health Department issued new guidelines under which bars and restaurants could open for indoor service, contradicting current state restrictions. The county guidelines set limits such as requiring customers to leave after 90 minutes. The department also warned that under state law, enforcement may include criminal misdemeanor charges.

Critics said the changes show the state mitigations are guidelines, not orders. The governor’s executive orders are based on the Illinois Emergency Management Act, which states that in the case of a public health emergency, the governor has the power to control “the occupancy of premises,” and the sale of food and alcohol. Courts have previously upheld the governor’s authority to issue such orders, but one downstate judge struck down the ability to extend such orders beyond 30 days, which is being appealed.

Attorney Tom DeVore, who represents clients challenging the orders, said hundreds of business owners across the state have defied such orders. Their main worry is that mayors may pull their operating or liquor licenses, but in many cases, he said, local officials support them.

Health officials note that bars and restaurants are fundamentally different than many other businesses in that they involve crowds of people gathering closely together without masks for long periods, sometimes laughing or shouting.

In justifying the indoor closure orders, state officials note that contact tracing of people with COVID-19 show that restaurants and bars were the second most common place they had been in the previous two weeks, after social gatherings like vacations, family get-togethers and parties.

A federal study also found that adults with positive COVID tests were approximately twice as likely to have reported dining at a restaurant than those who tested negative.

Pritzker said similar mitigation efforts worked previously to help bring down infection rates in other parts of the state. He noted that rural areas of the state, where people previously considered the virus a Chicago-area problem, now are seeing rising positivity rates.

“This is an important area to focus on,” Pritzker said. “… All the studies about bars and restaurants show that these are significant spreading locations.”

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