IDPH Files Emergency Rule Regarding Enforcement of Stay at Home Order and Certain Businesses

IDPH Files Emergency Rule Regarding Enforcement of Stay at Home Order and Certain Businesses

  Monday, May 18, 2020    Julie Tappendorf

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UPDATE: On May 20, 2020, during a Joint Committee on Administrative Rules (“JCAR”) meeting, the IDHP Deputy Chief of Staff confirmed that IDHP will repeal the emergency rule filed on May 15, 2020.

According to recent news reports, on Friday, May 15, 2020, the Illinois Department of Public Health (IDPH) filed emergency rule 690.40 establishing certain regulations pertaining to certain businesses, including restaurants and bars, gyms, salons and other non-medical personal care facilities. The rule also proposes that businesses that defy the Governor's Stay at Home Order (2020-32) could be charged with a Class A misdemeanor, which is punishable by a fine of $75 to $2,500. 

The IDPH's emergency rule is reprinted below:

Section 690.40 Pandemic or Epidemic Respiratory Disease – Emergency Provisions EMERGENCY

a) The State Department of Public Health has general supervision of the interests of the health and lives of the people of the State. As part of that general supervision, the Department has jurisdiction to address dangerously contagious or infectious disease outbreaks to protect the health and lives of the people of the State. The Department shall take means it considers necessary to restrict and suppress dangerously contagious or infectious diseases, especially when existing in epidemic form. (Section 2(a) of the Act)

b) In order to restrict and suppress the novel coronavirus SARS-CoV-2 that causes the coronavirus disease 2019 (COVID-19), a dangerously contagious and infectious respiratory disease in the form of a pandemic or epidemic, which is spread person to person in respiratory droplets released by a person infected with the disease, the Department implements the following restrictions and requirements:

     1) Businesses and establishments that serve food or beverages, including, but not limited to, restaurants, food buffets, self-serve areas, bars, taverns, pubs, wineries, breweries, or beer gardens, that operate under a permit or license issued by the State or local health authority, shall not allow indoor on-site consumption of food or beverages. Service shall be limited to drive-through, delivery, curb-side, or pick up only. Businesses and establishments located in airports and hospitals are exempt from the requirements of this Section.

     2) Businesses and establishments that offer indoor fitness, exercise, physical workout or non-medical wellness services, such as health clubs or centers, fitness clubs or centers, gyms, tennis clubs, swimming pools, shall not allow on-site indoor fitness, exercise, workout or non-medical wellness options to customers, including but not limited to, classes, personal training, or individual customer use of exercise equipment or facilities. Service shall be limited to the sale of retail goods via drive-through, delivery, or pick up only, or the use of exercise equipment or the indoor use of facilities for the recording and streaming of online classes and instructional videos only.

     3) Businesses or establishments that offer cosmetology, esthetics, nail technology, barber, tanning, body art, or similar non-medical personal care services, treatments, procedures or therapies shall not provide on-site services. Service shall be limited to the sale of retail goods via drivethrough, delivery, curb-side, or pick up only.

c) Any person who violates the provisions of this Section shall be subject to the penalties set forth in Section 8.1 of the Act.

 Post Authored by Eugene Bolotnikov and Julie Tappendorf, Ancel Glink

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Health Departments and the Disclosure of COVID-19 Patient Identifying Information

Health Departments and the Disclosure of COVID-19 Patient Identifying Information

  Friday, May 15, 2020    Julie Tappendorf

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The Health Insurance Portability and Accountability Act (HIPAA) privacy rule generally prevents the disclosure of a patient’s personal health information without the patient’s HIPPA authorization. However, an exception to HIPPA permits disclosing this information to first responders in certain circumstances, including lessening a serious and imminent threat to health and safety of the public, first responders and inmates. 

The Illinois Attorney General has advised that sharing COVID-19 patient identifying information with first responders is permissible under the HIPPA exception, but has left decision to local health departments. The Illinois Department of Public Health (“IDHP”), however, issued guidance on April 1, 2020, recommending that local health departments not disclose COVID-19 patient identifying information to law enforcement. The IDHP based this guidance on its opinion that disclosing COVID-19 identifying patient information to first responders would have limited value and provide first responders with a false sense of security because of a high number of asymptomatic cases may not have been tested yet and people who have tested positive may no longer be contagious. Instead, the IDPH recommended that first responders take appropriate protective precautions when responding to all calls. 

Illinois counties have responded in different ways to this issue. DuPage and Will County Health Departments have voluntarily provided COVID-19 patient addresses to first responders. However, other Illinois counties have refused to provide information to first responders, sparking several lawsuits, a few of which are discussed below.

Cook County

The Northwest Central Dispatch System, a consolidation of 911 dispatchers, filed a lawsuit on April 20, 2020 against the Cook County Department of Public Health, its administrators and Cook County Board President Toni Preckwinkle. The lawsuit sought a temporary restraining order (TRO) forcing the county to disclose the names and addresses of COVID-19 patients. On May 1, 2020, Cook County Judge Anna Demacopoulos denied the TRO. During the hearing, the judge reiterated the IDHP’s guidance and voiced concerns over maintaining the privacy of medical information and whether police would respond more slowly if they knew they could be exposed to the virus. The judge also questioned whether releasing this information would make first responders safer, reasoning that because of the high number of asymptomatic cases and testing gaps, first responders are no more safe if they know a person’s name. Addressing discrimination concerns, the judge said that disclosing COVID-19 patient identities threatens stigmatizing infected people and harming minorities and undocumented residents who have complicated relations with the police. She also noted that some might feel discouraged from getting tested for fear of appearing on the list, which could exacerbate the virus’s prevalence in those communities. The judge set another hearing for early June.

McHenry County

On April 10, 2020, McHenry County Judge Michael Chmiel entered a TRO requiring the McHenry County Department of Health to disclose COVID-19 patient names to emergency dispatchers. The TRO requires COVID-19 patient names to be purged from the dispatch system seven days after the health department deems the patients are no longer contagious and also requires all information received by the dispatch system to be kept confidential. The judge’s order comes after a lawsuit filed by the McHenry County Sheriff and a separate lawsuit filed by Algonquin, Lake in the Hills, McHenry City, and Woodstock Police Departments. The Sheriff’s Office claims that the names of infected COVID-19 patients will only be shared by dispatchers on a call-by-call basis to protect the health of officers responding to emergency calls. The County Department of Health has filed a reconsideration request and a motion to dissolve the temporary restraining order, which is slated to be considered on May 18, 2020.

Lake County

On April 28, 2020, the Lake County Sheriff’s Office filed a lawsuit to force the Lake County Health Department to provide the names and addresses about COVID-19 patients in the county after the Health Department refused the Sheriff's request to confidentially disclose this information. The matter was heard by Judge Daniel Jasica on May 1, 2020, who urged both parties to engage in settlement discussions. Similar to the legal challenge in McHenry County, the Lake County Sheriff’s Office claims that receiving this information is vital to preventing the spread of the virus and protecting first responders and the community. In response, the Health Department reiterates the IDHP’s recommendation that disclosing patient identifying information gives law enforcement a false sense of security, because the county has many asymptomatic individuals who have not been tested and increases the risk of mishandling private medical information. This case is ongoing.

Post Authored by Eugene Bolotnikov, Ancel Glink

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Fast-Track Grants for Planned Infrastructure Projects Available to Local Governments

Fast-Track Grants for Planned Infrastructure Projects Available to Local Governments

  Thursday, May 14, 2020    Julie Tappendorf

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On Tuesday, Governor Pritzker and the Illinois Department of Commerce and Economic Opportunity (“DCEO”) announced the Rebuild Illinois Fast-Track Public Infrastructure Grant Program. Through the Program, DCEO will award $25 million in Rebuild Illinois grants to shovel-ready local public infrastructure projects with the intent of accelerating construction on planned public infrastructure projects and helping skilled labor return to work.

Eligible applicants include units of local government, such as municipalities, counties, townships, school districts, and other local political subdivisions. Eligible applicants must register on Grant Accountability and Transparency Act Grantee Portal and meet other prequalification requirements. Applications will be accepted on a rolling basis until funding is depleted or until the Program deadline at June 15, 2020. Individual grant awards will range from $500,000 to $5,000,000.

Eligible applicants may apply for multiple projects, including projects that entail new construction and/or significant renovation or improvements of:

• publicly owned buildings, facilities, and parks;

• publicly owned industrial and commercial sites;

• waste disposal systems;

• water and sewer line extensions;

• water distribution and purification facilities;

• gas and electric utility extensions;

• dredging of waterways;

• rail, air, or water port improvements;

• ADA-compliant sidewalks, curb and gutters;

• previously unimproved WPA streets; and

• other public infrastructure capital improvements.

DCEO will only award grants to projects that commit to beginning within 90 days of Notice of Award Finalist and demonstrate the ability to do so. Projects eligible for grant funding must be public assets, must be permanent in nature and must not have recurring project expenses. Eligible projects must meet the Program’s shovel-ready criteria, as well as the minority business participation requirements of Illinois’ Business Enterprise Program. Grants are limited to capital improvement expenses and will not compensate for indirect costs, overhead or administrative expenses associated with the execution of the program. The Program does not have cost sharing or matching requirements.

More information is available in the Program’s Notice of Funding Opportunity and the Rebuild Illinois Public Infrastructure Guidebook. Local governments can click here to apply.

Post authored by Eugene Bolotnikov and Daniel J. Bolin

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CARES Act Recovery Assistance Grants Available to Local Governments for Economic Development

CARES Act Recovery Assistance Grants Available to Local Governments for Economic Development

  Wednesday, May 13, 2020    Julie Tappendorf

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The U.S. Department of Commerce recently announced that the Department’s Economic Development Administration (“EDA”) is accepting applications from eligible grantees for $1.5 billion in CARES Act funds intended to help communities prevent, prepare for, and respond to COVID-19.

Eligible grantees include states, counties, cities or other political subdivisions of the state, including a special purpose unit of a state or local government engaged in economic or infrastructure development activities, or a consortium of political subdivisions. However, grant applicants must clearly explain how their project would “prevent, prepare for, and respond to coronavirus” or respond to “economic injury as a result of coronavirus.” See Eligibility FAQ.

The EDA will make CARES Act Recovery Assistance grants under the authority of its Economic Adjustment Assistance (“EAA”) program to support various non-construction and construction activities, including revolving loan funds, in regions across the country experiencing severe economic dislocations brought about by the pandemic. Examples of projects that EDA may fund include:

• economic recovery planning and preparing technical assistance strategies to address economic dislocations caused by the coronavirus pandemic;
• preparing or updating resiliency plans to respond to future pandemics;
• implementing entrepreneurial support programs to diversify economies, and
• constructing public works and facilities that will support economic recovery, including the deployment of broadband for purposes including supporting telehealth and remote learning for job skills.

The Congressional Research Service notes that EDA’s role in the pandemic response will likely emphasize coordinated, long-term, regional, and strategic responses to economic recovery. Short-term responses to address budget shortfalls are not likely to be competitive in the EAA program.

Grant awards will range from $100,000 to $30,000,000, and the EDA generally expects to fund between 80 to 100 percent of eligible project costs. The notice of funding opportunity indicates the EDA will accept applications on an ongoing basis, but high demand is expected for the anticipated 3,000 grant awards.

Post authored by Eugene Bolotnikov and Daniel J. Bolin

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Illinois Liquor Commission Released Updated COVID-19 FAQ

Illinois Liquor Commission Released Updated COVID-19 FAQ

  Tuesday, May 12, 2020    Julie Tappendorf

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The Illinois Liquor Control Commission recently released an FAQ on COVID-19 Compliance that includes a lot of helpful guidance to local liquor control commissioners and staff on regulating liquor establishments during the pandemic. You can access the FAQ here. We have posted a few examples of the questions asked and answered in the FAQ below.

Q. Can an on-premise ONLY liquor license holder sell for off premise consumption and deliver alcohol? 

A. Yes, if authorized by the Local Liquor Control Commission and if licensee abides by off-premises sales rules including selling alcoholic liquor in the original container only. 

Q. Can a retailer that sells carry-out food also sell beer to-go as well. 

A. Yes, if authorized by the Local Liquor Control Commission and beer is sold in the original container (or growlers/crowlers sold pursuant to 235 ILCS 5/6-6.5)

Q. Can on-premise licensed establishments have private meetings, private events, weddings etc.?  

A. No, all on-site premises consumption is suspended. 

Q. Can on premise licensed establishments have private events if the event brings their own alcoholic beverages? 

A. No

Q. As a bar or restaurant, may I permit beverages and/or food to be consumed in an outdoor area next to or near my indoor licensed premises? 

A. A licensee may not permit persons to remain on its licensed premises or in any outdoor area owned or controlled by the licensee or the owner of the licensee. Such outdoor areas could include, but are not limited to, beer gardens, outdoor patios, sidewalk cafes, parking lots, lawn areas, and fields. A bar or restaurant owner is liable for permitting all violations of state law pursuant to Executive Order 32 that may occur on the licensed premises or that are related to the conduct of the licensed business. 

Q. Can alcoholic liquor be sold and delivered to a private home? 

A. Subject to the approval of the Local Liquor Control Commission, licensees authorized to conduct retail sales of alcoholic liquor are permitted to provide home delivery of alcoholic liquor in the original container (or growlers/crowlers sold pursuant to 235 ILCS 5/6-6.5). Guidance on deliveries can be found on the website.

Q. Can I sell “cocktails to go”? 

A. The State Commission has authorized retail licensees, subject to local approval, the privilege of selling alcoholic beverages for off premises consumption. The only caveat is that the alcoholic beverages must be in the “original container” (or growlers/crowlers sold pursuant to 235 ILCS 5/6- 6.5). A retailer may sell a “cocktail kit,” which would consist of a non-alcoholic cocktail mix, such as margaritas or bloody marys, and an alcoholic beverage in the sealed original manufacturer’s container. The important factor is that the alcoholic beverage is sold in the sealed original container (or growlers/crowlers sold pursuant to 235 ILCS 5/6-6.5). Pursuant to 235 ILCS 5/6-6.5, growlers or crowlers may only be filled with beer. Please see the “’To-Go” Sales and Delivery of Premixed Cocktails” guidance document on our website for additional information.

Q. Can an on-premise ONLY liquor license holder allow customers into premises for video gaming? 

A. No, pursuant to an order issued by the Illinois Gaming Board, all licensed video gaming operations must cease at 9 pm on March 16, 2020. 

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PAC Issues Binding Opinion on FOIA and Cannabis Applications

PAC Issues Binding Opinion on FOIA and Cannabis Applications

  Monday, May 11, 2020    Julie Tappendorf

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The Illinois Attorney General PAC Office just released its third binding opinion for 2020. In PAC Op. 2020-03 the PAC office found an Illinois agency in violation of FOIA for improperly redacting certain information contained in cannabis business license applications, although the PAC did acknowledge that the agency could properly redact birth dates under 7(1)(c) of FOIA.

A Chicago Tribune reporter filed a FOIA request with the Illinois Department of Agriculture requesting a copy of all applications for adult use cannabis cultivation center licenses. The Department provided copies of the applications but redacted certain information under 7(1)(a),7(1)(b), and 7(1)(c). Specifically, the Department explained that certain information was redacted because it was confidential under the Compassionate Use of Medical Cannabis Program Act ("Medical Act") or was protected by personal privacy exemptions. The reporter appealed to the PAC.

The PAC first noted that the Medical Act does not apply to applications for adult use cannabis facilities, so the confidentiality provisions of that Act did not protect certain information from release to the public.  Instead, the Cannabis Regulation and Tax Act applies to these applications, and that Act did not include the same confidentiality provisions as the Medical Act. As a result, the Department could not rely on the Medical Act to justify redaction of certain information in the applications. However, the PAC did agree with the Department that the birth dates of the principal officers and board members were properly redacted under 7(1)(c) as an invasion of privacy, finding no public interest in release of that "highly personal" information. 

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Police Can Run Name Check for Alleged Ordinance Violation

Police Can Run Name Check for Alleged Ordinance Violation

  Friday, May 08, 2020    Julie Tappendorf

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A recent decision highlights that it is not illegal for law enforcement officers to use ID’s for running name checks on persons properly detained or arrested for ordinance violations. Hall v. City of Chicago,No. 19-1347 (7th Cir. 2020). 

In Hall, Chicago Police Department (“CPD”) officers stopped plaintiffs for violating a panhandling ordinance. During these stops, the officers typically asked the plaintiffs to produce identification, which the officers used to search for outstanding arrest warrants or investigative alerts against the persons stopped. Plaintiffs sued the City claiming that CPD unreasonably prolonged street stops in violation of the Fourth Amendment protection against search and seizure and that CPD maintained an unconstitutional policy or practice of performing these checks. On appeal, the court concluded that CPD could lawfully request ID’s to execute check names after observing ordinance violations, even if the checks were unrelated to the observed criminal activity, as long as delays caused by the checks were reasonable.

Post Authored by Eugene Bolotnikov, Ancel Glink

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Quorum Forum Podcast Episode 38: Remote Zoning Hearings Just Released

Quorum Forum Podcast Episode 38: Remote Zoning Hearings Just Released

  Thursday, May 07, 2020    Julie Tappendorf

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In case you had to miss our "live" webinar on conducting remote zoning hearings on Monday, you can now listen to the recording on Quorum Forum Podcast Episode 38 - see below for more information: 

Quorum Forum Podcast Episode 38:  Remote Public Hearings

In partnership with the APA-IL Legislative Committee, David Silverman and Greg Jones share ten best practices for virtual public meetings and ensuring due process during public hearings with limited physical attendance. Joined by hundreds of APA-IL chapter members and other local government professionals during a live web conference, we celebrate two years of Quorum Forum podcast and discuss important questions about managing land use applications during COVID-19. 

What questions do you have about remote public hearings? Email us.

Additional Resources:

Municipal Minute, Tips for Remote Zoning Hearings

Forward Together:  Virtual Local Government Conference

Dan Bolin and ELGL, Bells That Can’t Be Unrung:  Local Government Impacts

May 12, 2020 at 11:00 am

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Governor Pritzker Releases Restore Illinois Plan to Reopen Illinois in Phases

Governor Pritzker Releases Restore Illinois Plan to Reopen Illinois in Phases

  Wednesday, May 06, 2020    Julie Tappendorf

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Yesterday, Illinois Governor Pritzker announced his plan to reopen Illinois in five phases which is called "Restore Illinois." The plan divides Illinois into 4 defined regions, and establishes five phases to reopen Illinois, starting with Phase 1 (Rapid Spread) and concluding with Phase 5 (Illinois Restored). 

According to the Governor, the entire State of Illinois is currently in Phase 2 (Flattening). By the end of the month, some regions may move to Phase 3 (Recovery) which would allow the reopening of manufacturing, offices, retail, salons, and other businesses with certain capacity and other safety precautions in place. Note that restaurants and bars would not be allowed to open for on-premises service until Phase 4 (Revitalization).

The five phases of reopening for each health region are described in the plan as follows: 

Phase 1 – Rapid Spread: The rate of infection among those tested and the number of patients admitted to the hospital is high or rapidly increasing. Strict stay at home and social distancing guidelines are put in place and only essential businesses remain open. Every region has experienced this phase once already and could return to it if mitigation efforts are unsuccessful.

Phase 2 – Flattening: The rate of infection among those tested and the number of patients admitted to the hospital beds and ICU beds increases at an ever slower rate, moving toward a flat and even a downward trajectory. Non-essential retail stores reopen for curb-side pickup and delivery. Illinoisans are directed to wear a face covering when outside the home, and can begin enjoying additional outdoor activities like golf, boating and fishing while practicing social distancing. To varying degrees, every region is experiencing flattening as of early May.

Phase 3 – Recovery: The rate of infection among those tested, the number of patients admitted to the hospital, and the number of patients needing ICU beds is stable or declining. Manufacturing, offices, retail, barbershops and salons can reopen to the public with capacity and other limits and safety precautions. All gatherings limited to 10 or fewer people are allowed. Face coverings and social distancing are the norm.

Phase 4 – Revitalization: The rate of infection among those tested and the number of patients admitted to the hospital continues to decline. All gatherings of up to 50 people are allowed, restaurants and bars reopen, travel resumes, child care and schools reopen under guidance from the IDPH. Face coverings and social distancing are the norm.

Phase 5 – Illinois Restored: With a vaccine or highly effective treatment widely available or the elimination of any new cases over a sustained period, the economy fully reopens with safety precautions continuing. Conventions, festivals and large events are permitted, and all businesses, schools, and places of recreation can open with new safety guidance and procedures in place reflecting the lessons learned during the COVID-19 pandemic.

You can find a lot of information provided about the Restore Illinois Plan on the State of Illinois website Coronavirus page.  Specific Restore Illinois plan documents are linked below.

Restore Illinois - Full Plan

Restore Illinois - One Page Summary

Restore Illinois - Phases Chart

Restore Illinois - Regions Map

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Religious Services and Stay at Home Orders

Religious Services and Stay at Home Orders

  Tuesday, May 05, 2020    Julie Tappendorf

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EO-32 and Religious Exercise

On April 30, 2020, Governor Pritzker issued Executive Order 2020-32 (EO 2020-32), which is effective from May 1, 2020 through the end of May 2020. Like the Governor's previous "stay at home" order, people are required to stay home unless they are engaging in essential activities such as working at essential businesses, conducting essential government functions, or engaging in essential activities. EO 2020-32 did modify certain provisions in the previous order, some of which we reported on last. One of the changes was to expressly allow people to engage in the free exercise of religion as an "essential activity," but with restrictions. 

EO-32 states that people may leave the home: 

f.  To engage in the free exercise of religion. To engage in the free exercise of religion, provided that such exercise must comply with Social Distancing Requirements and the limit on gatherings of more than ten people in keeping with CDC guidelines for the protection of public health. Religious organizations and houses of worship are encouraged to use online or drive-in services to protect the health and safety of their congregations.

Under the new EO-32 that took effect on Friday, May 1st, religious institutions are encouraged to use online or drive-in services. Religious institutions can provide in-person services, however, if they meet social distancing requirements. That includes limiting the number of people to 10, and requiring people to maintain at least a six foot distance from others, wash hands with soap and water for at least 20 seconds or use hand sanitizer, and wear face coverings. 

Recent Lawsuit by Beloved Church

The addition of this language to EO-32 may have been in response to a recent lawsuit filed by the Beloved Church in Lena, Illinois against Governor Pritzker, the Administrator of the Stephenson County Health Department, the Stephenson County Sheriff, and the Village of Lena Police Chief, seeking an injunction to allow the church to conduct worship services. The Church's complaint claims that EO 2020-32 violated the church’s federal and state constitutional rights, including the First Amendment's Free Exercise Clause, the Illinois Religious Freedom Restoration Act, the Emergency Management Act, and the Illinois Department of Health Act. The Church had filed its complaint after being served with a cease and desist notice from the Stephenson County Department of Health.

On April 30th, the Church filed a motion for a temporary restraining order (TRO) asking for emergency relief. On May 3, 2020, Federal District Court Judge John Lee denied the church’s motion for a temporary restraining order (TRO) and ruled that EO 2020-32 is constitutional and does not target religious organizations for differential treatment. 

First, Judge Lee acknowledged the foundational rights secured by the First Amendment, but noted that these rights are not limitless and can be subject to restriction if necessary to further compelling government interests. Judge Lee cited two historical cases, which stated that the right to practice religion freely does not include liberty to expose the community to disease, since the community has a right to protect itself against disease epidemics. 

Next, Judge Lee found that EO-32 "undoubtedly advances the government's interest in protecting Illinoisans from the pandemic" and that the EO did not treat religious worship services differently than similar uses such as schools, movie theaters, and concert halls, rejecting the Church's argument that religious services should be treated the same as grocery stores, manufacturing plants, and other essential businesses. 

Judge Lee also rejected the Church's argument that the Governor exceeded his authority by declaring a disaster declaration that exceeds 30 days, finding that there may be disasters that "pose a threat that may persist for long periods of time and certainly beyond a single 30-day period." 

Judge Lee further rejected the argument that the order was, in effect, a "quarantine" under the meaning of the Illinois Department of Health Act, distinguishing between a "stay at home order" that allows people to leave their homes for essential services and a true "quarantine" that requires total isolation. 

Finally, Judge Lee determined that the EO allows alternative worship services such as small group worship or meetings of 10 or less persons and drive-in services, unlike the Kentucky order found invalid by the Sixth Circuit Court of Appeals.  

Lawsuits in Other States

Similar lawsuits have been filed in other states. For example, in Kansas, the state's Supreme Court upheld the Governor’s executive order banning religious services of more than 10 people. However, a federal judge in Kentucky granted a temporary restraining order filed by a church against Louisville’s Mayor, who banned an Easter Sunday drive-in service, declaring the mayor's decision "unconstitutional." Also, after issuing an arrest warrant for a Florida pastor who refused to cancel packed services and obey social distancing orders, Governor DeSantis issued a directive exempting religious gatherings from Florida’s stay-at-home-order.

Religious Exercise and the Federal Government

At the federal level, Attorney General William Barr has made it clear that the federal government will be investigating state and local orders or ordinances to determine whether they exceed state or local authority by infringing religious liberties. Barr issued a memo directing Department of Justice (DOJ) attorneys to monitor, investigate, and vigilantly safeguard those rights. He acknowledges that state and local government may impose temporary and reasonable restrictions on civil liberties to protect the public,  but reminds officials that the Constitution is not suspended during emergencies, and the First Amendment and federal statutes prohibit imposing special restrictions on religious activities that do not also apply to similar nonreligious activities.

The DOJ also recently filed a Statement of Interest in support of a Mississippi church that held worship services in the church parking lot where congregants sat in their cars with rolled-up windows listening to their pastor preach over their car radios. The City of Greenville, which allowed citizens to attend a drive-in restaurant with open windows, fined each congregant $500 for attending parking lot services. The DOJ argued that by singling out churches as the only essential service that may not operate despite following all social distancing guidelines, the City did not act evenhandedly, since local government social distancing restrictions on places of worship must be narrowly tailored to advance a compelling interest.

Post Authored by Eugene Bolotnikov and Julie Tappendorf, Ancel Glink

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Tips for Remote Zoning Hearings

Tips for Remote Zoning Hearings

  Monday, May 04, 2020    Julie Tappendorf

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The latest edition of Ancel Glink’s “In the Zone” land use newsletter has tips for municipalities considering remote zoning hearings with less than a physical quorum during the COVID-19 pandemic. Here are a few things to consider:

1. Only Hold Necessary Hearings. The Governor and Attorney General continue to encourage municipalities to postpone or cancel public meetings when possible. This includes zoning hearings. So, municipalities should consider whether it is necessary to hear a zoning application during the Governor's Stay-at-Home Order and why. This will be a fact-specific analysis, and the results will vary based on the application and the community. Communities should memorialize in writing any hearing postponements and share notice of the postponement with the applicant, media outlets, and interested members of the public. You might also consider asking applicants whose proposals will be heard remotely to explain why a hearing is necessary and sign an agreement a) waiving any claims against the municipality, and b) indemnifying and holding the municipality harmless for third party legal challenges associated with the hearing.

2. Adopt Emergency Rules. The Governor temporarily suspended Open Meetings Act provisions requiring a quorum to be physically present to conduct a meeting. Many communities previously adopted rules governing when officials can remotely participate in meetings, how members of the public may participate in meetings, and how zoning hearings are conducted. We recommend that the corporate authorities or authorized hearing bodies adopt emergency rules aligning their practices with recent OMA guidance and make those emergency rules available on the community's website.

3. Secure an Open and Convenient Hearing Location (if meeting will not be entirely remote). The Governor has placed stringent limits on the number of people allowed to gather in any one place and imposed social distancing requirements on all gatherings. Many zoning hearings involve dozens - and in some cases, hundreds - of people. Communities that want to conduct zoning hearings must consider whether and how the hearing will comply with gathering restrictions, including where the hearing will be held (e.g., gym, community center), how physical access to the hearing room will be regulated (e.g., 1 in, 1 out, staging room), and who could be permitted to physically gather without compromising public safety (e.g., staff, board members).

4. Identify Ways to Participate. We recommend that communities provide multiple ways to participate in a remote hearing. These might include teleconference (i.e., telephone), videoconferencing platforms (e.g., Zoom, GoToMeeting), streaming meetings on the community's website or on social media (e.g., Facebook Live or YouTube), and public access television. It is important to remember that not all interested parties have internet access, and some members of the public may require accommodation due to disabilities. As a result, communities should provide multiple, redundant, and flexible ways for individuals to participate in hearings. All hearing participants must be able to view documents and testimony provided during the hearing, so posting application materials, plans, and other documentation on the community website is recommended. They must also be allowed to present evidence during the hearing, ask questions of the applicant and other witnesses, cross-examine witnesses, and address the hearing body. Communities must keep this in mind when evaluating remote hearing platforms.

5. Advertise Ways to Participate - Public Notice. Meeting agendas, hearing notices, the municipality's website, and municipal social media feeds should identify ways in which the public can participate in the hearing. It's best to publicize these methods as early and frequently as possible, and to timely respond to public inquiries regarding hearing procedures.

Click here to read more, and email us at inthezone@ancelglink.com to receive future editions of “In the Zone” in your inbox!

Post Authored by Dan Bolin, Ancel Glink

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Governor Issues New Disaster Proclamation & Stay at Home Order for May

Governor Issues New Disaster Proclamation & Stay at Home Order for May

  Friday, May 01, 2020    Julie Tappendorf

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There was a lot of action late yesterday by the Illinois Governor's Office that will be of interest to Illinois residents and local governments, including the issuance of a new disaster proclamation, stay at home order, and reissuance of previous executive orders. We have summarized some of the key points below, but you will want to read through the new stay at home order for information about the new state-wide face covering requirement that begins today (May 1st). Links to the documents are in the section titles.

Gubernatorial Disaster Proclamation (April 30, 2020)

On March 9, 2020, and then again on April 1, 2020, the Governor declared all counties in the state of Illinois a disaster area. Yesterday, the Governor issued his third Gubernatorial Disaster Proclamation declaring the state a disaster area. The proclamation was issued pursuant to the Governor's powers under the Illinois Emergency Agency Act, 20 ILCS 3305/7, and  remains in effect for 30 days.

Executive Order 2020-32 (Modified Stay at Home Order)

We reported last week on the Governor's intention to extend and modify his previous executive order that required Illinois residents to "stay home" except for essential business and operations, essential government functions, essential activities, and essential travel. Yesterday, the Governor signed Executive Order 2020-32 extending his previous stay at home order but modifying certain provisions to allow some non-essential businesses and activities to proceed with restrictions and supplementing the order with new requirements for face coverings. 

We have summarized some of the key provisions in this blog post but encourage everyone to read through the actual order to make sure you and your local government officials and employees understand the new requirements for workplace safety, including social distancing and face coverings. 

Section 1. Public Health Requirements for Persons Leaving their Homes

Face covering requirement

All persons over the age of 2 who are medically able to tolerate a face covering (a mask or cloth face covering) must cover their nose and mouth when in a public place and unable to maintain a six foot social distance. Face coverings are required in public indoor spaces such as stores.

Obligations of employers

• Employers must provide employees with appropriate face coverings and require employees to wear them when maintaining a six-foot social distance is not possible at all times.
• Employers must provide other PPE if work circumstances require it.
• Employers are encouraged to facilitate remote work from home when possible. 
• Employers that have employees physically reporting to work must post the IDPH and IAG guidance regarding workplace safety. 
• Employers must provide hand sanitizer and sanitizing products.

Retail stores have additional obligations, such as designating six foot spaces for employees and customers in line, providing face coverings to all employees who cannot maintain six foot social distance, capping occupancy at 50% or the occupancy limit set by DCEO, make aisles one-way where practicable, discontinue the use of reusable bags, and post signage. 

Manufacturers also have additional obligations to increase workplace safety, including staggering shifts, providing face coverings, reducing line speeds, etc.

Section 2. Stay at Home; Social Distancing; Essential Businesses and Operations

The previous provisions requiring persons to stay at home unless engaging in essential business, activities, functions or travel remain in effect for the month of May, with a few changes, some of which are discussed below.

Essential Businesses or Operations

• Non-essential businesses can now open for curb-side or delivery services.
• Pet grooming is now an essential business.
• Nurseries and garden centers are now essential businesses.

Essential Government Functions

We continue to receive a lot of questions about local government operations and what functions are permitted during the stay at home order. The Governor's stay at home order, as extended by the April 30 order, authorizes units of local government (such as municipalities, counties, townships, park districts, libraries, and others) to determine for themselves what government functions are "essential." That means that each unit of local government must decide for itself what government activities or functions will continue and which will cease temporarily while the stay at home order is in place.

It is important to note that there are a few activities that the Governor has expressly called out as either permitted or not permitted under the stay at home order. For example, the Governor has expressly stated that playgrounds, water parks, carnivals, zoos, museums, and a variety of other places of amusement must remain closed during the stay at home order. The Governor has not distinguished between these activities provided by governments or by private industry. 

The Governor has also called out golfing, fishing, and boating (with restrictions) as now being permitted.

Executive Order 2020-33 Reissuing Certain Previous Executive Orders

Finally, the Governor issued Executive Order 2020-33 yesterday reissuing a number of his previous executive orders. Of interest to local governments, is the reissuance of Executive Order No. 2020-07 which suspended certain requirements of the Open Meetings Act regarding remote participation in meetings. The order also reissued previous orders addressing annual township meetings, school closures, notary and witness guidelines, and many other previously issued executive orders.

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