# H's Bar, LLC v. Berg

> District Court, S.D. Illinois · November 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10153098

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** November 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10153098

## How later opinions describe it (automated extraction)

- holding that relationships between plaintiffs and “their restaurant customers, and their employees are not sufficiently intimate to implicate [First Amendment] protection”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
H’S BAR, LLC, )
)
Plaintiff, )
)
vs. ) Case No. 20-cv-1134-SMY
)
CYNTHIA BERG, MARCUS D. )
FRUCHTER, BRENDAN KELLY, SAINT )
CLAIR COUNTY SHERIFF’S )
DEPARTMENT, and SAINT CLAIR )
COUNTY HEALTH DEPARTMENT, )
)
Defendants. )
MEMORANDUM AND ORDER
YANDLE, District Judge:
In response to the ongoing COVID-19 pandemic, Illinois Governor JB Pritzker has issued
a series of executive orders aimed at curbing the spread of the virus and protecting the health of
Illinois residents. The latest, Executive Order 63 (“EO63”), includes a prohibition against indoor
service at restaurants and bars, including those in St. Clair County where H’s Baris located.
On October 28, 2020, Plaintiff H’s Bar, LLC filed the instant action against Defendants
Cynthia Berg (Chairman of the Illinois Liquor Control Commission), Marcus Fruchter
(Administrator of the Illinois Gaming Board), Brendan Kelly(Director of Illinois State Police),
the Saint Clair County Sheriff’s Department, and the Saint Clair County Health Department,
asserting the following claims: Defendants’ enforcement actions violate the right ofpeopleto
peaceably assemble undertheFirstandFourteenthamendments (Count I); theGovernorlacked
authority to issue EO63 and lacks authority to issue future COVID-19 relatedexecutiveorders
(Count II); and the Governor lacks power to issue emergency orders and is therefore violating
Plaintiff’s due process rights under the Fourthand Fourteenthamendments(Count III).1 Plaintiff
requests that this Court enjoin Defendants from enforcing EO63 and any future executive order
issued by the Governor against it or its customers. Plaintiff further requests that the Court
declareasnull,void,andofnolegaleffect,any COVID-19related executive order issued by the
Governor that would require it to shut down or deny indoor service to its customers (Doc. 1).

The case is now before the Court for consideration of Plaintiff’s request for the issuance of
a preliminary injunction (Doc. 15).2 The Court conducted a hearing on the motion on November
13, 2020. For the following reasons, Plaintiff’s Motion for Preliminary Injunction is DENIED.
Background
COVID-19 is the disease caused by the novel coronavirus SARS-CoV-2, for which there
is no known cure or available vaccine at this time. To date, COVID-19 has infected over 11.5
million and killed nearly 250,000 people in the United States.3 In Illinois, more than 606,771
residents have tested positive and more than 11,000 have died.4 On November 15, 2020,
Southwestern Illinois (where Plaintiff is located)reported 659 new cases of the virus.

The virus is transmitted mainly from person to personthrough contact, respiratory droplets,
and aerosols. Airborne transmission of the virus, in which infection spreads through exposure to
small droplets and particles that can remain suspended in the air for hours, is more likely to occur
in enclosed spaces and with prolonged exposure. To slow the spread of COVID-19, the Centers

1The Fourth Amendment protects people from unreasonable searches and seizure and does not afford due
process rights. See U.S. Const. amend. IV. Thus, Plaintiff’s purported Fourth Amendment due process
claim fails as a matter of law.
2 Plaintiff also moved for a temporary restraining order (Doc. 15). That request was previously denied
(Doc. 18).
3 See Coronavirus Disease 2019 (COVID-19): Cases in the U.S., https://www.cdc.gov/coronavirus/2019-
ncov/cases-updates/cases-in-us.html(last visited November 19, 2020).
4 See Coronavirus Disease 2019 (COVID-19) in Illinois, Ill. Dep't of Pub. Health,
http://www.dph.illinois.gov/covid19(last visited November 19, 2020).

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for Disease Control and Prevention (“CDC”) recommends mask wearing and social distancing
(keeping six feet away from others indoors and outdoors and limiting contact with those outside
your household). According to the CDC, dining and drinking at restaurants and bars is closely
linked to the spread of the virus.°
State and local governments across the country have enacted measures designed to reduce
the spread of this highly contagious, easily transferable, and potentially lethal virus. In March
2020, invoking his authority under the Illinois Emergency Management Agency Act, 20 ILCS
3305/1 et seq. (“TIEMAA”)® and the Illinois Constitution, Governor Pritzker issued a proclamation
declaring the COVID-19 pandemic a disaster in Illinois and issued an executive order to slow the
spread of the virus and to enhance the availability of testing and treatment. Because the pandemic
persisted, the Governor issued subsequent disaster proclamations and executive orders on April 1,
April 30, May 29, June 26, July 24, August 21, September 18, and October 16, and October 27,
2020 (Doc. 15-1 at 25-39; Doc. 15-2 at 1-37).
EO63, issued on October 27, 2020 and the subject of Plaintiffs challenge, imposed
additional restrictions on several counties, including St. Clair County, due to high positivity
rates—i.e., the rate of infections in those counties exceeded 8% for 3 consecutive days (on a 7-day
rolling average) (Doc. 15-2 at 34-37). Section 1(a) of EO63 requires restaurants and bars in St.

> Centers for Disease Control and Prevention, Community and Close Contact Exposures Associated with
COVID-19 Among Symptomatic Adults =18 Years in 11 Outpatient Health Care Facilities—United States,
July 2020 (Sept. 11, 2020), https://bit.ly/370OUbO.
The IEMAA was enacted to “ensure that this State will be prepared to and will adequately deal with any
disasters” and “protect the public peace, health, and safety in the event of a disaster.” 20 ILCS 3305/2(a)
(West 2020). It defines “disaster” as “an occurrence or threat of widespread or severe damage, injury or
loss of life or property resulting from any natural or technological cause,” including an “epidemic” and
“public health emergencies.” Jd. 3305/4 (West 2020). Under section 7 of IEMAA, the Governor may
proclaim that such a disaster exists and then exercise his emergency powers for a period of 30 days. □□□
3305/7. TIEMAA does not limit the number of proclamations the Governor may issue for a single, or
ongoing disaster.
Page 3 of 10

Clair County to cease indoor dining as of October 28, 2020 until the “positivity rate averages . . .
6.5 percent [or less]over a 3-day period.” Sections 1(b)-(d) of EO63 place additional restrictions
on other indoor gatherings at meetings, social events, casinos, and other gaming venues.
Discussion
To obtain a preliminary injunction, a movant must establish (1) that it has a likelihood of

success on the merits of its claims, (2) that it has no adequate remedy at law, and (3) that it will
suffer irreparable harm if the requested relief is not granted. Girl Scouts of ManitouCouncil, Inc.
v. Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1086 (7th Cir. 2008). If the plaintiff meets this
three-element threshold, the court then “weighs the irreparable harm that the moving party would
endure without the protection of the preliminary injunction against any irreparable harm the
nonmoving party would suffer if the court were to grant the requested relief.” Id. The Seventh
Circuit has described this balancing test as a “sliding scale”: “if a plaintiff is more likely to win,
the balance of harms can weigh less heavily in its favor, but the less likely a plaintiff is to win[,]
the more that balance would need to weigh in its favor.” GEFT Outdoors, 992 F.3d at 364. The

court must also consider the interests of non-parties in granting or denying the requested relief.
Ty,Inc.,v.Jones Grp.,Inc., 237 F.3d 891, 895 (7th Cir. 2001).
Standing
Consistent with its obligation to ensure that it has subject matter jurisdiction over this
litigation, before addressing the requirements for preliminary injunctive relief, the Court must first
address Defendants’ contention that Plaintiff lacks constitutional standing to bring the claims in
this lawsuit. Article III of the Constitution limits federal judicial authority to “Cases” and
“Controversies.” U.S. Const. art. III, § 2. Thus, to have standing, a plaintiff must have “(1)
suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,

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and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, ––
–U.S. ––––, 136 S. Ct. 1540, 1547(2016).
In the Complaint, Plaintiff alleges that EO63 violates its First Amendment rights by
prohibiting or punishing it from “operating a locationfrom which peaceful persons may peaceably
assemble or gather at which location they can and do discuss the issues of the day” (Doc. 1, p.5).

Through this allegation, Plaintiff attempts to invoke First Amendment protections as a location
where others may exercise their First Amendment rights. But an aggrieved party must assert its
own legal rights and interests and cannot rest its claim to relief on the legal rights or interests of
third parties. See, Retired Chicago Police Ass'n v. City of Chicago, 76 F.3d 856, 862 (7th Cir.
1996).
Plaintiff points to its allegation in the Complaint that “Earlier this week, J.B. Pritzger[sic],
once again, issued another lockdown order, that, if followed, will shut down H’s immediately, if
not blocked, causing actual and substantial damage to Plaintiff’s ability to exist, and the ability of
Plaintiff, and its owners, employees to make a living and peacefully assemble and discuss the

issues of the day, as well as the customers of Plaintiff to peacefully assemble and discuss the issues
of the day” (Doc. 1, p.2, ¶ 8) and argues that it has independent standing because EO63 infringes
on its right to associate with its patrons and employees. While the First Amendment does not
generallyprotecta“rightofassociation”,aconstitutionally protected right of association has been
recognized where association is “for the purpose of engaging in those activities protected by the
First Amendment – speech, assembly, petition for the redress of grievances, and the exercise of
religion. Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984). At this juncture, the Court
cannot conclude that the Complaint allegations are insufficient to survive Defendants’ facial
challenge to standing or that it lacks subject matter jurisdiction as to the claims asserted.

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Preliminary Injunction
The loss of First Amendment freedoms is presumed to constitute an irreparable injury for
which money damages are not adequate, and injunctions protecting First Amendment freedoms
are usuallyin the public interest. See Christian Legal Soc'y v. Walker, 453 F.3d 853, 859 (7th Cir.
2006). Consequently, the likelihood of success on the merits “is usually the decisive factor” in

First Amendment cases in which injunctive relief is sought. Wis. Right To Life, Inc. v. Barland,
751 F.3d 804, 830 (7th Cir. 2014). That is true here.
The Seventh Circuit recently clarified the “likelihood of success” standard in Illinois
RepublicanPartyv.Pritzker,973F.3d760(7thCir.2020). The Court explained that a“possibility
of success is not enough” and “[n]either is a better than negligible chance.” Id. at 762. (internal
citations and quotations omitted). But, the moving party“neednotshowthatitdefinitelywillwin
thecase.” Id.at 763. “A strong showing” of a likelihood of success on the merits thus “normally
includesademonstrationofhowtheapplicantproposestoprovethekeyelementsofitscase.” Id.
(internal citations and quotations omitted). Accordingly, the question before the Court is whether

Plaintiff has made a strong showing of likelihood of success on the merits of the claims asserted
in the Complaint.
Government Authority During Public Health Crises
Restrictions on federal constitutional rights during public health emergencies, such as the
current global pandemic, are examined under the Supreme Court's decision in Jacobson v.
Massachusetts, 197 U.S. 11 (1905). Considering a Massachusetts mandatory-vaccination statute
enacted to combat a smallpox epidemic, the Court rejected the plaintiff's Fourteenth Amendment
claim that the law violated his right to personal autonomy. Jacobson, 197 U.S. at 29. In doing so,
the Court defined the expanse of the state police power, holding that “the rights of the individual

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in respect of his liberty may at times, under the pressure of great dangers, be subjected to such
restraint, to be enforced by reasonable regulations, as the safety of the general public may
demand.” Id. at 29. This police power encompasses such authority reasonably necessary to “guard
and protect” public health and public safety, including protecting communities “against an
epidemic of disease which threatens the safety of its members.” Id.at 27, 38.

While Plaintiff downplays the seriousness of COVID-19 without substantiation –
questioning the number of people that have died and equating the virus to the common cold –
science and verifiable data inform the Court’s analysis. In the United States alone, the virus has
infected over 11.5 million and claimed the lives of more than 250,000 people. There is no doubt
that thiscountry… and in fact the world is in the midst of the deadliest pandemic in modern history.
As a result, relying on Jacobson, courts across the country have consistently declined to enjoin
state and local restrictions aimed at protecting the public against the spread of COVID-19. SeeS.
Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (reaffirming the broad power
of states to enact measure to protect the public health from COVID-19); Illinois Republican Party

v. J.B. Pritzker, 973 F.3d 760 (7th Cir. 2020) (“At least at this stage of the pandemic, Jacobson
takes off the table any general challenge to [Governor Pritzker’s executive order] based on the
Fourteenth Amendment’s protection of liberty.”); Elim Romanian Pentecostal Church, 962 F.3d
341 (7th Cir. 2020). This Court joins them.
EO63’s prohibitions are based on scientific and medical data establishing that dining in
restaurants and bars is closely linked to the spread of the virus. For example, a recent survey
released by the Governor’s Office shows that restaurants and bars are second only to “other” in
terms of possible sources of exposure for all cases reported. EO63’s requirement that restaurants
and bars cease indoor service until the positivity rate declines has a real and substantial relationship

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to preventing the spread of COVID-19. As such, this Court concludes that the claimed deprivation
of Plaintiff’s federal constitutional rights would be permissible under Jacobson,and therefore, the
likelihood that Plaintiff will succeed on the merits of those claims is negligible at best.
EvenifthedeferentialJacobsonstandarddidnotapply,Plaintiff’sFirstAmendmentclaims
are unlikely to succeed under traditional First Amendment analysis as there is no constitutional

right to social associations. See Stanglin, 490 U.S. at 25 (dance-hall patrons' gathering to engage
in recreational dancing is not constitutionally protected even though “[i]t is possible to find some
kernelofexpressioninalmosteveryactivityapersonundertakes—forexample,walkingdownthe
street ormeetingone's friends at ashoppingmall—[as]such akernel is not sufficient tobringthe
activitywithintheprotectionoftheFirstAmendment”). As the Seventh Circuit noted in Swank v.
Smart, 898 F.2d 1247, 1251 (7th Cir. 1990), cert. denied, 498 U.S. 853 (1990):
Casual chit-chat between two persons or confined to a small social group is
unrelated, or largely so, to [the marketplace of ideas], and is not protected. Such
conversation is important to its participants but not to the advancement of
knowledge, the transformation of taste, political change, cultural expression, and
the other objectives, values, and consequences of the speech that is protected by the
First Amendment.
See also, Michaelidis v. Berry, 502 F. App'x 94, 96-97 (2d Cir. 2012) (holding that relationships
between plaintiffs and “their restaurant customers, and their employees are not sufficiently
intimate to implicate [First Amendment] protection”). It is improbable then that Plaintiff has a
protected First Amendment right to associate with its patrons while they drink and discuss “the
issues of the day”.
Moreover, the First Amendment's guarantee of free speech is not absolute. Even in the
absence of a public health crisis, the government can “enforce reasonable time, place, and manner
regulations” in public spaces “as long as the restrictions are content-neutral, are narrowly tailored
to serve a significant government interest, and leave open ample alternative channels of
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communication.” UnitedStatesv.Grace, 461 U.S. 171, 177 (1983) (citation omitted). EO63, like
the Governor’s previous executive orders, is content-neutral; it broadly prohibits indoor dining
without regard for the content of the expression that occurs while individuals are eating and/or
drinking. It is also narrowly tailored to promote a substantial government interest in mitigating
the spread of the virus.

For these reasons, the Court concludes that Plaintiff has a negligible likelihood of success
on the merits on his First Amendment claim both under Jacobson and traditional constitutional
analysis.7
State Law Claim
Plaintiff alleges that EO63 is an overreach of the Governor’s authority under IEMMA and
therefore,the executive order (and any future order) is void. Defendants contend that this claim is
barred by the Eleventh Amendment, which prohibitsprivatelawsuits against a stateor state agency
without the state’s unambiguous consent or an act of Congress. See Seminole Tribe of Florida v.
Florida, 517 U.S. 44, 54-55 (1996); Nunez v. Indiana Dep’t of Child Servs., 817 F.3d 1042, 1044

(7th Cir. 2016). Plaintiff offers noexplanation as to why the Eleventh Amendment would not bar
this claim. Without such a showing, Plaintiff has failed to demonstrate the requisite likelihood of
success on the merits as to this claim.
Even absent Eleventh Amendment immunity, this Court finds that there is no likelihood
Plaintiff will ultimately succeed on this claim on the merits. Section 7 of IEMAA grants the
Governor the authority to declare that a “disaster exists” in certain circumstances, including
during a public health emergency or epidemic. 20 ILCS 3305/7. If the Governor then issues a

7Plaintiff asserts a due process violation in Count III of its Complaint but does not address the claim in its
motion seeking injunctive relief. As such, Plaintiff has not satisfied its burden to demonstrate likelihood
of success on the merits with respect to its due process claim.

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disaster proclamation, he may exercise “emergency powers” for 30 days thereafter. Id. Section
7 contains no limitation on the number of proclamations the Governor may issue to address an
ongoing disaster. Thus, the plain language of IEMAA permits the Governor to issue multiple
and successive disaster proclamations and to exercise emergency powers for additional 30-day
periods, so long as a disaster continues to exist.
Conclusion
For the foregoing reasons, Plaintiff's Motion for Preliminary Injunction (Doc. 15) is
DENIED.
IT IS SO ORDERED.
DATED: November 21, 2020
Sood Gell
STACI M. YANDLE
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10153098. Public record. Not legal advice.