Vong v. Aune – 5/27/2014

June 2, 2014

Arizona Court of Appeals Division One Holds that the Constitution Does Not Preclude the Arizona Board of Cosmetology From Regulating “Fish Pedicures.”

Cindy Vong is a licensed cosmetologist who, in September 2008, began offering fish pedicures to her customers—a process in which customers’ feet were placed in tanks of water with garra rufa or chin chin fish that removed skin from the customers’ feet.  Members of the Board of Cosmetology (the “Board”) visited Vong’s salon several times to observe the process and ultimately ordered Vong to immediately stop performing fish pedicures, citing the Board’s rule on Infection Control and Safety Standards.  Vong agreed to a consent agreement in which Vong agreed the fish pedicures constituted grounds for disciplinary action.  Vong then filed suit in superior court, claiming that fish pedicures did not constitute the practice of cosmetology and that the Board’s actions violated Vong’s due process and equal protection rights. 

The Court of Appeals rejected Vong’s first argument, explaining that under the rule on Infection Control and Safety Standards, the fish constitutes a “tool” which must be “kept clean, disinfected, free from defects, and in good repair.”  Because of the broad wording in the rule, fish pedicures constituted the practice of cosmetology.  As to her due process claims, the Court of Appeals explained that the Board has expertise in matters related to safety and sanitation in the nail technology industry, and therefore, the Court gives deference and great weight to the Board’s interpretation of a statute or regulation.  After considering the evidence at trial, in which witnesses and experts from both parties testified that the fish are capable of passing diseases to customers and between customers, the Court of Appeals agreed that the Board has a legitimate interest in protecting the health of the customers.  Because the evidence established that health risks “rationally could exist,” the Bord did not violate Vong’s due process.  And the Board did not violate Vong’s equal protection rights because the prohibition on fish pedicures imposes restrictions upon all Board licensees and because the regulation has a reasonable and legitimate purpose rooted in public health. 

Presiding Judge Downie authored the opinion; Judges Brown and Portley concurred.