'It is what it is': Judge again denies motion by DeKalb County businesses as local positivity rate exceeds 8%

SYCAMORE – A DeKalb County judge has again denied an appeal by local restaurant and bar owners to end the prohibition on indoor dining, citing Governor JB Pritzker's authority during a public health crisis.

DeKalb County Circuit Court Judge Bradley Waller ruled Friday on a second attempt by 11 local businesses owners – another business, PJ's Courthouse Tavern, 202 W. State St. in Sycamore was added to the lawsuit Friday – to stay the governor's order amid COVID-19 resurgence cases in Region 1, designated by the Illinois Department of Public Health.

"The reality is it is what it is," Waller said. "This statue gives the governor the authority to do what he's doing. Whether you agree or not. He has authority for purposes of preserving public health, safety & welfare."

On Thursday, Karlsbad Tavern & Grill, 413 W. Main St. in Genoa, Uncle Milty’s Pizza Palace, 131 W. Market St. in Somonauk, and Rambo’s Bar & Grill, 140 W. Market St. in Somonauk, have joined seven other business owners across the county in suing the the governor and IDPH director Ngozi Ezike, said their lawyer, Bradley Melzer of Sycamore-based Cronauer Law.

The 11 businesses suing the governor and IDPH for local control have argued that DeKalb County had not hit the 8% threshold required to justify mitigations.

As reported Friday, DeKalb County's rolling positivity average is 8.2%, according to IDPH data, which is on a three-day lag.

Melzer said Friday's amended appeal included a petition for relief from isolation from closure under the public health administrative act, meaning the businesses were seeking to remain open based on local health department data, not executive orders from the governor.

He said he cited DeKalb County Health Department officials, after he'd asked whether they could identify any cases specifically connected to the 11 businesses asking to have the ban indoor dining lifted.

"Our position was, if you cannot specifically identify our clients, meaning any one of those businesses, then we should be opened," Melzer said.

Business owners say they're "fed up" with bearing the brunt of COVID-19 resurgence closures.

The update comes a week after seven business owners said they’re suing to appeal to public health officials to designate COVID-19 mitigation rules on a county-by-county basis, not regionally. They’re arguing that the metrics used to designate mitigations – including a positivity rate threshold of 8% – is unfairly skewed because of higher rates in Winnebago and surrounding counties.

Melzer said the lawsuit will continue to move forward in court, despite the immediate petitions being denied twice. He said he expects more local business owners to join in on the lawsuit.

This is a developing story which will be updated.