A Gilbert spa owner wants the U.S. Supreme Court to rule she has a constitutional right to have fish nibble on her customers' toes and charge them for that.

Attorney Clint Bolick of the Goldwater Institute said that's the only path now open to Cindy Vong, owner of La Vie salon, after the Arizona Supreme Court refused last week to consider her plea. That left in place a state Court of Appeal ruling which said the state Board of Cosmetology was legally entitled to stop her from using the fish.

Bolick said the issue is larger than just Vong. He said its one thing for government to impose restrictions designed to protect public health and safety, but Bolick said the lower court ruling, if left undisturbed, allows state officials to ban an entire business practice.

“The issue is really a business's right to exist,” he said.

In fact, Bolick said the precedents that would be set here could determine the future of businesses like Uber which use technology to provide alternatives to taxi services. He said while states can impose necessary regulations, they cannot set up barriers that completely ban such services.

Donna Aune, executive director of the Board of Cosmetology, said the larger issue at stake here is consumer protection. She said the fish, by their nature, foul the water in which the customers place their feet, leading to possible infection. And Aune said that, given the evidence the board has, an outright ban on the spa fish is the only option.

Vong is a licensed cosmetologist and operates La Vie under board rules. In 2008 she set up Spa Fish in a separate part of the business. It uses small Garra Rufa fish — tiny carp with no teeth — to essentially nibble the dead skin off of customers' feet.

That got the attention of the Board of Cosmetology, which in 2009 ordered her to stop. Sue Sansom, then the board's director, pointed out that Arizona law gives her agency the power to regulate skin exfoliation.

“Any tool or equipment used in a pedicure must be stored in a dry storage and disinfected in a very specific way,” Sansom wrote to Vong.

“It is impossible to disinfect the fish coming in contact with your clients' skin in the required manner,” Sansom continued. “You are jeopardizing your clients' health by performing this type of pedicure.”

Vong agreed to halt the practice — and then got the Goldwater Institute to sue.

In legal arguments to the Court of Appeals, Vong argued the board should have adopted some alternate form of regulation for the practice rather than banning it outright, but Judge Margaret Downie, writing for the unanimous appellate court, said the board was acting within its power to protect public health. Anyway, Downie wrote, it's not like the rules put Vong out of business, as she still can perform other procedures at the salon.

Bolick said he believes the Goldwater Institute can convince the nation's high court that the outright ban is unconstitutional. He said that should require a greater justification than for simple regulation.

He cited a study done by the health protection agency in the United Kingdom.

“There has not been a single documented instance of harm from fish spas in the entire world,” Bolick said. “And that has been confirmed by the U.S. Centers for Disease Control.”

He also said that UK study found the risk to be “miniscule” and can be further reduced by following certain health and safety protocols.

Aune dismissed the UK study, saying that health oversight in Europe is not the same as it is here, with no real place for consumers who had developed infections to complain.

She said Arizona and other states had a problem about a decade ago when contaminated water used for foot baths resulted in ulcers on the legs of customers.

“It was the buildup in the pipes that weren't getting cleaned out each night and each week,” Aune said.

She said that, questions of whether the fish themselves can transmit disease, the same problems can develop from having the fish in the water, and Aune said there's really no way to disinfect the water.

“Not without killing the fish,” she said.

“They dirty the water,” Aune continued. “The water could never stay clear.”

Follow Howard Fischer on Twitter at @azcapmedia.


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