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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Monday, November 23, 2020

Governor Issues EO Implementing Tier 3 Restrictions


We previously reported on the Tier 3 mitigation measures that took effect on Friday and that cover the entire State of Illinois. Since the Governor's press release about the new restrictions, he issued the Executive Order 2020-73 that provides further details about the new restrictions, including guidance on some government functions and activities that will be of interest to our readers.

EO 2020-73 does not replace the Restore Illinois plan or the Tier 3 mitigation measures, so those restrictions and guidelines should be consulted as well. To the extent there is any conflict, EO 2020-73 expressly states that the more restrictive standards will apply.

The EO includes the restrictions on various businesses and activities as we described in our previous blog post about Tier 3. There are a few additional regulations and restrictions, many of which are summarized below:

Social Distancing & Face Coverings

The EO continues to mandate that people maintain a six foot distance from other individuals and wear face coverings in public places and where distancing cannot be met. 

Gatherings

The EO prohibits indoor gatherings of more than one household. Outdoor gatherings are prohibited to 10 people. The EO encourages people to conduct activities outdoors wherever possible.

Business Activities

We summarized the Tier 3 restrictions for businesses (retail, manufacturing, office, fitness, recreation, etc.) previously, so encourage you to revisit that blog post.

Exemptions

The EO contains four exemptions, summarized below. For more information about each of these exemptions, you should consult the EO.

1. Free exercise of religion. The EO does not limit the free exercise of religion. However, the EO strongly encourages religious organizations to consult and follow recommended guidelines from the IDPH, including offering online, drive-in, or outdoor services and limiting services to 10 people. 

2. Emergency functions. The EO exempts first responders, EMS, dispatchers, court personnel, law enforcement and corrections, child protection and child welfare personnel, housing and shelter personnel, military, and other governmental employees working for or to support the emergency response.

3. Governmental functions. The EO exempts the federal government. It also exempts services provided by the state or any municipal, township, county, subdivision, or agency of government that are needed to ensure the continuing operation of the government agencies or to provide for or support the health, safety, and welfare of the public.

4. Election-related functions. The EO does not apply to activities related to the November 2020 election, including the meeting of presidential electors related to the Electoral College. The EO does not apply to township or municipal caucuses, and the EO expressly states that nothing in the EO prohibits caucuses from being held virtually or outdoors. 

Enforcement

The EO states that it can be enforced by state and local law enforcement pursuant to the Illinois Emergency Management Act. 

No Limitation on Authority

The EO expressly states that it is not intended to alter or modify any existing legal authority that would allow a county or local government to enact stricter provisions than those in the EO.

Wednesday, November 18, 2020

Tier 3 COVID Mitigation Measures Take Effect on Friday


It will come as no surprise to most readers, but the State of Illinois is going to see new mitigation measures to try to control the COVID-19 pandemic. As we've reported in the past, all regions in the State are currently in Phase 4, with individual regions also being subject to either Tier 1 or Tier 2 measures that restrict certain activities such as indoor dining and size of gatherings. 

Effective Friday, November 20, 2020, the entire State will be subject to Tier 3 mitigation measures. The IDPH will monitor progress over 14 day monitoring periods to determine if mitigations can be relaxed or additional mitigations are required.

Tier 3 places additional restrictions on various activities, which are detailed here. We've summarized some of these new restrictions that take effect on November 20th, as follows:

Bars and Restaurants

  • Indoor dining and bar service continues to be prohibited
  • Outdoor service, carry out,  curbside, and delivery is permitted
  • Bars and restaurants must close between 11 pm and 6 am
  • Various other restrictions on table spacing, number of guests at a table, and reservations continue
  • Indoor gaming terminals must cease operations
  • These restrictions also apply to private clubs and country clubs
Health & Fitness Centers
  • Restricted to 25% capacity
  • No indoor group fitness classes
  • Face coverings must be worn at all times, including while exercising
  • Reservations required
  • Locker rooms must close
Hotels
  • Hotel occupancy restricted to registered guests only
  • Fitness centers must close or operate by reservation only and at 25% capacity
  • "Grab and go" food allowed
  • Event and meeting space must close
Indoor Recreation, Theaters, and Cultural Institutions
  • All gaming and casinos must close
  • Theaters, performing arts centers, museums, and amusements centers must close 
  • Outdoor activities allowed at 25% capacity, and limited to 10 persons or less, with face coverings worn at all times
  • Reservations required for outdoor activities
Organized Group Recreational Activities
  • Indoor group sporting and recreational activities, including youth and adult sports, must pause (includes park districts and travel leagues)
  • Outdoor sports and recreation allowed but limited to 10 persons or less with social distancing
  • Face coverings required for all activities at all times
  • Locker rooms must close
Personal Care Service
  • 25 clients or 25% capacity
  • Face coverings required at all times by clients and providers
  • Suspend those services where face covering cannot be worn
  • Physical, occupational, and massage therapy allowed if deemed necessary by medical provider
Meetings, Social Events & Gatherings
  • Home gatherings limited to household members only
  • Meeting rooms, banquet centers, private party rooms, private clubs, and country clubs may not host gatherings
  • Funerals limited to 10 family members
Retail
  • General merchandise stores, big box stores that offer groceries and pharmacy, and convenience stores limited to 25% capacity
  • Grocery stores and pharmacies limited to 50% capacity 
  • Encourage delivery or curbside delivery
Office
  • All employees who can work remotely should work remotely
Government
  • Except where specific guidance is provided for certain operations, governments may continue regular operations but are encouraged to voluntarily take steps to support new mitigation strategies, including limiting customer service to 25% capacity and maximizing work from home

Monday, November 16, 2020

Appellate Court Invalidates Kane County Court's TRO Regarding Indoor Dining Restrictions


There have been a number of lawsuits brought against Illinois Governor Pritzker relating to recent mitigation measures taken to address the COVID-19 pandemic. Some of these lawsuits included claims brought by restaurants to challenge bans on indoor dining and bar service. One case made its way to the Second District Appellate Court which issued a ruling last week invalidating a TRO that was issued by a trial court to stop the enforcement of the Governor's mitigation measures against a Geneva restaurant. Fox Fire Tavern, LLC v. Jay Robert Pritzker

On October 21, 2020, the Governo issued EO 2020-61 imposing mitigation measures on four Illinois counties, including Kane County. These measures required all restaurants and bars to cease indoor service. Fox Fire Tavern filed a lawsuit and a motion for a TRO to block enforcement of the new mitigation measures. The trial court had granted the restaurant's motion and entered a TRO against enforcement of the mitigation measures against the restaurant, finding that the Governor lacked statutory authority to address the pandemic through consecutive disaster prcoclamations. The Governor, IDPH, and the Kane County Health Department appealed to the Second District Appellate Court.

In invalidating the trial court's TRO, the Appellate Court found that state statute does provide authority to the Governor to issue successive proclamations arising from a single, ongoing disaster. First, the Illinois Emergency Management Agency Act contains no provision restriction the Governor from issuing multiple declarations - the language simply prohibits the length of any one declaration to "a period not to exceed 30 days". Second, where the legislature wanted to restrict consecutive orders, the IEMA expressly said so, such as the language that prohibits a Mayor from issuing successive disaster declarations without City Council approval. In short, the Court found that the trial court's interpretation was too narrow in reading parts of IEMA in isolation from other parts of that same statute.

The Court also referenced subsequent legislative changes to other statutes (including the Unemployment Insurance Act and the Election Code) that include express reference s to subsequent disaster proclamations as evidence that the legislature contemplated the Governor issuing successive disaster proclamations. 

Finally, the Appellate Court addressed the policy arguments presented by the restaurant association and other amici who filed briefs in support of the restaurant's case. These "friends of the court" argued that the restaurant industry had been unfairly targeted for shutdowns and that they would suffer extreme hardships from the stricter regulations. The Court stated that it was not tasked with considering the wisdom behind the Governor's additional restrictions, or questioning the policy. Instead, the Court said its task was to determine whether the Governor has the authority to issue successive disaster proclamations for the COVID-19 pandemic, which the Court found he does.

Wednesday, November 11, 2020

Reminder: IMRF Website Posting Requirements Deadline of January 1, 2021


Earlier this year, we wrote about Public Act 101-0504, which amended the Illinois Pension Code. This new law requires certain website posting requirements for the Illinois Municipal Retirement Fund (IMRF) and participating municipalities.

Municipalities participating in the IMRF that maintain a website must post a link to the IMRF’s “Employer Cost & Participation Information” webpage on their websites by no later than January 1, 2021. Participating municipalities are encouraged to add this link to their websites before January 1, 2021. Notably, the new law does not require participating municipalities without a website to maintain or establish a website.  

The IMRF has also already started posting information required by the new law on their website regarding municipalities’ participation in IMRF. This information includes resolutions adopted by a municipality to participate in IMRF on or after January 1, 1995, an annual report listing the date each municipality first began participating in the IMRF, and documents pertaining to each municipality’s annual projected future contributions and past-required contributions. The IMRF is not required to post information on its website that would be exempt under the Illinois Freedom of Information Act.

To read our prior post on this new law, please click HERE

Post Authored by Eugene Bolotnikov, Ancel Glink


Tuesday, November 10, 2020

Is Video Gaming Permitted During COVID-19 Mitigation Measures?


As you know, the Governor has recently imposed further mitigation measures throughout the State of Illinois regarding the COVID-19 pandemic. Some regions are currently in Tier 1, which bans indoor dining and indoor bar service and restricts gatherings to 25 people, among other restrictions. Other regions are currently, or will be shortly, in Tier 2, which also bans indoor dining and indoor bar service and restricts gatherings to 10 people, among other restrictions. 

One question that has been raised is whether a restaurant or bar that offers video gaming must also cease all gaming activities while the region is subject to these mitigation measures that ban indoor dining and indoor bar service. The DCEO posted a FAQ on this very issue on November 9, 2020. In short, video gaming activities can continue, subject to certain conditions. The FAQ is reprinted below:

Is video gaming permitted at bars, restaurants and other licensed video gaming locations in areas under mitigation? 

Yes, but only under the following conditions: 

  • Gaming is limited to within the hours of 8:00 AM to 11:00 PM daily, with no exceptions
  • Food and beverage service in the gaming area is suspended (curbside and carry out is permitted if otherwise authorized) 
  • Masks must be worn at all times in the gaming area 
  • Congregating around video gaming terminals is prohibited and there is a one person per video gaming terminal limitation 
  • Existing social distancing, sanitizing and other mitigation protocols and measures in approved Terminal Operator Pandemic Resumption Plans remain in effect along with other applicable protocols and directives from the Illinois Gaming Board 
  • Failure to comply with mitigation efforts and restrictions could subject licensees to discipline from the Illinois Gaming Board, up to an including license revocation


Monday, November 9, 2020

Court Rules on Reasonable Accommodations in Code Enforcement Case


In City of Harvard v. Nevitt, the Illinois Appellate Court ruled in favor of the City in a code enforcement case against a resident, rejecting the resident's argument that the City should have provided a reasonable accommodation for his wife's disability under the Americans' with Disabilities Act (ADA) or the Fair Housing Amendments Act (FHAA).

In December 2018, a resident of the City of Harvard applied for a permit requesting the City allow him to place a two-yard-long dumpster on his property, which otherwise violated a city ordinance. The resident had met with a City code enforcement officer to request a dumpster permit, but did not submit a formal written application. The City officer denied the resident's dumpster permit request.

In January 2019, the City discovered a two-yard dumpster on the resident's property prompting the City to issue a notice of violation. By May 2019, the City issued a “notice to abate nuisance” letter to the resident about the dumpster. And between May and July 2019, the City issued seven citations to the resident for violating the City ordinance. In June 2019, the City filed a complaint in court to enforce its ordinance, alleging the resident maintained a private nuisance on his property—the two-yard-long dumpster.

At trial, the resident stated that he was denied the dumpster permit after discussing the issue with the City. They said they requested the dumpster because the resident's wife is disabled. The City code enforcement officer, however, testified that Nevitt and his wife never mentioned the wife's disability during their meeting. Instead, Nevitt's wife referenced the need for the dumpster for a home business, which she acknowledged on cross-examination. The court found the defendant guilty of violating the ordinance and imposed a $1,250 fine, plus costs. The court also found that the defendant did not notify the City of the wife's disability.

On appeal, the court upheld the trial court's ruling. The appellate court did not find evidence in the record showing proper written notice was provided to the City regarding Nevitt's wife's disability. Further, neither Nevitt nor his wife could produce copies of documentation showing they notified the City. The record indicated, however, that after the defendant placed the non-compliant dumpster on the property, the Nevitt’s standard-issued garbage cans were still being rolled to the curb for garbage collection. In sum, the appellate court agreed with the trial court's ruling in favor of the City.

Post Authored by Mike Halpin & Julie Tappendorf, Ancel Glink


Thursday, November 5, 2020

6th Circuit Court of Appeals Rules on Social Media Case


Early last month, the 6th Circuit Court of Appeals issued a ruling in a case filed by a City employee who was terminated for posting a comment on Facebook after the City determined that the comment was racially charged. In Bennett v. Metropolitan Government of Nashville and Davidson County, the Court of Appeals upheld the government employer's termination of the employee for the social media conduct. 

In 2016, Bennett, a government employee, posted a racial slur on her personal Facebook account right after the 2016 General Election. Bennett was an emergency dispatcher of the Metro Government Emergency Communications Center (ECC). Bennett’s Facebook referenced that she was a Metro Government employee and included information that she was a dispatcher at the ECC. After friends expressed concerns about the post, she deleted it from her Facebook post; however, several of her coworkers had already seen the post before it was deleted and reported the activity to department supervisors. 

When approached by supervisors about the incident, Bennett stated she made the comment in jest. Supervisors expressed concern about the racially charged comment and noted its impact on an agency that regularly interacts with the public. Bennett was placed on paid administrative leave while an investigation was conducted. An administrative hearing found that Bennett violated three provisions of the ECC's social media policy, and she was terminated.

Bennett filed a lawsuit against her employer in federal court claiming that the termination violated her First Amendment rights. The case went to trial, and a jury found in Bennett's favor, holding that her Facebook comment was not reasonably likely to impair discipline by Bennett’s supervisors at ECC, interfere with the agency’s orderly operation, or impede Bennett’s job duties. The jury awarded her $6,500 in back pay and $18,750 for humiliation and embarrassment. 

ECC appealed to the 6th Circuit Court of Appeals, which overturned the district court's ruling in favor of Bennett. The Court of Appeals applied the Pickering balancing test (a Supreme Court ruling that balances the weight of an employee’s speech with the weight of a government agency’s ability to maintain operations) and concluded that Bennett’s use of a racial slur was not protected speech under the First Amendment. 

The Court of Appeals also noted that the record showed that Bennett exhibited little to no remorse for her use of the slur. She even called her fellow employee’s hypocrites and stated she would not apologize because some employees took her use of the slur the wrong way. The Court also found that Bennett’s use of the slur was detrimental to the ECC’s close working relationships, and the use of the slur “detracted from the mission of ECC” as an agency that provides vital services to constituents. A critical determination in the case was that Bennett’s comment was made on her public-pacing profile while listing her employer as ECC. The court found that if her Facebook profile were private, it would have diminished the argument for her termination.

Finally, the Court rejected Bennett’s argument that the comment was political because she used the slur while discussing the outcome of the presidential election the day after the results were released. Her employer conceded Bennett was making a political statement on the post but argued that use of the slur was “not purely political” and should not have garnered a high level of protection from the trial court. The Court of Appeals agreed and found that Bennett’s speech did not reach the highest level of protection. 

Post Authored by Mike Halpin & Julie Tappendorf, Ancel Glink


Wednesday, November 4, 2020

IICLE Local Government Law Institute 2020 Seminar


Calling all local government lawyers!  One month from today, the Illinois Institute for Continuing Legal Education (IICLE) will be hosting its 8th annual Local Government Law all-day seminar, which will be conducted entirely remotely this year. More information about this year's seminar is below:

Title: Local Government Law Institute

Date/Time:  December 4, 2020 from 8:45 to 4:45

Place: Webinar

Description of Sessions:

  • Local Government Emergency Playbook
  • Courts, the General Assembly, and Congress: A Status Call   
  • Statements of Economic Interest Primer
  • Best Practices for Virtual Board Meetings and Public Hearings 
  • Lunch Panel: Bells That Can’t Be Unrung After COVID-19 
  • New Developments Concerning Police and Law Enforcement 
  • Navigating First and Second Amendment Rights in the Face of Modern Social Upheaval: COVID, Police, Protests, Civil Unrest, and the 2020 Election 
  • Election Law Update 
  • Law and Economics: COVID-19 Economic Development and Municipal Finance Updates 

The seminar qualifies for 7.25 hours of Illinois CLE, with 2 hours of general PR credit.

You can read the agenda and brochure here and register for the seminar here.

Monday, November 2, 2020

Join us Today at Noon for a Live Election Podcast!


 Quorum Forum 46: 2021 Election Special!

With the 2020 general election campaigns drawing to a close this week, preparations for the 2021 local government elections are well underway. Today at noon (Monday, November 2, 2020), we'll welcome Ancel Glink Attorney Ken Menzel to the podcast to discuss common areas of confusion and important things to know about the upcoming local government elections. Bring your questions and join our livestream on youtube.com/ancelglink

If you can't attend live, don't worry - we will be posting the recording of this livestream on our Quorum Forum Podcast in the next week, so stay tuned.