Health Department cracks down on Minnesota hot tub and pool rentals

Here in the land of 10,000 lakes, where we’re known for our love of water, the state’s Health Department is making it harder to take a dip in a rented swimming pool or hot tub.

In 2021, the Minnesota Department of Health (MDH) published rules that described hot tubs at vacation-home rentals as “public pools.“ Same for residential swimming pools rented through sharing-economy apps or other platforms. These rules outlined public pools’ numerous licensing standards along with their potential health and safety risks. And in the years since, government agencies have been cracking down on noncompliant spas and pools in an inconsistent manner.

Take Gull Lake, near Brainerd. Its western shore sits in Cass County, which enforces MDH regulations within its borders and has been sending cease-and-desist letters to vacation-rental owners with unlicensed tubs, explained state Rep. Isaac Schultz, a Republican from Elmdale Township in central Minnesota. Meanwhile, on the lake’s east side, in Crow Wing County, where MDH regulators enforce their own rules, owners “weren’t hearing boo,” he said.

So Schultz brought what he calls the “free the hot tub bill” to the Legislature, where he expects it to be included in a sweeping health budget bill in a special session.

He describes hot tubs as “entirely different” from public pools and says the bill would exempt them, in a short-term rental context, from rigorous maintenance standards that make it “nearly impossible” for vacation-home owners to provide tubs for guests.

Hundreds of Minnesota hot tubs and pools have been available to rental-home guests through Airbnb, VRBO and other brokers for decades. But the MDH’s recent push to enforce its rules arrived after the launch of pool-rental app Swimply, which took off during the pandemic.

After the MDH sent letters to some homeowners who listed their pools for hourly booking on Swimply, the company sued the agency, arguing that state statute does not give it authority to regulate residential pools in the same manner as commercial, multifamily or municipal ones. Swimply attorney Douglas Seaton describes the MDH’s actions as an “unprecedented example of regulatory overreach” that doesn’t have a basis in the law.

Seaton, who is appealing the decision, criticized bureaucrats for not caring how much things cost, or considering the cost-benefit ratio. “If there’s any analogy,” Seaton said, “it’s the Health Department showing up and shutting down kids’ lemonade stands.”

Keith and Sheila Hittner, co-petitioners in the Swimply lawsuit, have long invited friends, family and a loose network of acquaintances to swim in their indoor pool. In 2022, the Eagan couple became one of a few dozen homeowners in the Twin Cities renting their pools on Swimply. The Hittners typically accepted four or five bookings a week.

In June 2023, the Hittners received a cease-and-desist letter from the MDH alleging that they were operating a public pool without a license and warning that they could be assessed a $10,000 fine.

Keith says they’d never had any problems with the pool rentals. When he called the MDH, he says he was told a complaint had been lodged and that the department couldn’t reveal who the complaint was from or what it was about.

Public-pool licensing requirements don’t easily translate to home pools, because of the way they are typically built and operated. The public-pool rules include everything from design and construction elements, to water treatment and filtration equipment, to daily chemistry testing. (While Schultz’s bill exempts rented hot tubs from public-pool standards, it includes regulations for maximum temperatures and testing the water between guest visits.)

So the Hittners let the Health Department know they’d no longer rent their pool on Swimply, and broke the news to guests with upcoming bookings. “I had to cancel three kids’ birthday parties, and they were devastated,” Sheila Hittner said.

Laws regulating the short-term rental of pools and hot tubs vary by state. Wisconsin legislators voted to exempt them from commercial pool licenses in 2022, for example. Minnesota’s most recent substantial pool regulations were passed in 2008, in response to the death of a young girl who had been injured by a faulty drain at a golf club pool.

Swimply’s lawsuit against the MDH notes that during hearings for that legislation, the Abigail Taylor Pool Safety Act, the agency estimated about 4,000 public pools would be subject to licensing and inspection, and listed a variety of specific facilities, including clubs, apartment buildings, camps and motels. An MDH representative said the bill would not apply to private residential pools.

When asked about the timing of the flurry of enforcement letters sent in recent years, the MDH emailed a statement saying it has “always considered pools and spas (aka hot tubs) being used as part of a business, such as renting them out separately or as part of a vacation home rental, to be public pools and spas.”

The department cites the primary risks related to rented pools and spas as drowning and illness or injury due to waterborne diseases or disinfection chemicals.

Swimply’s lawsuit argues that the platform manages risk with an approach similar to Uber’s ride-sharing services, by providing pool hosts with liability insurance coverage and allowing users to provide feedback and ratings to point out potentially unsafe situations.

Keith Hittner says that his Swimply guests didn’t increase the volume of swimmers anywhere close to those of pools generally open to the public or to a membership group, and that money being exchanged has no bearing on safety. He compared his Swimply transactions to allowing a neighbor to borrow his truck in exchange for returning it full of gas, and said the MDH is infringing on property rights.