Peoria Co. (ECWd) -
The Peoria City-County Public Health Department has once again exercised powers never granted in their intimidation of local businesses.
They issued letters to two local businesses that contain lies and misinformation in what appears to be their form of intimidation. We will break down the lies and misinformation one by one.
- "As per the Executive Orders issued by the Illinois State Governor in response to the COVID-19 pandemic, on-premise consumption at restaurants and bars has been prohibited since March 16, 2020, and as of May 29, 2020, allows for outdoor dining only for on-premise consumption. Indoor dining is still prohibited, and therefore you are in violation of the following:"
Yet again we must educate our local government. The very executive order cited contains an enforcement clause. Within that EO it is clear, the PCCPHD has no authority to enforce the Executive Order. "This Executive Order may be enforced by State and local law enforcement pursuant to, inter alia, Section7, Section 15, Section18, and Section 19 of the Illinois Emergency Management Agency Act, 20 ILCS 3305". Upon reading the Emergency Management Agency Act, specifically the sections cited regarding enforcement, none apply to the PCCPHD. How do we know this?
"(b) Every emergency services and disaster agency established pursuant to this Act and the coordinators thereof shall execute and enforce the orders, rules and regulations as may be made by the Governor under authority of this Act.". There is no inference that this applies to a local government entity created by statute.
- "Additionally, gatherings of ten (10) people or more are prohibited, and social distancing guidelines must be followed in order to remain in good standing with the Peoria City/County Health Department, the County of Peoria, and all other local and state regulatory authorities."
There is no "good standing" provision in any of the Peoria City-County Health Department laws, County Code, nor any other local and state regulatory authorities.
- "Please be advised that a facility that does not voluntarily comply with Executive Order 2020-38 or the Control of Communicable Diseases Code may be ordered to close by a local health department. See 20 ILCS 2305/2(b )."
How convenient that they cite 2305/2(b) as the authority but leave out the very first sentence of that section. "Subject to the provisions of subsection (c)". Subsection (c) outlines the entire due process that must be followed and it is clear, the PCCPHD is NOT following the law. We covered this very law on March 15th, 2020 in this article.
- "Local and statewide law enforcement may assist the local health department in bringing an enforcement action if the facility does not comply with the closure order. See 77 Ill. Adm. Code 690.1340(a)."
Clear intimidation as the key provision for such enforcement is tied to the very last portion of paragraph (b) of that Administrative code: "if that person is uncooperative or unwilling to adhere to prescribed treatment or medical instruction of the Department or certified local health department."
The PCCPHD has not prescribed any treatment or medical instruction as they have not proven anyone is actually a public health risk as required by law nor have they followed paragraph (c) of the appropriate law, thus law enforcement has no place getting involved.
- "Failure to comply with the closure may result in criminal penalties. 20 ILCS 2305/8.1."
Clear intimidation by threatening criminal penalties when the truth of the matter, it is PCCPHD that should face official misconduct criminal charges for "(1) Intentionally or recklessly fails to perform any mandatory duty as required by law." How do we know they know they intentionally or recklessly failed to perform any mandatory duty as required by law? They cited the law in their letter yet failed to follow it as required.
20 ILCS 2305/8.1 is crystal clear. Whoever violates or refuses to obey any rule or regulation of the Department of Public Health shall be deemed guilty of a Class A misdemeanor. This very law raises so many concerns it should scare everyone in this state. For starters, the PCCPHD cites no violation of any rule or regulation of IDPH or their own code, chapter 10. Rather they cite an Executive Order, which is NOT a rule or regulation of IDPH or any local health department. Additionally, we have allowed our legislature to pass a law that gives power to "deem" an entity guilty? Where is the due process rights we have under our State and Federal Constitution?
- "Please be further advised Chapter 10, Food Safety of the Peoria County Code States"
Everyone can read what it states at this link. How convenient they PCCPHD left out the most important part of that County Code. "However, all categories and types of food establishments shall be inspected as many times as the Health Authority deems necessary to enforce the provisions of this Chapter". There is NO PROVISION in that chapter that requires local businesses to follow Executive Orders, so in short, there has been no violation of Chapter 10.
- "Failure to cease and desist said activities could result in suspension and/or revocation of your Food Safety License and will result in a referral to the State's Attorney's Office for legal action and license revocation."
They have once again put the cart before the horse. There has been no evidence provided as required by law to take the steps the PCCPHD threatens. If they had actual evidence of a health risk as required by law, they would have used it. The fact they have not makes it clear, they are attempting to intimidate a local business.
- "This inspection was conducted because this Department received several complaints regarding the operation of on-premise indoor dining at the previously referenced establishment."
There is no provision in the PCCPH Code that limits on-premise indoor dining so any such complaints should have been ignored.
- "..was still in operation even though the license to operate a food service establishment was suspended the previous day."
The PCCPHD has no authority to suspend a license for non-compliance with an Executive Order. We are confident Tom DeVore, the attorney involved in this matter will prevail on this matter.
- "Section 10-45 Penalties Other Than Suspension and Revocation of Licenses Pursuant to the Board's authority under Section 5-20003 of the Counties Code, 55 ILCS 5/520003, any person that violates any provisions of this Chapter shall be guilty of a class B misdemeanor"
For starters, there is no County Code 55 ILCS 5/5200003 in our Illinois laws.
If they meant to point to 55 ICLS 5/20003, then they should either hire a new attorney, assuming one drafted the improper letters, or face criminal intimidation charges for their actions.
The applicable statute for violations is clear and it applies to violations of actual rules or regulations of the board of health. The PCCPHD has no regulation restricting on-premise indoor dining in their Code, thus they have no authority to threaten a person with criminal prosecution for on-premise indoor dining, let alone suspend or revoke anyone's license. This is a clear form of intimidation and considering it is coming from a public official, it appears to fit squarely on the four corners of criminal intimidation( 720 ILCS 5/12-6). We covered this issue in this article.
- "Section 10-41 Revocation For serious or repeated violations of any provisions of this Chapter or for interference with the Health Authority in the performance of its duties, the Health Authority may hold a hearing to permanently revoke a license"
They point to alleged violations of provisions of their adopted code however there is nothing in that code that deals with Executive Orders so once again they are simply throwing more misinformation at the business as a means of intimidating them to comply with their desires rather than following the law.
Based on this clear abuse of power, we encourage everyone that believes in the rule of law to contact the Peoria and Edwards, Illinois, Police Departments, and file a criminal complaint for criminal intimidation by the PCCPHD. Additionally, contact the Peoria County States Attorney's office at 309-672-6900 or email [email protected] and voice your concerns over this matter and demand she holds the PCCPHD accountable for their clear overreach of power.
We asked numerous questions of the PCCPHD and they have yet to respond. We will update you with a new article if they do.
A copy of the letters can be downloaded at this link or viewed below.