The latest instance of government overreach is unfolding in the city of Henderson once more. At the heart of this battle is Swimply – a rising online platform allowing Nevada homeowners to share their private pools with others, an embodiment of the sharing-economy.
Launched in 2018, Swimply, like better-known sharing economy peers Airbnb or Uber, helps facilitate decentralized and direct transactions between individuals through a mobile app.
The pandemic presented Swimply with an opportunity to grow as Americans were craving an opportunity to escape from their homes for a bit of recreation amid the lockdowns.
The trend has continued and made headlines in 2021 when Las Vegas television station KLAS produced a piece detailing the value proposition for many Nevadans: “Are you looking to make some extra cash? Why not rent out your backyard pool when you are not using it.”
Things were going well until summer 2022 when the city of Henderson sent out a notice notifying the public that it was illegal to rent out their private pools and doing so would violate the health and safety standards of the Southern Nevada Health District for public pools. Of course, these aren’t public pools.
Nevada law defines a “public swimming pool” as any artificial body of water designed for collective use by individuals for swimming or bathing. This definition holds irrespective of whether there’s a charge associated with its use.
However, there’s a clear distinction when it comes to private residences. The law explicitly excludes structures at private residences from the “public swimming pool” category if they are controlled by the homeowner or an authorized occupant, and their usage is restricted to family members of the owner or authorized occupant, or to guests explicitly invited by them.
Swimply, through law firm Squire Patton Boggs, responded by underscoring a simple yet powerful tenet: private pools remain private, irrespective of their mode of sharing. Squire Patton Boggs’s correspondence to the city outlined key arguments that, at their face, show once more the overzealous nature of government busybodies:
- The Nature of Private Pools: Nevada regulations empower the Southern Nevada Health District, or SNHD, to regulate public pools. Yet, private pools, even if shared with invited guests for a fee, remain exempt.
By this definition, Swimply only facilitates the sharing of private pools. Homeowners retain control over who accesses their property, how and when, ensuring it remains a private affair.
Swimply states that “SNHD, in its aquatic facility regulations, does not define the term, ‘public swimming pool,’ instead referring to an “aquatic venue,” which is an “artificially constructed structure or modified natural structure where the general public is exposed to water intended for recreational or therapeutic purposes.”
This definition, and further elaboration on types of “aquatic venues,” clearly does not include private residential pools.
By utilizing Swimply, homeowners are not opening their swimming pools to the general public. Rather, Swimply hosts regulate who is allowed to access their property, when guests may enter the property and how the property may be used.”
- Inconsistency in Enforcement: The city’s stance contradicts its treatment of platforms like Airbnb. If pools attached to Airbnb properties are considered private, why is Swimply treated differently? Such discrepancies not only confound homeowners but also stifle the spirit of entrepreneurial ventures.
- Prior Precedence: Swimply’s successful defense against a similar challenge in Wisconsin reinforces the platform’s stance. The Wisconsin Department of Agriculture, Trade and Consumer Protection held that most Swimply hosts weren’t operating public pools.
Henderson should consider embracing a private property-friendly approach based on similar precedents or we could be awaiting another legal fight such as the one currently ongoing in Greater Las Vegas Short-Term Rental Association v. Clark County over short-term rentals.
- Safety and Oversight: Swimply operates with a commitment to safety. The platform provides liability insurance, empowers users with feedback mechanisms and ensures consistent oversight.
Instead of quashing such ventures, the city should engage in constructive dialogues to foster innovation while ensuring public safety.
The struggle faced by Swimply is more than a legal battle; it’s emblematic of the challenges faced by innovation in a bureaucratic web of busybodies seeking to make static an ever-changing world.
Nevada has had a tumultuous relationship with the sharing economy since the fights over ridesharing with Uber and Lyft. Today the troubles continue with short-term rentals and pool-sharing.