A first-of-its-kind civil rights lawsuit pits the public health concerns of Arizona regulators against the “economic liberty” of a nail salon owner who wants to provide her customers with the latest fad in foot care -– fish pedicures.

Cindy Vong, owner of LaVie Nails & Spa in Gilbert, Ariz., filed the suit earlier this week, alleging the Arizona State Board of Cosmetology was all wet when it advised her that fish pedicures “constitute a violation of the Board's statutes and rules,” including those requiring sterilization of salon “tools.”

Fish pedicure customers immerse their feet in a tank of warm water filled with toothless, toe-size carp. The sucking action of the fish removes dead skin from the customer's feet, purportedly leaving them smooth and shiny.

Vong charged $30 for 20 minutes of "spa fish therapy" and says it increased her business by 50 percent. But the threat of criminal penalties forced her to stop offering it in September.

“This is a civil rights lawsuit designed to vindicate the rights of Plaintiffs Cindy Vong and LaVie LLC to pursue a legitimate business in the face of Defendants' arbitrary, oppressive, discriminatory, and unlawful actions that prevented her from doing so,” Vong says in her complaint.

The Goldwater Institute, a libertarian think-tank which is representing Vong, is pitching the case as one that “affects the economic liberty of every American. Too many small businesses have been destroyed by overzealous regulation.” The board, it says, acted more to protect cosmetologists from competiton than the public from health risks.

But the outcome of a similar case in Washington state doesn't bode well for Vong. In barring the Peridot Nail Salon in Kent, Wash., from offering fish pedicures, an administrative law judge concluded in a March 25 opinion that the procedure

as it currently exists is inherently and dangerously flawed and creates the potential for undue and serious risk of harm to the public.

The judge cited the report of a physician who told the Washington Department of Licensing: “If you allow this (fish pedicures), having cats lick the feet is the next step! It eliminates the need to clean water tanks!”

Fish pedicures have been popular for some time in countries such as China, Japan, South Korea and Turkey. They have spread to salons in the U.S. over the past couple of years, with two species of fish –- the "Garra Rufa" and the larger, cheaper “Chin Chin” -- being used.

Some states, including Florida and Texas, have banned the practice. But Vong began offering it last year in her salon after researching Arizona statutes and regulations and concluding that they did not cover it. “Everything was nicely done and was not unsanitary,” one satisfied customer said on the East Valley Tribune's website.

The cosmetology board's executive director, however, told Vong in an undated letter that fish pedicures violate safety standards in part because “Any tool or piece of equipment used in a pedicure must be stored in a dry storage and disinfected in a very specific way and it is impossible to disinfect the fish coming in contact with your clients' skin in the required manner.”

In her lawsuit, Vong is seeking an injunction forbidding the state from preventing her from offering fish pedicures and an award of costs and attorney's fees. "Despite ... any evidence of harm to the public, Defendants ordered the business closed," she alleges.

Under the rational review standard of judicial scrutiny, the board only has to show that its sinking of Vong's spa fish service was rationally related to the protection of public health. The Peridot decision suggests it may be able to do so.

As a threshold matter, Judge Christy Gerhart Cufley said the licensing department's “classification of fish as a 'tool' is appropriate since it is the fish who are delivering the pedicure service by grooming ('nibbling') on a client's foot.”

“These 'tools' (i.e., the fish),” she continued, “simply cannot be adequately sterilized to the same extent as can inanimate pedicure/manicure instruments. Fish themselves can be carriers of parasites and many other sorts of bacteria and diseases that can be harmful to humans.”

Vong is seeking an injunction forbidding the state from preventing her from offering fish pedicures and an award of costs and attorney's fees. Gustavo E. Schneider, a Goldwater Institute attorney, says he has spoken with Peridot owner Tuyet Bui and

she stated that she believed the decision [in her case] was fueled by a desire to protect politically-connected cosmetologists from competition. She also stated that she felt that she was at a disadvantage by not having hired an attorney to represent her.

Bui did not go to court to challenge the decision. Schneider also notes that it is not binding authority in Arizona.

By Matthew Heller
12/2/09