On October 15th, Dr. Sandra Martell of the Winnebago County Health Department conceded that dine-in service for Winnebago County restaurants is allowed — as it always has been.
Hundreds of restaurant and bar owners who were educated on their legal rights are keeping their establishments open, including restaurants that the county health department and local media falsely reported had closed after being threatened by the department.
To save face, and employing different intimidation tactics to pressure businesses to consent to their own closure, Dr. Martell and cohorts such as Rockford Mayor Thomas McNamara, created new “mitigation” decrees designed to isolate, quarantine, and make certain places off limits to the public. Notably, these new mitigations conflict with the Governor’s more stringent orders this same agency claimed must be followed by businesses.
Illinois law requires that before any health department can isolate, quarantine, or make a place off limits to the public, the department must obtain either consent of that person or business, or within 48 hours of an emergency closure order by the department, obtain a court order of closure. That’s the law. Otherwise, no health department in Illinois can force the closure of any place or business.
As for Governor Pritzker’s similar executive orders, they have no legal enforcement mechanism and are unlawful, as has been ruled in a representative lawsuit brought by State Representative Darren Bailey. The Governor’s orders cannot be used as a basis for closure as the health department has threatened. Dr. Martell knows she can’t get a court order to shut down a business that hasn’t had a case of COVID-19, yet she continues her campaign of threats, lies, and intimidation.
To obtain a court order of closure, the health department is first required to give a written notice. The notice shall include: (1) notice of the right to counsel; (2) notice that it the person or owner is indigent, the court will appoint council for that person or owner; (3) notice of the reason for the order for isolation, quarantine, or closure; (4) notice of whether the order is an immediate order, and if so, the time frame for the department to seek consent or to file a petition requesting a court order as allowed by statute; and (5) notice of the anticipated duration of the isolation, quarantine, or closure.
To date, Martell and her department have only threatened businesses with copies of the Governor’s unlawful and unenforceable executive orders, notices of non-compliance and orders to disperse – all steps made up by the department and not supported or required by any legal authority. The health department is not using the process provided for under the law to close a business because they know they cannot succeed through proper legal channels.
To obtain a court order of closure (after proper notice), the state would need to prove to a judge by clear and convincing evidence the public’s health and welfare are significantly endangered by a person or group of persons that has or is suspected of having, or has been exposed or is reasonably believed to have been exposed to, a dangerously contagious or infectious disease, or by a place where there is a significant amount of activity likely to spread a dangerously contagious or infectious disease. They must also show that all other reasonable means of correcting the problem have been exhausted and no less restrictive alternative exists.
These are serious due process protections built into the law to prevent the kind of devastation to business and disregard for constitutional rights that are taking place at the hands of these despotic government officials.
If Dr. Martell or her abettets come to threaten your business, before you consent to anything you should talk to an attorney to ensure you’re not unnecessarily giving up any of your rights.
Austin Scott Davies is an attorney and founder of Midwest Legal Care, former prosecutor, and active member of the Winnebago County Republican Party. He is also a board member for Concerned Citizens of America, a local chapter of Illinois Family Institute.
The information contained in this article is not legal advice and is for general informational purposes only. Do not act or refrain from acting on the basis of this information. Readers should contact an attorney to obtain advice with respect to any legal matter.
