Wed, Feb. 19

Appeals Court rejects arguments for fish pedicures

PHOENIX -- It's physically possible for a fish to perform a pedicure.

But not legally -- at least not in Arizona -- according to the state Court of Appeals.

The judges on Tuesday rejected arguments by Cindy Vong, owner of La Vie salon in Gilbert, that her constitutional rights were violated when the Board of Cosmetology banned her from the practice. The board told her that the practice of using fish runs afoul of regulations that require that "all supplies, equipment, tools and instruments' that come into direct contact with customers must be disinfected and stored in a dry place.

Vong, represented by the Goldwater Institute, noted that clearly was impossible to do with live fish.

So she sued, contending the rules are unconstitutional because they eliminate one method of pedicures. If nothing else, Vong said, the board should have adopted some alternative form of regulation that applies to her fish.

But appellate Judge Margaret Downie, writing for the unanimous court, pointed out that even Vong conceded that the regulations on cleanliness and disinfection promote "legitimate governmental purposes' of protecting public health.

And Downie said it's not like the rules put Vong out of business, as she's still able to perform other procedures at her salon.

But attorney Christina Sandefur of the Goldwater Institute said the rules unnecessarily and unfairly infringe on Vong's right to make a living. So she will be taking the issue to the state Supreme Court.

Court records show the procedure starts with an employee washing a customer's feet with antibacterial soap and inspecting for diseases or cuts, which would disqualify the patient from the treatment. The customer's feet were then placed in a tank with water and two kinds of fish that removed skin from the feet.

The fish used in the procedure were returned to a communal tank, divided by a net separating fish that had been used that day from those that had not.

Cost of all this was $30 for a 20-minute session.

Vong stopped the procedure in 2009 after being ordered to do so by the board but then turned around and filed suit.

Downie, in the 14-page opinion, acknowledged that regulations can be struck down if they are unrelated to legitimate police powers of the state. And that, the judge said, can include rules that fail to protect the public from harm.

In this case, Downie noted, witnesses at trial testified about the risk of disease posed by the procedure.

"The primary concern is disease transfer from fish to human or human to human,' the judge wrote.

She also noted that the fish are not necessarily feeding only on dead skin but may puncture live skin, causing bleeding. And Downie said there was evidence that communicable diseases can pass through blood and water in a cross-contamination situation, including HIV and hepatitis.

On top of that, board inspectors found dead fish in the communal tank, with Vong admitted she had no background in handling fish or recognizing those that are diseased. And the board's expect testified at trial that fish can carry both bacteria and viruses that are known pathogens to humans.

Downie said there were no violations of constitutional equal protection rights because Vong was subject to the same rules as anyone else doing pedicures. And she said nothing requires the board to adopt entirely separate rules designed for fish pedicures or use less restrictive means to regulate them.

Sandefur, however, said the regulations amount to a total ban on the procedure based on an erroneous conclusion that fish are the same as instruments and therefore must be properly sterilized. Instead, she said the court should have considered fish more in the category of things like hands which come into contact with patients' feet.

"Hands can't be sterilized,' Sandefur said. "They can be cleaned, certainly, and risks can be reduced.'

And she argued that, just as the board has procedures to ensure that hands do not spread disease, similar procedures could be adopted for the fish.

"What we're asking for is the board to work with Cindy to work out some reasonable regulations and not completely ban the practice,' Sandefur said.

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