Geneva restaurant can serve meals indoors while fighting governor's order

  • FoxFire Restaurant in downtown Geneva won permission to offer indoor dining while it fights Gov. J.B. Pritzker's recent ban.

    FoxFire Restaurant in downtown Geneva won permission to offer indoor dining while it fights Gov. J.B. Pritzker's recent ban. Daily Herald file photo

Updated 10/26/2020 6:31 PM

Diners will be able to eat inside FoxFire Restaurant in Geneva while the business fights Gov. J.B. Pritzker's ban on indoor dining.

Kane County Judge Kevin T. Busch on Monday issued an order prohibiting state and county authorities from enforcing Pritzker's ban. Busch's order is temporary and specific to FoxFire.


The restaurant sued the governor, the Illinois Department of Public Health and the Kane County Public Health Department on Friday, the day the ban went into effect. It also filed a request for a temporary restraining order.

Busch agreed with the restaurant's attorney, Kevin Nelson, that not being able to serve diners indoors while the main case is litigated would irreparably harm the restaurant.

Busch also ruled the restaurant was likely to succeed on the merits of its case, because he believes the governor's executive order is invalid. Busch said the state's Emergency Management Act gives a governor the ability to issue executive orders for 30 days when a disaster is declared.

After that period, Busch said, it is up to the state or local health departments to decide whether individual businesses need to be shut down, based on what is happening with public health in their localities. The state public health law calls for giving businesses due process guarantees, and it requires the health departments to present "clear and convincing evidence" that a shutdown of a particular establishment is required and that nothing else will do, Busch said.

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"Due process is the key component," Busch said.

Kane County Assistant State's Attorney Erin Brady, representing the county health department, argued the governor's order doesn't close the restaurant because FoxFire could serve diners outdoors or with carryout meals.

However, Nelson said Monday morning's snowfall shows "outdoor dining in Geneva is not a realistic option," he said.

The hardship of not being able to serve diners indoors -- the restaurant's primary source of business -- outweighed the hardship presented by the state, Busch said.

"It causes the court to wonder why in our community all of the food stores are open (while indoor dining is banned)," Busch said, noting that while food stores are essential, they -- and big-box stores -- have bigger crowds than local restaurants. "The court cannot turn a blind eye to these facts. If there was such a compelling need to shut down public venues ... then how did we pick the winners and losers?"

Thomas Verticchio of the Illinois attorney general's office said the state likely will appeal Busch's decision. The case is back in court Nov. 9

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