A Gilbert nail-salon owner whose service of using tiny fish to exfoliate feet was squashed by the Board of Cosmetology asked the Court of Appeals April 27 to overturn a lower court’s dismissal of her lawsuit.
Clint Bolick, director of the Goldwater Institute’s litigation unit, argued that Maricopa County Superior Court Judge Bethany Hicks’ ruling that Cindy Vong’s lawsuit was untimely and improper because she hadn’t exhausted her administrative appeals was wrong.
Bolick said Vong, who used to own “Dr. Fish Pedicure,” didn’t file her lawsuit to appeal an agreement she had made with the board to shut down her service, but to try and obtain a judgment that would destroy the agreement.
Her legal strategy is known as a collateral attack and is allowed without having to exhaust her administrative appeals, Bolick argued to a three-judge panel of the Court of Appeals.
“She has been denied her day in court,” Bolick said.
Vong’s arguments in Superior Court are that the Board of Cosmetology doesn’t have the authority to regulate the practice of fish nibbling dead skin off feet because it doesn’t constitute the practice of cosmetology or nail technology under Arizona law, Bolick said.
And even if the board does have the authority, it violated Vong’s constitutional rights by misapplying the rules.
Lori Davis, an assistant Attorney General representing the board, said Vong’s lawsuit is an end-run around proper procedures.
“All she wants is out from the consent decree,” Davis said.
Vong signed a consent decree with the board in 2009, agreeing to shut down the business. She entered the agreement to end her case with the board and preserve her legal rights for court, Bolick said.
Davis said the board found that she violated a rule that requires tools to be disinfected or thrown away if they can’t be disinfected.
Vong, who is a certified nail technician, started the service in 2008. She bought Garra Rufa fish, which are toothless fish imported from China.
A customer would stick her foot into a tank where the fish would nibble at her feet.
Bolick said the practice is sanitary since the customer’s feet are washed before and after the procedure, water is changed after each procedure, and the fish are kept in separate tanks when not in use.
“This is no trivial matter even though it involves a business that is unusual,” Bolick said. “It is a business, it is a woman’s ability to make a livelihood.”
Judge Peter Swann of the Court of Appeals said a decision would come within three days since the case was accepted on an accelerated basis.