When are residential pools, spas, or hot tubs actually public pools, spas, or hot tubs?

It sounds like a riddle, but it’s a real question up for debate in Minnesota, where state legislators are considering whether private backyard pools and spas should be considered public if they are being rented to the public.

And while the topic is currently on the table in Minnesota, it’s an issue that has been debated at a variety of governmental levels across the country.

With the advent of sharing apps and rental platforms like Airbnb, VRBO, and Swimply in particular, the line that separates the private hot tubs from the commercial hot tubs has grown increasingly blurry, and there are those on both sides of the line who would like clarification.

That’s because there are rules that govern how we manage public hot tubs, including licensing regulations and health ordinances. For public safety reasons and disease mitigation, public hot tubs are subject to oversight. Private hot tubs, on the other hand, are treated more like large bathtubs, at least, as far as the government is concerned. Most people would be appalled if the government had anything at all to say about what you can do with your private, residential bathtub.

But the distinction between “residential” and “commercial” becomes pretty fuzzy when a property intended for the use of the occupants within becomes available for use in business, trade, or commerce — or to generate a profit.

Sharing apps have turned those definitions on their head. With the rise of home sharing platforms in the late 2000s, and the Swimply App, launched in 2019, the distinction between residential properties and commercial properties has all but vanished.

But there are some who are pushing back.

In Minnesota, the controversy started in 2021, when the Minnesota Department of Health (MDH) published rules that described hot tubs at vacation-home rentals as “public pools.” Residential swimming pools rented through sharing-economy apps or other platforms also got reclassified as “public” at that time.

According to the Minnesota Department of Health: “A public pool means any pool other than a private residential pool that is available to the public under a variety of circumstances. A private residential pool does not include a pool used as part of a business. A homeowner that rents their pool to customers via a sharing economy app or other platform has effectively turned their pool into a public pool. Pools and spa pools available for use as part of a vacation home rental are also considered public pools.”

In addition, the MDH’s rules enumerated public pools’ licensing standards along with their potential health and safety risks.

For example, public pools have to be inspected to conform to suction entrapment protection laws (i.e. the use of anti-entrapment drain covers.)

Private pools don’t. Public pools must adhere to specific building codes including building materials restrictions, construction design, and ADA requirements.

Private pools don’t. Public pools have to meet hygienebased regulations related to filter turn-overs, sanitation procedures, and pump “on” times. Private pools don’t.

Public pools must be run and regularly tested by a certified trained operator.

Private pools don’t. But that was all supposed to change when the 2021 Minnesota law went into effect.

In the years since Minnesota’s private rentable hot tubs became reclassified as public pools, government agencies have been cracking down on some of these noncompliant hot tubs. But the crackdowns and the enforcement of the rules has varied from county to county.

In Gull Lake, Minnesota, homeowners illegally renting out their hot tubs have received ceaseand- desist letters with warnings that they may face $10,000 fines. In Crow Wing County, on the other hand, there has been no enforcement.

The inconsistency is something Minnesota state representative Isaac Schulz would like to stop, so this year, he introduced the “Free the Hot Tub” bill in the state legislature. The bill seeks to yet again reclassify certain hot tubs (those located on a single unit property rented to the public) as exempt from many of the requirements for public pools.

As introduced, Schulz’s bill HF 1557, stated that a hot tub “located on the property of a stand-alone singleunit rental property that is rented by the property owner or through a resort, and that is only intended to be used by the occupants of the rental property, is not a public pool and is exempt from the requirements for public pools” under Minnesota rules.

Schulz has argued that hot tubs are “entirely different” from public pools and said that the bill would exempt them from rigorous maintenance standards that make it “nearly impossible” for vacation home owners to provide hot tubs for guests.

Indeed, Minnesota’s current law effectively shuts down many of these operations when it is enforced across the board.

The pool rental platform Swimply is currently in a legal battle with the Minnesota Department of Health in which it is attempting to make the case that the state does not have the authority to regulate residential pools in the same way that it regulates commercial, multifamily, or municipal pools.

Swimply attorney Douglas Seaton said that it’s a little like “the Health Department showing up and shutting down kids’ lemonade stands.”

But many have wondered if hot tubs that are rented to the public are really that different than public hot tubs and see the lemonade-stand analogy as a stretch. People are making real money renting out their pools and hot tubs, and are potentially putting their clients' health at risk if they're not following guidelines. After all, Legionnaires’ Disease, cryptosporidium, giardia, and a host of other diseases are contracted in public and private pools and spas every year. Some argue that if you want to operate your home or property as a public accommodation, you have to accept the rules of those public accommodations.

On the other hand, mandating that home hot tubs comply with certain public pool regulations such as those concerning ADA accessibility and slope gradients feels to many like government overreach.

However, perhaps regulations related to drowning, entrapment, or illness or injury due to waterborne illnesses or disinfection chemicals are a different story.

At press time, the “Free the Hot Tub” bill has been integrated into Minnesota’s omnibus Health/ Children and Families budget bill (likely HF2435, or its Senate companion, HF2).

The language of Minnesota’s “Free the Hot Tub” text now reads that these hot tubs are not public pools; are exempt from the requirements of public pools; and may be used by renters so long as: 1. The water temperature in the spa pool does not exceed 106 degrees Fahrenheit; and 2. Prior to check-in by each new rental party, the resort or property owner tests the water in the spa pool for the concentration of chlorine or bromine, pH, and alkalinity and the water in the spa pool meets the requirements for disinfection residual, pH, and alkalinity in Minnesota Rules; and 3. At check-in, the resort or property owner provides each rental party with a notice that there is a spa pool on the property and that the spa pool is not subject to all of the requirements in state law and rules for public pools.

At press time, the Minnesota legislature was convened in a special session to decide on this and other bills that were not finalized during the regular session that ended May 19.

We’ll let you know how it turns out in our next issue of Service Industry News.