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Appeals court upholds ban on fish pedicures

FThe Arizona Court of Appeals today upheld a lower-court decision banning flesh-eating fish in pedicures, finding that using them could be unsanitary.

The ruling in favor of the state Board of Cosmetology means nail salons won’t be able to use the unusual beauty practice of using small fish to defoliate feet.

Christina Sandefur, an attorney with the Goldwater Institute, said Gilbert nail-salon owner Cindy Vong has already indicated she wants to appeal to the Arizona Supreme Court. The institute, a conservative public policy group, uses the courtroom to advance its positions.

Sandefur said the state’s high court might find the case appealing because it has never determined whether Arizona’s due process and equal protection guarantees in the context of freedom to earn a living are broader and more protective than the U.S. Constitution.

“The U.S. Supreme Court has recognized time and time again the U.S. Constitution sets a floor for rights, not a ceiling, and that states through their own constitution can protect rights to a greater extent,” Sandefur said. “Unfortunately, the courts below, both the trial court and the appellate court didn’t really address that. They said they were going to treat them basically the same and we know that our courts don’t treat them the same.”

The case had grabbed the public’s attention because of the unusual beauty technique, but Sandefur said it represents overreach by the government, or the state Board of Cosmetology in this case, in regulating how a person makes a living and over-regulating the inherent dangers of an activity.

Vong in 2008 began using a method in which a customer would stick her feet into a tank with Garra Rufa, a carp without teeth, and Chin Chin, a small fish that develops sharp teeth, to allow the fish to exfoliate the feet. The 20-minute treatment cost $30.

Vong’s health protocol included washing the customer’s feet with antibacterial soap before the pedicure and placing the fish in a clean tank.

The board shut down the pedicure operation because it didn’t comply with sanitation requirements. Vong sued in 2009.

Maricopa County Superior Court Judge George Foster ruled in March 2013 the state can ban the practice because the fish can’t be disinfected. State rules require any tools or instruments that can’t be disinfected must be thrown away.

The Goldwater Institute argued that applying the rule to fish pedicures is a “regulatory mismatch” that outlaws a legitimate profession.

“What the Board of Cosmetology is saying is we think we know better than informed adults about what risks people should be taking and we’re going to go ahead and let people expose themselves to dangerous chemicals, but we are not going to allow them to put their feet in a pool with toothless fish for fun,” Sandefur said.

Judge Margaret Downie, writing on behalf of the unanimous three-judge panel, said the record from an evidentiary hearing in front of Foster showed the board made a “considered, deliberative decision about whether and how to regulate fish pedicures,” and that the board has a legitimate interest in protecting the public.

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