SAVANNA – Poopy's Pub & Grub is suing Gov. JB Pritzker, saying he lacks the statutory authority to issue executive orders putting restrictions on businesses during the COVID-19 pandemic, and therefore a cease-and-desist order issued to the biker bar as a result of such an order should be voided.
In addition, only the Carroll County Health Department, acting through the Illinois Department of Public Health, has the "supreme authority" vested by the constitution to shut a business down for health code violations, and it has not done so, says the suit, filed this morning in Carroll County Circuit Court by Greenville attorney Thomas DeVore, who represents Poopy's owners Peggy and Kevin Promenschenkel.
DeVore also represents state Rep. Darren Bailey, R-Xenia, who also is challenging Pritzker’s authority to issue successive 30-day disaster proclamations.
The restaurant and bar, a popular destination for motorcyclists throughout the region, does the bulk of its business during the riding season. It opened for curbside delivery May 1, and was shut down Wednesday for allowing patrons to eat and drink beverages, including beer, "on premises" – in this case, outdoors at tables spaced 10 feet apart.
Should the health department have shut Poopy's down for health code violations, there would have been measures Promenschenkel could take to appeal the action; under the emergency declaration, those measures don't exist, which is a violation of his due process rights, the suit said.
Not only has it not investigated Poopy's relative to this incident, "at no time has any of Poopy's activities on their business premises met with any resistance from the local health department," the suit said.
When the county "did not find it necessary to take action against Poopy's," that's when the Illinois Liquor Control Commission stepped in, DeVore said in the suit.
Calls seeking comment from Carroll County Health Department Administrator Craig Beintema were not returned this afternoon.
"Please be advised that your establishment is unlawfully operating amidst a declared limitation on services that is necessary and proper to prevent further spreading of the COVID-19 pathogen," said the cease-and-desist order, which Promenschenkel posted on the bar's Facebook page.
"Consistent with the general heath and safety actions taken by many public officials and under the advice and authority of state public health officials, the governor of the state of Illinois has ordered that on premises consumption cease at establishments serving food and beverages."
Poopy's is not shut down: The bar and restaurant portion remains open Friday through Sunday for curbside service, carry-out and delivery, as is allowed under the order.
Why the ILCC involvement?
"By statute the ILCC has authority to take action on the state liquor license of an establishment found to be unlawfully operating," commission spokesman Terry Horstman said in an email. "So if this establishment is selling alcohol in a manner not allowed under the current stay-at-home order, the ILCC would issue a cease-and-desist order.
"The cease-and-desist order affords a licensed liquor establishment the opportunity to come into compliance before the ILCC moves forward with due process which, in this type of instance, could include imposition of a fine, or revocation or suspension of the establishment’s state liquor license issued by the ILCC."
Per the executive order, "All license holders authorized by the State Commission and local liquor control commissions to sell alcoholic liquor, non-alcoholic liquor and food at retail for consumption off the licensed premises may conduct 'in-person' sales on a 'to go' basis only but not for the consumption on the licensed premises."
"Seizing control" of Poopy's business and ordering it closed "was a clear utilization of the police powers of the state," powers that only the legislative branch has, not the governor, DeVore said in the suit.
Also today, Promenschenkel announced on Facebook that he had moved the tables off premises – to a wooded site behind the building that also belongs to him, but has a different address than the bar. It is up a hill accessible by a gravel road.
"It does not make us happy, but we are back to serving," he said in the post. "We are going to simplify some food items to get it out to you quicker so you can get up the hill."
It's difficult, Promenschenkel has noted, to eat or carry food away on a motorcycle, and motorcyclists are the bulk of his customers.
In the post, he advises them not to open their beverages before they "get to the top of the hill," warning that authorities "will be here waiting for us to make a mistake."
Promenschenkel has said he has lost two-thirds of his business to the coronavirus outbreak, and his is "a business fighting for our life."
Poopy's also has a store and tattoo parlor; the store opened for online sales today.