A felony charge has been dropped against a Denver lawyer accused of flouting the city's short-term rental rules after an administrative recommendation raised questions about how the case against him was handled.
Aaron Elinoff was among four people who have been charged since June with attempting to influence a public servant -- an official at Denver Excise and Licenses -- by means of deceit. The charge stems from their alleged attempts to get around a requirement that a landlord of the kinds of properties listed on sites such as Airbnb can only rent out a primary residence. The primary residence provision, adopted in 2016, was meant to ensure investors didn't buy up and convert so many units for the use of vacationers or other short-term renters that the city's stock of permanent housing would be reduced, making it even more difficult for moderate- or low-income families to find an affordable place to live.
In an email Friday, Denver district attorney's spokeswoman Carolyn Tyler confirmed the Elinoff case was dismissed on Thursday.
"As the investigation continued, we no longer believed that we could prove the case beyond a reasonable doubt," she said. "This decision has no bearing on the other three short-term rental cases, which are proceeding."
In a case similar to Elinoff's, two Stapleton realtors are set to stand trial starting in April on charges of attempting to influence a public servant. Stacy and Alexander Neir are the first to face trial of the four cases filed since June.
Elinoff expressed relief, telling Denverite, "I'm thankful the DA made the reasonable decision to dismiss this case."
Elinoff's attorneys said the criminal case ended after their client presented evidence at a Denver Excise and Licenses hearing appealing the denial of a short-term rental license he had requested.
"Generally, Mr. Elinoff's case is a very good example of why the city should slow down and re-examine the way they're investigating these cases ... to make sure innocent citizens aren't being charged with felonies," said David Beller, who represented Elinoff in the criminal case.
In an interview, Excise and License spokesman Eric Escudero said requesting affidavits has helped the city get people to surrender licenses or abandon applications if they were renting or planning to rent properties that were not their primary residences. Escudero said that was important both to protect Denver's permanent housing stock and to ensure short-term rental properties were well-managed.
"Other cities are actually looking at us because we've been so successful" in regulating the short-term market, Escudero said.
In a recommended decision, the Excise and Licenses hearing officer had expressed concerns about the investigation that led to the license denial and to the felony case. The head of Excise and Licenses, though, characterized points in the hearing officer's recommendations as going too far and stressed that Elinoff is not living at the address for which he wanted a short-term license.
The hearing officer Macon Cowles wrote: "There is no evidence that Mr. Elinoff tried to influence a public servant through deceit."
"It is disturbing that the city would make such an allegation in a case involving licensure without providing any evidence to support it," Cowles said.
The investigation began after an Excise and Licenses technician noticed that the address on Elinoff's driver's license did not match the Villa Park address on his March application for a short-term rental license. That led to visits by an inspector to Villa Park and to a West Colfax home where he also sometimes stayed with his wife. Neighbors at both locations were questioned. On one visit, the inspector found Elinoff gardening at the West Colfax address. The inspector reported that he told her he lived there; he later told another Denver Excise and Licenses official that he had not said that. Police investigators who followed up the Excise and Licenses probe also questioned neighbors.
Excise and Licenses officials, their suspicions raised, asked Elinoff to complete a notarized affidavit stating that the property he intended to rent was his primary residence. The city's contention that he was untruthful in the affidavit about his primary residence led to the charge of attempting to influence a public servant by means of deceit. Elinoff was arrested on that charge on July 2 at the West Colfax address, handcuffed and spent 36 hours in jail before being released on bail.
Three neighbors who testified under oath during the hearing did not say, as the Excise and Licenses and police investigators had quoted them as saying, that they did not believe Elinoff lived at the Villa Park address, Cowles wrote in his recommendation.
Cowles also said he found Elinoff's testimony, including his explanation that he had simply failed to update the address on his license, to be credible. Cowles added he found a document filed by police outlining evidence in the case to be "not credible."
Cowles said that while Elinoff could have done more to make a living situation complicated by marriage troubles clearer to Excise and Licenses, city officials also could have done more to establish the facts.
"The full facts, with the ambiguity attendant on the lives, marriage and work of the key players, came to light only during the hearing," Cowles wrote.
City officials "did not have that information and apparently did not ask the questions necessary to uncover what was going on."
Cowles nonetheless concluded that by the time of the hearing, Elinoff's relations with his wife had improved and his primary residence had changed. Given that, Cowles wrote, Elinoff was not eligible for a short-term rental license for the Villa Park home.
In a final decision issued Wednesday, a day before charges were dropped, Ashley Kilroy, executive director of Excise and Licenses, focused on the fact that Elinoff's primary residence was not the property for which he had sought a short-term rental license. Kilroy ruled that Elinoff would not be issued a license.
Kilroy added that Cowles, the hearing officer, had gone too far in drawing conclusions about whether Elinoff made false or misleading statements or whether he 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," Kilroy wrote.
