Vong v. Aune

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

CINDY VONG and LA VIE, LLC, Plaintiffs/Appellants,

v.

DONNA AUNE, in her official capacity as Executive Director of the
Arizona State Board of Cosmetology, Defendant/Appellee.

No. 1 CA-CV 13-0423
FILED 05-27-2014

Appeal from the Superior Court in Maricopa County
No. CV 2009-037208
The Honorable George H. Foster, Jr., Judge

AFFIRMED

COUNSEL

Goldwater Institute, Scharf-Norton Center for Constitutional Litigation,
Phoenix
By Clint Bolick, Christina Sandefur
Counsel for Plaintiffs/Appellants

Arizona Attorney General’s Office, Phoenix
By G. Michael Tryon, Bridget Fitzgibbons Harrington
Counsel for Defendant/Appellee

OPINION

Acting Presiding Judge Margaret H. Downie delivered the opinion of the
court, in which Judge Michael J. Brown and Judge Maurice Portley joined.
 VONG et al. v. AUNE
Opinion of the Court

D O W N I E, Judge:

¶1 Cindy Vong and La Vie, LLC (collectively, “Vong”) appeal
from a judgment in favor of Donna Aune in her capacity as Executive
Director of the Arizona State Board of Cosmetology (“Board”). We
conclude the Board did not violate Vong’s constitutional rights by
applying existing infection control and sanitization standards to so-called
“fish pedicures.” 1 We therefore affirm the superior court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶2 The Board regulates cosmetology, nail technology, and
aesthetics in Arizona. See Ariz. Rev. Stat. (“A.R.S.”) §§ 32-501 to -576. The
Board is statutorily required to perform certain duties, including: (1)
adopting “necessary and proper” rules, including sanitary and safety
standards for the practice of nail technology; and (2) administering and
enforcing statutory requirements and rules. A.R.S. § 32-504(A)(1)-(2).
Vong is an aesthetician and nail technician licensed by the Board. She
owns and manages La Vie Nails & Spa.

¶3 During a routine inspection of Vong’s salon in September
2008, Vong asked Board investigator Linda Stroh about offering fish
pedicures. A few days later, Board personnel left a telephone message for
Vong with a salon employee, advising that such treatments would violate
Board rules. Vong began performing fish pedicures, claiming she never
received the message.

¶4 The fish pedicures Vong offered started with a salon
employee washing the customer’s feet with antibacterial soap and
inspecting for diseases or cuts, which would disqualify the patron from
the treatment. The customer’s feet were then placed in a tank containing
water and garra rufa or chin chin fish that removed skin from the feet. At
the end of the procedure, the patron’s feet were again washed with
antibacterial soap. Fish used in the pedicure were returned to a
communal tank divided into two sections by a net separating fish used
during the day from unused fish.

1Vong refers to the procedure as a “spa fish treatment,” but, as we did in
Vong v. Aune (“Vong I”), 1 CA-CV 10-0587, 2011 WL 1867409 (Ariz. App.
Apr. 29, 2011) (mem. decision), we call it a “fish pedicure.”

2
 VONG et al. v. AUNE
Opinion of the Court

¶5 Stroh returned to Vong’s salon in October 2008 and observed
the fish pedicure set-up. Stroh and Aune also visited the salon in
November 2008, examining the fish pedicure equipment and learning
more about the treatments. In a letter sent to Vong sometime thereafter,
the Board’s executive director stated:

[Fish pedicures are] a clear violation of the Board’s Rule
A.A.C. R 4-10-112 on Infection Control and Safety Standards.
Any tool or piece of equipment used in a pedicure must be
stored in a dry storage and disinfected in a very specific way
and it is impossible to disinfect the fish coming in contact
with your clients’ skin in the required manner. . . . You are
jeopardizing you[r] clients’ health by performing this type of
pedicure.

The letter directed Vong to immediately stop performing fish pedicures
and sought a response within ten days. In her ensuing response, Vong
questioned the Board’s jurisdiction and challenged its reliance on rules
“written at a time when the use of fish in the manner I have proposed,
was not known or contemplated.”

¶6 At a January 2009 meeting, the Board voted to offer Vong a
consent agreement. Vong appeared at a March 2009 Board meeting and
made a presentation in support of her fish pedicures. The Board, though,
decided to proceed with the contemplated consent agreement.

¶7 In September 2009, Vong signed a consent agreement that
required her to stop performing fish pedicures. The agreement recited the
salon’s history of offering the pedicures, which Vong agreed constituted
grounds for disciplinary action “pursuant to A.R.S. § 32-572(A)(6) and
§ 32-574(A)(10) (violation of statute or rule) by violating A.R.S. § 32-501(6)
and (9) (scope of practice) and A.R.S. § 32-541 and A.A.C. R4-10-
112(A)(5)(B)(1)(2)(C)(1)(2)(E)(1)(7)(G)(1)(2)(P)(3)(4)(T)(2)(3) (infection
control and safety standards).” The Board issued a “public reproof” to
Vong and declared “that the performing of fish pedicures in the State of
Arizona violate[s] the Board’s statutes and rules.”

¶8 Vong filed suit in superior court in November 2009. Count
one of her complaint challenged the Board’s jurisdiction to regulate fish
pedicures, alleging the treatment did not constitute the practice of
cosmetology, aesthetics, or nail technology. Count two alleged state
constitutional violations, and count three asserted federal constitutional

3
 VONG et al. v. AUNE
Opinion of the Court

claims. Vong sought declaratory and injunctive relief, as well as
attorneys’ fees and costs.

¶9 The superior court granted the Board’s motion to dismiss
Vong’s complaint. On appeal from that judgment, this Court held that:
(1) the consent agreement did not bar Vong’s civil complaint; (2) the Board
was authorized to regulate fish pedicures as a form of “nail technology”
under A.R.S. § 32-501(10)(c); and (3) Vong’s constitutional claims were
improperly dismissed. Vong v. Aune (“Vong I”), 1 CA-CV 10-0587, 2011
WL 1867409 (Ariz. App. Apr. 29, 2011) (mem. decision).

¶10 On remand, the superior court conducted a bench trial to
adjudicate Vong’s constitutional claims. The court issued detailed
findings of fact and conclusions of law, concluding that the Board had not
violated Vong’s constitutional rights. Vong timely appealed. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution
and A.R.S. §§ 12-120.21(A)(1), -2101(A)(1).

DISCUSSION

¶11 Vong I held that the fish pedicures Vong performed were a
type of “nail technology,” as that term is defined by statute. 2011 WL
1867409, at *6, ¶ 22. Vong concedes she is “generally subject to the
Board’s sanitary and safety requirements for salons.” Id. at *5, ¶ 18; see
also A.R.S. § 32-541(B) (“The safety and sanitary requirements specified by
the board in its rules shall be requirements while a salon is operating.”).
She argues, though, that “applying rules regarding cosmetology
implements to fish is flatly irrational.” Her position is that fish are not
tools, “so I don’t think it is necessary to disinfect them.”

¶12 In prohibiting fish pedicures, the Board relied in part on
Arizona Administrative Code Rule (“Rule”) 4-10-112, entitled, “Infection
Control and Safety Standards.” That rule includes the following
provisions:

E. Tools, instruments and supplies.

1. All tools, instruments, or supplies that come into direct
contact with a client and cannot be disinfected (for example,
cotton pads, sponges, porous emery boards, and neck strips)
shall be disposed of in a waste receptacle immediately after
use;

....

4
 VONG et al. v. AUNE
Opinion of the Court

7. All supplies, equipment, tools, and instruments shall be
kept clean, disinfected, free from defects, and in good repair
....

Additionally, subparagraph (O) prohibits use of a “devise [sic], tool, or
chemical that is designed or used to pierce the dermis” if it is not sanitized
in accordance with the rule. Rule 4-10-112(O)(1)(a), (2).

¶13 Vong I held that using fish to remove skin is “a means of
cleaning feet” subject to Board regulation. 2011 WL 1867409, at *6, ¶¶ 22-
23. As such, the fish are not properly characterized as a form of
“entertainment,” as Vong asserts. The fish are the means by which this
particular type of nail technology is performed. In that respect, the Board
rationally classifies the fish as tools, instruments, or equipment, as those
terms are used in Rule 4-10-112(E). 2

¶14 Vong does not challenge the facial validity of Rule 4-10-
112(E). She argues instead that the rule is unconstitutional as applied to
fish pedicures, though she concedes “the Board could have imposed
reasonable regulations” on such treatments. Vong’s constitutional claims
are based on the privileges and immunities, 3 due process, and equal
protection clauses.

¶15 The parties agree that rational basis review applies to Vong’s
constitutional claims. Rational basis review is “the most relaxed and
tolerant form of judicial scrutiny.” City of Dallas v. Stanglin, 490 U.S. 19, 26
(1989). It has been aptly described as “a paradigm of judicial restraint.”
Fed. Commc’ns Comm’n v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993).

2 Merriam-Webster’s Collegiate Dictionary defines “tool” as “something
(as an instrument or apparatus) used in performing an operation or
necessary in the practice of a vocation or profession.” Merriam-Webster’s
Collegiate Dictionary 1239 (10th ed. 2001). “Instrument” is defined as “a
means whereby something is achieved, performed, or furthered” or “one
used by another as a means or aid.” Id. at 605. “Equipment” is defined as
“the set of . . . physical resources serving to equip a person or thing” or
“the implements used in an . . . activity.” Id. at 392.

3 Vong concedes that her claims premised on the privileges and
immunities clause are foreclosed by United States Supreme Court
precedent. See Slaughter-House Cases, 83 U.S. 36 (1872). We therefore do
not address those claims further.

5
 VONG et al. v. AUNE
Opinion of the Court

“The Constitution presumes that, absent some reason to infer antipathy,
even improvident decisions will eventually be rectified by the democratic
process and that judicial intervention is generally unwarranted no matter
how unwisely we may think a political branch has acted.” Id.; see also
James v. Strange, 407 U.S. 128, 133 (1972) (“Misguided laws may
nonetheless be constitutional.”).

¶16 We review constitutional claims and questions of law de
novo. Ramirez v. Health Partners of S. Ariz., 193 Ariz. 325, 327-28, ¶ 6, 972
P.2d 658, 660-61 (App. 1998). We give great deference, though, to the
superior court’s factual findings. See United Calif. Bank v. Prudential Ins.
Co. of Am., 140 Ariz. 238, 302, 681 P.2d 390, 454 (App. 1983). Where
conflicting evidence or competing inferences exist, we will not substitute
our opinion for the findings of the trial court. Id. “This rule is founded
upon the theory that the trial court, having seen and heard the witnesses
and the evidence, is in a better position to determine credibility and
weight than the appellate court. For this reason, where there is conflict in
the evidence, the lower court’s findings will be accepted.” Id. (citation
omitted).

¶17 Under rational basis review, an enactment will be upheld if
it is rationally related to furthering some legitimate governmental interest
and the means employed are reasonably related to achieving the
regulation’s purpose. Heller v. Doe, 509 U.S. 312, 320 (1993); State v.
Watson, 198 Ariz. 48, 51, ¶ 7, 6 P.3d 752, 755 (App. 2000). As the
challenger, Vong has the burden of proving that the regulations, as
applied, lack any conceivable rational basis. See Heller, 509 U.S. at 320;
Watson, 198 Ariz. at 51, ¶ 7, 6 P.3d at 755. The Board has “no obligation to
produce evidence to sustain the rationality of a statutory classification.”
Heller, 509 U.S. at 320. Furthermore, we accord “significant deference to
the judgment of the legislative body regarding both the propriety of
governmental involvement in the area covered by the legislation and the
reasonableness of the means chosen to achieve the legislative goals.”
Watson, 198 Ariz. at 51, ¶ 7, 6 P.3d at 755.

¶18 Prohibitions on economic pursuits may lack a rational basis
if they are unrelated to legitimate police powers. Courts have found a
legitimate purpose lacking where a regulation fails to protect the public
from harm, see St. Joseph Abbey v. Castille, 712 F.3d 215, 226-27 (5th Cir.
2013) (requiring all casket makers to be licensed did not protect public, as
state law did not require a casket for burial); where the law merely
protects those already licensed, see Buehman v. Bechtel, 57 Ariz. 363, 376,
114 P.2d 227, 232 (1941) (holding licensing requirement for photography

6
 VONG et al. v. AUNE
Opinion of the Court

unconstitutional based on protectionism purpose and absence of harm to
public from sale of photographs); or when subjecting a profession to
regulation will not advance public health or safety, see Cornwell v.
Hamilton, 80 F. Supp. 2d 1101, 1110, 1114, 1118-19 (S.D. Cal. 1999)
(mandated curriculum for hair braiders “is not a rational exercise of
licensure” because less than ten percent of cosmetology training applies to
that craft.); Edwards v. State Bd. of Barber Exam’rs, 72 Ariz. 108, 231 P.2d
450, 453 (1951) (“[W]e are unable to find any relationship, either in logic or
common sense, between the public health and safety and price-fixing in
the barbering profession.”).

¶19 The Board has expertise in matters relating to safety,
sanitation, and infection control in the nail technology industry. Courts
typically give deference to agencies charged with carrying out specific
legislation. Blake v. City of Phx., 157 Ariz. 93, 96, 754 P.2d 1368, 1371 (App.
1988). An agency’s interpretation of a statute or regulation it implements
is ordinarily entitled to great weight, see Baca v. Ariz. Dep’t of Econ. Sec.,
191 Ariz. 43, 45-46, 951 P.2d 1235, 1237-38 (App. 1997), though its
interpretations are not infallible, U.S. Parking Sys. v. City of Phx., 160 Ariz.
210, 211, 772 P.2d 33, 34 (App. 1989).

¶20 In addition to the Board’s base level of expertise, the record
in this case reflects that the Board made a considered, deliberative
decision about whether and how to regulate fish pedicures. Board
personnel reviewed Vong’s procedures, explanations, and video;
personally observed her fish pedicure set-up and equipment; met with
Vong on several occasions; considered letters from Vong’s patrons; and
conducted independent research, including attending a national
conference discussing fish pedicures. 4 The Board also evaluated how
other jurisdictions regulate fish pedicures and offered evidence at trial
reflecting that numerous other states prohibit them based on health and
safety concerns. It is also relevant to our analysis that the Board’s actions
have not prevented Vong from pursuing her chosen profession. Vong
testified at trial that she operates a profitable salon without fish pedicures,
and her Board license permits her to offer a wide array of other services.

4 Nothing in our opinion should be read to suggest that an executive
branch agency must undertake such actions to withstand rational basis
review.

7
 VONG et al. v. AUNE
Opinion of the Court

I. Due Process

¶21 We consider Vong’s state and federal due process claims
together because the respective due process clauses “contain nearly
identical language and protect the same interests.” State v. Casey, 205 Ariz.
359, 362, ¶ 11, 71 P.3d 351, 354 (2003), superseded by statute on other grounds,
2006 Ariz. Sess. Laws, ch. 199, § 2 (2d Reg. Sess.). Deprivation of economic
or professional pursuits has long been analyzed under a due process
rubric, though the degree of judicial deference has expanded over time.
See generally Lochner v. New York, 198 U.S. 45 (1905) (analyzing the “right to
purchase or to sell labor” under the due process clause); Allgeyer v.
Louisiana, 165 U.S. 578 (1897) (“liberty,” as a part of due process, includes
right to earn and pursue a livelihood) (subsequent histories omitted); see
also Ferguson v. Skrupa, 372 U.S. 726, 729 (1963) (discussing the expansion
in judicial deference under due process analysis). Due process challenges
may be procedural or substantive. See Dist. Attorney’s Office for the Third
Judicial Dist. v. Osborne, 557 U.S. 52, 72 (2009). Vong is not contesting the
process she received, but rather the Board’s application of regulations that
have the effect of prohibiting fish pedicures. We therefore review her
claims on substantive due process grounds.

¶22 In general, a legislative enactment has a legitimate purpose
when the government acts within its police powers by regulating to
protect the public health, morals, and welfare. Berman v. Parker, 348 U.S.
26, 32 (1954) (“Public safety, public health, morality, peace and quiet, law
and order — these are some of the more conspicuous examples of the
traditional application of the police power to municipal affairs. Yet they
merely illustrate the scope of the power and do not delimit it.”); Cohen v.
State, 121 Ariz. 6, 10, 588 P.2d 299, 303 (1978) (“[I]t is well established that
the right to pursue a profession is subject to the paramount right of the
state under its police powers to regulate business and professions in order
to protect the public health, morals and welfare.”). Vong acknowledges
that, on its face, Rule 4-10-112 advances “legitimate government
purposes.” She maintains, though, that applying the rule to fish pedicures
is “a regulatory mismatch, which results in the complete prohibition of a
legitimate profession,” in violation of her due process rights. We disagree.

¶23 After considering the evidence presented at trial, the
superior court found that the Board “has a legitimate interest in
safeguarding the health and safety of consumers who are provided
services in the professions it regulates” and that the sanitization
regulations at issue “are intended to advance this legitimate interest in
health and safety.” The record supports these findings.

8
 VONG et al. v. AUNE
Opinion of the Court

¶24 Trial witnesses testified about the risk of disease posed by
fish pedicures. The primary concern is disease transfer from fish to
human or human to human. Witnesses testified that nail technology
implements must be disinfected because “they come in contact with one
client and then another” and create a risk of “cross-contamination”
between patrons. Additionally, the Board deemed Vong’s practices
unsafe. As the superior court noted, “Board personnel who observed
Vong’s . . . operation and viewed her trash can holding tanks concluded
that the fish pedicures offered by Vong were not safe or hygienic.”

¶25 The fish Vong used for pedicures removed skin from feet.
Vong’s expert testified that the fish “actually are not feeding on skin.
They’re actually feeding on material behind the dead skin. And so they
are nosing it or pushing it with their mouth parts.” He described it as a
“sucking, abrading action.” Although the goal is to limit the fish to dead
skin, evidence established that the fish may puncture live skin, causing
bleeding. This concern is particularly acute with chin chin fish, which
have teeth. But Vong’s expert testified that “toothless” garra rufa fish can
also cause bleeding. There was also evidence that communicable diseases
capable of passing through blood and water in a cross-contamination
situation may be serious and include HIV and hepatitis.

¶26 The trial evidence also established a risk of cross-
contamination from fish tank water. Vong kept both used and unused
fish in a communal tank, separating them with a net that did not prevent
the exchange of water between the two sides. She filtered the water, but
the tank itself was not drained and disinfected, tested for bacteria, or
treated with chemicals. Some of the communal tank water would transfer
to individual customer tanks. Evidence was presented that untreated
water carries a risk of spreading disease — a risk that has led to an M.
fortuitum outbreak from salon foot baths. 5 The superior court also noted
a lack of evidence that the UV light Vong used “killed any and all bacteria
or viruses that might be transmitted by the fish to the water.”

¶27 Trial evidence additionally established risks associated with
the fish themselves. Board personnel found dead fish floating in the

5 A trial exhibit explains that “M. fortuitum” is a bacterium commonly
found in water that can “cause a red rash that turns into boils and severe
skin ulcers.” The exhibit, a document issued by the Arizona Department
of Health Services, states that M. fortuitum “can enter the skin through
tiny cuts or scrapes, like those caused by shaving.”

9
 VONG et al. v. AUNE
Opinion of the Court

communal tank at Vong’s salon, and Vong conceded she has no training
in handling fish or in recognizing diseased fish. The Board’s expert
testified that fish “can carry both bacteria and viruses that are known
pathogens to humans.” In 2011, a disease outbreak among 6000 imported
fish occurred in the United Kingdom, where the “fish hemorrhaged
around the gills, the mouth, and the abdomen,” leading to government
intervention. After inspecting a shipment of fish, analysts found “a
variety of human pathogens capable of causing invasive soft-tissue
infections.” In Canada, it was believed that fish to be used in pedicures
were the source of E. coli bacteria.

¶28 In a section of its ruling entitled “Risks of Fish Pedicures,”
the superior court found, in pertinent part:

• Fish pedicures can cause skin breaks and bleeding.

• Water is a vector through which humans can contract
a number of skin diseases and infections.

• Garra rufa fish imported into the United Kingdom
have been found to carry a variety of bacteria, some of
which are transmissible to humans.

• Plaintiff’s expert, Dr. Graham Jukes, opines that fish
pedicures do carry a risk of infection or disease that
cannot be entirely eliminated through adherence to
any set of safety protocols.

• Defendant’s expert, Dr. Joseph Giancola, opines that
fish pedicures carry a risk of infectious disease that
cannot be completely eliminated through adherence
to any set of safety protocols.

• Communicable diseases that might be contracted
through fish pedicures include HIV and Hepatitis.

Each of these findings is supported by the evidence.

¶29 Under rational basis review, the Board need not prove the
existence of substantial health risks; it is sufficient that the evidence
establishes such risks rationally could exist. See Heller, 509 U.S. at 320;
Aleman v. Glickman, 217 F.3d 1191, 1201 (9th Cir. 2000) (A law must be
upheld “if there is any reasonably conceivable state of facts that could
provide a rational basis” for it.); Ariz. Downs v. Ariz. Horsemen’s Found.,

10
 VONG et al. v. AUNE
Opinion of the Court

130 Ariz. 550, 556, 637 P.2d 1053, 1059 (1981) (Evidence is sufficient under
rational basis review if “any set of facts” could “rationally justify” the
enactment.). The evidence presented at trial met that standard. Although
the cited risks occur rarely, when the risks become reality, the deleterious
effects can be quite serious. It is also significant that Arizona is one of
many states that prohibit fish pedicures based on health and safety
concerns. Cf. Cornwell, 80 F. Supp. 2d at 1113 (considering other states’
requirements in ascertaining “the rationality of [California’s] required
curriculum”).

¶30 The superior court found, as a factual matter, that the
Board’s sanitation rules, including Rule 4-10-112, “are designed to protect
clients from indirect or direct exposure to bacteria or infection.” It further
found that the Board “considered how to apply its regulations to this
particular case in the manner in which it normally determines how to
apply regulations.” Based on the evidence before it, the superior court
properly made these findings and appropriately concluded that Vong
failed to carry her burden of proving a due process violation. Substantial
evidence supports the court’s determination that the Board rationally
believes “fish pedicures carry a risk of transmitting infectious disease.”
The record further supports the conclusion that prohibiting fish pedicures
based on the inability to comply with sanitization regulations furthers the
Board’s “legitimate interest in public health and safety.”

II. Equal Protection

¶31 As with the due process claims, we consider Vong’s state
and federal equal protection challenges together. The guarantees in the
two constitutions “are essentially the same in effect.” Trust v. County of
Yuma, 205 Ariz. 272, 277, ¶ 25, 69 P.3d 510, 515 (App. 2003); see also Valley
Nat’l Bank of Phx. v. Glover, 62 Ariz. 538, 554, 159 P.2d 292, 299 (1945) (“The
equal protection clauses of the 14th Amendment and the state constitution
have for all practical purposes the same effect.”). Although conceptually
similar, “[t]he due process clause protects liberty and property interests
while the equal protection clause protects against discriminatory
classifications.” Church v. Rawson Drug & Sundry Co., 173 Ariz. 342, 348,
842 P.2d 1355, 1361 (App. 1992).

¶32 “The equal protection clauses of the state and federal
constitutions generally require that all persons subject to state legislation
shall be treated alike under similar circumstances.” Wigglesworth v.
Mauldin, 195 Ariz. 432, 438, ¶ 19, 990 P.2d 26, 32 (App. 1999) (internal
quotation marks omitted).

11
 VONG et al. v. AUNE
Opinion of the Court

To establish an equal protection violation, a party must
establish two facts. First, the party must show that it was
treated differently than other people in [a] “similarly
situated” class. Second, when . . . that disparate treatment
does not trammel[] fundamental personal rights or
implicate[] a suspect classification, the party needs to show
that the classification bears no rational relation to a
legitimate state interest.

Aegis of Ariz., L.L.C. v. Town of Marana, 206 Ariz. 557, 570-71, ¶ 54, 81 P.3d
1016, 1029-30 (App. 2003) (internal quotation marks and citation omitted).
The equal protection clause does not provide “a license for courts to judge
the wisdom, fairness, or logic of legislative choices.” Beach Comm’ns, 508
U.S. at 313. “[C]ourts are compelled under rational-basis review to accept
a legislature’s generalizations even when there is an imperfect fit between
means and ends.” Heller, 509 U.S. at 321.

¶33 Vong argued in the superior court that “by singling out this
specific practice for prohibition, while permitting and regulating other
cosmetology practices that are demonstrably dangerous to the public, the
Board has violated [her] equal protection rights.” She similarly contends
on appeal that cosmetology is “full of potentially dangerous risks to
customers,” but the Board “has adopted regulations that reduce but do
not entirely eliminate the risk . . . except for fish spas, which alone were
singled out for prohibition.”

¶34 The relevant class for equal protection purposes is Board
licensees engaged in nail technology. We held in Vong I that fish
pedicures constitute neither “cosmetology” nor “aesthetics.” 2011 WL
1867409, at *5-6, ¶¶ 20-21. Vong’s discussion of how licensees in these
other fields may be regulated is largely unpersuasive. 6 See, e.g., Trust, 205
Ariz. at 277, ¶ 25, 69 P.3d at 515 (Equal protection requires that all persons
“be treated alike under similar circumstances.”). But even if the relevant
class consisted of all Board licensees,

6 Vong’s focus on the role of human hands in nail technology is similarly
unpersuasive. Although hands need not be disinfected, Board regulations
require licensees to wash their hands with soap and warm water before
providing services to customers. A.A.C. R4-10-112(H)(1). Even this less
restrictive requirement cannot be applied to fish.

12
 VONG et al. v. AUNE
Opinion of the Court

reform may take one step at a time, addressing itself to the
phase of the problem which seems most acute to the
legislative mind. The legislature may select one phase of one
field and apply a remedy there, neglecting the others. The
prohibition of the Equal Protection Clause goes no further
than the invidious discrimination.

Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489 (1955) (citations
omitted).

¶35 “A law is general, and thus permissible, if it confers rights
and privileges or imposes restrictions upon all members of a given class,
when the classification has a reasonable basis.” Phx. Newspapers, Inc. v.
Purcell, 187 Ariz. 74, 80, 927 P.2d 340, 346 (App. 1996). The Board imposes
Rule 4-10-112 on all licensees engaged in nail technology. As discussed
supra, both facially and as applied to fish pedicures, the regulation has
reasonable and legitimate purposes rooted in public health and safety.
Even if a given classification “results in some inequality, it is not
unconstitutional if it rests on some reasonable basis.” Church, 173 Ariz. at
351, 842 P.2d at 1364.

¶36 Vong contends the Board should adopt rules specifically
designed for fish pedicures or employ less restrictive means of regulating
them. The Board, though, is not required to do so. “A perfect fit is not
required; a statute that has a rational basis will not be overturned ‘merely
because it is not made with mathematical nicety, or because in practice it
results in some inequality.’” Big D Constr. Corp. v. Court of Appeals, 163
Ariz. 560, 566, 789 P.2d 1061, 1066 (1990) (internal quotation marks
omitted); see also Metropolis Theatre Co. v. City of Chi., 228 U.S. 61, 69-70
(1913) (“The problems of government are practical ones and may justify, if
they do not require, rough accommodations, – illogical, it may be, and
unscientific.”). In other words, a legislative body “may hit at an abuse
which it has found, even though it has failed to strike at another.” United
States v. Carolene Prods. Co., 304 U.S. 144, 151 (1938); see also Ariz. Downs,
130 Ariz. at 556, 637 P.2d at 1059 (“[T]he law need not be in every respect
logically consistent with its aims to be constitutional.”).

¶37 Based on the evidence presented at trial, the superior court
properly concluded that Vong failed to prove she was treated differently
from others similarly situated or that the Board’s action lacked a rational
relationship to legitimate state interests. See Aegis of Ariz., 206 Ariz. at 570-
71, ¶ 54, 81 P.3d at 1029-30.

13
 VONG et al. v. AUNE
Opinion of the Court

III. Attorneys’ Fees and Costs

¶38 We deny Vong’s request for attorneys’ fees and costs
incurred on appeal because she is not the prevailing party. Aune requests
fees and costs pursuant to ARCAP 25 (sanctions for frivolous appeals or
appeals taken solely for delay). Although we disagree with Vong’s
substantive claims, her appeal is not frivolous, and we deny fees based on
ARCAP 25. Aune also cites ARCAP 21(c), but the version of Rule 21 in
effect at the time of Aune’s request required parties to “specifically state
the statute, rule, decisional law, contract, or other provision authorizing
an award of attorneys’ fees.” ARCAP 21(c) (2013). Aune has not done so,
and we therefore deny her fee request. Aune is, however, entitled to
recover her appellate costs upon compliance with ARCAP 21.

CONCLUSION

¶39 For the reasons stated, we affirm the judgment of the
superior court.

:gsh

14