GENEVA, IL — Illinois officials are seeking to overturn a Kane County court ruling that is allowing one Geneva restaurant to serve customers inside despite a regional ban on indoor service.
Judge Kevin Busch on Monday granted a temporary restraining order for FoxFire, blocking public health officials from imposing new restrictions on the restaurant at 17 W. State St.
Gov. J.B. Pritzker and the Illinois Department of Public Health lodged an appeal Tuesday, asking the state’s Second District Appellate Court to reverse Busch’s ruling, the Kane County Chronicle reports.
FoxFire legally served customers inside Tuesday after winning the temporary restraining order. The restaurant said it will continue to follow public health guidelines, including requiring masks for all employees and anyone who is not at their reserved table.
Owners K.C. and Curtis Gulbro sought the restraining order last week after the state imposed new coronavirus mitigations on restaurants and bars in Kane and DuPage counties following a surge in cases.
Busch granted the restraining order after saying he believes Pritzker has no authority under the Illinois Emergency Management Agency Act to issue consecutive disaster proclamations. Pritzker’s administration has said that act provides the legal foundation for his repeated disaster proclamations since March.
Busch also questioned why FoxFire and other Kane County restaurants were targeted for new coronavirus-related restrictions while "big box stores" were untouched.
"If there was such a compelling need to shut down businesses for public health, then how did we pick and choose the winners and losers?" Busch said while delivering his ruling.
Dining at bars and restaurants is closely linked to the spread of the coronavirus in many communities, according to the Centers for Disease Control and Prevention.
Adults who tested positive for the virus were approximately twice as likely to have reported dining at a restaurant than those with negative test results, according to a CDC study published in September.
Experts now believe the coronavirus is airborne and that tiny droplets containing the virus can linger indoors for hours as aerosols, making indoor dining particularly risky since diners can't wear masks while eating.
The Gulbros are also suing Pritzker, the IDPH and the Kane County Health Department, saying the governor no longer had emergency powers in October to issue the new restrictions.
The suit also argues regional restrictions on indoor service at restaurants and bars violate the IDPH’s procedure for shutting down establishments.
Officials must notify businesses of an impending shutdown and provide at least 48 hours in which they can arrange a hearing about the closure, said attorney Greg Earl, who is representing the Gulbros as part of the Geneva-based Myers, Earl and Nelson law firm.
By shutting down restaurants and bars across Kane and DuPage counties, officials gave business owners no time to challenge the closures in court, Earl said, adding the restrictions unfairly target family-owned businesses.
The Gulbros just want to provide work for their employees and a good experience for their customers, Earl told Patch last week.
"They're not trying to shirk away from their responsibility" to the Geneva community, Earl said. "FoxFire is not trying to diminish the global pandemic in any way. They're trying to operate responsibly. But at the same time, they're trying to operate."
Earlier this month, FoxFire closed for about a week after an employee came into contact with someone who tested positive for the coronavirus. Gulbro told the Chicago Tribune the restaurant lost out on about $35,000 during the week it was closed.