Whiteside County officials weigh legality of ordinance to enforce virus mitigations

MORRISON – After more than a month of some business owners and residents flouting enhanced mitigations aimed at stunting a surge of the coronavirus, a group of Whiteside County officials Thursday said they were considering, but were still hesitant about codifying, a method of enforcing those measures.

The prospect of drafting and adopting an ordinance that mandates businesses and individuals abide by protocols outlined in Illinois Department of Public Health Tier 1 and Tier 2 coronavirus resurgence mitigations, in place since Oct. 3 and Oct. 25, comes as the total number of confirmed coronavirus cases recorded in the county have exploded from 872 cases on Oct. 3 to 2,143 cases on Nov. 5.

Members of the county board's public safety committee on Thursday asked Whiteside County State's Attorney Terry Costello if such an ordinance could be developed, and how one could be enforced.

“I’d like to see you look into it, and if there’s something you can see that we can actually do, have it prepared for us so we can act on it this month,” Whiteside County Board chairman Jim Duffy told Costello.

Costello said there's no clear path in existing state law that gives the county the ability to enforce the IDPH resurgence mitigations.

He pointed to the IDPH emergency rules adopted this summer by a state legislative rule-making panel as the appropriate method of matching new public health guidelines with new agents of enforcement.

Those mechanisms include a system of written warnings and orders to disperse that can be issued by county health departments to noncompliant businesses, and authorize county state's attorneys to issue Class A Misdemeanors or an injunction-order to close for continued noncompliance.

But no statutory agent has been proposed or adopted to enforce the resurgence mitigations, Costello said, explaining that the county can't enforce a ban on indoor dining because the existing emergency rules don't address that guideline.

"I wish we could do something," Costello said. "We've been looking at this all along...but I can ask my civil assistant to look at it again. I don't know if we'll come up with another result."

The committee’s discussion of the potential ordinance is largely a response to comments made last week by Sterling Mayor Skip Lee, who said county officials and agencies should “aggressively support” the city’s efforts to enforce the enhanced mitigations.

Lee said the city will be "examining" the liquor licenses of businesses "flagrantly disregarding the rules," and the Sterling Police Department will "vigorously work to enforce the guidelines and respond to calls."

But Lee said he was "imploring" Costello to apply the IDPH emergency guidelines to ensure businesses and individuals comply with the enhanced mitigations within the city.

"The bottom line is, law enforcement or the health department, no one can take enforcement measures unless the state's attorney is willing to back them up," Lee said.

Costello said in an email two weeks ago that his office would handle any potential violations of the emergency regulations the same as any other case.

"Should any law enforcement agency forward a criminal complaint and report regarding an alleged violation of that section, it would be reviewed for prosecution the same as any other case that law enforcement submits to my office for prosecution," Costello said in the email.

He added Thursday that the county is "very limited" in its ability to regulate what goes on inside a municipality, like the city of Sterling, and that the city could enforce the mitigations without relying on the county.

"Every municipality to my knowledge has the ability to develop and enforce its own ordinances," Costello told the committee. "They have their own law enforcement agencies and attorneys to enforce those ordinances."

Whiteside County Sheriff John Booker echoed that understanding, adding that his deputies forward any complaints of potential violations to the Whiteside County Health Department, and that he has directed his deputies to enforce the face covering mandate outlined in the IDPH emergency regulations.

"But a deputy cannot enforce a county ordinance within a city," Booker said. "If there's a city ordinance, a deputy cannot enforce it in other parts of the county."

Even still, committee chair Sue Britt said that she'd like Costello to develop the potential ordinance, unless it creates additional liability for the county.

“If it’s going to shift the liability from [the state] to the county, then I’m not as sure,” Britt said. “We have enough problems already.”