Vong v. Sansom

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The Case

The Arizona Board of Cosmetology has banned the use of small fish as a therapy to remove dead skin from a person’s feet. In 2009, the board forced the closure of the only known salon in Arizona using this therapy. The Goldwater Institute sued the board on behalf of Cindy Vong, the salon owner, because the board exceeded its statutory authority by unconstitutionally applying regulations to her spa fish business that, in this context, are not rationally related to a legitimate government purpose. The board violated Ms. Vong’s constitutional rights to due process, equal protection and the privileges and immunities afforded to everyone to make a living.

Background

Cindy Vong has operated a nail salon in Gilbert since 2006. In 2008, she made plans to provide a special therapy for feet that uses small carp to safely nibble away dead skin. The fish therapy originated in the Middle East and is popular in Asia and Europe. Ms. Vong remodeled her salon to create a separate area where the foot treatment by fish would be offered. She wrote an extensive policy on customer safety for her staff and legally imported Garra Rufa fish from China to launch the service. A number of Ms. Vong’s customers enjoyed the treatment and none lodged any complaints about it with her business or any state agency.

Inspectors for the state Board of Cosmetology visited the salon before she began offering the treatment in October 2008 and then again in November 2008, and raised concerns that the treatment wasn’t permitted under state regulations. In January 2009, Ms. Vong received an undated letter from board Executive Director Sue Sansom that accused her of violating the agency’s safety standards and said Ms. Vong could face criminal charges.

Ms. Vong responded in writing that neither the board’s regulations nor state laws were drafted to address this issue. The Board of Cosmetology’s current regulations as they relate to skin exfoliation were written in 2001 and 2003, several years before the fish treatment became a practice anywhere in the U.S. The regulations focus on the sterilization of “tools” used to treat skin, which obviously can’t take place with live fish.

Ms. Vong asked the board to use her spa as six-month test project so the state agency could write new rules that covered this practice. The board ignored Ms. Vong’s request.

In February 2009, the cosmetology board formally notified Ms. Vong that the state was considering possible civil or criminal penalties for offering the service. Ms. Vong signed an agreement with the cosmetology board in September 2009 and closed the fish spa as the board requested. Ms. Vong’s intent was to bypass what can be a lengthy administrative process so she could go directly to court and argue that the Board of Cosmetology had no legal authority to close down the fish spa or to punish her for operating it. But she was forced to lay off three workers and lost a substantial amount of income.

In November 2009, the Goldwater Institute filed a lawsuit against the Board of Cosmetology on Ms. Vong’s behalf. The board filed a motion to dismiss the lawsuit in December 2009, claiming Ms. Vong waived her right to sue when she signed the agreement. A court hearing on the motion to dismiss was held March 22.

The Stakes:

• Enforcing constitutional limits on government authority: Government can wield its police powers only when authorized under state laws adopted in compliance with state and U.S. constitutions. The Arizona Board of Cosmetology has no authority to regulate or to ban this fish therapy.

• Protecting entrepreneurial freedom: Government shouldn’t interfere with anyone’s constitutional right to make a living unless there’s a direct threat to the health and safety of the general public. The Arizona Board of Cosmetology arbitrarily decided citizens should not be able to make up their own minds as to whether they want this fish therapy.

Key facts

• Garra Rufa or “doctor fish” are small carp without any teeth. So their mouths are unable to pierce the skin or to damage living tissue. The fish use suction to consume dead skin, and clients have described the treatment as ticklish and relaxing.
• Removal of dead skin on feet using Garra Rufa dates back to the 1800s in Turkey, where the fish originates. The treatment has been used without any reports of ill effects across the Middle East, Europe and Asia.
• The fish therapy is currently legal in at least five states – Ohio, Virginia, Delaware, Maryland and Missouri – but has been banned in at least 13 others.
• Cindy Vong drafted an extensive safety protocol for her salon. This included inspecting feet for cuts or abrasions before accepting a customer for treatment; washing the feet with antibacterial soap before and after the treatment, and using fresh, clean water for every treatment.

Case Documents:

Ruling

Complaint

Letters Between Cindy Vong and Cosmetology Board

Case Timeline:

November 30, 2009: The Goldwater Institute files a lawsuit against the Arizona Board of Cosmetology in Maricopa County Superior Court

March 22, 2010: Hearing before Judge Hicks on Defendant's Motion to Dismiss. 2 p.m. at the East Court Building, 201 W. Jefferson, Phoenix, Courtroom #811.

May 11, 2010: Court grants Board of Cosmetology's Motion to Dismiss

Media Coverage:

• Goldwater represents salon owner
  KPNX Channel 12, December 4th, 2009

News Releases:

Goldwater Institute Sues Cosmetology Board Over Closure of "Spa Fish" Business

How can I help?

• The stakes are high, help build positive press. Write letters to the editor for your local newspaper and let them know how you feel.
• The Goldwater Institute's Scharf-Norton Constitutional Litigation Center is able to defend your constitutional freedom because of the generous donations of private individuals.  R. Evan Scharf and John R. Norton III have arranged for a $1 million challenge grant to establish and fund the Goldwater Institute Scharf-Norton Center for Constitutional Litigation. To donate to the litigation center or become a member of the Goldwater Institute, please call (602) 462-5000.

Learn more about the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.

The Goldwater Institute is an independent government watchdog supported by people who are committed to expanding free enterprise and liberty.