Cindy Vong has operated a nail salon in Gilbert, Arizona since 2006. In 2008, she began providing a foot therapy popular in the Middle East and Asia which uses small Garra Rufa fish to exfoliate dead skin from the feet. Ms. Vong remodeled her salon to create a separate area where the foot treatment would be offered. She wrote an extensive policy on customer safety for her staff and legally imported the 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 relating to skin exfoliation were written 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 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.
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Last step: Court of Appeals rules in favor of the Board
- 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.
Letters Between Cindy Vong and Cosmetology Board 11/29/2007
Ruling on Reconsideration 6/15/2010
Appellate Opening Brief 10/18/2010
Reply Brief 1/29/2011
Court of Appeals Ruling 4/29/2011
Expert Report on the Safety of Spa Fish Therapy 10/28/2011
Motion for Summary Judgment 1/6/2012
Statement of Facts 1/6/2012
Plaintiff's Response to Defendant's Motion for Summary Judgment 2/6/2012
Ruling on Motions for Summary Judgment 6/12/2012
Trial ruling 3/15/2013
Appellants' Opening Brief 9/3/2013
Appellants' Reply Brief 4/15/2013
Court of appeals ruling 5/27/2014
Clint Bolick is the Goldwater Institute’s litigation director. He has extensive success before trial judges and appellate courts. He was lead attorney for parents in Zelman v. Simmons-Harris in 2002, in which the U.S. Supreme Court ruled that school vouchers were constitutional, and Kotterman v. Killian in 1997, in which the Arizona Supreme Court upheld private school scholarship tax credits under the Arizona Constitution.
Christina Sandefur recently won a major victory for Arizona taxpayers when the Arizona court of appeals held that the government cannot spend bond money on unapproved purposes. She worked to advance liberty as a law clerk at the Pacific Legal Foundation in California and a research intern and contributor at the Michigan-based Mackinac Center for Public Policy before joining the Goldwater Institute. Christina earned her law degree from Michigan State University College of Law, where she served as notes editor of the law review and president of the campus Federalist Society.