Vong v. Sansom

Background

In 2008, Cindy Vong, a Gilbert, AZ salon owner, was forced to shut down her spa fish pedicure business after the Arizona Board of Cosmetology determined the practice was unsanitary. Garra Rufa fish are tiny carp that nibble and remove dead skin from humans. Customers place their feet into the fish tank and the Garra Rufa fish remove the calloused skin.^[1] The practice was incredibly popular in Asia, but it was less common across the United States. But officials pointed to the problems of spreading bacteria as evidence of its unsanitary nature. This is unlikely, as the fish are incapable of breaking a customer's skin and each customer's feet were checked for sores prior to the treatment. None of Vong’s customers ever filed a complaint with her or to a state agency.

The Goldwater Institute was concerned that the Board of Cosmetology was infringing on an individual’s right to make a living by forcing Vong to shut her business down. Furthermore, the Goldwater Institute asserted that the government can use its police powers only when it acts in cooperation with the state and U.S. constitutions.^[2] The Board of Cosmetology claims that the spa fish are technically tools under the law, which would require them to be cleaned regularly. Since the carp cannot be cleaned, the practice of using them violates the state’s safety standards. However, the Goldwater Institute held that the board took the decision whether or not to partake in the treatment out of the customers’ hands.

Lawsuit

In January 2009, Vong received a letter from the Executive Director of the Board of Cosmetology, Sue Sansom, stating that Vong was in violation of the state’s safety standards and that she would face criminal charges if she did not comply.^[3] Since laws on skin exfoliation were passed in 2001 and 2003, years before the fish pedicure was practiced anywhere in the United States, Vong claimed that she was not violating the state’s safety standards. A month later, Vong received a formal letter from the Board of Cosmetology stating that they were exploring charging Vong with a civil or criminal penalty for offering the pedicures. In September 2009, in compliance with the Board of Cosmetology, Vong shut the fish spa down. In November 2009, the Goldwater Institute sued the Board of Cosmetology on behalf of Cindy Vong.

The Board of Cosmetology filed a motion to dismiss the case, and a hearing was set for March 22, 2010. Maricopa County Superior Court Judge Bethany Hicks determined that she needed more time to consider the issue.^[4] On May 17, 2010, Judge Hicks dismissed the suit, saying that Vong waited too long to appeal the decision made by the Cosmetology Board.^[5] The Goldwater Institute stated that it planned to get Judge Hicks to reconsider and if she refused, they planned to take the suit to the Court of Appeals.^[6]

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.

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

October 18, 2010: Goldwater Institute files appeal.

April 27, 2011: Arizona Court of Appeals, Division One, heard Oral Arguments.

April 29, 2011: Arizona Court of Appeals reverses the dismissal of Plaintiff's constitutional claims and remands for further proceedings.

April 13, 2012: Superior Court of Arizona, Maricopa County, heard Oral Arguments.

References