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IDPH to withdraw emergency rule as General Assembly pursues related legislation

IDPH to withdraw emergency rule as General Assembly pursues related legislation

Pritzker says new bill would focus on civil penalties, not jail or criminal charges

By PETER HANCOCK
Capitol News Illinois
phancock@capitolnewsillinois.com

SPRINGFIELD – The Illinois Department of Public Health announced Wednesday that it plans to withdraw a controversial emergency rule that would have allowed for criminal charges against businesses that open in violation of Gov. JB Pritzker’s stay-at-home order.

Instead, Pritzker announced Wednesday that he will pursue legislation while the General Assembly meets in special session this week. He said that bill will call for civil penalties for violations rather than criminal sanctions.

IDPH filed the emergency rule on Friday, May 15, after a number of restaurants and other businesses around Illinois announced they would no longer comply with the mandatory closure during the COVID-19 pandemic. The rule codified that violations of Pritzker’s stay-at-home order could be enforceable under a law known as the Department of Public Health Act, which makes it a Class A misdemeanor to violate one of the agency’s orders.

That sparked immediate controversy, especially among Republican lawmakers who accused Pritzker of criminalizing business owners. Pritzker argued that it was a softer measure than other enforcement mechanisms the agency can use, such as issuing a closure order or revoking a business license, and he likened it to a traffic citation, even though Class A misdemeanors are criminal offenses that can be punishable by up to 364 days in jail.

IDPH announced its intent to withdraw the rule during a meeting of the Joint Committee on Administrative Rules, or JCAR, a legislative body that has oversight of state agency rulemaking. That meeting had been scheduled for 10:30 a.m. but it started three hours late as Democratic members of the panel reportedly were meeting in private to discuss the rule.

Republican Rep. Keith Wheeler, of Oswego, a co-chair of the committee, had announced Monday that he intended to call for a vote on the IDPH rule. The 12-member JCAR is evenly divided between Republicans and Democrats and between House and Senate members, but it would have taken a two-thirds majority, or eight votes, to block the rule.

After the meeting finally began around 1:30 p.m., Sen. Bill Cunningham, a Chicago Democrat, directed a single question to IDPH officials.

“It is my understanding that the recently-filed emergency rule from the department is going to be repealed. Can you confirm that for me,” he asked.

“Yes, that is the case,” said IDPH Deputy Chief of staff Joanne Olson.

After the meeting, which lasted less than 15 minutes, Republican Rep. Tom Demmer, of Dixon, said lawmakers had been hearing significant opposition to the order from the public.

“I know every member of this committee has received thousands of emails and phone calls from people who were concerned about this rule,” he said in an interview. “There were avenues to oppose it from a variety of angles. Some people thought using a criminal charge went too far. There were other people who thought it wasn’t appropriate to bring criminal charges through emergency rule. So I think there were a number of angles and all those added up to the rule not being sustainable.”

About an hour later Pritzker announced at his daily COVID-19 media briefing that Cunningham would be the lead sponsor of a bill being drafted that would give IDPH authority to enforce its orders through civil fines.

During that briefing, Cunningham described the backlash against the rule as “a bit of an overreaction” caused by the fact that it allowed for Class A misdemeanor charges.

“We want to clarify that that is not part of our effort, that if there is any sanction in place, it would not be anything beyond a fine that would be adjudicated in the civil court system or through some administrative system, and not through the criminal courts,” he said. “We also, as has been mentioned, want to avoid revoking licenses. That could have, I think, a long-lasting negative effect on a business.”

Cunningham also defended the hours-long private meeting that took place before the public meeting, saying it is a normal part of the process for JCAR.

“This is essentially a negotiation, something that goes on every day in the Legislature between the executive branch and the legislative branch,” he said. “When we take any action, those actions are taken in public where it can be viewed by citizens.

Pritzker said that if the bill does not pass this week, IDPH will issue a new emergency rule, which would need to be repealed and changed as the state moves through the next three phases of reopening.

“Our only goal here is one that we all share, prioritizing public health while reducing the harm that bad actors can cause the broader small business community, so important to the strength of our economy,” he said.

Also during the JCAR meeting Wednesday, the panel postponed for another month any consideration of a proposed final rule by the Illinois State Police to implement the Firearm Dealer License Certification Act. Sen. Paul Schimpf, a Waterloo Republican, pointed to several provisions of the proposed rule that he believed were not consistent with the original legislation.

It also overturned a number of emergency rules adopted by the secretary of state’s office that waived certain business filing requirements. Members said some statutory requirements can be waived through an executive order by the governor, but not by agency rules.

 

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government and distributed to more than 400 newspapers statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.

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