PHOENIX - The owner of a salon where fish nibble dead skin off feet will get another chance to convince a court she has a constitutional right to offer the service.
In a unanimous opinion, the Arizona Court of Appeals ruled that the state Board of Cosmetology had the legal right to regulate who can give pedicures and how.
But Judge Peter Swann said Cindy Vong is entitled to argue that the rules against her business are unconstitutional.
The ruling does not guarantee that Vong and her Gilbert 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, done by a particular kind of fish that feeds on dead skin, 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.
"It is impossible to disinfect the fish coming in contact with your clients' skin in the required manner," previous board director Sue Sansom wrote to Vong. "You are jeopardizing your clients' health by performing this type of pedicure."
Vong agreed to halt the practice - and then got the Goldwater Institute, which pushes for limited government regulations, to sue.
Institute attorney Clint Bolick said Vong followed various procedures to protect customers, including having individual tanks cleaned and sanitized after each use, inspecting customers' feet for open wounds and rashes and, for those who 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 humans, penetrate the skin or transmit diseases.
In its ruling Friday, the appellate court said fish pedicures fall within the "nail technology" that the cosmetology board is directed by the Legislature to regulate.
But Swann said Vong 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. The ruling, unless overturned by the state Supreme Court, sends the case back to a trial judge.