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Effingham County Sheriff Dave Mahon said Gov. J.B. Pritzker’s new emergency rule ordering a Class A misdemeanor charge for non-essential business owners who open in violation of his executive stay-at-home order violates citizens’ constitutional rights.

Echoing a growing number of law enforcement officials in central Illinois and elsewhere, Effingham County Sheriff Dave Mahon said his department will not shut down a business or issue a misdemeanor citation if it opens in defiance of Gov. J.B. Pritzker’s “stay-home” order.

At least one bar in Effingham County, On The Rox Pub & Grub, has been sent a “cease and desist” order by the Illinois Liquor Control Commssion.

“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 instance, could include imposition of a fine, or revocation or suspension of the establishment’s state liquor license issued by the ILCC,” said Terry Horstman, the commission’s spokesperson.

Chris Cripe, the owner of the tavern just east of Altamont, could not be reached for comment about how Pritzker’s order has affected her business since it took effect March 21. Although vehicles are often in the parking lot when a neon “open” sign is on, telephone calls from the Effingham Daily News to the business have gone unanswered.

Mahon said his department acknowledges the COVID-19 pandemic as a serious issue, but emphasized it will take no action against On The Rox or any other business that opens.

“The Effingham County Sheriff’s Office fully supports continued social distancing measures and other common sense protections put in place by the local and state public health officials,” the sheriff said. “However, if someone chooses to open their business in violation of the governor’s executive orders, the sheriff’s office will not get involved unless we have a court order directing us to do so.”

Effingham County Board Chairman Jim Niemann agreed with Mahon that the county should not get involved.

“That will be between the liquor establishment and the Illinois State Liquor Commission,” Niemann said. “If there are minors in there or someone is in there smoking cigarettes, then the (Effingham County Liquor) commission will step in.”

Fayette County State’s Attorney Joshua Morrison and Sheriff Chris Smith also said this week they will not file misdemeanors against businesses that open. Illinois House Republicans announced Tuesday that when they return to Springfield this week for a special session, they will attempt to block the emergency rule that makes it a misdemeanor for any business to violate Pritzker’s order.

Mahon said he and Effingham County State’s Attorney Bryan Kibler have agreed that the property owner or business manager of an establishment has sole control over that business. This means, for example, if the business requires patrons to wear face masks, that is OK. Kibler could not be reached for comment on Tuesday.

Mahon said people who don’t comply with the owner’s rules related to COVID-19 safety can be asked to leave. If the person refuses to leave, deputies or police can be called to the establishment and ask the person to leave; if the person further refuses, then they can be charged with trespassing.

However, Mahon said the act of simply opening a business is not criminal in nature. He said his department can only bring charges or shut down a business if a judge orders his department to do so based on probable cause. Pritzker’s rule, Mahon said, violates citizens’ rights.

“My feelings are this executive order does not allow for the due process of the law,” the sheriff said. “If these businesses need to be shut down, I think it’s up to the Department of Public Health to determine why they need to be shut down. I don’t see where the addition of the Class A misdemeanor citation falls under that.”

Effingham Police Chief Jason McFarland also noted that the emergency rule falls under the health department’s jurisdiction, not law enforcement. Therefore, the local health departments should be expected to enforce the rule, not law enforcement.

“I don’t know that we can restrain the movement of our citizens over a virus at this point,” said Mahon. “I think we’ve done everything that we can possibly do. It’s my duty as sheriff to look out for our citizens. It’s our duty to protect them, and it’s also our duty to not trample on their rights. I am not certain that with what’s happening, those rights aren’t getting trampled.”

Pritzker in his daily COVID-19 briefing on Tuesday called his emergency rule a “gentler” way of enforcing his stay-at-home order over revoking a business’ state license or issuing a closure.

Mahon said he believes Effingham County citizens and those around the region have so far complied with social distancing guidelines and have effectively “flattened the curve.” He said that with such a low percentage of COVID-19 cases in the county, he does not see why it cannot open back up sooner than outlined by the governor’s Restore Illinois plan.

Pritzker said Tuesday he expects all four regions of the state to enter “phase three” of that plan by the end of May. That would allow non-essential manufacturing to operate with social distancing; employees of “non-essential” businesses would be allowed to return to work with Illinois Department of Public Health approved safety guidance.

Bars and restaurants could only be open for delivery, pickup and drive-thru in phase three.

Barbershops and salons could open with IDPH-approved safety guidance; Health and fitness clubs would be allowed to provide outdoor classes and one-on-one personal training with IDPH-approved safety guidance. Retail could open with capacity limits and IDPH-approved safety guidance, including face coverings.

Mahon said those making these executive orders and rules do not see the big picture of how a stalled economy is affecting more than just businesses.

“All these people that are enforcing these rules and making these businesses close are still getting a paycheck,” he said. “Any of the rules they’re enforcing doesn’t affect them other than there’s no place for them to go eat.

“The economy in Illinois, as we all know, is horrible, and we are continuing to drive the economy down. I have to think that at some point in time, we’re doing more harm to our citizens by not allowing them to work.”

In essence, Mahon said the emergency rule and the governor’s executive orders have breached citizens’ Fifth Amendment right to no deprivation of life, liberty and property without due process of law and the First Amendment right to peacefully assemble.

Altamont Police Chief Alan Heiens agreed, saying his department will not charge business owners with the misdemeanor should they choose to open. He noted, however, his department is not encouraging or “giving permission” for non-essential businesses to violate Pritzker’s order.

“If the business operates with a state-issued license and this department receives a complaint, the department issuing the license will be notified,” Heiens said.

Capitol News Illinois contributed to this story.

Capitol News Illinois contributed to this story.

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