Garra Rufa and Chin Chin fish nibble on the skin on the foot of Mai Garcia of Gilbert during a spa fish treatment at LaVie Nails and Spa in Gilbert in 2009.

Tribune file

A judge has tossed out efforts by a Gilbert salon owner to demand that the state let her use fish to give pedicures.

In a ruling Thursday, Maricopa County Superior Court Judge Bethany Hicks said attorneys for Cindy Vong waited too long before appealing a decision by the state Board of Cosmetology that letting fish nibble on the feet of customers is not proper. She also said the procedure used to challenge the board’s decision is improper.

But attorney Clint Bolick of the Goldwater Institute said the judge just got it wrong. Bolick told Capitol Media Services he will ask Hicks to reconsider using the proper legal standard.

And if that fails, he said, the case will go to the Court of Appeals.

“One way or another, Cindy Vong will have her day in court,” he said.

Hanging in the balance is whether Arizonans will get the option of the unusual pedicure procedure used in other countries and some states where fish nibble away at the dead skin on customers’ feet.

Vong is a licensed cosmetologist and operates La Vie under board rules. Two years ago she set up Spa Fish in a separate part of the business.

A board inspector said the procedure was illegal because it involved skin exfoliation, which the board regulates.

“Any tool or equipment used in a pedicure must be stored in a dry storage and disinfected in a very specific way,” previous board director Sue Sansom wrote to Vong. “It is impossible to disinfect the fish coming in contact with your clients’ skin in the required manner. You are jeopardizing your clients’ health by performing this type of pedicure.”

That was followed by a letter informing Vong she was breaking the law and could be subject to a fine and jail time.

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

“The spa fish therapy providing a relaxing and reinvigorating experience in which small Garra Rufa fish, which are tiny carp that have no teeth and cannot injure, penetrate the skin of, or transmit diseases to humans, are used to remove dead skin from the feet,” the complaint reads.

Bolick said Vong followed various procedures to protect customers, ranging from having individual tanks which were cleaned and sanitized after each use, inspecting customers’ feet for open wounds or rashes and, for those that passed, washing them with antibacterial soap before the fish therapy.

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

Bolick said it was always understood by the board that if Vong halted the practice she would file suit challenging the agency’s authority in regulating it.

“This lawsuit is a collateral attack to the board’s jurisdiction, which is a well-established exception to the requirement of exhaustion of administrative remedies,” Bolick said. He also said that the settlement between Vong and the board terminated the whole administrative process, “which was the whole point for Vong to agree to settle the administrative claim, take her lumps, and get before an objective tribunal as quickly as possible.”

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