July 9, 2019
By Matt Miller
Just look at poor Aaron Elinoff, with his bloodshot eyes and an expression somewhere between fear and despair. He must have done something pretty awful to deserve this mugshot, right? Well, only if you think that peacefully renting your property to someone on Airbnb or HomeAway should be a serious crime, because that is ultimately all that Mr. Elinoff is accused of doing.
“But wait,” you say, “I read the article and it says he attempted to influence a public servant, made a false statement, and ran some kind of ‘scheme.’ That sounds pretty bad to me!”
It’s true that Mr. Elinoff is accused of doing all those things. He has now become part of a rogue’s gallery that includes the homeowners we wrote about last month. But the things Mr. Elinoff has been charged with are classic “process crimes.” (In fact, it’s not the first time Denver has used this tactic. Check out another story we wrote about last month.)
A process crime is a crime that interferes with the proper functioning of our judicial system. They are crimes that someone commits, by corrupting the justice system, in order to get away with a different crime. People should not commit process crimes. Filing false documents and lying to the government about the status of your property undermine the rule of law.
But the thing about process crimes is that they can carry penalties that are completely out of whack with the underlying criminal offense. The underlying offense in this case is simply renting out one’s property on Airbnb or HomeAway. There is no accusation that Mr. Elinoff was a slumlord or was creating a nuisance for his neighbors. But he allegedly did lie to the government about whether the property he was renting was his primary residence.
That was his crime. He should not have done it. Still, should he face felony charges for doing so? Should he potentially face six years in prison and a $500,000 fine just for conducting short-term rentals? I would argue that he should not. Mr. Elinoff didn’t actually hurt anyone. There are no allegations that he even inconvenienced anyone. By all accounts, all he did was run successful short-term rentals. So why is he facing up to six years in jail and half-a-million dollars in fines?
Tellingly, the underlying civil penalty for conducting a short-term rental in Denver without a license is only $999. This, however, is apparently not high enough to deter potential scofflaws, so Denver is resorting to process crimes with exorbitant penalties in order to send a message.
It’s the wrong message. Bullies and dictators make an example out of people who cross them. Responsible governments enforce laws justly and equitably in order to protect the public health and safety.
Denver claims that it needs to clamp down on short-term rentals because some listings are causing nuisances for existing residents. Fair enough. But Denver, like all cities, already has the tools it needs to punish bad actors by using existing nuisance laws. Putting the fear of God into people who are peacefully conducting short-term rentals is just a petty shortcut to bypass the difficult work of cracking down on bad actors on a case-by-case basis.
Matt Miller is a Senior Attorney at the Goldwater Institute.