Today, the Upper Midwest Law Center (UMLC) announced the filing of a lawsuit in the Office of Administrative Hearings (OAH) against the Minnesota Department of Health (MDH) on behalf of Swimply, a national online marketplace for the hourly rentals of pools, courts, and other private amenities, along with three Swimply users. UMLC is challenging MDH’s enforcement of what it calls an illegal, unpromulgated policy, that unfairly targets Swimply and Swimply users.
The lawsuit seeks to invalidate MDH’s “Residential Swimming Pool and Spa Rentals” guidance, issued in 2021, which reinterprets Minnesota law and administrative rules to classify private residential pools rented sporadically and temporarily through Swimply as public pools. The MDH’s enforcement policy both exceeds its statutory authority and was never adopted consistent with the Minnesota Administrative Procedure Act.
“The Minnesota Department of Health engaged in shadow rulemaking to covertly announce a policy of treating private residential pools like public pools,” Cameron Kilberg, Head of Legal and Government Relations at Swimply said. “Despite promising that this guidance would not be enforced against Swimply, our users have received letters threatening enforcement actions and thousand-dollar fines. Swimply and Swimply users should not be subject to the arbitrary enforcement of unlawful policies.”
Since MDH issued its guidance, Swimply users have received threatening letters warning of penalties in the thousands of dollars, causing nearly 100 Minnesota pool listings to be removed from Swimply’s platform. This has resulted in substantial financial harm to Swimply’s operations in the state.
The Minnesota Department of Health cannot enforce unwritten rules that never went through the legal process on homeowners’ backyard swimming pools,” said James Dickey, Senior Counsel, UMLC. “MDH needs to ‘mind its own business,’ as Governor Tim Walz is fond of saying. Swimply and its users deserve clarity and fairness—not arbitrary and unlawful enforcement.”
UMLC’s filing asks the OAH to declare MDH’s actions invalid, highlighting the agency’s unlawful enforcement of a rule that was never properly promulgated under the Minnesota Administrative Procedure Act.
For more information about this case, see the complaint.
