Geneva restaurant loses restraining order preventing state from enforcing indoor dining ban
FoxFire Restaurant in Geneva has lost the temporary restraining order that prevented state and local authorities from enforcing the governor's recent ban on indoor dining at the business.
The Illinois 2nd District Appellate Court dissolved the TRO Friday, saying a Kane County judge was wrong to have ordered it.
According to the appellate court's order, Judge Kevin Busch erred when he ruled FoxFire's lawsuit against Gov. J.B. Pritzker and the state and county health departments was likely to succeed on its merits.
"Because both the (Illinois Emergency Management) Act and subsequent statutes confirm the governor's authority to issue successive proclamations arising from a single, ongoing disaster, we find that FoxFire failed to establish a probability of success on the merits," Presiding Justice Joseph Birkett wrote in explaining the appellate court's unanimous three-judge order.
Success on the merits is one of four standards FoxFire had to meet to obtain the restraining order.
Birkett wrote that the law "plainly authorizes the governor to issue successive disaster proclamations stemming from one, ongoing disaster," and Busch therefore abused his discretion.
FoxFire filed suit Oct. 23, the day Pritzker's Executive Order 61 went in to effect. The order, meant to tamp increasing cases of COVID-19 infections and positive tests, limits establishments to serving patrons outside.
"We are a little upset by the ruling," said K.C. Gulbro, co-owner of the steakhouse at 17 W. State St. in Geneva's downtown, which was open for indoor dinging on Friday night.
"We will sit down with our lawyers tomorrow and decide where we go from here," Gulbro said when asked if FoxFire would continue with indoor dining. "We've still got a lot of fight left and we still think that we have a valid case."
He said that during the spring shutdown, the restaurant lost 80% of its business.
Busch had ruled that not being able to serve diners indoors while fighting the lawsuit would irreparably harm the restaurant.
Although the case is due back in court Nov. 13 before Busch to check its status, its next court date is Feb. 9, to determine a schedule.
• Daily Herald staff writer Scott C. Morgan contributed to this report