Short-term rental owners violated local ordinances. Now what?

“As far as I’m concerned,” one hotel manager said, local officials “were depending on owners being responsible and doing what the order tells them to do.”

MARFA — This much seems clear: when officials in Marfa and Presidio County temporarily closed short-term rentals as a precaution against coronavirus, some rental owners didn’t comply.

Last month, The Big Bend Sentinel reported on Michael Barnard, a Fort Worth investor who continued to rent out Airbnbs in Presidio County during the emergency orders. And while that story is the best evidence the city has of a violation, residents have also called in to report other potential violators, said John Washburn, Marfa city manager.

But it’s less clear if Barnard or any other rental owners will face consequences for the infractions. Both Marfa and Presidio County’s orders reference fines or even jail time for violations — including, for example, a $1,000 fine for each violation in Presidio County’s shelter-in-place order from March 31.

So far, though, no rental owners have been fined — nor is it clear if they ever will be. The city is confronting the politics of fining short-term rental owners — awkward optics in a city that runs on tourism — as well as changing directives from Texas, where state leaders have expressed increasing skepticism not only of local rule in emergencies but of the concept of punishing Texans at all for violating public health measures.

When Governor Greg Abbott announced his initial “reopening” plans for Texas, he said his orders superseded local ones. That overturned a range of local measures, from Marfa’s short-term rentals ban to Presidio’s requirement that people wear face coverings while at stores.

Rather than uniting Texans, the state’s response to the coronavirus pandemic has descended into a partisan brawl. After a Dallas judge jailed a salon owner for contempt of court (she tore up Governor Abbott’s order, refused to close her salon and refused to apologize), state leaders from Governor Greg Abbott to Attorney General Ken Paxton came her defense, with Paxton calling it “outrageous” that a business owner was punished for violating public health laws.

Never mind that the Dallas judge was following guidance from Abbott himself, or that the salon owner netted over $500,000 in GoFundMe contributions after the incident. An online fundraiser for the woman went live before she even reopened her salon, Texas Monthly reported.

Then Abbott went a step further, retroactively removing any and all punishments for those who violated his orders. That put Marfa and Presidio County in an even shakier position as officials here try to determine how to handle any violators.

In an interview on Monday, Washburn said that in light of the new state directives, city council would likely need to decide what punishment, if any, would be meted out to Barnard and others.

Washburn, for his part, wasn’t exactly supportive of the idea of punishing violators. “It’s not our role to be punitive,” he said.

As Washburn sees it, the goal of the emergency measures was to keep Marfa safe from coronavirus. There was “substantial compliance,” with the order, he said, and no cases of the disease have so far been confirmed in Presidio County. Therefore, the orders had been a success.

Washburn acknowledged that this decision might be unfair to local rental owners and hoteliers who did comply but expressed concerns about “hammering” violators.

“The goal [of the order] was much different,” he said. In short: public safety, not punishment.

The city’s change-of-tone sends an awkward message to tourist-industry workers in the area — including hoteliers who did close their hotels and nonetheless faced criticism.

Clark Childers, an owner of The Lincoln Marfa hotel, saw himself become the center of controversy over what city leaders described as “‘escape to Marfa during COVID-19’-type advertising.” Partly as a result of the advertising, local officials expanded their rules to include restrictions on long-term rentals. But Childers, who did not respond to requests for comment, continually complied with local rules.

The Thunderbird Hotel also closed to follow local orders. But for manager Jose Prat, these updates feel like vindication of a fact he’s long suspected: that the region’s short-term rental bans weren’t enforceable in the first place.

“Part of my issue with the original order was: ‘How exactly are you going to enforce that?’” he said in an interview Tuesday. “That’s always been a question.”

“As far as I’m concerned,” he added, local officials “were depending on owners being responsible and doing what the order tells them to do.”

When The Big Bend Sentinel asked Washburn if he was concerned about future noncompliance — why would short-term rental owners close their rentals during a second disease wave if violating the first orders had no consequences? — Washburn acknowledged that was a “good point” and said it would likely factor into the city council’s decision.

But the decision may not be entirely in the city council’s hands. Ordinarily, local-rule violations would be handled by city authorities like the police, said Teresa Todd, Marfa city attorney. But with Abbott now reopening the state and retroactively removing punishments for violators, “the water’s totally muddy now,” Todd said.

Todd and Washburn both questioned whether Abbott had the authority to supersede local orders. Todd pointed to a law that gives county judges discretion to handle local disasters — and which Abbott suspended in his own order. But it could be months before Texas courts work through the kinks of that disagreement.

As Todd wades through those statewide controversies, she’s also watching other legal challenges to local emergency orders — including in Brewster County, where the owner of the Gage has personally sued a county judge over orders closing hotels. She described the whole situation as a “train wreck.”

“Here’s the deal,” Todd said. “We [local officials] didn’t want to step up to the plate in March. We wanted the state to. And the governor didn’t.”

“After we stepped up to the plate, they got mad,” she added. “Well, you didn’t man up. Sorry.”

Another wrinkle in this saga involves the logistics of imposing rules on short-term rental owners.

The City of Marfa recently signed a contract with Host Compliance, a subsidiary of the government-services firm Granicus that promises to help city officials better monitor and regulate short-term rentals. And yet when The Big Bend Sentinel covered a violating Airbnb last month, Marfa Police Chief Steve Marquez said the property was not on city lists of short-term rentals.

In an ironic twist, officials said the City of Marfa was getting ready to unveil its new rental regulation system in April — and then coronavirus concerns hit, and the rollout got delayed. Host Compliance seemed amenable to moving back Marfa’s renewal date to make up for the weeks lost to the pandemic, City Manager Washburn said.

Ulrik Binzer, founder of Host Compliance, added that the company is “partners with the city” and that they will “do what we need to do to help our partners succeed in these crazy times.” Binzer said the delayed rollout means Marfa was “flying blind” as it tried to enforce its emergency orders.

“They’re not really using our program to its full potential,” he said. “They’re essentially relying on people self-reporting.”