We are a sucker for the odd court case, and the April 29 Arizona Court of Appeals decision in Cindy Vong and LaVie, LLC vs. the Arizona Board of Cosmetology more than fills the bill.
Vong owns LaVie, a nail salon out in Gilbert. In 2008, she advertised that she was going to offer "Dr. Fish pedicures" at the shop,
Seems that Vong importdc fish (actually tiny carp, not those monstrous SOBs in the photo) from China and used them to remove dead skin from her customers' feet.
Later in 2008, an inspector from the state Cosmetology Board dropped by to see what was up. The board soon informed Vong that fish pedicures violate Arizona law and the board's own infection control and safety standards.
Vong was told that the rules bar the presence of animals inside a salon, except fish in an aquarium or service animals. She agreed in 2009 to remove the worker fish and (according to the board's order) "to immediately cease performing fish pedicures, including fish therapies, in the state of Arizona."
But late in 2009, Vong filed a complaint in Maricopa County Superior Court, claiming that the cosmetology board lacked jurisdiction "because spa fish therapy does not consitute the practice of cosmetology, aehthetics, or nail technology." She also alleged state and federal consitutional violations.
A county judge dismissed the case. Vong appealed, and last week, a three-judge panel published its unanimous decision -- which cuts both ways.
The court said even though Vong earlier had agreed to discontinue her fish-pedicure business, that did not preclude her from challenging the constitutionality of the government's regulation of her conduct.
Judge Peter Swann wrote that the board's 2009 order "used a single instance of discipline as a means of announcing a policy statement that acts as an effective prohibition of the practice statewide."
That, the judges concluded, is open to further legal debate.
In another section of the opinion entitled, "The Mere Presence of Fish on Salon Premises Did Not Create Jurisdiction," the court said that the board's reading of the ban against animals "would lead us to the conclusion that the practice of fish pedicures is prohibited because the fish are `animals' not permitted to be in the salon. This reading ignores the fact that fish are specifically permitted by the rule, and by their nature fish must be kept in water."
However, the court noted, the rule "is silent concerning the activities of the fish,"
For sure, it doesn't say that the little guys will be nibbling on dead feet skin.
The court specifically expressed no opinion as to the chances of Vong's success on the merits of her constitutional claim.
But she's going to have another day back at the trial court level, which will give the State of Arizona something to carp about at the next hearing.
the state board's earlier agreement with Vong
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