All 11 McHenry County restaurants flagged for prosecution held firm on decision to continue indoor dining

The 11 restaurants referred to the McHenry County State’s Attorney’s Office for potential prosecution remained firm on their decision to allow indoor dining even as some made other changes recommended by the McHenry County Department of Health, records show.

Around the Clock in Crystal Lake, one of these 11 restaurants, is trying to conducting indoor dining in “the safest way possible,” owner Steve Theofanous said Tuesday.

“I understand what the governor is trying to do and I understand the position everybody’s in, so we’re just trying to do things responsibly,” Theofanous said. “The reason that we’re staying open is because we have 60 families that depend on their livelihood from our restaurant. … It really means, you know, survival for many of our employees.”

Theofanous has erected plexiglass barriers between booths and ensured that all tables are spaced 6 feet apart, if not more, he said.

His staff wear masks and gloves at all times and have their temperatures checked twice each shift. After being visited by the health department, Theofanous said he now keeps a log of customers in case it is needed for contact tracing, as required.

Even with measures like this in place, health officials at the state and local level maintain that indoor dining is too great of a risk given the current level of community spread in McHenry County and across Illinois.

“In order for you to enjoy being in a bar or restaurant, you have to take your mask off and it is often the case that people will sit for an hour, two hours, maybe longer, without their mask on. ... The natural things that people do in bars and restaurants, unfortunately, are exactly the natural ways in which this virus transmits,” Gov. JB Pritzker said at an Oct. 23 news conference.

McHenry County restaurants have been barred from serving customers inside since Oct. 31, a restriction business owners have said places an undue burden on the industry, forcing some of them to choose between defying this order or closing their doors permanently.

Since Pritzker’s Tier 3 COVID-19 mitigation measures took effect statewide Nov. 20, the health department has stepped up enforcement efforts, sending the complaint files of 11 restaurants to the McHenry County’s State’s Attorney’s Office to be considered for prosecution on a misdemeanor charge.

Soon after, the county’s State’s Attorney Patrick Kenneally announced that his office would not enforce the governor’s ban on indoor dining, or any of the new tiered restrictions for that matter, because the governor’s executive order does not require or authorize his office to do so.

Instead, Kenneally said his office would focus on enforcing masking requirements, social distancing and capacity limits because those rules have clear enforcement guidelines detailed in the Department of Public Health Act.

The health department will continue to respond to all kinds of complaints related to COVID-19 and have “been in contact with the Illinois Department of Public Health legal counsel who have agreed to review the files regarding mitigation violations [indoor dining],” Public Health Administrator Melissa Adamson said in an emailed statement Wednesday.

The 11 restaurants that were considered for prosecution included All Inn Pub & Grub in McHenry, Around the Clock in Crystal Lake, Bolt On Inn in McHenry, DC Cobbs in Woodstock, DC Cobbs of McHenry, Niko’s Pointers Saloon in Marengo, Niko’s Red Mill Tavern in Woodstock, Niko’s R&R Supper Club in Marengo, Parkside Pub in Huntley, The Maple Tree in Cary and The Spot Tavern of Marengo.

This is according to copies of the health department files forwarded to the State’s Attorney’s Office obtained by the Northwest Herald through a Freedom of Information Act request.

The owner of Bolt On Inn, the owner of both DC Cobbs locations and the owner of the three Niko’s establishments did not respond to voicemails left Tuesday by the Northwest Herald.

The management of Parkside Pub could not be reached for comment after a message was left with a staff member Tuesday. The Maple Tree could not be reached by phone or via email, and the owner of The Spot Tavern in Marengo declined to comment.

Before seeking punitive action, the health department visited each business at least three times, gave them written notice of violations and provided guidance on how they could come into compliance with the state’s rules.

In the documented reports, inspectors focused on indoor dining, but also gave advice on making outdoor dining tents safer, implementing a reservation system to help with contact tracing efforts, adhering to capacity limits and posting signage about the requirement to wear a mask.

If an outbreak were to occur, “restaurants with reservation systems or customer logbooks could help with our efforts to identify and contact close contacts quickly by sharing this information,” county Public Health Nursing Director Susan Karras said in an emailed statement.

All 11 restaurants were not in compliance with the indoor dining ban, according to their case files from the health department.

Nearly all of the restaurants made other recommended changes, such as posting a sign telling customers to wear masks or implementing a reservation system, by the time of their last visit from the health department. Exceptions to this were The Spot Tavern, The Maple Tree and Niko’s Red Mill Tavern, all of which did not implement customer logs, according to the reports.

The bars on this list struggled with the capacity limit for indoor video gambling – a significant source of revenue – which was at 25% earlier in November when McHenry County was in Tier 1 but is now banned entirely with the start of Tier 3.

Debbie Cardella, a co-owner of All Inn Pub & Grub in McHenry, said Tuesday the initial allowance of indoor gambling was the reason why she and her husband and co-owner, Fred Cardella, remained open for indoor service when the ban first took effect in McHenry County on Oct. 31.

As of Nov. 17, All Inn Pub & Grub was one of the restaurants following all of the health department’s guidance with the exception of the indoor dining ban, according to their report.

“We’re doing whatever we can as small business owners to stay in business,” Cardella said.

The establishment that received the most visits from the health department’s inspectors was Niko’s Red Mill Tavern with a total of nine on-site visits between Aug. 24 and Nov. 12, according to their case file. Violations noted in the first couple visits were mask-related, which were later remedied, according to the reports.

In November, the restaurant received violations for having an outdoor dining tent without proper ventilation, which later was fixed. Owner Niko Kanakaris opened windows and a door in his indoor space to increase ventilation, but it was not enough to qualify the space as outdoor dining, according to a health department inspector.

Other restaurants also looked for creative ways to increase ventilation in their indoor spaces, opening doors or placing tables near open windows.

DC Cobbs of McHenry was working to open special roof panels on their indoor dining space so that it could qualify as outdoor dining, according to their case file. As of Nov. 17, this had not yet been done.

The McHenry and Woodstock locations of DC Cobbs both reported instances where at least one employee tested positive for COVID-19. The owner’s wife, a registered nurse, keeps a health screening log of employees and any staff with symptoms or positive test results are sent home, according to an email included in the health department’s report.

Niko’s Red Mill Tavern received a violation for failing to follow quarantine procedures on Sept. 9 when one of their staff continued to work while awaiting a COVID-19 test result in late August, according to their complaint file with the health department.

The employee stopped working when they became symptomatic and the health department identified two close contacts at the restaurant.

One of these contacts stayed home for only seven days before returning to work and the other tested negative “right away” and returned to work, according to the report. Neither quarantined for a full 14-day period as directed.

After corresponding with the health department, the restaurant implemented a COVID-19 employee health screening to be completed each shift, according to the report.

“We recognize the hardship and burden the pandemic has placed on individuals and businesses,” Adamson said in her statement. “The department’s role in the pandemic is to ensure the health and safety of all McHenry County residents and those that work in our communities.”