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Felony Charge Against Airbnb Host Dismissed in Denver Court

Aaron Elinoff had been fighting against a felony charge related to his short term rental application.EXPAND
Aaron Elinoff had been fighting against a felony charge related to his short term rental application.
Courtesy of Aaron Elinoff

On December 12, a Denver judge dismissed a felony charge against an Airbnb host initially accused of trying to cheat the city's short-term rental system. That move came after prosecutors requested that Denver District Court Judge Bruce Jones drop the charge against Aaron Elinoff, a local immigration attorney.

"We’re thankful the DA put the time in to vet the city’s investigation, ultimately determining the case should be dismissed. We wish this would have happened before charging Mr. Elinoff, causing a media frenzy, and damaging the reputation of an innocent man," David Beller, Elinoff's attorney, says in an email to Westword.

"I'm just relieved. This has been an enormous distraction for me, from my family and from my work, and I feel like an enormous weight has been lifted," adds Elinoff.  "As an attorney, all we have is our credibility and our reputation, and if you have a reputation for being a liar, forget getting anything done on behalf of your clients. It was the absolute number one most important thing to resolve in my life for the last five months. And it took five months, almost to the day."

Elinoff was charged on July 5 with one count of attempting to influence a public servant: City officials alleged that he'd lied about his primary residence on his short-term rental license application. Elinoff was one of four people facing felony charges over allegations that they'd falsified their short-term rental applications; the other three are still navigating the legal process.

The charge against Elinoff stemmed from an affidavit he'd signed stating that a Raleigh Street address near Sixth Avenue listed on his short-term rental license application was his primary residence. The city's Department of Excise and Licenses, which regulates short-term rentals in Denver, had sent the affidavit because officials believed he was actually living in his wife's house on Tennyson Street near West Colfax Avenue when he filed the application.

Denver requires that short-term rentals be located at an operator's primary residence. That way, the operator can ensure that disruptive guests don't create chaos in a neighborhood. But the requirement is also designed to prevent short-term rental tycoons from buying up properties around the city simply to use them as short-term rentals, reducing the housing stock.

Excise and Licenses officials started sending address affidavits to applicants and short-term rental operators last March, and they contend that hundreds of individuals have either forfeited their licenses or withdrawn their applications since then, rather than sign the affidavits. "[We've had] tremendous success with the affidavit cutting our workload in half in terms of stopping applications that aren’t truthful," Brian Snow, the head of short-term rental enforcement in Denver, said at a Short Term Rental Advisory Committee meeting on December 10.

In Elinoff's case, however, sending the affidavit didn't work out the way the city had expected.

On July 2, the same day that Elinoff was arrested, Excise and Licenses also denied his short-term rental application. Elinoff appealed that decision.

The Department of Excise and Licenses held administrative hearings in October and November to adjudicate Elinoff's appeal, at the same time his criminal charge was working its way through Denver District Court.

Boulder attorney Macon Cowles was the hearing officer on the case, and he ultimately rejected the department's claim that Elinoff had tried to con the city, saying that he had "answered truthfully."

At the hearings, Elinoff; his law partner, Bryce Downer; and his wife, Whitney Elinoff, all testified that the small house on Raleigh Street was, in fact, Elinoff's primary residence at the time of his short-term rental license application. Whitney acknowledged that she owned the bigger house on Tennyson Street, and said that she and Elinoff lived there together from October 2018 until February 2019.

In Cowles's summary of the case, issued November 5, he noted that around February, Elinoff and Whitney's marriage hit a rocky patch and Elinoff began living at the smaller house, which he'd been renting out as an Airbnb. Elinoff often slept at Downer's house in Centennial, traveled for work, and sometimes slept at his wife's home, so there were plenty of times when he wasn't sleeping at the Raleigh Street house and could rent it out.

In March, Elinoff applied for a short-term rental operator license for the Raleigh house after realizing that he needed to do so in order to come into compliance with city regulations. In May, he signed the affidavit sent by the city. Two months later, police arrested Elinoff on the felony charge and his application was denied.

In his summary, Cowles said that Elinoff should have explained the circumstances of his personal life so that city officials understood why he was renting out a place that he still considered his primary residence. "One wishes in hindsight that Mr. Elinoff had reached out to explain the facts that came forth at the hearing, as they may well have come to the same conclusion that I have reached, hearing all of the evidence and facts that [the city] simply did not have," Cowles wrote.

Cowles concluded that Elinoff had not lied to the city on his application. "Weighing all of the evidence submitted at the hearing and the credibility of the testimony and witnesses, I find that from March 28, 2019, through July 2, 2019, Aaron Elinoff's primary residence — his place of return for housing — was [the house on Raleigh]," Cowles wrote.

Cowles did end up recommending a denial of Elinoff's appeal, based solely on the fact that Elinoff had since moved back in with his wife and admitted that he was now using the Tennyson Street house as his primary residence.

Although the Department of Excise and Licenses accepted Cowles's recommendation, director Ashley Kilroy pushed back against Cowles's conclusions about the merit of the original application.

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"The Director finds that the hearing officer erred by making findings and conclusions about whether the Applicant made false or misleading statements in the Application," she wrote in her decision published December 11. "Moreover, the Director declines to adopt the hearing officer's findings and conclusions as to whether the Applicant attempted to influence a government official. The question of whether the Applicant attempted to influence a government official when submitting the Application is not a basis laid out in the Denial Order and the Director declines to adopt findings and conclusions relating to extraneous matters not at issue in the Hearing. Therefore, the hearing officer's findings on the credibility of witnesses or evidence presented and ultimate conclusions on attempts to influence a government official are not adopted."

At the same time Cowles was considering the denial of Elinoff's application, the DA's office was looking into the the criminal charge against him. Ultimately, prosecutors decided that it could not be proven beyond a reasonable doubt, and asked the judge to dismiss the case.

"Denver prides itself in being progressive and 'woke' in regards to criminal justice reform, with the knowledge that you cannot incarcerate and felonize your way to a reduced crime rate," says Beller, Elinoff's attorney. "However, it is also the only city in the country that has felonized its citizens over something as ridiculous as short-term rental licenses. It is a hypocrisy in policy, and proves that the city is not ready to put their money where their mouth is. And innocent people like Mr. Elinoff are left in the dust of unchecked policies and practices that run over citizens with little care or thought. Thankfully, the DA did their due diligence and dismissed the case. But not before issuing a press release and plastering his photo across the world. In the end, the city has fewer people applying for a license. They’d say their ends justify their means. But their innocent citizens lose.”

Update: This story has been updated to include statements from Aaron Elinoff and David Beller.

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