Fish pedicure

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

The owner of a Gilbert salon where fish nibble dead skin off your feet will get another chance to convince a court she has a constitutional right to do that.

In a unanimous opinion Friday, the Arizona Court of Appeals ruled that the state Board of Cosmetology had the legal right to conclude that it has the right to regulate who can give pedicures and how that can be done. That includes a pedicure done by a particular kind of fish that feeds off dead skin.

But Judge Peter Swann said Cindy Vong is entitled to argue that the rules against her business are unconstitutional.

Friday’s ruling, however, does not guarantee that Vong and her spa, known as La Vie, will be allowed to start offering the service again. But the court fight ultimately will determine whether Vong or others will be able to offer the unusual pedicure procedure, which is used and legal in other countries and states.

According to court records, Vong is a licensed cosmetologist and operates La Vie under board rules.

Three years ago she set up Spa Fish in a separate part of the business. A board inspector said the procedure is illegal because it involves 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,’’ 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.

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

Anyway, Bolick argued, the small Garra Rufa fish -- tiny carp with no teeth -- cannot injure, penetrate the skin of, or transmit diseases to humans.

In its ruling, the appellate court said fish pedicures fall within the statutes that define “nail technology,’’ which the cosmetology board is directed by the Legislature to regulate.

But Swann said that Vong and her attorney never had a chance to argue that the regulations are irrational and arbitrary, which would mean they violate her due process rights under the state and federal constitutions. Friday’s ruling, unless overturned by the state Supreme Court, sends the case back to the trial judge who initially rejected Vong’s arguments against the board.

“Cindy Vong will get her day in court and so will a government bureaucracy that has recklessly disrupted this business owner’s right to earn a living in a profession that offers no harm to the public,’’ Bolick said in a prepared statement.

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