What the Gov: What Is Behind Governments’ Ability to Keep Restaurants and Bars Closed?

Pritzker this week ordered restaurants closed for dine-in customers. How can he do that and what does the public need to know about how the closures are enforced?

Justin German/BGA

This article is part of a series called What the Gov, where the BGA takes reader questions and tracks down the answers. We are devoting resources to covering how local and state governments are responding to the coronavirus outbreak. We are committed to reporting on what you want to know. Ask your questions here.

In one of his first major moves to limit the spread of coronavirus in Illinois, Gov. J.B. Pritzker this week ordered bars and restaurants across the state to close their doors to dine-in customers.

The order — which mirrors those governors across the nation have approved — still allows bars and restaurants to remain open for drive-thru, carry-out or delivery service. But there is little doubt the measures are having an impact on peoples’ daily routines and will undoubtedly have a big effect on the restaurants’ and bars’ bottom lines.

As Illinois confronts the coronavirus threat, the Better Government Association is asking people across the state to send us their questions about how cities, counties and the Illinois government are handling the pandemic. There’s a lot of confusion and misinformation out there and our hope is to take your questions about what your elected leaders are doing during this time and get some answers.

One of the first questions we received was from Andy Donakowski of Lincoln Square, who understood why Pritzker was ordering restaurants to close for dine-in customers but still wondered where the state’s authority was to make such a far-reaching decision. He also wanted to know how governments would enforce the closures.

“It seemed pretty drastic,” Donakowski told us.

So we turned to Northwestern University law professor Nadav Shoked, an expert in local government, to explain where municipalities, counties and states derive such significant power.

Shoked said it traces back to common law, the body of customs and judicial precedent underpinning our entire legal system. Common law gives governments the power to regulate both individual behavior and land use.

But there is a catch: It must be used to promote public health, safety, welfare or morale, according to Shoked. And it can still be challenged in court.

State statute, approved by lawmakers and signed by governors, outlines how the government is able to wield that power. In this case, the state’s Emergency Management Agency Act and public health laws empower the governor and state public health authorities to take action meant to prevent the spread of contagious disease, according to a Pritzker spokeswoman.

The governor’s executive order this week announcing the directive, along with several other changes, cites specific powers given to the state’s chief executive during an emergency under state law. Included in that list is the ability to control the movement of people within a “disaster area” and “the occupancy of premises therein.”

So what about enforcement? Who is responsible for making sure the bars and restaurants are indeed closed? And what does that enforcement look like?

The answer is that it comes down to municipalities. While the state may put the closure order in place, cities and towns across Illinois are now empowered to enforce the closures.

In Chicago, officials at City Hall told us that both the Chicago Police Department and the city department that oversees businesses are authorized to enforce the order.

In fact, the Department of Business Affairs and Consumer Protection has already activated 20 investigators to share information, check on compliance and issue citations for egregious violations or repeat offenders, a spokesman told us. Investigators will be checking in on businesses and responding to complaints about potential violators.

And what about the potential penalties if a restaurant or bar violates the order?

Fines are one possibility. The city is able to fine establishments between $200 and $10,000, the city spokesman said.

A harsher penalty is license forfeiture.

“You could get your license yanked,” confirmed Sam Toia, president of the Illinois Restaurant Association. “And no one wants to get their license yanked because it’s not fun trying to get it back.”