Copying homework is as endemic to tech innovation as it is to regulatory policy. A new video application will take off in Silicon Valley, and before you know it, every major social media company has its own spin on the concept. There exists now an “Airbnb but for [insert private property]” for everything from backyards to vehicles. Regulators scramble to keep up with the disruption one good idea can cause, so localities survey the country for agencies who pulled the trigger early on regulatory intervention. Both scenarios are perfectly captured by the rise of Swimply in North Carolina, “Like Airbnb but for backyard pools,” and local government’s attempts to squash what consumers call “pool sharing.”

On May 20, Mecklenburg County blasted out a warning to residents of the Charlotte-metro area, saying, “RESIDENTIAL POOLS FOR SHORT TERM RENTALS FORBIDDEN IN MECKLENBURG COUNTY.” The release specifies that “residents who rent out their private pools to third parties on a short-term basis” are running afoul of NC General Statute 130A-281, and homeowners in violation could face legal action. 

A homeowner with a backyard pool they’d like to share by the hour with locals might be surprised by the language of Statute 130A-281, which reads, “No public swimming pool may be opened for use unless the owner or operator has obtained an operation permit.” 

Mecklenburg is making the argument that a private oasis in your backyard being rented to someone on an app for a fee is now regulated under state law as a public swimming pool. Yes, a public pool like those with swimmers packed shoulder to shoulder, lifeguards giving lessons, and hosting swim meets for competitive teams.  

A public pool must follow all manner of regulations, including having a landline available to its swimmers for dialing 911 in an emergency. They must log daily tests of water pH levels, temperatures, and disinfectant levels. Backyard pools only have to meet the installation and structural requirements to be in use, and if you’ve ever had a friend with a pool, some are immaculate and others are nasty. 

Mecklenburg County’s Public Health Environmental Health Division copied the homework of Orange County and Buncombe County, which began sending threatening letters to homeowners in 2023 who were using the Swimply app to share their pool. Swimply responded with legal pushback from the firm Squire Patton Boggs (SPB), asserting that the departments were overstepping their authority in determining the legal status of pools rented on third-party apps. 

Regulatory agencies like to play copycat and coordinate with their colleagues in other states. They also “push where there is mush,” meaning any vagueness in state law is taken as an invitation to regulate. North Carolina’s 1999 Vacation Rental Act (VRA) is the existing law of the land for short-term rentals. Due to its age, the VRA has been at the center of one local fight after another, as sharing apps like Airbnb, VRBO, and FlipKey have come on the scene. Battles have raged from Wilmington to Asheville, and just as the state legislature began to get familiar with the concept of homesharing, new forms of peer-to-peer commerce arose like pool sharing (Swimply) and the peer-to-peer exchange of backyards for dogs to play in (Sniffspot). 

North Carolina’s Department of Health and Human Services (DHHS) has not been amused by the fun people are having in renting backyard pools for birthday parties and social events. The agency released a memo in 2021 offering “guidance” to local health departments, which amounts to a strongly worded suggestion that can be enforced with impunity in the absence of clarification of law by the state legislature. 

Carolina Journal published an article recently by the John Locke Foundation’s Jon Sanders, who rightly called this a form of “regulatory dark matter,” where lone bureaucrats essential rule by blog post. A simple publication on an agency website, a press release, or any documentation bearing an official state watermark is enough for most to treat it as law when it is not. 

North Carolina’s copied homework is just one of many instances of regulatory dark matter that have popped up since Wisconsin’s Department of Health Services took action against pool sharing in 2021. Since then, Nevada, New York, South Carolina, Oregon, and Minnesota have tried their hand at eliminating the freedom to swim in a privately owned pool for a reasonable hourly rate. 

In many cases, the state agencies know that a backyard Swimply pool does not meet the legal standard for a public pool. Their solution is to overregulate and spook homeowners out of listing their property on the app. Minnesota threatened hosts with fines up to $10,000. The risk now outweighs the potential reward for supplemental income. 

Local officials frame their crackdowns as matters of safety and protecting the welfare of children, but they notably exempt backyard pools from their concern if the entire home is being rented on an app. There are hundreds of Airbnb properties throughout Mecklenburg County boasting pools among their amenities. Airbnb has fought hard for every inch of protection under the law in North Carolina, and good for them, but the door is being kicked shut on new concepts built on the gains of homesharing. 

The trend amounts to an equal protection issue for new entrants to the sharing economy, such as Swimply. NC DHHS exempts home rentals from their thinking on pool “safety” in no small part due to the coastal tourism industry where large rental properties boast private pools.

If you’ve ever been to eastern North Carolina, these McMansions with pools are a destination for booze-fueled late-night parties and wedding receptions, precisely the kind of activity you’d be most concerned about when it comes to drownings and general safety issues. But a homeowner in Charlotte or Hillsborough hosting a family of three for an innocent two hours of swimming is treated as anarchy. 

North Carolina’s state legislature must take action this year and clarify the state law’s scope of coverage for short-term rentals. It’s going to be a hot summer and thousands of families will be looking online for ways to cool off and entertain both kids and guests by the poolside. 

Homeowners should have the opportunity to make use of their private property to make ends meet. Consumers should have more choices for spots where they can swim. But above all else, the law should be clear to all. If consumer choice and property rights are not to be upheld in the state, the least the legislature can do is settle this issue for all the North Carolinians being intimidated and harassed by regulators with too much time on their hands. 

Originally published here



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