Cosmetology board thinks something's fishy

PHOENIX — Can a fish perform a pedicure?

This isn't just an idle query. It goes to the heart of a lawsuit filed against the state Board of Cosmetology.

In fact, the case is going to require a judge to determine just that question.

Legal papers filed Monday in Maricopa County Superior Court contend the board overstepped its legal authority in ordering Cindy Vong to stop offering the toe-nibbling services of fish at her Spa Fish salon in Gilbert.

The lawsuit, filed on Vong's behalf by the Goldwater Institute, acknowledges that the board is entitled to regulate pedicures. But it specifically argues that having fish eat away the dead skin on a patron's feet is not a pedicure and, therefore, outside the board's jurisdiction.

But attorney Clint Bolick is not resting his case solely on the definition of a "pedicure.'' He said even if the court concludes that what the fish are doing does constitute a pedicure, the actions by the cosmetology board "far exceed whatever legitimate and rational public health and safety requirements necessary to protect the public health.''

Donna Aune, the board's executive director, said she had just seen the legal papers late Monday and could not comment.

According to the lawsuit, Vong is a licensed cosmetologist and operates La Vie under board rules. Last year she set up Spa Fish in a separate part of the business.

"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 the species is native to the Middle East where it is used to treat people with skin diseases such as psoriasis. He said it is popular in other countries and in some states.

He also 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.

The first hint of problems came about a year ago when 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 director Sue Sansom wrote to Vong.

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

That was followed in January by a letter informing Vong she was breaking the law and could be subject to a fine and jail time.
Vong agreed to a cease-and-desist order in September, a necessary step before she could challenge the board's regulations in court.

In the lawsuit, Vong said she has had a "substantial loss of income,'' had to lay off three employees and "been prevented from pursuing a legitimate business.''

This isn't the first time Sansom and her board have been to court over the scope of state regulations. The Institute for Justice filed suit more than five years ago when board members concluded that it is illegal to braid hair for money without being a licensed cosmetologist and going through a 1,600 hour training program at a cost of about $10,000.

That case never got to a jury after the Legislature voted in 2004 to specifically exempt hair braiding from what the board is allowed to regulate.